(1) Edward Goldswain and Another v (1) Beltec Ltd (t/a BCS Consulting) (First Defendants) (2) Aims Plumbing & Building Services (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 10 March 2015 |
| Neutral Citation | [2015] EWHC 556 (TCC) |
| Docket Number | Case No: HT-14-31 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 10 March 2015 |
[2015] EWHC 556 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT-14-31
and
Gideon Scott Holland (instructed by Birketts LLP) for the Claimants
Steven Walker QC (instructed by Bond Dickinson LLP) for the First Defendants
The Second Defendant did not appear and was not represented
Hearing dates: 17–20 and 24 February 2015
This is a sad case. In 2011, Mr Goldswain and his partner Ms Hale, the Claimants, acquired a leasehold interest in a ground floor flat at 4, Stanhope Avenue, London N3 3LX, part of a pair of semi-detached houses. The flat had a cellar which they decided to convert into living accommodation by underpinning the outer walls to create more height. They retained professional engineers, Beltec Ltd ("Beltec"), at least, to design the essential structural works and later AIMS Plumbing & Heating Ltd ("AIMS") to carry out the work. AIMS started the work in September 2012 and it installed the underpinning but apparently not anything else of importance. Following increasing amounts of cracking in the superstructure in November 2012, and, following a hasty evacuation of the premises, No 4 collapsed save for a rear extension. Mr Goldswain and Ms Hale, now parents of two children (one of whom graced the hearing), have been living in a series of alternative properties since. They have brought proceedings against Beltec as well as AIMS but the latter has played no part in the proceedings and is believed to be insolvent.
The History
The freehold of No 4 Stanhope Avenue was and is owned by Ground Rent Trading 4SA Ltd. The first floor flat was owned on a long lease by Mr Krell and sublet to tenants, Mr and Mrs Selby. It was an Edwardian brick built semi-detached property, attached by a party wall to 2, Stanhope Avenue. It seems that a substantial ground and first floor extension had at some stage been built on to the rear of No. 4. The ground floor flat originally comprised two bedrooms, a sitting room, kitchen, bathroom and a single-storey extension behind the original extension, and as well as the cellar or basement area under the main part of the house. Mr Goldswain and Ms Hale bought the ground floor flat in about November 2011 and, it seems, even before they purchased the long lease, they sought permission from the freeholder to carry out the conversion work in the case. On 19 December 2011 they applied for planning permission to convert the existing basement to provide two bedrooms and a bathroom; the plans submitted indicated that, near the front of the house and the rear of the basement, light wells would be provided to bring in some natural light. They drew on the experience of a friend's father (Mr Hogan) who had converted a similar basement two doors down at No. 8 Stanhope Avenue, indeed broadly using the same plans. The planning permission was granted on 20 December 2011. They were to carry out other works in late 2011 going into 2012 and including the refitting of the existing bathroom and the installation and fitting out of a new kitchen in the rear single-storey extension.
On Mr Hogan's recommendation, Ms Hale approached Beltec by telephone on 10 February 2012 with a view to Beltec providing structural engineering services. Mr Goldswain e-mailed Mr Smith of Beltec on the same day referring to that conversation and saying that the "basement needed excavating a further 3 foot or so, tanking and a light well dug down at the front and back" and that they would "eventually like to house 2 bedrooms and a bathroom there"; he attached two plans and asked whether there was "anything else you need from us at this stage?". On 15 February 2012, Mr Smith, who was and is a chartered civil engineer, met Ms Hale and Mr Goldswain at the flat. Mr Smith carried out an inspection of the basement area and was advised that Ms Hale and Mr Goldswain required Beltec to design the conversion works for the basement. It is probable that Mr Smith either then or by telephone later recommended two possible contractors for the work (neither of whom was in fact ultimately employed to do the work); one of these contractors was a Zbigniew Kolacz.
On 17 February 2012, Mr Smith wrote to them in the following terms:
"I was pleased to meet you at the above property to discuss your requirements, with a view to providing a quotation for the structural elements of the above scheme.
We estimate to prepare details and justifying calculations, based on our conversation which I understood to be carrying out a survey of the existing basement/ground floor, designs for excavating the basement, underpinning the perimeter walls, providing support to the internal walls and structure as necessary, providing details for damp proofing and drainage, in sufficient detail to satisfy the building regulations, our fee would be £1,350 + VAT and disbursements.
The above fee allows for a single initial visit.
We trust the above information is sufficient for your immediate needs and look forward to your further instructions.
If you wish for us to proceed, could you please sign and return the attached letter of instruction and sign the agreement to our Terms and Conditions. We are unable to proceed without this being returned. At present we are able to prepare calculations within approximately 2 weeks of any instruction, obviously this can vary depending upon workload from week to week…"
The enclosed letter of instruction was returned signed by Mr Goldswain on 18 February 2012. Nothing turns on the Terms and Conditions but the signed letter said:
"This letter instructs [Beltec] to carry out structural designs in accordance with their estimate letter…
This cost being £1,350 + VAT and disbursements.
Any subsequent site visits will be charged at £200.00 + VAT per visit…"
Mr Pistilli, an Italian registered structural engineer, who worked for Beltec, was given the job of doing the design work and on 24 February 2012 with a draughtsman he visited No 4 to take measurements and take notes. Thereafter, he carried out relatively detailed calculations and prepared five drawings referenced 12065 and numbered S001 to S005, sending them on to Mr Goldswain on 5 March 2012 by e-mail and on 6 March 2012 in hard copy. His immediate reaction was that this first set of drawings did not show the light wells and Mr Pistilli said by e-mail on 6 March 2012, when this was pointed out to him, that light wells were an architectural matter and that the client could decide along with his builder where to place them. However, within several weeks it was agreed that Beltec would revise the drawings to include for the light wells, these being prepared by Mr Pistilli and sent on to Mr Goldswain on 28 March 2012. These drawings and the calculations were submitted to the local authority for Building Regulations approval some months later.
The drawings in particular showed what permanent work was to be done. In effect, from the interior of the basement the walls had to be underpinned and a reinforced concrete floor put in. In effect, new reinforced concrete foundations (the underpinning) were to be placed under the old foundations all the way round the basement and the existing floor, such as it was, lowered with the new reinforced concrete floor to be placed and tied in with the underpinning. One of the well understood problems with underpinning in these circumstances is that the earth pressures on the outside walls, here mainly the flank wall, are sufficiently large that steps had to be taken to ensure that the walls were supported against those horizontal forces at least until the whole of the reinforced concrete floor was in place so that the external walls were then, so to speak, braced to counteract the forces. It is generally recognised that it is therefore bad practice to have one continuous excavation; this is overcome usually by requiring the underpinning to be done in short (often one metre sections) at a time. These sections are and were often referred to as "pins".
Drawing S0002A was entitled "Basement Underpinning Plan". It showed a plan of the basement with each individual "pin" shown with numbers, 1 to 5, the idea being that those numbered 1 would be excavated and cast first those numbered 2 next and so on. The sequence was broadly 1, 3, 5, 2 and 4. The floor was designated as follows on the plan: "New 250 mm Thick RC Slab". At the road side of the house, at ground floor there was a bay window, albeit below ground level; in the basement there were simply the walls going down on to the earth; a light well was to be placed in effect in the area between the outside wall of the bay window and the road. The rear light well involved in effect the creation of a rectangular external area and an extension in effect of the flank wall by about 2m to create this. There was a horizontal dividing wall between two areas in the basement with two openings shown, with one piece of wall coming off the flank wall at right angles (to be underpinned), two central pieces of wall also to be underpinned and a third segment of wall at right angles to the party wall also to be underpinned. There were Notes on this Drawing, the material ones being:
" UNDERPINNING METHOD STATEMENT
1. Divide overall length of wall into 1m length as shown on drawing, work sequence to be such that the wall is adequately supported at all times.
2. Excavate pins in order shown.
3. Construct basement slab section + kicker.
4. Construct wall section. Leave 24 hours (600 mm reinforcement to be driven to the next section).
5. At mid-height prop pin horizontally against internal 'dumpling' or...
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