Jenson and another v Faux
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Etherton,Master of the Rolls |
| Judgment Date | 13 April 2011 |
| Neutral Citation | [2011] EWCA Civ 423 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2010/2324 |
| Date | 13 April 2011 |
[2011] EWCA Civ 423
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
THE HONOURABLE MR JUSTICE RAMSEY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
The Right Honourable Lord Justice Longmore
and
The Right Honourable Lord Justice Etherton
Case No: A1/2010/2324
Mr Daniel Crowley (instructed by Trowers & Hamlins LLP) for the Appellant
Mr Graeme Sampson (instructed by Lyons Davidson) for the Respondent
Hearing dates: 23 rd March 2011
Introduction
Before 1 st January 1974, it was generally considered that a purchaser of a house had no remedy in respect of defects against either his vendor (unless the agreement stipulated otherwise) or against any person doing work at the house before the date of the purchase, see Lynch v Thorne [1956] 1 WLR 303.
Many thought that this state of affairs was unsatisfactory particularly if (as in Lynch v Thorne) the builder was himself the vendor. The Law Commission considered the matter and produced a report in which they recommended that persons who take on work for or in connection with the provision of a dwelling should owe a duty, to the person to whom the dwelling was provided and to any person who later acquired any interest in the dwelling, to see that the work he takes on is done in a workmanlike or professional manner. But the person who took on such work and owed such duties had to be a person taking on work for or in connection with "the provision of a dwelling". If he did not provide a dwelling, he was not to be under this new duty. As a result of this recommendation, Parliament enacted the Defective Premises Act 1972 ("the 1972 Act").
The Facts
Mr and Mrs Jenson are the freehold owners and occupiers of a residential property at 105 Leathwaite Road, Battersea, London SW11 6RN, which they purchased from a Mr Green in November 2007. At the time of purchase it had a basement converted out of a coal cellar, a ground floor, a first floor and a loft.
In 2003 Mr Green arranged for works to be carried by the defendant who provides services as an interior specialist and project manager. These works were carried out between October 2003 and April 2004. The defendant did not actually do the work himself but it is accepted that he "took on work for or in connection with" the house in Leathwaite Road within the meaning of the 1972 Act.
Mr Green in a witness statement describes the scope of the works as follows:-
i) The loft area was re-modelled and extended to support a new glass structure and skylights containing an office and guest bedroom;
ii) the first floor was re-modelled to change a bedroom into a second bathroom; this involved the replacement of all internal partitions and, while work on the basement was done, the demolition of a bedroom in order to relieve the load on the kitchen and basement below;
iii) the ground floor works consisted of gutting the floor in its entirety and replacing the kitchen replacing over a bigger area; this was done by removing internal partitions and replacing part of the external (southern) wall of the house with a new cavity wall;
iv) by way of replacing the coal cellar, a new basement was excavated to create a large space with shower room/WC and a washing/laundry room, cinema screen and indoor gym. There was internal and external access to the basement.
Mr and Mrs Jenson claim to have suffered loss as a result of damage caused by flooding to the new basement area, allegedly due to problems concerning the waterproofing applied to the basement; they allege that the waterproofing applied to the basement was defective because the basement was subject to repeated water penetration. They accordingly began proceedings against the defendant (with whom they had, of course, no contract) pursuant to the 1972 Act.
The defendant issued an application for summary judgment maintaining that s. 1 of the 1972 Act only applies to the provision of a new dwelling and on the facts here the house was the same dwelling both before and after the works; the defendant did not therefore provide a dwelling for the purpose of owing the duties set out in the 1972 Act.
The judge held that the question whether the defendant had provided a dwelling was a question of fact and degree, unsuitable for summary determination because it could arguably be maintained that the identity of the new dwelling was different from the identity of the old dwelling. There is now an appeal brought with permission of Tomlinson J.
The Law
Section 1(1) of the Act provides:-
"A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty
a) if the dwelling is provided to the order of any person, to that person; and
b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner … so that as regards the work the dwelling will be fit for habitation when completed."
Cases on the relevant part of this section exist but are not easy to find. In the unreported case of Saigol v Cranley Mansions (6 th July 1995), Mrs Saigol had extensive alterations done to her 5 th floor flat in the block of flats known as Cranley Mansions. One of the many questions debated was whether, if the relevant defendant had done the works, he owed the duty set out in section 1(1) of the 1972 Act. Hutchison LJ (with whom McCowan and...
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