Patchett and Another v Swimming Pool & Allied Trades Association Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Clarke of Stone-cum-Ebony MR,Lord Justice Scott Baker,Lady Justice Smith |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2009] EWCA Civ 717 |
| Docket Number | Case No: B2/2009/0162 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2009 |
[2009] EWCA Civ 717
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
HIS HONOUR JUDGE WORSTER
7BM07978
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Clarke Of Stone-cum-ebony Mr
Lord Justice Scott Baker and
Lady Justice Smith
Case No: B2/2009/0162
Mr Jamie McCracken (instructed by MFG Solicitors LLP) for the Claimants/Appellants
Mr George Woods (instructed by Plexus Law) for the Defendant/Respondent
Hearing dates: 29 June 2009
Lord Clarke of Stone-cum-Ebony MR
Introduction
This is an appeal against a decision of His Honour Judge Worster ('the judge') in the Birmingham County Court which was handed down on 15 December 2008 and in which he held that the defendant ('SPATA') did not owe the claimants a duty of care in making certain statements on its website. The appeal is brought with the permission of Etherton LJ. The question in the appeal is whether SPATA owed the claimants a duty of care. The answer to that question depends almost entirely upon whether such a duty can be spelled out of the contents of the website, which must of course be considered in its context.
The facts
The facts are not in dispute and can be taken almost entirely from the judgment. The claimants are husband and wife. In the summer of 2006 they were looking for a contractor to build them a swimming pool in the garden of their home. SPATA is an incorporated trade association. It is a company limited by guarantee and is owned by the various organisations which make up its membership. It is well established and its membership includes most of the major swimming pool installers trading in the United Kingdom.
In his search for a contractor Mr Patchett came across SPATA's website via Google and obtained the contact details of three member companies for direct quotations. One of the three was Crown Pools Limited ('Crown'), the director of which was Mr Finley. Crown initially quoted £64,876 but, after some negotiation, Mr Patchett accepted Crown's revised quote of £55,815, which included both the installation of the pool and the landscaping works.
Crown began the work but did not complete it. It is the claimants' case that Crown did not carry out the work with reasonable skill and care. The claimants paid the instalments due under the contract but unfortunately, by the autumn of 2006, Crown was in serious financial difficulties. In the event Crown stopped work and on 20 November 2006 wrote to its customers saying that it was technically insolvent and that it had ceased trading. The claimants had the work completed by other contractors and say that they suffered financial loss as a result. Their total claim is for some £44,000, which is made up of the total sum paid to a new contractor, plus the amount that they had paid to Crown less the amount they would have paid to Crown if it had completed the contract.
The claimants' case depends upon the contents of SPATA's website. The Home Page has a series of drop down menus at the top, which include “SPATA INFORMATION” and “MEMBER SEARCH”. The webpage is headed in bold “WHO AND WHAT IS SPATA?” and has ten unnumbered paragraphs which were numbered for ease of reference at the trial and in the judgment. I adopt that numbering for the same reason. The paragraphs read:
“(1) Installing a swimming pool is a specialised task requiring skills and technical expertise in a number of different areas. One way of guaranteeing that the pool installation company has this expertise, is to make sure they are a member of The Swimming Pool and Allied Trades Association (SPATA) before contacting them for a quotation.
(2) SPATA is the trade association for the swimming pool industry in the UK. Its 250 or so members comprise Pool Builders, Retailers, Designers, Service Engineers and Trade Suppliers in the UK and overseas. It covers both domestic and commercial installations.
(3) SPATA approves member companies who specialise in undertaking pool contracts for commercial use, a list is available from the SPATA office.
(4) SPATA members combined turnover is in excess of £100M annually and most of the major companies are members.
(5) SPATA sets down standards governing construction and operation of pools, spas, saunas and steam rooms which are widely respected and applied by the trade, as well as architects and builders.
(6) SPATA pool installer members are fully vetted before being admitted to membership, with checks on their financial record, their experience in the trade and inspections of their work. They are required to comply fully with the SPATA construction standards and code of ethics, and their work is also subject to periodic re-inspections after joining. Only SPATA registered pool and spa installers belong to SPATASHIELD, SPATA's unique Bond and Warranty Scheme offering customers peace of mind that their installation will be completed fully to SPATA Standards – come what may!
(7) SPATA operates a disputes resolution procedure to assist with complaints from members customers and offers a Stakeholder facility to safeguard contract money in the event of a dispute.
(8) SPATA supplies an information pack and members lists which give details of suitably qualified and approved installers in the customer's area. The pack includes a Contract Check List which sets out the questions that the customer should ask a would-be tenderer together with those which must be asked of the appointed installer before work starts and prior to releasing the final payment
(9) An experienced pool designer can often save you money in the long run by avoiding potential costly problems at the design stage. SPATA can be contacted for a list of designers.
(10) SPATEX holds an annual trade/public exhibition in Brighton each February. This event also features the Industry Gala Dinner and Presentation of the SPATA Awards for Swimming Pool Design and Construction ….”
As the judge observed at [6], in his witness statement at paragraphs (3) to (6), Mr Patchett said this:
“(3) I visited SPATA's website …. where SPATA claimed it undertook to vet, monitor and inspect its members to ensure that they are, and remain, sound competent and creditworthy contractors in their field. The Website also purported to provide details of contractors who had been subject to this scrutiny.
(4) I noted when I visited the SPATA website in around July 2006, that the Website made a number of statements in respect of the type of contractors SPATA would admit into its organisation, the types of checks made in relation to potential member contractors as well as ongoing member contractors and the protection afforded to customers of SPATA members. [He then refers to the webpage.]
(5) In addition the Website led me to believe that if the work was carried out by a contractor who was a SPATA member then we would have the benefit of SPATASHIELD which they stated would offer “customers peace of mind that their installation will be completed fully to SPATA standards – come what may!”
(6) By reason of the status of SPATA as an incorporated trades association with regard to swimming pool installation and maintenance and due to the statements made on the SPATA Website, and particularly as a result of the SPATASHIELD claim, I contacted three contractors whose details were listed on the SPATA Website in order to obtain quotations for the work my wife and I wanted done. I did not approach any contractors who were not members of SPATA.”
Mr Patchett did not contact SPATA for the information pack and members list referred to in paragraph 8 of the webpage. Indeed there was no direct communication between Mr Patchett and SPATA at all. Before the contract was made Mr Finley showed Mr Patchett an example of Crown's work. Mr Patchett was impressed. Crown was the only one of the three companies he asked to quote who could undertake both the pool installation and the landscaping works. The judge said that it was hard not to be impressed with Mr Patchett's ability as a businessman.
Mr Patchett's evidence was that he told Mr Finley that he was aware that Crown was a member of SPATA. He did not, however, make any inquiries about the SPATASHIELD cover. He had no details from SPATA (whether from the website or otherwise) as to the nature or terms of the cover and he appears never to have discussed SPATASHIELD with Mr Finley. None of the documents provided to him by Crown make any mention at all of SPATA membership or of the SPATASHIELD bond and warranty.
As the judge observed at [21] of his judgment, the claimants' case relied upon paragraphs 1 and 6 of the webpage quoted above, which they said were negligent misstatements in that they were inaccurate and misleading because Crown was not a full member of SPATA, was not a sound and competent contractor, was not creditworthy, became insolvent and provided installations which did not benefit from the SPATA guarantee.
I will return further to the facts, the claimants' case and the judge's conclusions below but should first refer to the relevant legal principles.
Legal principles
I can take these relatively shortly because they are not in dispute. The judge set them out in some detail and it is not said on behalf of the claimants that he erred in any way in doing so. Their case is that, although the judge identified the correct legal principles, he failed to apply them correctly to the facts of this case.
The judge first referred to part of the speech of Lord B...
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