Bolton v Mahadeva
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS,LORD JUSTICE CAIRNS,LORD JUSTICE BUCKLEY |
| Judgment Date | 13 April 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0413-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 April 1972 |
[1972] EWCA Civ J0413-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Lord Justice Sachs
Lord Justice Buckley and
Lord Justice Cairns
The Appellant (Defendant) appeared in person.
Mr Timothy Stow (instructed by Messrs Kingsley Wood & Co.) appeared on behalf of the Respondent (Plaintiff).
I will ask Lord Justice Cairns to deliver the first Judgment.
This is an appeal from a Judgment of Sir Graeme Fialay, sitting as Deputy County Court Judge at the Brentford County Court. The Judgment was delivered on the 30th September, 1971, after a hearing which had taken some 2½ days earlier in that month. It was a Judgment in favour of the Plaintiff in an action for work done and materials supplied in connection with central heating installation and other work at the Defendant's house. The Judgment was for a net sum of 31.50, with costs on Scale 3. The Defendant appeals, contending that Judgment should have been given for him; and he sought to amend the notice of appeal to say that the Judge was in any event wrong in awarding all the costs to the Plaintiff.
The action was founded on a lump-sum contract, together with certain items of extras. The defence was that the Plaintiff had wholly failed to perform the main contract, and the Defence set out extensive particulars of defects in the work. It was admitted that a small sum was due for extras consisting of the preparation of a bathroom suite, but the Defendant contended that the consideration for the main contract had wholly failed. Alternatively, he claimed to set off a sum counterclaimed in respect of making good the defects. By his Reply, the Plaintiff conceded that there were some small defects for which the Defendant was entitled to a set-off, but otherwise he denied all the Defendant's allegations. The Defence was afterwards amended to allege further defects, and the Reply to make certain further concessions, but these involve no important change in the attitude of the parties.
The action had been commenced in the High Court. Itwas remitted, under Section 45 of the County Courts Act, to the County Court. Before the trial, the Defendant had paid 400 into Court. The formal Judgment referred to this and ordered A that the balance of 31.50 should be paid within fourteen days. The Defendant afterwards challenged the form of this Judgment, but it was ordered to stand.
Now, the 431.50 for which Judgment was given was made up in this way: The contract price for the central heating installation was 560. The Judge held that because of deficiencies in the performance of the work the Defendant was entitled to set off against that sum 174.50, leaving a balance of 385.50. In respect of extras, the Judge held that 76 would be a reasonable price for the work, but here again there were some defects which he assessed at 15, leaving a balance of 61. Adding that to the 385.50, he arrived at a total of 446.50. Then he set off a further 15 representing damages for inconvenience to the Defendant, and that left a balance of 431.50 for which Judgment was given.
The notice of appeal set out the following grounds of appeal: first, that on the primary facts found by the learned Judge, the contract was not substantially performed; secondly, that upon the evidence, the Judge ought to have found that no sum was payable until the whole contract was performed, subject to the de minimis rule; thirdly, that he gave insufficient weight to the evidence of the Defendant's independent expert; fourthly, that he wrongly held that fees incurred by an expert in reporting on the installation otherwise than for the purpose of litigation were not properly claimable as an item of special damage; fifth, that the Judge's assessment of the Defendant's general damage was wholly inadequate and erred in principle.
The main question in the case is whether the defectsin workmanship found by the Judge to be such as to cost 174 to repair - that is, between one-third and one-quarter of the contract price - were of such a character and amount that the Plaintiff could not be said to have substantially performed his contract. That is, in my view, clearly the legal principle which has to be applied to cases of this kind.
The rule which was laid down many years ago in the case of Cutter v. Powell in relation to lump sum contracts was that unless the contracting party had performed the whole of his contract, he was not entitled to recover anything. That strong rule must now be read in the light of certain more recent cases to which I shall briefly refer. The first of those cases is Dakin v. Lee, reported in 1916 1 King's Bench, 566, a decision of the Court of Appeal, in which it was held that where the amount of work which had not been carried out under a lump-sum contract was very minor in relation to the contract as a whole, the contractor was entitled to be paid the lump sum, subject to such deduction as might be proper in respect of the uncompleted work. It is necessary to observe that the head-note of Dakin v. Lee was based, not upon the Judgments in the Court of Appeal, but upon the Judgments that had been delivered in the Divisional Court; and, as was pointed out in the case of ( Vigers v. Cook 1919 2 King's Bench, 475, at page 483), that head-note does not properly represent the grounds of the decision of the Court of Appeal in that case. The basis on which the Court of Appeal did decide Dakin v. Lee is to be found in a passage of the Judgment of the Master of the Rolls, Lord Cozens-Hardy, on pages 578 and 579. I do not think it is necessary to read it in full, but I read this short passage from page 579: "But to say that a builder cannot recover from a building ownermerely because some item of the work has been done negligently or inefficiently or improperly ie a proposition which I should not listen to unless compelled by a decision of the House of Lords. Take a contract for a lump sum to decorate a house; the contract provides that there shall be three coats of oil paint, but in one of the rooms only two coats of paint are put on. Can anybody seriously say that under these circumstances the building owner could go and occupy the house and take the benefit of all the decorations which had been done in the other rooms without paying a penny for all the work done by the builder, just because only two coats of paint had been put on in one room where there ought to have been three?"
Then, in the case of Eshelby v. Federated European Bank (reported in 1932 1 King's Bench, page 423), another case in the Court of Appeal, the position differed from that in Dakin v. Lee and the position in the present case, in that the claim in Eshelby was not against the principal to the contract with the contractor, but was against a surety. It was on that basis that Lord Justice Scrutton, giving the first Judgment, distinguished Dakin v. Lee. However, Lord Justice Greer, at page 431, took the view that that was not a ground on which Dakin v. Lee could be distinguished because, unless the principal contracting party was liable, the surety could not be liable. Lord Justice Greer dealt with Dakin v. Lee in this way: "If the appellant in the present case had not broken his contract so as to make himself liable in damages, but had only through some trifling omission failed, as the plaintiffs in Dakin v. Lee were held to have failed, to recover the full contract price, then I am inclined to think that Taglioni on receiving the stipulated notice would have been liable to make the agreed payments, and thatconsequently the respondents on receiving the appropriate notice would have been liable in this action". Lord Justice Slesser agreed at the foot of page 431 and said: "The agreement between the parties by clause 11 provides for the liability of Taglloni in certain events. He agrees with the appellant and with the respondents, and undertakes that Olympus, Ltd., shall 'subject to the works being duly executed in accordance with this agreement' make to the appellant the payments mentioned in clause 2. It has been found as a fact that the works never were duly executed in accordance with the agreement"; and it may be material to note that in that case it was a contract for 1500, payable in four instalments. The instalment which was the subject-matter of the claim was 375, and the extent to which the work fell short of the standard required was valued at 80. That was held to be sufficient, at any rate in the judgment of Lord Justice olesser, who deals most positively with the point, to reach the conclusion that the work had not been duly executed in...
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