IAN McGLINN v WALTHAM CONTRACTORS Ltd and Others
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Coulson QC |
| Judgment Date | 28 March 2007 |
| Neutral Citation | [2007] EWHC 294 (TCC),[2007] EWHC 149 (TCC),[2007] EWHC 698 (TCC) |
| Docket Number | Case No: HT 05 120 |
| Date | 2007 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2007] EWHC 149 (TCC)
His Honour Judge Peter Coulson QC
Case No: HT 05 120
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St Dunstan's House
133–137 Fetter Lane
London, EC4A 1HD
Mr A Williamson QC & Mr J Selby (instructed by Speechly Bircham) for the Claimant
Mr A Bartlett QC & Mr G Hamilton (instructed by Freeth Cartwright) for the Second Defendant
Mr J Whitting (instructed by Beale & Co) for the Third Defendant
Mr C Reese QC & Mr A Warnock (instructed by Philip Barnes of P.I. Brokerlink) for the Fourth Defendant
The First Defendant did not appear and was not represented
Hearing dates: 16, 17, 18, 23, 24, 25, 26, 30, 31 October
, 2, 6, 7, 8, 9, 13, 14, 15, 16, 20, 21, 29 and 30 November 2006
February 2007
His Honour Judge Peter Coulson QCA. INTRODUCTION
This action concerns a house called 'Maison d'Or' that was built for the Claimant, Mr Ian McGlinn, in St Aubin, in Jersey. The house took three years to build, between January 1999 and December 2001. Following the departure of the building contractors in January 2002, when the house was substantially complete, it sat empty for the next 3 years whilst the alleged deficiencies in its design and construction were the subject of extensive investigation by a team of experts and contractors. In the early part of 2005, it was completely demolished. It was never lived in. It has not been rebuilt.
Mr McGlinn was, until very recently, the co-owner of The Body Shop group of companies, when he sold his shares for in excess of £100 million. At times during the unhappy story of Maison d'Or, Mr McGlinn's wealth has resulted in events and decisions which would not even have been contemplated by employers of more modest means. As he agreed in cross-examination, his wealth allowed him to take legal and financial risks which others could simply not afford to contemplate. Notwithstanding that, there can be no doubt that, contrary to what might be inferred from the Defendants' submissions, Mr McGlinn was just as entitled as any other employer to a proper and professional service from those that he engaged – at considerable cost—to design and build Maison d'Or. This action centres on his allegations that he did not get such a service from the four Defendants.
It is at the heart of Mr McGlinn's case that Maison d'Or was so badly designed, and so badly built, that he was entitled to demolish it and start again. His claim is for damages for breach of contract/negligence against those that he says are responsible: the building contractors, Waltham Contractors Ltd (“Waltham”); the architects, Huw Thomas Associates (“HTA”); the structural, mechanical and electrical engineers, DJ Hartigan (“DJH”); and the quantity surveyors and so-called Project Managers, Wilson Large Associates (“WL”). Mr McGlinn's primary case on damages is put by reference to the actual cost of demolition and the estimated cost of rebuilding the whole house, in a total sum calculated (by the end of the trial) at £3,649,481.34. The alternative case is put by reference to the estimated costs of repairing the individual elements which are said to be defective, producing a final figure of £2,487,246.29. There are also disputes concerning an alleged overpayment of HTA's fees and outstanding fees said to be due to DJH.
Although they would doubtless have taken centre-stage at the hearing, Waltham played no part whatsoever during the seven week trial, because they are in administration. Some of their former employees might have given evidence on behalf of HTA and DJH, but in the event they were not called upon to do so. For completeness, I should also note that Mr McGlinn has a separate claim concerning the over-valuation of the works which Waltham carried out. As a result of their absence from the proceedings, that over-valuation claim is pursued against WL and DJH only. That claim is due to be heard later this year, and thus forms no part of this Judgment.
For the reasons which are set out below, I consider that, perhaps unusually in a defects case, the events before and during the construction of Maison d'Or are at least of some relevance to the allegations which are now made. Thus, following some general observations on the evidence at Section B below, I set out in Section C some of the key events in the chronology and at, Section D, I summarise the unsatisfactory nature (and almost non-existent records) of the contractual relationships between the parties. Then at Sections E and F, I consider the terms of the contract between Mr McGlinn and HTA, and analyse each of the breaches of contract/particulars of negligence alleged against HTA in the Scott Schedule. At Sections G and H I carry out the same, shorter, exercise in respect of DJH, and, at Sections I and J, there is a similar exercise in respect of the specific allegations against WL. At Section K, I consider the relevant principles concerning causation and the assessment of damages, identify the particular issues that arise in this case, and make a series of general findings on those issues. Thereafter, at Sections L, M and N I then apply those general findings in an assessment of the quantum of the damages recoverable, respectively, against HTA, DJH and WL. At Sections O and P I deal with the particular disputes that have arisen in respect of the fees payable to HTA and DJH. At Section Q, I set out a short summary of my conclusions.
Before embarking on an examination of the detail, I should, at the outset, express my gratitude to counsel, solicitors and experts involved in the hearing of this trial. One of my distinguished predecessors in the Technology and Construction Court, His Honour Judge Newey QC 1, often remarked that he had only ever been obliged to complete one full trial on a Scott Schedule, and even that had been due to the incompetence of counsel. My experience in this Scott Schedule case has been entirely different. A large amount of material, and a host of detailed technical points, was dealt with in what I regard as an exemplary fashion. A tight timetable was produced, agreed, and then adhered to. I am extremely grateful to all those involved for their assistance.
B. GENERAL OBSERVATIONS ON THE EVIDENCE
B1 Factual Evidence
The majority of the factual evidence was adduced on behalf of the Claimant. In addition to Mr McGlinn, I heard evidence from Mr Terence Disdale and Mr James Berryman of Terence Disdale Design (“TDD”), who played an important role in the design of the interiors and finishes of Maison d'Or; Mr Hardcastle and Mr Ellis of Centurion Management Services Ltd (“Centurion”), who managed Mr McGlinn's affairs on Jersey; Mr Mark Tanner, who was engaged by Mr McGlinn towards the end of the building works to try and improve what Mr McGlinn saw as serious deficiencies in the performance of Waltham; and Mr Martin Dobbs, Mr Anthony Holt and Mr Eric Sey, all of Charter Architects, who were appointed by Mr McGlinn to inspect Maison d'Or after the departure of Waltham from site and whose investigations form the basis of the Scott Schedule. In addition, I heard evidence from Mr Martin Holmes, the managing director of Camerons, the contractors who carried out a large part of the investigative and so-called enabling work, and Mr Richard Sugg of E.C. Harris, the Quantity Surveyor who produced costings of the
repair and rebuild options being considered by Mr McGlinn in 2004–2005. There was also evidence from Fiona Diamond, of TDD, confined to a narrow issue concerning the cost of, and separate claim for, furniture storage.
Although HTA had originally indicated that they relied on the statements of four different witnesses, they eventually chose to rely on just the two statements from Mr Carl Thornton, the architectural technologist who was chiefly responsible for the day-to-day running of the project on behalf of HTA. I found him to be an honest and straightforward witness, although I consider that he was not senior enough within HTA to have been given, as he was, almost complete responsibility for the day-to-day running of this project on their behalf. Two of the witnesses who were not eventually called by HTA, namely Mr Hiscock and Mr Prinn were, respectively, the managing director and the contract manager of Waltham. I have discounted their statements completely, save where particular points from those statements were put to Mr McGlinn during his cross-examination and accepted by him as being true and accurate.
The other witness who was not in the event called by HTA to give evidence was Mr Huw Thomas himself. I have ignored the contents of both of his witness statements since they were not, in the result, relied on by HTA, and not the subject of an application by another party under CPR 32.5(5). On behalf of the Claimant, Mr Williamson QC submits that I should draw a number of adverse inferences from the fact that Mr Thomas was clearly available to give evidence, and had relevant evidence to give, but was not in the event called: see Wisniewski v Central Manchester Health Authority [1998] PIQR 324 and Jaffray v Society of Lloyds [2002] EWCA Civ 1101.
In my judgment, some – but by no means all—of what Mr Thomas would have said was covered in the evidence of Mr Thornton. Other elements of his evidence were rendered unnecessary by Mr McGlinn's acceptance, during his cross-examination, of some of the factual matters put to him by Mr Bartlett QC. However, I accept Mr Williamson QC's submission that there were a number of important matters where the absence of any evidence from Mr Thomas must lead to findings or inferences which are contrary to HTA's case. Wherever these findings...
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