Lowe v W Machell Joinery Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Mr Justice Lewison,Lord Justice Rix |
| Judgment Date | 08 July 2011 |
| Neutral Citation | [2011] EWCA Civ 794 |
| Docket Number | Case No: B2/2010/2056 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 July 2011 |
[2011] EWCA Civ 794
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEEDS COUNTY COURT
TECHNOLOGY AND CONSTRUCTION COURT LIST
HIS HONOUR JUDGE COCKROFT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Lloyd
and
Mr Justice Lewison
Case No: B2/2010/2056
Aidan Casey (instructed by Chadwick Lawrence) for the Appellants
Lisa Linklater (instructed by Lee & Priestley) for the Respondent
Hearing date: 6 April 2011
In 2008 Mr and Mrs Lowe were converting a barn for residential use. They wanted to have an impressive staircase in it. They ordered from the Defendant a bespoke wooden staircase to be made of oak for a price of £16,000 plus VAT, payable before delivery. They paid the price on 4 June 2009 and delivery took place the next day. However, they took the view that what was delivered did not comply with the Defendant's obligations under the contract. They therefore rejected the goods by letter dated 12 June 2009. They had a different staircase supplied from another source. The Defendant's goods are still held by the Claimants awaiting collection by the Defendant.
Mr and Mrs Lowe issued proceedings in July 2009 for the recovery of the price, and damages to be assessed. The case came to trial before His Honour Judge Cockcroft in the Technology and Construction Court list in Leeds, over 4 days in July 2010. In his judgment delivered on 2 August 2010 the judge held that the Claimants' original reasons for rejecting the goods were unjustified. However, shortly before the trial the Claimants had taken a further point, namely that if the Defendant's goods had been installed, there would have been a breach of the Building Regulations, and that this was another breach of contract justifying rejection.
The judge held that the Building Regulations would not be complied with, and that the Defendant was for that reason in breach of contract, but he also held that this was not sufficient to justify rejection of the goods, essentially because the design could easily be modified, in one of a number of different ways, so as to avoid there being any breach of the Building Regulations. He also held that the Claimants were not entitled to any relief as a result of the Defendant's breach of contract. He dismissed the claim and he awarded costs against the Claimants on the indemnity basis.
With permission to appeal granted by Sir Richard Buxton, the Claimants appeal against that order. The Defendant served a Respondent's Notice seeking to uphold the judgment on other grounds, including by asserting an implicit finding by the judge that the goods were of satisfactory quality. In an amendment to the Respondent's Notice proposed at a late stage (for which I would grant permission) it is said that he was wrong to find that there would be a breach of the Building Regulations.
Part of the problem presented by this case can be attributed to the fact that there is no document setting out the terms of the contract. There was evidently a serious mismatch of assumptions on each side as to, for example, the way in which the goods would be delivered, and what would remain to be done on site in order to install the staircase. It is necessary to resort to inference and implication as to any terms of the contract other than the identification of the design, materials and (presumably) dimensions of the goods, and the price payable.
The Claimants had visited the Defendant's premises in 2006, and Mr Machell in turn had come to see the barn at that time. In due course the Claimants ordered a quantity of goods from the Defendant, as listed in a fax from the Defendant dated 1 December 2008 giving quotations for five different items, including the staircase. The text of the fax as to the latter was "Staircase including both gallerys 'tom can do drawings'". The fax also showed a lozenge-shaped drawing as "shape on spindel". The papers include several drawings with manuscript dates in mid December 2008 showing the staircase in plan and elevations. It is likely that these were the drawings done by Mr Tom Mason, an employee of the Defendant. One of these drawings shows a 100mm sphere, whose significance I will explain later. It seems that this may have been generated automatically by the design software used by the Defendant. Mr Machell's evidence showed that he did not correctly understand its importance.
What the Defendant was to supply, as is common ground and was shown on the drawings which I have mentioned, was the components for a staircase connecting the ground and first floors of the barn as converted. The first flight of six steps was to start with two steps on what was described as a bull-nose design. That flight led to a landing, from which two further flights, each of five steps, rose at 90 degrees to the first, in opposite directions. These led to landings or galleries, the materials for which were also to be supplied by the Defendant, including the balustrades. If one were to turn from either of these flights to move along the gallery in the opposite direction to that of the first flight of steps, the gallery led to a blank wall, part of the outside wall of the barn. If one were to turn in the opposite direction, one would then reach other parts of the first floor of the building.
The balustrades of the flights of steps and those of the galleries had a newel post at each end and spindles to a particular design, all to be supplied by the Defendant. The design of the spindles had been chosen by the Claimants from samples in the Defendant's premises, with agreed modifications, including the application of the lozenge design. They were shown on the elevation drawings.
If the spindles are placed side by side, all of them the same way up and at the same height (as they would be on the galleries, though not on the flights of stairs), the spaces between the spindles would be sufficient to allow a 100mm sphere to pass between two adjacent spindles at certain points. The significance of that feature arises under the Building Regulations. The design could have been modified with little trouble so as to avoid this position. However, as depicted on the December 2008 drawings the spindles were all the same way up, and it seems to me that, absent any other indication at the time, it must have been understood and agreed that the spindles would all be installed the same way up.
I must explain the point under the Building Regulations in a little detail, so that the issue can be understood. The conversion of the barn to a residence had to comply with the Building Regulations issued under the Building Act 1984, and in particular with the relevant requirements of Schedule 1 to the Regulations. The terms of Schedule 1 are relatively general, but they are amplified in considerable detail by Approved Documents issued under section 6 of the 1984 Act. Under section 7 of that Act, a failure to comply with an Approved Document does not of itself render a person liable to civil or criminal proceedings but if in any such proceedings it is alleged that a person has contravened a provision of Building Regulations, a failure to comply with an Approved Document "may be relied upon as tending to establish liability". Thus, the terms of the Approved Documents have to be taken seriously. If the Building Regulations are not complied with in respect of a building, the building control officer may not approve the work done. That would lead to the possibility of criminal sanctions if the building were used, or to a notice by the local authority requiring the breach to be remedied, and to possible civil liability as well.
The relevant part of Schedule 1 is Part K, of which paragraph 1 requires stairs, ladders and ramps to be so designed, constructed and installed as to be safe for people moving between different levels in or about the building. Paragraph 2, so far as relevant, requires that any stairs, ramps, floors and balconies be provided with barriers where it is necessary to protect people in or about the building from falling.
The relevant Approved Document deals with K1 and separately with K2 and K3. As regards K1, the relevant passage is paragraphs 1.28 and 1.29:
"1.28 Flights and landings should be guarded at the sides (see Diagram 11):
a. in dwellings—where there is a drop of more than 600mm
…
1.29 Except on stairs in a building which is not likely to be used by children under 5 years the guarding to a flight should prevent children being held fast by the guarding. The construction should be such that:
a. a 100mm sphere cannot pass through any openings in the guarding; and
b. children will not readily be able to climb the guarding."
By paragraph 1.30 the height of the guarding was to be a minimum of 900mm for internal guardings in single family dwellings, whereas in other buildings a height of 900mm would suffice for flights, but 1100mm is the minimum elsewhere.
In the guidance to paragraphs K2 and K3, paragraph 3.3 is relevant. It supplements paragraph 3.1 which requires guarding to be provided where reasonably necessary for safety to guard the edges of any part of a floor or gallery.
"3.3 Where buildings are likely to be used by children under 5 years the guarding should prevent children being held fast by the guarding. The construction should be such that a 100mm sphere cannot pass through any opening on the guarding and so that children will not readily be able to climb it. Horizontal rails for such guarding should be avoided."
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