Bole and another v Huntsbuild Ltd and another
| Jurisdiction | England & Wales |
| Judgment Date | 13 March 2009 |
| Neutral Citation | [2009] EWHC 483 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 March 2009 |
| Docket Number | Case No: HT-08-46 |
[2009] EWHC 483 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
St Dunstan's House
133-137 Fetter Lane
London, EC4A 1HD
HIS HONOUR JUDGE TOULMIN CMG QC
Before : His Honour Judge Toulmin CMG QC
Case No: HT-08-46
Mr Daniel Crowley (instructed by Plexus Law) for the Claimants
The First Defendant did not appear and was not represented
Mr Riaz Hussain (instructed by Browne Jacobson) for the 2nd Defendant
Hearing dates: 1–4 & 16 December 2008
HHJ John Toulmin CMG QC :
This case concerns a claim for loss and damage to a house built at 52 Low Road, Little Stukeley, Huntingdon, Cambridgeshire (the property) by the First Defendant contractors, Huntsbuild Ltd (Huntsbuild). There was an alternative claim for diminution of value but this has not been pursued. The property was purchased by the Claimants in late September 2001. I shall (with her agreement) refer to Mrs Bole by her married name although the action is brought by her in her unmarried name.
The property is a substantial detached house with most attractive views over the surrounding countryside. Prior to the construction of the property, a willow tree and a row of conifer trees were removed from the site before excavations were carried out and foundations to the property were laid by Huntsbuild. In carrying out the work Huntsbuild relied for the construction of the foundations on advice, including drawings, from a firm of structural engineers, Richard Money Associates (RMA), whose principal is Richard Money. RMA are the Second Defendants. Unfortunately, as is agreed by the experts, Mr Allen for Mr and Mrs Bole and Mr Edward for RMA, cracking has occurred to the property caused by heave resulting from the inadequate depth of the foundations on which the house was built.
Mr and Mrs Bole bring claims against Huntsbuild for breach of contract and for breach of the Defective Premises Act 1972 ( DPA) claiming that it failed to build the house in a workmanlike manner. Originally they also brought a claim against Huntsbuild in negligence. They are not pursuing this aspect of the claim but are relying on the claim in contract.
Mr and Mrs Bole bring their claim against RMA only under the DPA claiming that RMA failed to carry out its work in a professional manner. Against both the builder and the structural engineers they claim that as a consequence of these alleged failures under the Act, the property, as built, was and is unfit for habitation.
Huntsbuild (who have taken no part in the trial) contends in its defence that it was under an obligation to construct the foundations in accordance with the specification and in accordance with RMA's drawings 98/1807–4.02 as revised in December 1999 and that it did so. It denies that the property as built was unfit for habitation and therefore that there was a breach of the Defective Premises Act 1972.
RMA admits that it gave relevant advice for the purposes of Section 1 of the DPA and that it therefore owed a duty to Mr and Mrs Bole to carry out the work in a professional manner in order to comply with the DPA, but it denies that the work was not of a professional standard. It claims that the depths specified in the drawings were minimum depths. It also contends that it was entitled to assume that Huntsbuild would carry out the recommendations in the Site Report which accompanied the drawings, and would a) look for evidence of roots and desiccation while excavating, b) lay the foundations at least 0.5m below the last roots and/or signs of desiccated clay and c) understand that since there was potential for heave, precautions against heave were essential. In so far as compliance with the National House Builders Council (NHBC) guidance was required, it claims that its Site Report expressly directed Huntsbuild to carry out its work to NHBC requirements.
RMA further contends that on a proper construction of the DPA, the dwelling was fit for human habitation as built and is a functioning and serviceable residence. It points particularly to the fact that Mr and Mrs Bole have been living in the property continuously since they bought the property in 2001, and continue to do so. In relation to the remedial works that need to be carried out, RMA contends that the remedial works will only involve structural cracking repairs and redecoration and will not require underpinning. Mr and Mrs Bole contend that underpinning needs to take place to stabilise the property.
In its re-amended pleading, RMA also contends that not all the alleged defects relate to movement were caused by inadequate foundations. In this respect the parties have managed to reach agreement and I exclude from my consideration those defects which, it is agreed, were not caused by inadequate foundations.
I heard oral evidence of fact from Mr and Mrs Bole, Mr Money, and briefly from Mr Hubbard of Cunningham Lindsey, loss adjusters, who also took some photographs. I conclude that all the witnesses were doing their best to assist the court. Mr Allen and Mr Edward gave expert evidence. Although in due course I shall have to resolve the differences between them, I should emphasise at this stage that the way in which they have co-operated to reach a substantial measure of agreement has not only greatly assisted the court but saved the parties a significant sum in costs.
The Issues
The following issues have been specifically identified by the parties:
i) Was Huntsbuild in breach of contract or in breach of the Defective Premises Act 1972?
ii) Did RMA carry out its work in a professional manner in accordance with section 1 of the DPA?
iii) Was the property fit for habitation within section 1 of the DPA?
iv) What loss and damage have the Claimants suffered? In particular, if the Claimants are entitled to recover against one or both defendants,
i) For which remedial scheme can they recover?
ii) What general damages are recoverable for distress and inconvenience?
The Law
The preamble to the DPA states that its purpose is “to impose duties in connection with the provision of dwellings and otherwise to amend the law of England and Wales as to liability for injury or damage caused to persons through defects in the state of premises.”
The Second Defendant took a point on limitation throughout the proceedings and only abandoned it, in my view rightly, in Mr Hussein's final speech, although previously in correspondence the defendant's solicitors had, again rightly, conceded that the action was brought “just within the limitation period.” Since it has been fully argued I shall set out my conclusions.
Section 1 (5) of the DPA provides:
“(5) Any cause of action in respect of a breach of the duty imposed by this Section shall be deemed, for the purposes of the Limitation Act 1939, the Law Reform (Limitations of Actions, and etc) Act 1954 and the Limitation Act 1963 to have accrued at the time when the dwelling was completed…”
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 when the dwelling was completed [or later in the circumstances set out later in the sub-section].
In these circumstances, on the facts of this case, the Second Defendant rightly conceded that the claim was brought within the limitation period. In so far as I reached a different conclusion on the law in Catlin Estates v Carter Jonas [2005] EWHC 2315 (TCC) after very limited argument, the conclusion and reasoning in this judgment supersede it.
The duty imposed by the DPA is set out in Section 1:
“Section 1 (1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or the conversion or enlargement of a building) owes a duty –
i) If the dwelling is provided to the order of any person, to that person and:
ii) 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 workman-like 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.”
I note in passing that the exclusion in Section 2, in the case of a recognised scheme, does not apply since recognition of the NHBC Scheme lapsed for the purposes of Section 2. (see the commentary on Thompson v Clive Alexander [1992] 59 BLR 77 at 79)
It may be thought that the question of whether or not the house was unfit for habitation when completed would be a simple question of fact, but there is clear guidance as to how the issue should be approached in the Law Commission Report (Law Com N°.40) entitled 'Civil Liability of Vendors and Lessors for Defective Premises' published in December 1970 under the chairmanship of Sir Leslie Scarman, (with draft Bill attached) which led directly to the DPA, and in the decided cases. I shall also refer briefly to the definition in the Housing Act 1985.
Referring to the common law concept of fitness for human habitation, the Law Commission Report explains in Paragraph 13 “The implication as to fitness of purpose is most readily made in the case of a dwelling house, and in such cases, unless the surrounding circumstances clearly exclude it, the implication is that the house will be fit for human habitation”. Footnote 4 refers to the decision in Lynch v Thorne [1956] 1 WLR 303 (CA) to which I shall also refer.
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