Alexander v Mercouris

JurisdictionEngland & Wales
Judgment Date23 May 1979
Neutral Citation[1979] EWCA Civ J0523-5
CourtCourt of Appeal (Civil Division)
Docket Number1975 A No. 6760
Date23 May 1979

[1979] EWCA Civ J0523-5

In The Supreme Court of Judicature

Court of Appeal (Civil Division)

On Appeal from The High Court of Justice

Chancery Division

Group A

(Mr. Justice Walton)


Lord Justice Buckley

Lord Justice Goff


Lord Justice Waller

1975 A No. 6760
John Alexander and Eileen Julia Alexander (his wife)
Spiro Mercouris and Costas Mavrommatis

MR. MICHAEL BROWNE Q.C. and MR. GEOFFREY JAQUES (instructed by Messrs Lewis & Dick, Solicitors, London WCR 1KZ, agents for Messrs. Zabell & Co., Solicitors, Cheam) appeared on behalf of the Plaintiffs (Appellants).

MR. ANDREW BANO (instructed by Messrs. B.N. Birnberg & Co., Solicitors, London SE1 1NL) appeared on behalf of the Defendants (Respondents).


This is an appeal from a decision of Mr. Justice Walton on 22nd June of last year, on a preliminary issue arising on the construction and effect of the Defective Premises Act 1972. The relevant facts can he concisely stated.


On 20th November 1972 the first plaintiff, Mr. John Alexander, entered into an agreement with the defendants that the defendants would make the necessary arrangements for the purchase by the first plaintiff of 96 Palace Gates Road, London N.22, for the modernisation of that property and its conversion into two self-contained flats at a particular stipulated cost, including all the services therein mentioned or in any way necessary for the completion of that project. The defendants entered into that agreement in the course of their business, which consisted of, or included, providing or arranging for the provision of dwellings. They appointed a supervising officer and, in accordance with arrangements they had made, the first plaintiff entered into a building agreement with a firm of builders for the completion of the project. It was completed on or about 27th February 1974, when the supervising officer certified that the project was practically completed.


In the meantime the Defective Premises Act 1972, which had been enacted on 29th June 1972, came into force on 1st January 1974, that being the commencement date fixed for the Act by section 7 (2). The plaintiffs allege that in breach of a statutory duty imposed upon the defendants by that Act the defendants have failed to see that the work comprised in the project was done in a professional manner, and that it was done with proper materials, and that they had failed to see that the premises were handed over in a condition fit for habitation when the project had been completed.


By an order of 12th May 1978, Master Cholmondeley-Clarke ordered that the following question be tried as a preliminary issue in the action, that is to say, whether section 1 of the Act applies to the agreement of 20th November 1972, and the work carried out thereunder. The defendants concede, for the purposes of that preliminary issue, that the agreement was entered into in the course of their business. The learned judge, Mr. Justice Walton, answered that question in the negative and dismissed the action.


Section 1 (1) of the Act is in the following terms: "A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty - (a) if the dwelling is provided to the order of any person, to that person; and (b) without prejudice to paragraph (a) above to every person who acquires an interest (whether legal or equitable)in the dwelling; to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed". The learned judge took the view that that section applies only in a case in which the person sought to be made liable had taken on the relevant work after the commencement of the Act; he regarded the agreement as being the act of taking on the work in the present case and, since that agreement antedated the commencement of the Act, he held that the Act did not apply to the defendants.


The plaintiffs appeal on the ground that the learned judge erred in holding that the date of the agreement and not the date of the completion of the dwellings was the relevant date fordetermining whether the Act applied.


The appellants have contended that the Act creates a single and continuing duty, which is not either completely performed or breached until the work has been completed It is, they say, a duty to provide a dwelling which is fit for habitation by work done in a workmanlike or professional manner with proper materials. If work taken on is not completed until after 1st January 1974, the statutory duty becomes enforceable after the commencement of the Act which, when so construed, does not, the appellants submit, have a retro-active effect.


The respondents, on the other hand, contend that upon the language of the section the statutory duty arises when a person takes on work for or in connection with the provision of a dwelling, and continues throughout the course of the work, so that when the work is completed it will have been done in a workmanlike manner with proper materials and the dwelling will be fit for habitation. They say that the appellants' construction involves giving the Act a retro-active effect and should therefore be discarded.


The Act creates new statutory duties and new statutory rights and obligations. These are quite distinct from rights existing at common law in contract or negligence, although they may in many respects resemble and overlap such common law rights. Moreover, the Act may create such duties, rights and obligations between parties between whom they would not exist at common law: see Section 1 (1) (b), which I have already read, and subsection (4), which provides as follows: "A person who - (a) in the course of a business which consists of or includes providing or arranging for the provision of dwellings or installations in dwellings; or (b) in the exercise of a power of making such provision orarrangements conferred by or by virtue of any enactment; arranges for another to take on work for or in connection with the provision of a dwelling shall be treated for the purposes of this section as included among the persons who have taken on the work".


Whenever new rights or obligations are created by statute, anomalies will inevitably arise initially, whatever date is found to be the earliest date at which the new duties, rights or obligations can arise, it will be possible to suggest instances in which one man will escape liability by a day and another, who has followed an exactly similar course of action but 24 hours later, will find himself liable In such a case an argument by reference to anomalies is, in my opinion, unlikely to be helpful, and I think the question is purely one of interpretation of the statute.


The Act employs the rather unusual expression "A person taking on work". This must, I think, be because it is intended to apply not only to cases in which a contractual obligation to work exists, but also to cases in which the work may be done without...

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7 cases
  • Catlin Estates Ltd v Carter Jonas (A Firm)
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 31 October 2005
    ...Lewis QC in Thompson v Clive Alexander & Partners. It is founded on the observations made by three Lords Justices in the case of Alexander & Anor v Mercouris [1979] 1 WLR 1270. As I understand the decision which was followed by Judge Lewis QC, is encapsulated in a passage which he cites fro......
  • Harrison and Others v Shepherd Homes Ltd and Others
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 11 July 2011 the way in which the Claimants submit it should be construed because this court is bound by the decision of the Court of Appeal in Alexander v Mercouris [1979] 1 WLR 1270, as was recognised by His Honour Judge Esyr Lewis QC in Thompson v Alexander (1992) 59 BLR 77. 128 The Claimants cont......
  • Bole and another v Huntsbuild Ltd and another
    • United Kingdom
    • Queen's Bench Division (Technology and Construction Court)
    • 13 March 2009
    ...Act 1963 to have accrued at the time when the dwelling was completed…” 14 Although the cause of action may arise earlier, see Alexander v Mercouris [1979] 1 WLR 1270 at 1277, on a proper construction of this sub-section, time only begins to run for the purpose of limitation from the time wh......
  • Andrews v Schooling
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 March 1991
    ...25 Counsel have been unable to find any authority directly in point. The only authority on the Act to which we were referred was Alexander v. Mercouris [1979] 1 W.L.R. 1270, in which this court held that "…the duty under the subsection [1(1) of the Defective Premises Act 1972] normally aros......
  • Request a trial to view additional results

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