Catlin Estates Ltd v Carter Jonas (A Firm)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Toulmin |
| Judgment Date | 31 October 2005 |
| Neutral Citation | [2005] EWHC 2315 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT 04 173/372 |
| Date | 31 October 2005 |
[2005] EWHC 2315 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St Dunstan's House
133137 Fetter Lane
London, EC4A 1HD
His Honour Judge John Toulmin Cmg Qc
Case No: HT 04 173/372
Mr A Williamson QC & Mr P Stansfield (instructed by Denton Wilde Sapte)
for the Claimant
Mr Ben Quiney (instructed by Halliwells LLP) for the Defendant
In this action, Catlin Estates Ltd (CEL) claim damages against Carter Jonas, a well known firm of surveyors and property consultants, for breach of contract in respect of services which Carter Jonas provided in connection with the demolition and construction of a shooting Lodge ("the Lodge") on the Burnhope and Ousby Moors in the county of Durham. It is not disputed that the site is located at a rural and exposed location and is exposed to very wet and windy weather.
The claim against Carter Jonas, originally brought by CEL in contract but, as amended, also in tort, is that they failed to exercise the reasonable skill and care and/or diligence to be expected of competent building surveyors in exercising their duties.
In the particulars of claim CEL, set out a number of defects in the Lodge which they said they are entitled to remedy at Carter Jonas' expense. They claimed damages in the sum of £819,840 plus VAT making a total of £963,510. The quantum experts have subsequently and most helpfully agreed damages on various factual bases and I will return to this topic later.
Apart from defending the claim on the facts, Carter Jonas claim that in any event it is not responsible for any loss or damage caused by the negligence of the structural engineers, Robert T Horne & Partners ("Horne") who it claims were separately instructed by the Claimants. CEL deny this and say that it was Carter Jonas which agreed to take overall charge of the project and which instructed Horne. Horne became a party to the action as Second Defendants to the Claimants and as Part 20 Defendants to Carter Jonas. Both claims were settled on 27 May 2005.
By its defence and counterclaim, Carter Jonas also contend that CEL subsequently transferred its interest in the Lodge to Mr Catlin for full value and that after that date CEL no longer had any interest in the Lodge whether as a matter of law or in equity. Carter Jonas claim that CEL are therefore the wrong claimants and cannot, in any event, recover any damages from Carter Jonas because CEL have suffered no loss.
CEL in its reply assert that although on 5 March 1999 they entered into an agreement with Mr Catlin for the sale of the Lodge, the sale has not been completed and CEL remain the legal owner of the building. CEL contend that in any event the arrangement to enter into a contract to transfer the Lodge to Mr Catlin was a family arrangement undertaken for the legitimate purpose of minimising tax and that therefore CEL is claiming in its own right but is bound to account in due course to Mr Catlin. The action is however properly constituted.
This remains the Claimants primary submission but it has introduced a claim on behalf of Mr Catlin personally in the event that the submission is not accepted. The claim is made under Section 1 of the Defective Premises Act 1972 and in tort.
Carter Jonas contend that although if any loss was suffered it was suffered by Mr Catlin personally, his claim cannot succeed because:
i) the Lodge is not a dwelling within the terms of the Act;
ii) the Lodge is fit for habitation;
iii) Carter Jonas owed Mr Catlin no duty in tort; and
iv) the claim is statute barred.
Carter Jonas contend therefore that they are entitled to succeed against both Claimants without the necessity for any consideration of the merits. Carter Jonas contend that they are also entitled to succeed on the merits.
At a late stage in the trial the Claimants made a claim for the professional fees of Mr Roberts who was also acting as the Claimants expert planning and architectural witness. As the Claimants' expert, he worked on a scheme which the Claimants put forward as appropriate to remedy the defects which they claim exist in the construction of the Lodge. Having done so, the Claimants asked Mr Roberts to develop the advice that he had already given into a full design for which he would be paid separately. The Claimants say that they are entitled to recover Mr Roberts' professional fees which they have paid to him for working up the design even if his preferred scheme is held not to be the appropriate one. The Defendants object to the claim being admitted at such a late stage and further say that on the merits the claim is not well founded.
Apart from the substantive defences in relation to their conduct in the construction of the Lodge, Carter Jonas contend that serious defects were introduced by the contractors, Guildford Construction (York) Ltd, ("Guildford"), who they say continued to work on the Lodge after Carter Jonas had left the site in April 1999 and created the problems which now exist. Had Carter Jonas been permitted to carry out their obligations during the defects liability period the defects would not have been introduced. Defects which became apparent during the defects liability period would also have been remedied.
There are therefore a considerable number of issues of fact and law for me to decide. The scheme of the judgment is therefore as follows:
A) to assess the general credibility of the witnesses of fact and the experts; (Paragraph 13)
B) the factual narrative; (Paragraph 46)
C) legal and factual issues relating to Carter Jonas' claim that CEL has no standing to sue in these proceedings and/or can only recover nominal damages; (Paragraph 245)
D) Mr Catlin's claim under the Defective Premises Act 1972; (Paragraph 291)
E)Substantive issues:
(a) responsibility for structural design and inspection (Paragraph 305)
(b) Hornes settlement of the claims against it (Paragraph 320)
(c) Carter Jonas obligations under the contract (Paragraph 324)
(d) method of specification of design (Paragraph 338)
F) specific topics (Paragraph 343)
G) work on the Lodge after May 1999 (Paragraph 490)
H) claim for Mr Roberts additional fees (Paragraph 531)
I) the Clause 1.1.5 agreement (Paragraph 546)
J) Carter Jonas counterclaim (Paragraph 548)
K) Damages: which remedial scheme? (Paragraph 561)
L) Conclusion (Paragraph 571)
A. THE WITNESSES
The Factual Witnesses
This is a case where the credibility of the witnesses is of considerable importance.
For the Claimants Mr Catlin was and is a director and the principal shareholder in CEL. He said in his witness statement, and I accept, that although he used the Claimant company for the purpose of his contractual dealings with Carter Jonas in relation to the project of demolishing and rebuilding the Lodge, it was understood by all concerned that the contract and the project were principally for his own benefit. He was the only factual witness for the Claimants. He was a truthful witness and in general I am able to accept his evidence.
Although she did not give oral evidence, his eyes and ears on the project were those of his house-keeper Mrs Shirley Johnson. She reported regularly to Mr Catlin on the state of the project and also attended meetings and had discussions with Carter Jonas.
Where the evidence has not been challenged on the documents, eg Mrs Johnson's snagging list, I am entitled to and do accept the evidence. In practice her evidence, as evidenced by the documents before me, is largely undisputed.
There were four factual witnesses for the Defendants. Their principal witness was Mr Nigel Lindley, a qualified chartered surveyor, who has now left the firm but who from 1992 to April 2001 was a partner of Carter Jonas in charge of the building surveying department at the firm's York office. He gave a long and detailed written statement and was extensively cross-examined in oral evidence.
I did not find his evidence satisfactory or reliable. Without departing from the generality of this observation there are two matters which should be highlighted. The first is his decision to leave in place the wrong breather membrane, Typar, which had been prescribed by his firm and not to discuss his decision with his client. This must be not only a matter of concern but also, along with other matters, affect adversely any view of his credibility.
It is contended on Mr Lindley's behalf that the explanation for his conduct is that this defect was not significant and that it was a technical matter. I do not agree. Accepting for this purpose his view that the defect was not significant, Mr Lindley should have explained the mistake and why he was taking no action fully to Mr Catlin or at least to Mr Pardoe, his own partner, who was looking after Mr Catlin's interests. Later I shall have to consider the substance of the issue of the breather membrane.
The other particular aspect of significant concern in relation to Mr Lindley is his poor standard of record keeping, particularly at a time when he was under pressure from the client. This is of particular relevance in relation to his evidence over the remedying of defects in the snagging lists in the period immediately before practical completion in February 1999.
The fact that in general I find that he was an unreliable witness does not exempt me from the obligation to consider each contentious item of evidence on its merits.
Mr Tumman also gave evidence for Carter Jonas. He joined Carter Jonas in 1988 as an architect technician. He was admitted as a chartered building surveyor (ARICS) in December 1994 and joined the building consultancy division of Carter Jonas York office until he left in December 1998, shortly after the events which relate...
To continue reading
Request your trial
-
Bole and another v Huntsbuild Ltd and another
...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. 16 The duty imposed by ......
-
Rendlesham Estates Plc & Others v Barr Ltd
...consideration to buildings such as residential blocks of flats. 37 The Claimants relied on a decision of HHJ Toulmin CMG QC in Catlin Estates v Carter Jonas [2005] EWHC 2315 (TCC), which concerned a shooting lodge. It was alleged that the lodge was not a dwelling. The judge concluded, at [2......
-
Table of cases
...[2012] UKSC 56 II.8.27, III.21.97 Catinari v Ashford Apartments Pty Ltd [2013] SASC 187 III.22.48 Catlin Estates Ltd v Carter Jonas [2005] EWHC 2315 (TCC) I.3.14, I.5.54, II.13.77, II.14.37, III.19.30, III.19.33, III.26.127 Cat Protection Society of Victoria v Arvio Pty Ltd [2018] VSC 757 I......
-
Damages
...Lr 63; Rolls-Royce Power Engineering plc v Ricardo Consulting Engineers Ltd (2003) 98 Con Lr 169; Catlin Estates Ltd v Carter Jonas [2005] EWhC 2315 (TCC) at [272]–[275], per hhJ Toulmin CMG QC; Technotrade Ltd v Larkstore [2006] BLr 345 at 358 [84], per rix LJ; London & Regional (St George......
-
Litigation
...(Australia) Pty Ltd v Anderson Formrite Pty Ltd [2005] WASC 255 at [120]–[121], per Johnson J; Catlin Estates Ltd v Carter Jonas [2005] EWHC 2315 (TCC) at [29]–[33], per HHJ Toulmin CMG QC; London Fire EPA v Halcrow Gilbert Associates Ltd [2007] EWHC 2546 (TCC) at [44]–[60], per HHJ Toulmin......
-
Defects
...specialist services, the architect who is responsible for the overall preparation of the 104 Catlin Estates Ltd v Carter Jonas [2005] EWhC 2315 (TCC) at [340]–[341], per hhJ Toulmin CMG QC. It is to be emphasised that in the absence of a contractual relationship between the consultant and t......