Baylis Farms Ltd v R B Dymott Builders Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice McCombe |
| Judgment Date | 14 May 2010 |
| Neutral Citation | [2010] EWHC 3886 (QB) |
| Docket Number | Claim No: CC/2009/APP/0752 |
| Court | Queen's Bench Division |
| Date | 14 May 2010 |
[2010] EWHC 3886 (QB)
IN THE HIGH COURTS OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice McCombe
Claim No: CC/2009/APP/0752
Mr Saleem Khald (instructed by Garbitas Robins) appeared on behalf of the Claimant/Applicant
Mr Andrew Fenn (instructed by Lightfoots) appeared on behalf of the Defendant/Respondent
Approved Judgment
In this case the Appellants, Baylis Farms Limited, appeals, with permission granted by Eady J from a decision of 3 rd December 2009, of His Honour Judge Harris QC, sitting at the Oxford County Court, whereby the Learned Judge gave judgment in favour of the Respondent, R B Dymott Builders Limited against the Appellant in the final sum of £5,253.83. The sum was made up of the principal sum of £4,933.83 plus interest of £400 less £80 awarded in favour of the Appellant on its counterclaim. The Appellant was ordered to pay the Claimant's costs of the action assessed at £14,500.
The Respondent, as its name indicates, is a company carrying on business as general builders and its claim in the proceedings was in respect of unpaid invoices rendered in respect of works carried out at the Appellant's premises. The Appellant counterclaimed in respect of allegedly defective work carried out in relation to three aspects of the work contracted for. These were in respect of the construction of a drain from a new lavatory constructed in one of the Appellant's buildings; a leaking cistern system in the lavatory and some defective doors. The counterclaims were for some £2,500, £500 and £80 respectively. There was no issue as to the amounts of the Respondent's invoices themselves, which were the subject of the Respondent's claim and related to the other aspects of the works that had been carried out.
The judge gave judgment accordingly on the claim, but found against the Appellant on its counterclaim save in respect of the sum of £80 or perhaps £40, a matter that remained slightly unclear even at the hearing of the appeal, relating to the defects in the doors.
The works carried out for the Appellant by the Respondent in 2007 and 2008 were works of conversion and improvement of the premises, including the creation of an old dairy building of an office, lavatory and kitchen. The work was done on the basis of oral instructions given by the Appellant to the Respondent from time to time. There was no written building agreement. Invoices were paid in the ordinary course for some period and the works were completed in about early 2008.
In the summer of that year, however, the Appellant ceased to pay the invoices being tendered. Towards the end of that year correspondence began between the parties. The initial complaint raised by the Appellant was by a letter of 11 th December 2008, when it complained of defective plumbing behind the new lavatory system. There then followed a complaint about the doors. These complaints continued into the New Year. Then, on 27 th January 2008, the Respondent threatened proceedings in respect of the unpaid invoices. That produced a letter from the Appellant in the following terms, the letter being dated 29 th January 2009:
“I would like to refer you to my letter of 19 th January 2009 which outlines the issues, and also to be more explicit in stating there are continuing problems with the drains.
I am now in possession of quotes to carry out the necessary repairs, and unless you commence work within 7 days of this letter, I will instruct another company to complete the work.”
The drain in issue, which was to become the subject of the main part of the counterclaim and indeed, the main part of the trial before the judge, was the one constructed between the new lavatory and the old dairy building through an existing run of drain leading to a septic tank called a Klargester tank. That tank had previously been sunk into the land by or on behalf of the Appellant without the involvement of the Respondent. It does not seem to have been in dispute that the Respondents had originally intended to construct the necessary new drain directly from the new WC to the tank. However, Mr Baylis, of the Appellants, wanted the drain to be laid by way of a connection to an existing manhole outside another building on the site and from there into the pre-existing drain to the Klargester tank. The judge found that there was:
“… a manhole in an existing drainage pipe leading to the Klargester tank. Mr Baylis wanted Mr Dymott to connect to that via a manhole which was outside the office building which stood opposite the old dairy. This was because he had it in mind to carry out works at the office which would also require drainage. So the drainage line which was envisaged by Mr Baylis was one which went approximately 10m between the old dairy and the office to an existing manhole or manholes (two are shown on the plan) and then ran off at, roughly speaking, a north-north-western angle from the corner of the office to meet a line running into the Klargester tank.”
At the hearing of the appeal a dispute developed between the parties as to whether the judge had been correct to describe Mr Baylis's desire as being for the pipe to be laid from the dairy to the office and thence to an existing manhole and the drain to the Klargester tank. The stance taken by Mr Ross QC, who appeared with Mr Khalid for the Appellant (Mr Ross appearing for the first time on the appeal rather than the trial) was that Mr Baylis's only wish was for the drain running to the dairy to the office and thence to the tank. He had not, it was said, expressed a desire for the second part of the route to go to a supposedly existing manhole and the existing drain. Mr Ross said that, the true position was that Mr Baylis had left it for the Respondent to determine the line of the drain from the office building to the tank. Mr Ross submitted there was, at the outset, no, “existing manhole” in the old drain. He relied for this purpose on a diagram superimposed upon a Google Earth photograph of the site, prepared by the expert witness, Mr Walker, referring to a “New manhole” on the existing drain.
An examination of the evidence, however, revealed that the parties were agreed that there was an existing manhole in the old drain to the tank and that the expert's diagram had been in error in referring to a new manhole at this point. Mr Baylis agreed that the manhole shown on the existing drain on the diagram was there before Mr Dymott came onto the site (see page 21 of the appeal bundle, lines 39 to 41). Mr Baylis was adamant, however, that he had not asked for the drain to be laid to that existing manhole (see page 73, lines 3 to 7). The judge, however, found against Mr Baylis on that issue in the passage that I have quoted from his judgment.
It was effectively common ground, supported by the expert evidence of the single joint surveying expert, Mr Walker, whom I have already mentioned, that the drain so laid along the second part of the route (from the office to the existing manhole cover on the existing drain) did not produce the fall that would be required by good building practice and/or by building regulations. Mr Walker's opinion was clear, that the drain so laid was, “Not fit for purpose.” He found that the first run from the dairy to the office was adequate, but the second run from the office to the existing drain was not. That run had a fall of about 1 in 200, which he described as being almost level with the ground, against a desirable fall of about 1 in 40 in an actual fall of about 1 in 50 on the first run. However, there was a significant dispute of fact as to what, if anything, had been said between the parties about this problem at the time when the drain was about to be laid. It was the Respondent's case that a groundwork sub-contractor engaged by the Respondent, a Mr Nick Whitfield, informed Mr Dymott of the Appellant company, that the falls of the proposed new drain would be inadequate. In his witness statement for the trial, verified in evidence, Mr Dymott said this about the conversation with Mr Baylis of the Appellant company:
“At that time we had Nicholas, or Nick Whitfield, a self-employed ground worker working for us. He reported that because of the position of the existing drains on site then it would not be possible to lay a new drain from the Dairy to connect into the existing system with as good a drop as he would like. I discussed this with Mr Baylis on the site in the presence of others, and he asked me whether it was workable to lay a drain just with such a drop as could be achieved. I replied to the effect that it might not be ideal, but in my opinion from experience it should still work. Mr Baylis told me to go ahead with that.”
Mr Whitfield said this in his statement, also verified in evidence at trial:
“I did measurements for this to find out what ‘drop’ (angle of fall) would be necessary to connect up to the existing drainage system and found it would not be possible to lay the new drain with a 1:40 drop that is normally required. I brought this to Mr Barry Dymott's attention who discussed this with Mr Baylis in my presence on site. Mr Dymott explained the problem but Mr Baylis instructed him to go ahead anyway and lay the drain with a less than 1:40 drop. So that is what we did.”
Finally, there was a self-employed carpenter engaged on the works who also said he had been present on the site at the time of the relevant conversation and in his statement he said the...
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Was The Warning Given By The Builder Sufficient To Exclude Any Implied Fitness For Purpose Obligation?
...Justice McCombe in the case of Baylis Farms Ltd v R B Dymott Builders Ltd, [2010] EWHC 3886 (QB), had to consider to whether a drain was fit for its purpose and/or whether the builder had given a sufficiently clear warning about the risks of proceeding with the construction of the drain suc......