Maggs v Marsh and Another
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,LORD JUSTICE MOSES,LADY JUSTICE HALLETT |
| Judgment Date | 07 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1058 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C6/2005/2431 |
| Date | 07 July 2006 |
[2006] EWCA Civ 1058
Lady Justice Smith
Lord Justice Moses
Lady Justice Hallett
C6/2005/2431
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
(MR RECORDER LAMB QC)
Royal Courts of Justice
Strand
London, WC2
MR A MARSDEN (instructed by Messrs Mowbray Woodwards, 3 Queen Square, BATH, BA1 2HG) appeared on behalf of the Appellant.
MS K GOUGH (instructed by Messrs Hollinshead & Co, Bristol & West House, 4c Duke Street, TAVISTOCK, PL19 0BA) appeared on behalf of the Respondent.
Judgement
This is an appeal by Mr Guy Marsh against the decision and order of Mr Recorder Lamb QC, given in the Bristol County Court. The reserved decision was dated 14 October 2005. The order appealed was made on 22 November 2005 and amended on 19 January 2006. The Recorder ordered that Mr Marsh, the defendant in the proceedings, should pay to Mr Brian Maggs, the claimant, the sum of £69,692.22 plus VAT plus interest in respect of work done by Mr Maggs at Mr Marsh's premises in Bath. Permission to appeal was given by Hallett LJ.
The history of the dispute is as follows. Mr Marsh is a retired jeweller. He, or a company that he owns, has a town house in Bath. In 2002 he decided to have it refurbished and contacted Mr Maggs, who is a general builder with many years of experience. Some preliminary drawings were in existence at the time of their first site meeting in July 2002. At that meeting Mr Maggs was accompanied by Mr Cook, a surveyor, who assisted Mr Maggs with estimating and billing. At this meeting Mr Cook made a list of the work which Mr Marsh wanted.
In August 2002, Mr Maggs sent Mr Marsh what he described as a "budget estimate" for the works in the sum of just over £44, 000 plus VAT. The estimate did not particularise the works to be covered. Mr Marsh asked for a breakdown of the costs and a list of items with costings was provided. This first estimate was not accepted but, after further discussions between Mr Maggs and Mr Marsh, a revised estimate was submitted in the sum of £36,510 plus VAT. The estimate referred to the "omission of certain items as discussed" and other amendments. It included £750 for contingencies and £650 for a boiler which might or might not be necessary. A list of the works was attached to the estimate, but on that list the items were only briefly described.
The revised estimate was orally accepted by Mr Marsh and the work began in June 2003. It is common ground that, during the course of the work, Mr Marsh gave instructions to Mr Maggs' contractors or workmen that additional items of work were to be undertaken. Mr Maggs was willing to do these extra things, although not, of course, within the contract price. However, no estimates were asked for or provided for any of these works, although some of them were quite significant. For example, two bedrooms on the third floor were to have en-suite bathrooms.
On 7 July 2003, Mr Maggs sent an interim invoice for £12,750 plus VAT to cover work done at that stage. No particulars were given. That account was paid, although not within 14 days as requested. On 25 August, Mr Maggs requested a second interim payment of £16,000 plus VAT. Again no particulars were given of the work completed by that date. On 29 August, Mr Maggs provided a list of what he described as "variations to the work to date" with a price against each item. The total came to about £6,250 and it was stated that "further items would be advised when completed". Mr Marsh did not comment on this letter and, towards the end of September, he paid the second interim account. A third interim payment was requested on 13 November. It was not particularised; it was paid in December. The work was finished in early 2004 and, on 20 February 2004, Mr Maggs submitted his final bill in the sum of £69,293.71. Interim payments were deducted and Mr Maggs requested payment of the balancing amount of £26,043.71 plus VAT which came to £30,601. Accompanying the invoice was a list of items which had been omitted from the original contract (by agreement) which reduced the original contract price by just over £4,000 and also a list of extra items for each of which Mr Maggs provided the sum that he was claiming.
Unwisely, as events have turned out, Mr Marsh disputed that bill. In March 2004, he wrote disputing some extra items. There were discussions and a meeting but Mr Marsh and Mr Maggs did not reach agreement. Mr Marsh made an offer to pay a further sum in settlement. Mr Maggs would not accept it and on 1 April 2004, Mr Maggs issued a claim in the County Court. It was based upon his final invoice. Mr Marsh's defence said that he had already paid the contract price and that the sums claimed for extras were unreasonable. He also counterclaimed complaining about some aspects of the work, but at the trial that claim was dismissed by the recorder and no issue arises from it on this appeal.
Nearly a year went by after the close of pleadings, during which time both parties instructed expert surveyors, ostensibly to assess what was a reasonable sum for the various extras. Mr Marsh instructed a Mr Easton and Mr Maggs instructed Mr John Cousins. In late March or early April 2004 (a whole year after his initial claim) Mr Maggs served an amended claim. Instead of claiming a total contract price of £69,293.71, he was now claiming a total contract price of £126,363.00. After taking account of the interim payments received, he was claiming a further £83,113.00 plus VAT plus interest. No particulars of how this sum was arrived at were provided in the pleading itself, but it was apparent that the justification for this significant increase was Mr Cousins' valuation of the work done.
So far as material to this appeal, Mr Marsh's defence referred to the variations of work listed in Mr Maggs' letters of 29 August 2003 and 20 February 2004. It then set out in a schedule the disputed items of work claimed as extras by Mr Maggs, some of which were disputed because Mr Marsh claimed that they were covered by the original contract and included in the initial global price; the rest were accepted as extras, but Mr Marsh was claiming that the sum claimed was unreasonable. Mr Marsh said that he would rely on the report of Mr Easton as to what sums were reasonable for such items as were true extras. Mr Maggs, through his lawyers, prepared a Scott schedule upon which all the disputed items were listed; and on that Scott schedule, battle was joined.
The hearing began on 19 September 2005 and was allocated three days. Mr Maggs gave evidence and called Mr Cook, his surveyor, also his foreman and several workmen or subcontractors. He also called his expert surveyor, Mr Cousins. Mr Marsh gave evidence and called Mr Easton by video link. A major factual issue in the case was what had been included in the original contract. It was agreed that the contract was oral, at least because the estimate had been accepted orally. But it was Mr Marsh's case, and it is clear to me that he was right in this, that the contract was partly oral and partly written, because such documents as had come into being at the time of the contract were far from being a complete record of its terms. Mr Marsh and Mr Maggs both gave evidence of things discussed at the site meeting and in the pre-contractual period. There were differences in their recollections. They also gave evidence about matters that had been discussed afterwards. For example, Mr Marsh was saying that, although clearance of the rubbish from the property was not originally to be included in the contract, as he intended to do that work himself, there was an oral agreement shortly before the works began that Mr Maggs would do it and would not charge for it. This, he said, came about because Mr Maggs' previous contract had finished early and he wanted to get on with this one. Mr Maggs disputed that and claimed that if he removed the rubbish, it was always envisaged that it would be an extra.
By the time the evidence at the trial had been completed, there was very little court time left. The parties and the recorder agreed that counsel would present oral submissions limited to the scope and formation of the original contract. The recorder would reserve judgment and decide as quickly as possible on those issues. The parties would then take stock. It was hoped that agreement could be reached on quantum once the true extras had been identified.
A major issue emerging during the trial, and in particular in closing submissions, was the extent of the evidence that the recorder could receive and rely on when determining the scope of the original contract. It was agreed between the parties that the contract was an oral contract. It was not a written contract. Mr Marsden, on behalf of Mr Marsh, submitted that, in determining which items of work fell within the original agreement, it was permissible and appropriate for him to take account of all the evidence, including evidence of what the parties said or did after the contract was formed, because that evidence might throw light on what they then believed was the scope of the original contract. He wished to rely on Mr Maggs' letters with their lists of extras dated 29 August 2003 and 20 February 2004. Mr Marsden did not suggest that those lists amounted to an estoppel upon Mr Maggs' claim for extras. But he submitted that they did provide a very good guide as to what his (Mr Maggs') then understanding was of what the parties had agreed in March 2003. He submitted that it...
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