Mr Stephen West and Another v Ian Finlay & Associates (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart |
| Judgment Date | 16 April 2013 |
| Neutral Citation | [2013] EWHC 868 (TCC) |
| Docket Number | Case No: HT-11380 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 16 April 2013 |
[2013] EWHC 868 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Edwards-stuart
Case No: HT-11380
Jonathan Selby (instructed by Hewitsons) for the Claimants
Richard Coplin (instructed by CMS Cameron McKenna) for the Defendant
Hearing dates: 19 th–22 nd November 2012
Date: 26–29 th November 2012
Date: 17 th December 2012
Introduction
In June 2005 the Claimants, to whom I shall refer as Mr and Mrs West, or the Wests, bought a house in Putney, No. 63 Deodar Road, for £1.7 million. The house had five floors and was on a sloping site leading down to the River Thames. The lower ground floor was below ground level at the front of the house but was at about ground level at the rear.
The Wests wanted to make fundamental changes to the layout of the house, and to the ground and lower ground floors in particular. The problem was that they had a limited budget. At first, it was £250,000 and then subsequently they increased it to £500,000. After some initial discussions with an architect whom they subsequently decided not to use, they were introduced to the Defendant, to whom I shall refer as IFA. IFA effectively consisted of Mr Ian Finlay, who was its sole principal.
After protracted discussions the Wests eventually agreed a specification of work with Mr Finlay, but this was on the basis that they would arrange the procurement of certain discrete parts of the work themselves — such as a new conservatory and a kitchen — thereby not attracting either IFA's percentage fee or the contractor's overheads and profit on those items. In June 2006 they entered into a building contract with a contractor called Armour for £292,000, excluding VAT. The prices initially obtained by the Wests from other contractors had been beyond their budget, and so Mr Finlay introduced Armour. After some negotiation Armour submitted a price that the Wests were prepared to accept.
Unfortunately, the project proved to be a disaster. About six weeks after the Wests moved into the house in May 2007, when the work was supposed to have been completed, they found extensive damp in the lower ground floor. Experts were called in and it was concluded that no proper waterproofing had been carried out by Armour.
The Wests blamed both Mr Finlay and Armour for this state of affairs. During the course of the investigations into the cause of the damp the Wests were advised to have the mechanical services and electrical installations properly checked by an independent expert. This revealed that there were serious problems with both the plumbing and the electrical works also, such that it was eventually decided that all the newly installed mechanical and electrical ("M&E") services would have to be completely removed and replaced.
The Wests managed to find alternative accommodation in the same road, into which they moved with their small son, Jacob, who had been born at the beginning of the year. In the end, the Wests were in this accommodation for some 20 months whilst the remedial works to No 63 were planned and carried out.
In this claim the Wests are suing IFA for negligence, not only in relation to the advice (or lack of it) in relation to the treatment required for the lower ground floor to prevent damp, but also for Mr Finlay's failure to notice the defects in the M&E installations and to have them put right. In addition, in the course of the remedial works it was discovered that the new floor slabs that had been installed by Armour in the lower ground floor were defective. These had to be removed and replaced. The Wests claim the costs of dealing with these problems, together with various consequential losses, from IFA. There are also included in the claim some other relatively minor defects that are said to be the responsibility of IFA.
Armour subsequently became insolvent and so the claim that had been intimated against it is no longer pursued. Initially, IFA denied liability, contending that all the problems were the result of defective workmanship by Armour or its subcontractors. IFA has contended also that the remedial works actually carried out by the Wests went far further than was reasonably required to remedy the defects and therefore involved substantial betterment for which no proper credit has been given in the claim.
By the end of the trial liability was effectively admitted, albeit for some items only, and, contrary to the position taken in its opening submissions, at one point IFA appeared to be asserting that in 2006 the Wests would have decided to opt for a fully tanked solution to deal with the damp in the lower ground floor 1. But it was now IFA's primary case that as a result of Armour's poor financial position the defective workmanship, if discovered by IFA, would never have been rectified and completed in any event.
These issues of liability and causation are further complicated by the fact that IFA contends that its terms of engagement include what is known as a net contribution clause. This is in the following terms:
"Our liability for loss or damage will be limited to the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you."
The effect of this clause is in issue. But if it has the meaning for which IFA contends, the Wests raise questions of whether it is fair and reasonable within the meaning of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999.
The claim is for a total sum in excess of £800,000. Mr Jonathan Selby, instructed by Hewitsons, appeared for the Wests, and Mr Richard Coplin, instructed by CMS Cameron McKenna, appeared for IFA.
No. 63 Deodar Road
No. 63 was the left-hand house of a pair of semi-detached houses (viewed from the front). The front door was on the right-hand side of the ground floor and opened directly (through a small lobby) into a large room which, from the left hand side led on to a "galley" kitchen and from the right-hand side led on to the stairwell, where there were stairs leading down to the basement and up to the upper floors. Beyond the kitchen was a gallery which served as a dining area: this did not go all the way to the rear of the house but looked onto the floor below. On the first and second floors there
were five bedrooms, together with three bathrooms. On the top floor there was a sun room, which gave onto a roof terrace.At the front of the lower ground floor a room had been created out of an old cellar. A corridor from this room led, via a small lobby and stairs going down to a cellar, towards the rear of the house, passing a utility and boiler room, lavatory and the stairs up to the ground floor. At the rear, looking out onto the garden and then the river, was a large reception area, part of which was under the dining area and part of which was double height. This was extended into the garden for about three quarters of the width of the house by a two storey conservatory, beside which was a door leading into the garden. The floor of the conservatory and lower ground reception area was roughly at ground level, whereas at the front of the house the upper ground floor was slightly above ground level.
The Wests wanted to extend and replace the old conservatory with an elegant glazed box and to turn the existing reception area into a new kitchen and dining area. They wanted to keep the mezzanine arrangement but to open up the ground floor so as to remove the existing kitchen and turn the whole of the rear part of the ground floor area into a reception room.
Events leading up to the appointment of IFA
Before the Wests purchased No 63 they had set their budget at about £1.8 million, that was about £1.5 million for the property and £300,000 for subsequent refurbishment. Mr West had a childhood friend who was an architect practising in London, Mr Daniel Wright. His firm was called Foundation Architecture. Mr West approached him for advice. In February 2005 they heard that No 63 was on the market for a price of just under £2 million and the Wests went to see it with Mr Wright. They noticed that in the front room in the lower ground floor, which had been the former cellar, there were signs of damp on the walls: there were two large areas where the plaster was peeling off the wall. They told Mr Wright that they wanted to replace the heating, plumbing and electrics throughout and to deal with any damp in the lower ground floor. In terms of alterations, they told Mr Wright that they wanted to open up the lower ground floor so as to create a large open plan area and to replace the existing conservatory with what Mr West described as a "sleek, minimalist "glass box" with a glass door opening straight out into the garden". In addition, they wanted to remove the galley kitchen on the upper ground floor to create a larger living room and then to create a kitchen and dining area in the lower ground floor.
Mr West says that Mr Wright told them that this package of work would cost about £250,000. With hindsight, that proved to have been very over optimistic, but in the light of it the Wests decided to make an offer for the house.
The Wests continued to discuss the project with Mr Wright, including their proposal to lower the level of the entire lower ground floor to create more ceiling height — it was the implementation of this proposal which led to many of the subsequent problems in the lower ground floor. In April 2005 they appointed Anglia Building Surveying to carry out a survey, asking them to focus particularly on the need for damp proof works and...
To continue reading
Request your trial
-
Stephen West and Another v Ian Finlay & Associates (A Firm)
...DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION TECHNOLOGY AND CONSTRUCTION COURT MR JUSTICE EDWARDS-STUART [2013] EWHC 868 (TCC) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Moore-Bick Lady Justice Gloster and Lord Justice Vos Case No: A1/2013/120......
-
DBE Energy Ltd v Biogas Products Ltd
...783 per Robert Goff J at 846D, upheld on this point in the House of Lords, and the approach taken by this court in West v Ian Finlay [2013] EWHC 868 (TCC) per Edwards-Stuart at [389]). Miss Atkins provided a table in her skeleton argument setting out the various dates of loss in relation t......
-
Prakash Vyas and Minaxi Vyas (Claimants/Appellants) v Raj Goraya, T/A Taj Construction Roofing
... ... The point can perhaps be made another way. If after making the contract Mr Goraya had ... the decision of Edwards-Stuart J in West & West v Finlay [2014] EWHC 868 , indicated that ... ...
-
January To June 2013 Case Review
...to rely on what other members of the construction team have stated. Net contribution clauses West v Ian Finlay & Associates [2013] EWHC 868 (TCC) Net contribution clauses seek to restrict a party's liability to the amount that would be apportioned to them by a court where more than one ......
-
Damages
...[1984] VR 971. 128 Hooberman v Salter Rex (1984) 1 Con LR 63 at 74, per Judge Smout QC; West v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC) at [391], per Edwards-Stuart J (appeal allowed, for other reasons: [2014] EWCA Civ 316). Compare Nouvelle Homes Pty Ltd v G&M Smargiassi [200......
-
Litigation
...involve the inal disposition of the substantive issues between the parties. 341 333 See, eg, West v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC) at [311], per Edwards-Stuart J (appeal allowed, for other reasons: [2014] EWCA Civ 316). See also Chan Shun Kei v Hong Kong Construction......
-
Defects
...v Cunningham Lindsey United Kingdom [2007] EWhC 3023 (TCC) at [267]–[270], per akenhead J; West v Ian Finlay & Associates (A Firm) [2013] EWhC 868 (TCC) at [251], per Edwards-Stuart J (appeal allowed, for other reasons: [2014] EWCa Civ 316); Millenia Pte Ltd v Dragages Singapore Pte Ltd [20......
-
Contract administration
...practical completion of the works was achieved on a particular date, when plainly it was 557 West v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC) at [181]–[182], per Edwards-Stuart J (appeal allowed, for other reasons [2014] EWCA Civ 316). 558 Wridgway v Dunn (1892) 18 VLR 705; McK......