BDW Trading Ltd v Lantoom Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford DBE |
| Judgment Date | 03 February 2023 |
| Neutral Citation | [2023] EWHC 183 (TCC) |
| Docket Number | Case No: HT-2018-000344 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 183 (TCC)
Mrs Justice Jefford DBE
Case No: HT-2018-000344
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Rupert Choat (instructed by Ashfords LLP) for the Claimant
Jennifer Jones (instructed by Stephens Scown LLP) for the Defendant
Hearing dates: 14 January, 18 to 21 January, 2 February, 26 to 28 April, 12 August 2021
Judgment Approved by the court for handing down
Remote hand-down: This judgment will be handed down remotely by circulation to the parties or their representatives by email and release to The National Archives. A copy of the judgment in final form as handed down should be available on The National Archives website shortly thereafter but can otherwise be obtained on request by email to the Judicial Office ( press.enquiries@judiciary.uk). The deemed time and date of hand down is 10.30am on Friday 3 rd February 2023.
Introduction
This litigation arises out of the construction of a housing development known as Penndrumm Fields in St Martin, Looe, Cornwall (“the Site”). The dispute is concerned with Phase 1 which was constructed between 2012 and 2015.
The claimant, BDW Trading Limited (“BDW”), is a national housebuilder and undertook this development under the Barratt Homes brand. The defendant, Lantoom Limited (“Lantoom”), is a local quarrying business and supplier of stone.
40 of the houses in Phase 1 were built to a number of standard designs which to a greater or lesser extent used stone as the external leaf of cavity walls.
From 2014, householders noted stone cracking, spalling and falling away. It is BDW's case that from November 2015, after customer reports were made, it recognised that there was a problem and began to investigate. Those investigations included the instruction of Hydrock Consultants Ltd. who inspected and reported on the houses, and the instruction of Mr Richardson, who acted as BDW's expert in this litigation. BDW concluded that the stone itself was the cause of the problems and proceeded to replace all of the stone with stone from a different quarry, Yennadon. Proceedings were issued in 2018.
The trial
Prior to the trial, the parties agreed a list of issues for trial. This was a lengthy and detailed document which sought to address all possible alternative cases. 32 issues were identified with numerous sub-issues and the document ran to 7 pages. Despite its agreement, there was some dispute as to the extent to which the issues raised under issue no. 19 were, in fact, pleaded and a supplemental document was produced by Lantoom to clarify what allegations were pleaded and pursued. The list of issues is appended to this judgment with my decisions, as necessary, on the issues, but I have not found it particularly helpful to follow the structure of the list of issues for the purposes of this judgment and nor has it been necessary to answer every question raised.
The trial commenced in January 2021 as a hybrid hearing, with counsel present in court at all times and witnesses giving their evidence either in person or by video-link. The experts all gave their evidence in person. The progress of the trial was disrupted, and in the event it spread over 8 months, as a consequence of the Covid pandemic, other illnesses and bereavements and, sadly, the death of the defendant's quantum expert. As a result, I directed that a decision on liability should be made first.
Witnesses
BDW called the following witnesses:
(i) Brian Avery, who was employed as a buyer by BDW with primary responsibility for the Plymouth and Cornwall area. He retired in 2013.
(ii) Philip Havenhand, who was employed by BDW as a forklift truck driver and had worked for the Exeter Division between 2010 and 2012.
(iii) Stephen Kent who is a Director of KCC Builders Ltd. (“KCC”). KCC were engaged by BDW on the Site and carried out, amongst other things, the construction of the stonework in issue in this dispute. Mr Kent's evidence was that KCC employs about 30 staff all of whom are qualified bricklayers with experience in stone work.
(iv) Timothy Davies who has been BDW's Construction Director for the South West Region since 2015.
(v) David Wallace who is the joint owner of Yennadon Stone Ltd. which operates the Yennadon Quarry in Yelverton, Devon. Stone from this quarry was used in the carrying out of remedial works.
(vi) Kate Smallwood, Head of Customer Care for BDW.
(vii) Daniel Mountstevens, a Quantity Surveyor employed by BDW since 2016.
Lantoom called three witnesses:
(i) Simon Bright. Mr Bright had been involved in the construction industry for over 35 years. He is a qualified bricklayer. He had moved to Cornwall over 25 years ago and learnt how to build with natural stone. For 20 years he owned and managed a construction company in Cornwall, building residential and commercial buildings. The examples of projects that he gave in his witness statement included the construction of 103 homes in Penryn for Taylor Wimpey, almost all of which had natural stone on them. He is now a part-time lecturer at Truro-Penwith College. His evidence was in the nature of expert evidence about the construction of a natural stone wall but no objection was taken to the admission of this evidence.
(ii) Richard Crocker. Mr Crocker is the Managing Director of the defendant and has held that role since 2007. He described himself as a third-generation quarryman. He has a degree in engineering and then qualified as a chartered accountant, working at Ernst & Young until 1996. From 1996 to 2002 he was company secretary for the Roseland Group of Companies, a family group undertaking various quarrying operations. After those businesses were sold in 2002, he was involved in a number of start-ups outside the quarrying industry, although he remained company secretary of Lantoom and eventually took over as Managing Director.
(iii) William Hugh is the Financial Controller of the defendant, having joined the company in 2010. He holds various qualifications in accounting.
Experts
Both parties called two expert witnesses in geology and engineering.
David Richardson
On geology, BDW's expert was David Richardson. He produced a first Report and a Responsive Report. Mr Richardson was first instructed by BDW in 2016 to investigate issues with the stone and in February 2018 was instructed to act as their geology expert. He holds a BSc in Geology/Geography and an MSc in Geomaterials. He is a Chartered Geologist and a Fellow of the Geological Society of London. Following on from his academic qualifications, Mr Richardson has worked as a geologist since 1985 and specialised in construction materials, including dimension stone, since 1987. For 10 years he was a director at the Building Research Establishment and head of the Building Technology Group. He left to set up his own consultancy, Diagenesis Consulting Ltd.
Mr Richardson gave his evidence in an assured and measured way and was prepared to make appropriate concessions. On occasion he may have appeared a little over-confident in his evidence but I took that as an indication that he was confident in the views he expressed and the manner in which he had reached his conclusions and, as a reaction to Mr Hunt's criticisms which Mr Richardson regarded as wholly unfounded.
Ms Jones identified a number of matters arising from Mr Richardson's report which she submitted ought to at least make the court wary of accepting his evidence:
Firstly, within Mr Richardson's Responsive Report, there was a paragraph (paragraph 3.2.9) which addressed concerns expressed by Mr Hunt that the natural fissility of the Lantoom stone – that is its propensity to split along planes in the stone – had been impacted by the treatment of the stone when removed from the properties. Mr Richardson noted that during the process of deconstruction in December 2020, a very high proportion of the stone was retrieved damaged or broken, adding “not because of rough handling but either due to the nature of removing such stone or the weaknesses in the stone itself, now no longer held together within the structure of the walls” Following this sentence, there was, in square brackets, the question “David – could we say this?”. I note that it was not otherwise highlighted – for example by being in bold or some different colour type. This appeared to be a question from the legal team and seemed to suggest that some part of the sentence had been drafted by a member of the legal team although there was nothing to indicate which part. When asked about this in cross-examination, however, Mr Richardson said that he had drafted this paragraph. Given the nature of the query, he was pressed on this and said that there was a need to clarify whether the weakness was present in or out of the wall. He said he had not noticed the comment. He was asked if there were “any other sections” of his report that he did not write and his short answer was “No”.
Ms Jones rightly recognised that there may be nothing objectionable in lawyers commenting on reports. However, she submitted, it should be of concern that an expert had not noticed a drafting suggestion and that carelessness was not acceptable in this context.
In my view, the real question was whether or not this sentence represented Mr Richardson's true opinion. I have no doubt that it did and that, if any part of the sentence was a drafting suggestion from others, it was one that accorded with Mr Richardson's opinion. Ms Jones' cross-examination was intended to raise the prospect that there were other aspects of Mr Richardson's report which had been written by others and did not reflect his true opinion. I can see no basis...
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