Prakash Vyas and Minaxi Vyas (Claimants/Appellants) v Raj Goraya, T/A Taj Construction Roofing
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Lewison,Lord Justice Hamblen |
| Judgment Date | 09 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1095 |
| Docket Number | Case No: A1/2014/3769 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2016 |
[2016] EWCA Civ 1095
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE MAY QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice Lewison
And
Lord Justice Hamblen
Case No: A1/2014/3769
Mr Prakash Vyas and Mrs Minaxi Vyas (Claimants/Appellants) appeared in person
Mr Raj Goraya (Defendant/Respondent) appeared in person
Hearing date: 26 October 2016
Approved Judgment
Introduction
In February 2012 the Claimants/Appellants Mr and Mrs Vyas engaged the Defendant/Respondent Mr Goraya to carry out building works at their home, 48, Rowland Avenue, Harrow. The work involved, amongst other things, a loft conversion, an extension at ground floor level, rewiring and some re-plumbing, a new staircase, new kitchen and new windows. The detail of the work is set out in a written contract dated 27 February 2012. The contract contemplated that the duration of the work would be 16–18 weeks for the full project. The work was to start on Monday, 27 February 2012. The contract price was £75,000. This included most materials to be supplied by the builder, although with provision for the employer to pay the difference in the event of selection of different or more expensive items or change in design. There is also provision for some materials, particularly in the kitchen and bathrooms, to be supplied by the employer.
The work was not completed on time or at all and there were substantial defects in the work which was done by the builder. The relationship between employer and builder descended into acrimony, and the contract was terminated by Mr and Mrs Vyas. Sadly, as is all too common, the parties were unable to settle their differences and the resulting dispute fell to be resolved at the Central London County Court. A four day trial took place before Her Honour Judge May QC in early October 2014. Mr and Mrs Vyas were represented at trial by recently appointed counsel. Mr Goraya was until shortly before trial represented by solicitors and counsel and at trial by counsel alone. On 30 October 2014 the judge delivered her reserved judgment.
The judge determined that substantial work was required both to complete the contractual project and to rectify shortcomings in the workmanship, such that Mr and Mrs Vyas had been entitled to terminate the contract, presumably, although the judge does not say so in terms, on account of the Respondent's repudiatory breach thereof. The judge determined, on the basis of agreed expert evidence, that the outstanding and remedial work would cost £122,307.24, that is therefore almost 166% of the original contract price. After dealing with various ancillary claims and giving credit against the cost of the required remedial and completion works for the amount outstanding under the building contract, the judge by order dated 10 November 2014 gave judgment for £120,659.44, which she directed should be paid by 14 November 2014. The judge also directed that the Defendant should pay the Claimants' costs of the action, to be subject to a detailed assessment, with the Defendant to make an interim payment of £35,000 on account of costs by the same date, 14 November.
The Defendant has not satisfied the judgment or any part thereof. On 12 April 2016 the Defendant was declared bankrupt.
Mr and Mrs Vyas have, they told us, carried out none of the required remedial work. They said that they could not afford to do so in the light of the Respondent's failure to satisfy the judgment. I should however note that the judge at paragraphs 65 and 66 of her judgment said this:
"65. They may have been able to put aside enough from earnings to have the electricity and gas safely reconnected so as to be able to use the bedrooms and the bathroom in the house. They plainly do not have a completed living space downstairs.
66. I am satisfied that there have been insufficient funds available to the family to ameliorate the situation any further."
Mr and Mrs Vyas also say that the amount awarded by the judge is insufficient to cover the required work. They applied for permission to appeal on that basis. On 12 May 2015 Jackson LJ on the paper application granted permission to appeal on the quantum of damages. Hence this appeal.
I have sympathy for Mr and Mrs Vyas in the predicament in which they find themselves, although plainly I can express no view about the efficacy of such efforts as they may have made with a view to enforcing the judgment against Mr Goraya. They assert that his bankruptcy has been achieved by deception. I can express no view about that either. I must stress that the circumstances in which Mr Goraya came to be declared bankrupt are of no relevance to the issues in this appeal. However I have also to say that Mr and Mrs Vyas have unfortunately failed to comprehend the nature of an appeal such as this. It is not the function of the appeal to attempt to recompense Mr and Mrs Vyas for the consequences of their failure or inability to enforce the judgment. We are of course in no position to assess the Appellants' financial circumstances, although I have already noted what the judge said on that score. Taking at face value what they have told us, the problems of which they complain which have beset them since February 2013 are a consequence of their own lack of funds and/or inability to borrow. In English law damages are not awarded in respect of the consequences of a claimant's own impecuniosity, or lack of funds. It is apparent from the transcript of the discussion which followed hand-down of the judge's judgment that there have also been problems concerning a business once carried on by the Appellants, consisting of a stationery shop with sub-Post Office franchise. Obviously these matters fall outside the scope of the appeal too.
Termination of the contract
Following discussions arising out of the failure of the Respondent to finish the work by early July 2012, the Appellants allege that a written variation to the contract was agreed by letter dated 11 August 2012 pursuant to which the Appellants would be entitled, in the event that the full project was not completed by 11 September 2012, to charge the Respondent £200 per week for each additional week thereafter. At trial Mr Goraya denied having either seen or signed this letter.
By letter dated 9 September 2012 the Appellants purported to terminate the contract. By a long letter dated 11 September 2012 apparently counter-signed by Mr Goraya (but see paragraph 29 below) the Appellants agreed to reinstate the contract. The first paragraph of this letter asserted that "Mr Rajveer Goraya has agreed that the full project will be completed by latest end of September" and that "additional time of one month was given to complete the full project. A penalty charge of £200 a week (sic) has begun from the 1 August 2012." This is confusing. If a "penalty charge" had been agreed to be payable, it was as from 11 September, not 1 August 2012.
The contract was eventually terminated either, as the Respondent argued, by the Claimants' conduct on 29 January 2013 or, as the Appellants argued, by a letter dated 9 February 2013.
The proceedings
Proceedings were begun on 14 January 2014. The amount claimed was at least £216,599 together with other "contingency charges" and "additional costs". By the time of the trial the claim had developed and was particularised in an extensive Schedule of Loss. I am not sure that every aspect or item of this Schedule was pursued at trial by the Appellants' counsel. Mr Patterson on their behalf made closing submissions in writing which we have not seen. Apparently no copy survives. The judge does however refer to this document and quotes from it at paragraphs 32 – 35 of her judgment. From this it is apparent that at trial the Appellants pursued claims under ten heads as follows:
1. The cost of the outstanding remedial and completion works as agreed by the parties' respective chartered building surveyor expert witnesses, Mr Paul Spelzini for the Appellants and Mr Patrick Reddin for the Respondent. Both surveyors had conducted an on-site inspection and both had studied the photographic evidence. The surveyors met at court and after discussion drew up two agreed schedules of works and costs. One was designated "lower works" and one "higher works", the difference between them reflecting uncertainty as to the line which would be taken by the Local Authority Building Control Surveyors so far as concerned certain items of construction. Simply by way of example, the lower scope of work for the electrics recorded "if test OK, finish off and deal with snagging" for which the agreed figure was £2,164, whereas the higher scope of work was "test shows faults on works carried out so far – rewire complete" for which the agreed figure was £3,770. The overall agreed lower figure was £72,480.84, the higher figure £172,133.64.
2. Nine months "notional loss of rent" at £1,500 per calendar month for the period 4 June 2012 – 9 February 2013, £13,500.
3. Damaged and spoilt items which either have been or need to be replaced. The figure claimed was £33,076.73.
4. All other household damages throughout the project. The figure claimed was £11,943.
5. Items for the works which should have been supplied by Mr Goraya but which Mrs Vyas bought herself for the works. This head of claim was put at £12,352.20.
6. Sundry and additional cost incurred. The figure here was £14,957.91.
7. A claim for liquidated damages...
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