Peter Kellie and Another v Wheatley & Lloyd Architects Ltd
| Jurisdiction | England & Wales |
| Judge | H.H. Judge Keyser |
| Judgment Date | 03 July 2014 |
| Neutral Citation | [2014] EWHC 2212 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Claim No: 0BS90655 |
| Date | 03 July 2014 |
[2014] EWHC 2212 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Cardiff Civil Justice Centre
2 Park Street
Cardiff, CF10 1ET
His Honour Judge Keyser QC
sitting as a Judge of the High Court
Claim No: 0BS90655
Alex Troup (instructed by Foot Anstey LLP) for the Claimants
Marc Lixenberg (instructed by Beale and Co Solicitors LLP) for the Defendant
Hearing dates: 31 March, and 1, 2, 3 and 8 April 2014
H.H. Judge Keyser Q.C.:
Introduction
In these proceedings the claimants, Mr and Mrs Kellie, claim damages for professional negligence against the defendant, Wheatley & Lloyd Architects Limited.
The claimants' case is as follows. In 2004 they engaged the defendant to act as their architect in, among other things, the design and construction of a detached garage/workshop at their house. They indicated to the defendant that their favoured design for the garage/workshop was in the "Border Oak" style, with a pitched roof, but the defendant advised them that such a design could not be achieved because it required planning permission that would not be forthcoming. As a result, and in accordance with the advice they were given, the claimants had the garage/workshop constructed in a different style and with a nearly flat roof. The defendant's advice was negligent, in that the garage/workshop could indeed have been built in the desired style, having regard in particular to permitted development rights (PDR) attaching to the property. In consequence, the claimants have suffered loss, in that (a) the value of their house is less than it would be if the garage/workshop had been built to their preferred design and (b) it would have cost less to build a garage/workshop to their preferred design.
The defendant disputes each part of the case against it. It denies that the claimants expressed any wish for a construction of the design they now claim to have wanted. It says that its advice was proper in the circumstances and that the alleged losses are illusory. And it contends that the claim is statute-barred in any event.
At trial I received oral evidence from the claimants, from Mr John Wheatley, who was the senior director of the defendant company, and from a number of other witnesses of fact. The parties also adduced expert evidence in respect both of liability and of quantum of damages; I shall discuss that evidence later in this judgment.
I am grateful to Mr Troup for the claimants and Mr Lixenberg for the defendant for their excellent submissions.
Summary of the facts
The proceedings relate to a property ('the Property') called Middleton Barn, Little Hereford, near Ludlow. The Property had been owned and occupied by Mrs Kellie's parents. When her father died in July 2003, it became owned solely by her mother, Mrs Kelly.
In 2003 the Property comprised a two-storey detached dwellinghouse ('the Barn'), which was a converted agricultural barn, and a detached garage, set in about three-quarters of an acre of land. To the west of the Property is a highway, and to the north, east and south are fields. As viewed from the highway, the north end of the barn is at the left. The garden is broadly on two levels. At the back ( east) of the house is a lawned area. To the north the land slopes up to a higher level, which is a small orchard that was planted by Mr Kelly. In 2003 the detached garage was behind ( east) and to the right (south) of the Barn.
After her husband's death, Mrs Kelly did not want to move away from the area, nor did she want to live at the Property by herself. Therefore she asked her daughter and son-in-law, the claimants, to go to live with her at the Property. It was agreed that they would do so and that works would be undertaken at the Property to make it suitable for the three of them, as follows:
1) The Barn would be upgraded, with a view to it being occupied by the claimants.
2) The detached garage would be converted into a residential annexe for Mrs Kelly ('the Annexe').
3) A new building ('the Garage') would be constructed for use as a garage and a car port and as a workshop for Mr Kellie, who had a collection of veteran and vintage motorcycles and a number of bicycles, on which he would wish to carry out work.
The claimants, who were both divorcees and had married each other earlier in 2003, intended to finance the works out of the proceeds of the sale of Mr Kellie's previous house in Sutherland. (In the event, those proceeds proved insufficient and the claimants provided further funding by remortgaging both the Property and Mrs Kellie's house in Cornwall.)
For convenience, I shall mention here what became of the ownership of the Property after it had been agreed that the claimants would move to reside there. In June 2005 Mrs Kelly transferred a 50% share of the Property to her daughter, Mrs Kellie, by a deed of variation. In April 2006 Mrs Kelly transferred three-quarters of her remaining 50% share to her son-in-law, Mr Kellie. In November 2006 she transferred to him her remaining 12.5% share. On 6 December 2006 the claimants, who were by then the beneficial owners of the Property, were registered as the proprietors at HM Land Registry.
However, to return to the events of 2003 and 2004: Mrs Kelly was the sole owner of the Property and Mr and Mrs Kellie had agreed to go to reside there on the basis I have explained. The services of an architect were required in respect of the necessary works. Mr Kellie enquired of the Royal Institute of British Architects, which provided to him the details of a number of architects in the vicinity of the Property. The claimants got in touch with some of the architects mentioned by RIBA, who however were not confident about obtaining planning permission for the Annexe. Mrs Kellie then searched on the internet for other suitable architects. She found the defendant company's details, and she and her husband decided to get in touch with the defendant.
The defendant was a two-person architects' practice based in Tenbury Wells, Worcestershire. The two architects, and the directors of the company, were Mr Wheatley and Mrs Lesley Lloyd. Mr Wheatley was the sole shareholder of the company; in evidence, Mrs Lloyd, who worked part-time, referred to him as her boss and to herself as his employee, and that was substantially though not technically correct. The practice was set up in about 2000 and continued until 2008, when Mr Wheatley retired. Both Mr Wheatley and Mrs Lloyd were Accredited Conservation Architects and had experience of planning practice and procedures in rural areas. The company employed Mr Jason Green as an architectural technician with responsibility for the production of drawings.
On 19 January 2004 Mr Kellie made a telephone call to the defendant. He spoke to Mrs Lloyd and had a brief discussion with her about his and Mrs Kellie's intentions. Mrs Lloyd said that she would get Mr Wheatley to call Mr Kellie.
Mr Wheatley duly called Mr Kellie by telephone on 21 January 2004. Mr Kellie's note of the conversation reads: "Mr Wheatley thought there was a possibility of doing something. He would have a look at Middleton Barn and discuss things with South Shropshire District Council. Ring him in a week if no news." On 25 January 2004 Mr Wheatley made a drive-past observation of the Property, and on 26 or 27 January 2004 he spoke to Mr Kellie, whose note of the conversation records that he told Mr Wheatley that he and his wife "wanted to extend the kitchen and construct a garage". Further conversations over the next three weeks concerned the need to obtain a copy of the original planning permission in respect of the conversion of the Barn. Mr Kellie's evidence was to the effect that Mr Wheatley told him to bring to their forthcoming meeting some pictorial indication of the kind of thing he had in mind for the proposed garage/workshop.
The meeting on 19 February 2004
The initial meeting between the claimants and Mr Wheatley took place at the defendant's office on 19 February 2004. Although Mr Wheatley had held some preliminary discussions by telephone with planning officers of the local planning authority, details of the grant of planning permission for conversion of the Barn were still awaited. No attendance note of the meeting by Mr Wheatley has been found; his diary records that it lasted two hours, though his oral evidence implied that some of that period was taken up waiting for the claimants, who had difficulty in finding the office, and that the meeting itself was shorter. Mr Kellie's very brief note of the meeting records, "We discussed the development and [Mr Wheatley] thought it could be possible." It says nothing else about discussions regarding the planning merits of the proposed works and nothing concerning matters of design.
There is a significant issue between the parties concerning one aspect of the meeting, namely what was said about the design of the Garage and, in particular, "the Border Oak style". I shall discuss this issue in the following paragraphs. In the course of doing so I shall make some general observations on the evidence, as they arise in connection with this issue.
Border Oak Design & Construction Limited (BODCL) is a company based in Leominster, Herefordshire. It designs and manufactures buildings, both houses and outbuildings, with oak frames in a broadly traditional manner. Its current brochure for outbuildings states, "Our oak frames make use of a traditional post and beam principle with arched braces and oak pegs." Those features, which are illustrated in the numerous photographs within the brochure, together with a pitched roof, encapsulate "the Border Oak style", of which BODCL's products may be...
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