Acrecrest Ltd v W.S. Hattrell & Partners
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE DONALDSON,SIR DAVID CAIRNS |
| Judgment Date | 22 July 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0722-1 |
| Docket Number | 82/0291 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1982 |
[1982] EWCA Civ J0722-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR DOUGLAS FRANK Q.C., Sitting as a Deputy Judge of the Queen's Bench Division)
Royal Courts of Justice
Lord Justice Stephenson
Lord Justice Donaldson
(not present at reading of Judgment)
and
Sir David Cairns
82/0291
1976 A No. 4320
and
and
MR. G. MORIARTY Q.C. and MR. J. TACKABERRY Q.C. (instructed by Messrs. Barlow Lyde & Gilbert, Solicitors, London EC4R 2SJ) appeared on behalf of the Second Defendants/Third Party (Appellants).
MR. C. BATHURST Q.C. and MR. R. FERNYHOUGH (instructed by Messrs. Reynolds Porter & Chamberlain, Solicitors, London WCIV 7HA) appeared on behalf of the First Defendants (Respondents).
The plaintiffs, Acrecrest Ltd., own land in Spencer Road in the London Borough of Harrow. They developed the land by building on it ten 2-storey flats and garages. They did not themselves build the flats, but in 1971 employed builders, of whom we know nothing except that the plaintiffs did not think them worth suing, and architects, whom they did think worth suing and have sued successfully—the first defendants, W.H. Hattrell and Partners.
The flats and garages were built in 1972 and let by the plaintiffs to tenants on long leases. In 1973 cracks began to appear in the buildings, the tenants made claims against the plaintiffs and in 1976 the plaintiffs brought proceedings against the architects for negligence and breach of contract. The cause of the trouble was undoubtedly, as in other cases which have come before the courts, the foundations. These had been inspected in the course of the work by an inspector employed by the local authority, the London Borough of Harrow, who are the second defendants. In January 1972 the architects claimed contribution amounting to an indemnity from the authority by a third party notice under the Law Reform (Married Women and Tortfeasors) Act 1935. The plaintiff joined the authority as a defendant and in September 1977 the authority served defences to the plaintiffs' claim.
The plaintiffs' action against the two of them came on for trial before Sir Douglas Frank, Q.C., sitting as an additional judge of the Queen's Bench Division, in July 1979. After the first week the plaintiffs obtained judgment by consent against the architects for £67,500 and leave to discontinue against the authority. That left the architects' claim for contribution against the authority, on which the judge decided that the architects should recover not the whole sum for which the plaintiffs had settled their claim against them, but 25% of it, the architects themselves being 75% responsible in respect of the plaintiffs' damage.
It is against that order for contribution that the authority appeals to this court, contending either that the authority owed no duty to the plaintiffs, or that if they did their admitted breach of duty made a nil contribution to the plaintiffs' damage and should be reduced from 25% to a lower or minimal figure, or nothing.
The second of these questions seems to me, with all respect to Mr. Tackaberry, who argued it for the appellant authority, unarguable; but the first question is one of general interest and importance to building owners and local authorities, on which we have heard far-reaching submissions by Mr. Moriarty for the authority and Mr. Bathurst for the respondent architects.
The facts are not in dispute. The soil of the building site was clay. There were trees growing on the site and near the site; on the site fruit trees which had to be removed, near the site poplars which were pollarded and elm trees which were soon to die of Dutch elm disease.
The first specification prepared by the architects and the builders provided for strip foundations 1,070 mm. or 3 ft. 6 ins. deep. In order to reduce the cost of the works the plaintiffs asked the builders to alter the specified foundations by substituting 914 mm. or 3 ft. deep strip foundations for the buildings, and 500 x 300 mm. strip foundations beneath 114 mm. load-bearing walls. Informed of this request, the architects sent the builders articles of agreement in the standard form and a revised specification, the relevant part of which reads:
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"05. Strip foundations of flats to be concrete, 750 X 300 mm. mass, load-hearing walls. Depth from ground to beneath underside to he 914 mm. or as required by the Building Inspector.
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06. Strip foundations of garage outer walls to he 450 X 150 mm, mass concrete. Depth from ground to underside to he 610 mm. or as required by the Building Inspector".
In 05 the words "as required by the Building Inspector" were struck through. It is common ground that the purpose of striking through those words was not that the building inspector's instructions were to be disobeyed but to ensure that if the building inspector required wider or deeper foundations the builder would be paid for them.
In the first week of 1972 building began and on the 7th January a building inspector employed by the authority, in response to notice from the builders, inspected the foundation trenches and, finding tree roots, gave instructions to the builders that in part of the site the foundations were to be dug to a depth of 5 ft. minimum, but elsewhere they were to be at depths of 3 ft. 6 ins. to 4 ft. Neither the builders nor the inspector gave evidence, and these instructions were inferred from documents before the judge and accepted. The same is true of the judge's conclusion that extra work to the foundations, as required by the inspector, was done by the authorities and paid for in the sum of about £220. There is no challenge to the judge's further finding that the architects knew of the inspector's requirements and authorised the builders to comply with them.
Unhappily the inspector's requirements were inadequate and did not comply with the relevant Building Regulations of 1965 ( Statutory Instrument 1965 No. 1373). Those regulations were made by the Ministry of Public Buildings and Works under (inter alia) section 61 of the Public Health Act 1936 as amended by (inter alia) section 4 of the Public Health Act 1961, and take the place of bye-laws formerly made by local authorities. Regulation D3 applied to the erection of these buildings by Regulation A5, provides:
"The foundation of a building shall—
(a) safely sustain and transmit to the ground the combined dead load and imposed load in such a manner as not to cause any settlement or other movement which would impair the stability of, or cause damage to, the whole or any part of the building or of any adjoining building or works; and
(b) be taken down to such a depth, or be so constructed, as to safeguard the building against damage by swelling, shrinking or freezing of the subsoil".
The plaintiffs' case, as originally pleaded against both defendants and as supported by expert evidence, was that this clay subsoil had shrunk and caused settlement; but the defendants' experts' evidence, which the judge accepted, was that the cracks were caused by swelling of the subsoil, or "heave", caused by the clay absorbing water which had previously been absorbed by the trees removed from the site and the elms near the site when they were alive and healthy, and by the poplars near the site before they were pollarded. This alternative explanation was covered by a reamendment of the plaintiffs' statement of claim, and it made no difference to the liability of either defendant whether the buildings were forced up or subsided. For the architects in their amended defence admitted "that having regard to the number, nature and position of trees on the site the first defendants ought to have designed the building with uniform foundations to a depth of 5 feet and that they were in. breach of contract and negligent in designing foundations of lesser depth".
The authority did not admit liability in either of their defences—or even in the reamendments of their defences to the third party notice which the judge apparently did not allow (the tape and counsel's recollection are equally unable to provide certainty on the point); but the judge found that the architects' partner responsible had specified foundations 3 ft. 6 ins. deep instead of the conventional 3 ft. because he recognised the risks inherent in a London clay subsoil planted with trees, and he concluded that the authority's inspector did not take reasonable care in the context of Building Regulation D3 in that "he would have required the foundations to be 5 feet deep all round" if he had complied with Regulation D3(b). And that conclusion, challenged in the notice of appeal, was accepted before us without argument.
Many other grounds of appeal appearing in that notice have not been pursued and I hope I do Mr. Moriarty no injustice if I confine this judgment to those under the first head which are lettered A, C, D, E and J.
"The learned judge erred in law—(A) In holding that the Second Defendant owed a duty of care to the Plaintiff in connection with the execution of building works by or on behalf of the Plaintiff at all: alternatively that such a duty is owed where the Plaintiff instructs a firm of architects to design and supervise the execution of the relevant building works;
(C) In refusing to hold that the Plaintiff was itself under a statutory duty to comply with the Building Regulations;
(D) In refusing to...
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