Diane Lumley v Foster & Company Group Ltd

Hearing date: 29–30 November 2021

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Jason Coppel QC

(sitting as a Deputy Judge of the High Court)

Jason Coppel QC:

Introduction

This is a claim by the Claimant for breach of a contract whereby one or more of the Defendants agreed, in June 2016, to carry out construction works on her home in East Barnet, London (“the property”, “the contract”). The works were performed in a manner which is alleged to have been seriously sub-standard, with the result that, according to the Claimant, the property is scarcely habitable such that it has diminished in value and substantial remedial works require to be performed.

The Claim Form (dated 8 October 2020) named six different Defendants and the Particulars of Claim alleged that the contract had been concluded by Mr Foster, D2, on behalf of all of the Defendants (eg §11). The Defence (18 January 2021) responded that the contract was in fact concluded between the Claimant and D5 (“FCCL”). According to abbreviated accounts filed at Companies House on 1 November 2016, FCCL ceased trading on 31 October 2016 pending its dissolution, and is (according to the Defendants) in the course of liquidation. Therefore, if the Defendants were correct on the issue of the contract having been concluded with FCCL, the claim would be worthless. In her Reply (2 July 2021), the Claimant alleged that the contract was between her and Mr Foster, alternatively Mr Foster and Mrs Foster, who together traded as Foster and Co or the Foster and Co Group.

On 18 June 2021, Jefford J directed that there be a trial of a preliminary issue of “which of the defendants were parties to the contract formed with the Claimant in or around June 2016”. That is the only issue before me. I have concluded, for the reasons given below, that the contract was concluded between the Claimant and Mr Foster personally.

For convenience, I refer below to “the Defendants” collectively, and notwithstanding that (a) formally, only D1, D2 and D3 were represented at the hearing before me, (b) D1 was dissolved in June 2021, (c) the Claimant did not dispute that the entity named as D6 has never existed, and (d) there was no conclusive evidence as to the continued existence of D4 and FCCL.

The formation of the contract

It is necessary to start with some basic facts regarding the formation of the contract. It is common ground that the contract was concluded at a meeting at the property on 21 June 2016 which was attended by Mr Foster and the Claimant. The parties agree that the scope of the works was agreed in broad terms at that meeting as well as a contract price (£100,000). The parties agree that the works were to cover the construction of a ground floor extension and the construction of a unit in the back garden of the property; the Claimant contends, in addition, that there was to be work to renovate the interior of the property. Mr Foster's normal business practice was to provide his clients with a formal written contract but that did not occur in this case. He alleges that he delivered a quotation to the property a few days later, on 24 June 2016, an allegation which I reject, for the reasons given in §§10–11 below.

The basic legal test

The question of who were the parties to the contract is one to be determined by the Court on the basis of an objective test. “ The question is what a reasonable person, furnished with the relevant information, would conclude. The private thoughts of the protagonists concerning who was contracting with whom are irrelevant and inadmissible”: Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470, §57(ii), per Jackson LJ. I must therefore ascertain the relevant facts surrounding the meeting on 21 June 2016 and decide what a reasonable person would conclude from those facts as to the identity of the parties to the contract.

The witnesses

That is easier said than done, as in this case the parties were in dispute on many aspects of the meeting of 21 June 2016 and on the events which preceded it, which the Defendants rely upon as relevant to what the reasonable person would conclude regarding the meeting itself. There was some relevant documentary evidence but in many instances there was simply a conflict of oral evidence between (in particular) the Claimant and Mr Foster. Insofar as there were differences in their respective accounts, I unhesitatingly prefer the evidence of the Claimant.

I found the Claimant to be an honest but frustrating witness. Despite extensive guidance being given to her by her Counsel and by me as to how she should give evidence in order best to assist the Court, her primary concern throughout was to argue her case rather than to answer the questions which were put to her. She did this at an unrelenting pace, which hampered all reasonable attempts to record what she was saying. I recognise, however, that she has had a distressing experience which – whatever the correct legal analysis of events – has left her living in sub-standard conditions for more than five years. Her day in court was long-awaited, and this wait appeared to have generated an irresistible urge to say everything possible to promote her claim. In my judgment it was this, rather than any effort to be evasive in her answers, which explains her difficulty in focusing on the questions that were put to her. To the extent that she did answer these questions, I found her to be open and persuasive, and clear in her recollections. Significantly, there was no documentary evidence which contradicted any part of her testimony (and much which contradicted the competing account of Mr Foster).

I found Mr Foster's evidence to be far less persuasive. It was, in parts, internally inconsistent and inconsistent with contemporaneous documentation. In one respect – whether he met the Claimant's daughter, Hannah Lumley at the meeting on 21 June 2016 – it was inconsistent not only with the evidence of the Claimant but also with that of Miss Lumley, who was an impressive and helpful witness, whose account I preferred. That error on Mr Foster's part in relation to a reasonably significant aspect of the 21 June 2016 meeting, calls into question his purportedly clear recollection of other aspects of that meeting, which – according to him — was one of five client meetings he conducted on that day more than five years ago.

The most important reason which led me to distrust Mr Foster's evidence was his claim that he had provided the Claimant with a written quotation dated 24 June 2016. The facts in relation to this were as follows:

i) Mr Foster claims to have hand-delivered a written quotation dated 24 June 2016 to the property on “about 24 June 2016” (§25 of his witness statement). The Claimant denies having received it and says that the document first came to her attention when she received the Defendants' disclosure in these proceedings.

ii) The significance of the document is that it is the only document to which the Defendants have been able to point which concerns the works on the property and refers to FCCL, which is the entity referenced at the footer of the five pages of the quotation.

iii) The quotation is for £100,000 and is for a “core build only for the plan numbers that are listed from Mr Steven Gray Architectural Services 165/3B, 165/2a, 165/2a and 165/1”.

iv) The quotation contains a signature page which invites signature by the Claimant and by a representative of FCCL.

v) Despite that, there is no evidence that Mr Foster or anyone else requested that the Claimant return a signed copy of the quotation or reminded her to do so at any stage, including when he visited the property and met the Claimant again on 30 June 2016. There is no reference to the quotation in any of the communications between the parties. This is surprising given the alleged significance of the document. The document would also be unique in the communications between the parties in that it is alleged to have been delivered in hard copy only rather than sent by email.

vi) If the quotation had been delivered as alleged, there is no reason why the Claimant would not have acknowledged it at the time. The price, and what is said to be included within the price, are consistent with her account of the discussions at the 21 June 2016 and the dispute over which entity she had contracted with did not arise until a much later stage. She was otherwise conscientious in responding to correspondence concerning the works on the property.

vii) The Claimant had sent two drawings numbered 165/2B and 165/3B to Alana Moore, whose email footer suggested that she was an employee of the First Defendant, on 15 June 2016. Four further drawings, numbered 165/1, 165/2A, 165/2A and 165/3B were sent by Mr Gray, the architect, on 29 June 2016. One of the drawings numbered 165/2A had been available for some time on the Barnet Council planning portal because it had...