Burchell v Bullard and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Rix |
| Judgment Date | 08 April 2005 |
| Neutral Citation | [2005] EWCA Civ 358 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2004/1172 |
| Date | 08 April 2005 |
[2005] EWCA Civ 358
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH COUNTY COURT
District Judge Tennant
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward and
Lord Justice Rix
Case No: B2/2004/1172
Mr Alexander Hutton (instructed by Messrs Turner) for the Appellant
Mr James Counsell (instructed by Messrs Ian Newbery & Co.) for the Respondent
Introduction
This is an appeal by a small builder, Mr Nicholas Burchell, brought with the permission of Waller L.J. against the costs orders that were made in heavily contested litigation arising out of work done to the property of Mr and Mrs Bullard, the respondents.
The Background
By a contract evidenced partly in writing Mr Burchell agreed to build two large extensions to the home of Mr and Mrs Bullard in Bournemouth. The work was detailed, perhaps not fully, in two plans, one drawn by the architect and another by a structural engineer, and in the architect's construction specification. The agreement provided for four stage payments, the first when the chamber joists went in, the second at plate high, the third when the roof was on and the final payment on completion. On 31 st August 2000 the builder submitted his claim for the third stage payment in the sum of £13,540.99. This was never paid. Mr and Mrs Bullard complained about the work and wrote setting out what they said had to be done before any further payment would be made. There followed more than one confrontation between the parties. In the correspondence that ensued, each accused the other of refusing to honour the contract and blaming the other for the difficulties. In the event Mr Burchell did not return to the site after 21 st November 2000.
He instructed solicitors. On 14 th May 2001 the solicitors wrote sensibly suggesting that to avoid litigation the matter be referred for alternate dispute resolution through "a qualified construction mediator". The sorry response from the respondents' chartered building surveyor was that "the matters complained of are technically complex and as such mediation is not an appropriate route to settle matters." All the Bullards wanted was for the builder to complete the contract and rectify the defective work.
On 5 th February 2002 Mr Burchell brought his claim against Mr and Mrs Bullard for £18,318.45. The defendants counterclaimed £100,815.34 and further damages which were then not fully particularised. Of that sum £23,646.88 related to the roof which the defendants alleged needed to be "dismantled and reconstructed." In fact the roof had been built by a sub-contractor, Mr Teversham and so on 1 st May 2003 the claimant brought a Part 20 claim against him alleging that insofar as the defendants had any claim in respect of the roof the subcontractor should indemnify him in respect of any sums, including costs, that might be awarded against him in the proceedings as a consequence of any defective work carried out by Mr Teversham.
The trial
The litigation rumbled on. Case management directions for expert evidence and for experts to meet to agree were made but it seems largely ignored. The case was heard in the Bournemouth County Court before District Judge Tennant, sitting as a recorder. He heard evidence for five days and reserved judgment on 1 st March 2004. He circulated his draft judgment and it was handed down on 20 th May 2004 when he entered judgment for the claimant against the defendants on the claim for £18,327.04 but gave judgment for the defendants against the claimant on the counterclaim for £14,373.15. Allowing for VAT and interest the result was that he ordered the defendants to pay the claimant the difference between the two amounts, namely £5,025.63.
In summary this was how he arrived at those conclusions. He preferred the evidence of the claimant to that of the defendants where their evidence differed saying:—
"I found that the claimant was a transparently honest witness, more than ready to admit where he was wrong and to shoulder responsibility for it," and, "I am satisfied that the claimant was an honest man and a conscientious builder. If he had been allowed to do so he would probably have completed the contract and rectified any defects."
Dealing with how the contract came to an end, an important issue in the trial because the defendants' case was that if the builder had repudiated, he would not be entitled to anything at all and his claim should be dismissed, the recorder concluded that the fact that there might have been defects in the work done by the time the third stage payment was sought did not entitle the defendants to refuse payment until the defects were put right. The contract came to an end on 22 nd November 2000 when, as he was satisfied, Mrs Bullard informed the claimant and the two men working for him that the contract was at an end and that they should leave. The recorder was satisfied that when Mrs Bullard wrote saying there was no point in any further meetings that amounted to a repudiation of the agreement by the defendants. He held that the consequence was that the claimant became entitled to claim for the value of the work done and in addition either the loss of his profit on the rest of the contract or his wasted expenditure and, although not precisely pleaded in that way, he was happy to accept that the pleading was sufficiently expressed as a claim for the balance of the contract price less the cost of the work not done. Any breach of contract by the claimant through faulty workmanship and poor materials had to be looked at as part of the counterclaim. In his view:—
"There is thus to be excluded from the counterclaim, the cost (to the defendants) of completing the work. The defendants are not entitled to that as part of the counterclaim, as it was they who brought the contract to an end by their breach. The value of that work falls to be considered as an allowance against the contract price. The claimant's case as pleaded was that the value of the work necessary to complete the contract was £5,805."
By their counterclaim the defendants alleged that a large number of items were part of the contract and that much more should be allowed against the sum claimed by the claimant but the recorder was not satisfied that all of the items alleged by the defendants to be included in the contract were in fact part of that contract. On this issue the claimant was successful. After analysis of the individual items he came to the conclusion that the value of the contractual work which the claimant failed to complete was £5,991.41.
So far as the counterclaim was concerned "a major part" of it related to the roof which the defendants alleged would have to be rebuilt. There was a conflict of expert evidence drawn in respect of the alleged defective roof. There was a measure of agreement between the surveyors that the roofing work was defective in the following respects:
• "No valley boards.
• No lay boards or tilt fillets.
• Nails missing rafters.
• Holes in the Tyvek roof covering.
• On the rear slope of the rear extension an overlap of 80 mm between two sheets of Tyvek."
As to the other matters in dispute the recorder preferred the evidence of the claimant's expert to that of the defendants' expert for reasons he gave. The recorder was satisfied that:—
"Mr Miles' [the defendants' expert's] opinion that the roof should be stripped was largely arrived at by applying a standard approaching perfection that exceeded the contractual standard. … [He] appears to have formed an opinion as to what the roof might possibly contain, having inspected only a small part of it and that in circumstances where there should have been little difficulty in examining the roof to the extent to which Mr Rougier [the claimant's expert] apparently examined it. Mr Miles' evidence as to what might be the extent of the problems in the roof is mere speculation. … The defendants are only able to satisfy me on the evidence that the roof needs repair and that the repairs [set out above] are appropriate."
He found that the amount to be allowed as the cost of repair was only £3,985 as against the sum of £23,646.88 claimed by the defendants. In other words the defendants recovered only about 17% of this part of their counterclaim.
Dealing with the other defects, the recorder accepted that on analysis of the pleadings the claimant accepted that the underlying work formed part of the contract and that the only real issue was the cost of carrying out the remedial work. He assessed that at £10,259.40. The counterclaim for this other work was £77,168.46, more when the unparticularised defects were added, and so the defendants succeeded to about 13% of this part of their counterclaim.
There was another very minor part of the counterclaim based upon an allegation that the claimant and his workmen had damaged a number of items of the defendants' property. Two of the twelve items were proved and damages of £128.75 awarded in respect of them, less than1% of the £2757.75 counterclaimed under this head.
Even if one ignores the extra but unquantified items in the schedule to the counterclaim, the defendants' overall success rate was less than 15%.
As for the Part 20 claim the recorder stated:—
"It is not surprising in the circumstances that the claimant brought a Part 20 claim against Dean Teversham for an indemnity as to the roof."
He concluded, however, that it was plainly the responsibility of the claimant to fit the valley boards and tilt fillets so that no part of the counterclaim in...
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