Cooper and another v Thameside Construction Company Ltd ((in Administration))
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr |
| Judgment Date | 27 May 2016 |
| Neutral Citation | [2016] EWHC 1248 (TCC) |
| Docket Number | Case No: HT-14-000084 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 27 May 2016 |
[2016] EWHC 1248 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Carr DBE
Case No: HT-14-000084
Edward Bartley Jones QC and Adam Chichester-Clark (instructed by Cozen O'Connor LLP) for the Claimants
Neil Moody QC and Andrew Miller QC (instructed by Kennedys Law LLP) for the Defendant
Hearing dates: 10 th, 11 th, 12 th, 16 th and 19 th May 2016
A. Introduction
22 Redington Road, Hampstead, London NW3 7RG ("the property") is a large and prestigious residential property. It is and was at all material times owned beneficially by the Second Claimant, Mrs Katie Cooper ("Mrs Cooper"). From about early 2009 on she lived there with her husband, the First Claimant, Mr Marcus Cooper ("Mr Cooper"), and their three children and staff. In the evening of Thursday, 18 th November 2010, there was a significant flood at the property which caused substantial damage to the property and its contents ("the flood"). Mr and Mrs Cooper were insured with Chubb Insurance Company of Europe SE ("Chubb") in respect of their losses. Chubb in due course settled Mr and Mrs Cooper's claim on their policy for over £10million in the sum of £6.5million.
Chubb now brings this subrogated claim to recover all or part of that settlement figure. It alleges that the flood was caused by breach of contract and/or negligence on the part of the Defendant, Thameside Construction Company Limited ("Thameside"), its servants or agents.
Thameside is a building contractor. Between 2005 and 2009 Thameside carried out substantial works to the property, converting it into a single residence, refurbishing it and building substantial extensions to the rear and basement, pursuant to a JCT Contract on Intermediate IFC 98 Form (Revision 4) dated 3 rd February 2005 between Mrs Cooper as "Employer" and Thameside as "Contractor" ("the JCT contract"). The allegations made against Thameside relate to the faulty installation of a Polyplumb straight connector ("the Polyplumb connector") onto plastic (polybutylene) piping which ran up to the tap box above the basin in an ensuite bathroom attached to a sixth bedroom on the second (top) floor of the property ("bedroom 6") ("bathroom 6"). The installation included the fitting of the piping into the Polyplumb connector. The piping was to be secured by the use of a grab ring located within the Polyplumb connector. It is said that the grab ring used within the Polyplumb connector was damaged or deformed from previous usage. Alternatively, the (lower) pipe was not inserted fully into the Polyplumb connector, such that the pipe was not secured by the grab ring. In any event, the installation of the pipework and the pipework itself was not reasonably fit for purpose. Nor was the installation carried out in a proper and workmanlike manner with reasonable skill and care. Nor was it installed with materials which were reasonably fit for purpose and of a satisfactory quality. The flood occurred when the pipe separated from the Polyplumb connector as a result of these alleged breaches. The property is not yet re-occupied and remains uninhabited.
The claim is that this installation work was carried out by a sub-contractor engaged by Thameside, namely Darenth (Southern) UK Limited and/or Darenth Southern (London) Limited and/or Frank Cosgrove trading as Darenth Southern (together "Darenth"). Thameside is liable to indemnify Mr and Mrs Cooper for losses arising out of Darenth's activities at the property. Alternatively, the possibility is left (even if only faintly) open that it was another sub-contractor of Thameside that carried out this installation work and for which Thameside is responsible.
Thameside now accepts that the Polyplumb connector was defective, alternatively that the pipe below it was not inserted properly. It also now accepts that the flood would not have occurred but for these defects. However, it denies liability. Its primary, indeed only defence now, albeit one raised for the first time by way of amendment almost a year after the commencement of proceedings, is that neither it, nor any of its servants or agents, installed the Polyplumb connector that failed. The Polyplumb connector was not installed as part of Thameside's work under the JCT contract and was not installed by anyone acting on behalf of Thameside, its servants or agents, including Darenth.
It is this factual dispute, namely the question of whether or not it was Darenth that installed the Polyplumb connector as part of the works under the JCT contract, that lies at the heart of this litigation. It is a "who dunnit": was the Polyplumb connector installed by Thameside, its servants or agents as part of the works under the JCT contract or was it installed by other contractors or sub-contractors outwith the contract and responsibility of Thameside?
Thameside has variously advanced other defences, including that the cause of the flood was wholly independent of the works undertaken by Thameside, its servants or agents. It was suggested that the pipework failed because of modifications to the domestic hot water system in about April/May 2009 and October 2010 undertaken on the instruction of Mr and Mrs Cooper and by third parties outside the JCT contract, namely the installation of a heat exchanger and/or the incorporation of a double check valve by Darenth. These were said to have caused pressure surges. It was also suggested that a plastic pipe was not suitable for use in a continuously operated re-circulating system. However, all these contentions have fallen away in the light of the defence experts' final conclusions.
On 6 th March 2015 Edwards-Stuart J, on the application of Mr and Mrs Cooper, directed that there should be a split trial on liability and quantum. This is the judgment on liability following a 5 day trial at which the following witnesses of fact gave oral evidence:
a) For Mr and Mrs Cooper: Mr and Mrs Cooper; Peter Beer of Ottima (Specialist Joinery and Furniture) Limited ("Ottima") ("Mr Beer"); Jonathan Evans of Metropolitan Development Consultancy Limited ("MDC") ("Mr Evans"). A written statement from Mr Bachelard of Dr JH Burgoyne and Partners LLP ("Burgoynes"), was agreed;
b) For Thameside: Frank Cosgrove of Darenth ("Mr Cosgrove"); Paul Johnson, a self-employed plumber contracted to Darenth ("Mr Johnson"); Paul McBryde, a carpenter who worked on the property for Thameside ("Mr McBryde"); Glenn Gradwell, contracts manager and a former director of Thameside ("Mr Gradwell"); Michael Lynch, construction site manger for Thameside at the property ("Mr Lynch").
Expert evidence was adduced as follows:
a) For Mr and Mrs Cooper: Dr Simon Jones of Burgoynes. Dr Jones is a chartered mechanical engineer specialising in the investigation of incidents of mechanical failures;
b) For Thameside:
i) Mrs Daphne Wasserman of Cadogan International Limited ("Cadogans"). Mrs Wasserman is a chartered engineer;
ii) Mr Gerry Brannigan also of Cadogans. Mr Brannigan is a building services consulting engineer.
In the event, none of the experts were required to give oral evidence. Their joint agreed statement dated 25 th February 2016 ultimately sufficed for resolution of the issues as they narrowed.
Following this introduction, this judgment is set out in the following parts:
a) Section B: The JCT contract and duties owed by Thameside;
b) Section C: The Polyplumb connector and the cause of the flood;
c) Section D: A general chronological overview of events;
d) Section E: The documentary evidence relating specifically to bathroom 6;
e) Section F: The burden of proof and the fact-finding exercise;
f) Section G: The witnesses;
g) Section H: The access hatch and panel;
h) Section I: Did Mr Johnson (or another Darenth plumber) install the Polyplumb connector?
i) Section J: Possible alternative explanations for the installation of the Polyplumb connector;
j) Section K: Possible adverse inferences;
k) Section L: The position of Ludek;
l) Section M: Conclusion.
B. The JCT contract and duties owed by Thameside
The works under the JCT contract were specified by reference to incorporated "Contract Drawings" and "Schedules of Work". They were to be carried out under the direction of "the Architect/the Contract Administrator". MDC was the "Contract Administrator". MDC was also named as the "Quantity Surveyor". The "Contract Sum" in the JCT contract was £2.4million and the Completion Date 25 th June 2006.
The JCT contract included the following express terms:
"Intentions of the Parties
Contractor's obligations
1.1 The Contractor shall carry out and complete the Works in a proper and workmanlike manner and in accordance with the Contract Documents identified in the Second recital and with the Health and Safety Plan…
3. Control of the Works
…
Sub-contracting
3.2 The Contractor shall not sub-contract any part of the Works other than in accordance with clause 3.3 without the written consent of the Architect/the Contract Administrator whose consent shall not be unreasonably delayed or withheld. The Contractor shall remain wholly responsible for carrying out and completing the Works in all respects in accordance with clause 1.1 notwithstanding the sub-contracting of any part of the Works.
Named Persons as sub-contractors
…
3.3.1 Where it is stated in the Specification/Schedules of Work/Contract Bills that work described therein for pricing by the Contractor is to be executed by a named person who is to be employed by the Contractor as a sub-contractor the Contractor shall not later than 21 days after entering into this Contract enter into a sub-contract...
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Table of cases
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...634 [130]–635 [135], per Ramsey J; Nulty v Milton Keynes Borough Council [2013] BLR 134; Cooper v hameside Construction Company Ltd [2016] EWHC 1248 (TCC) at [107]–[114], per Carr J; Howmet Ltd v Economy Devices Ltd [2016] EWCA Civ 847 at [109]–[113], per Sir Robert Akenhead; Palmer v Night......
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...v Southern Insulation (Medway) Ltd [2010] BLr 552 at 558 [23]–[24], per akenhead J, and in Cooper v hameside Construction Company Ltd [2016] EWhC 1248 (TCC) it was common ground that such a duty was owed (see at [14]–[15], per Carr J). See also pliener, “Outlanking Murphy v Brentwood: claim......