Simon Thomas v Taylor Wimpey Developments Ltd

JurisdictionEngland & Wales
JudgeKeyser
Judgment Date09 May 2019
Neutral Citation[2019] EWHC 1134 (TCC)
CourtQueen's Bench Division (Technology and Construction Court)
Docket NumberCase No: F50CF001
Date09 May 2019

[2019] EWHC 1134 (TCC)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN WALES

TECHNOLOGY AND CONSTRUCTION COURT (QBD)

Cardiff Civil Justice Centre

2 Park Street, Cardiff, CF10 1ET

Before:

HIS HONOUR JUDGE Keyser Q.C.

sitting as a Judge of the High Court

Case No: F50CF001

Between:
(1) Simon Thomas
(2) Sian Thomas
Claimants
and
(1) Taylor Wimpey Developments Limited
(2) National House Building Council
(3) Gordon A. Battrick & Co. Solicitors
Defendants

Charlie Newington-Bridges (instructed by Darwin Gray LLP) for the Claimants

Tom Coulson (instructed by Gowling WLG (UK) LLP) for the First Defendant

Samuel Townend (instructed by National House Building Council in-house legal department) for the Second Defendant

Hearing dates: 18 April 2019

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

HIS HONOUR JUDGE Keyser Q.C.

Judge Keyser QC:

Introduction

1

The claimants, Mr and Mrs Thomas, are the freehold owners of adjacent properties at 9 and 10 Church Bell Sound, Cefn Glas Road, Bridgend (“the Properties”; respectively, No. 9 and No. 10). They purchased the Properties as new-builds from the first defendant, Taylor Wimpey Developments Limited (“TW”), which had built the Properties. Contracts were exchanged on 8 February 2006 and each purchase was completed on 19 January 2007. Each Property came with the benefit of a 10-year Buildmark Warranty from the second defendant, National House Building Council (“NHBC”), which commenced on 19 January 2007. The third defendant, Gordon A. Battrick & Co (“GB”), was the solicitor who performed conveyancing services for Mr and Mrs Thomas in connection with the purchases. After purchasing the Properties, Mr and Mrs Thomas let them to tenants.

2

On 25 January 2018, Mr and Mrs Thomas commenced these proceedings, in which they claim damages from all the defendants in connection with the Properties. The claims arise from what is said to be the fact that log retaining walls at the rear of the back gardens of the Properties (“the Walls”) were inadequately built and are defective; the particulars of claim say that remedial works will cost about £200,000. The case against TW is put on the basis of breach of a duty of care owed at common law and under the Defective Premises Act 1972 and also on the basis of misrepresentation. The claim against NHBC is put on the basis that the defect in the Walls is within the scope of the Buildmark Warranty and that NHBC has wrongfully refused cover for the cost of remedial works. The claim against GB is put on the basis of professional negligence in connection with the conveyancing.

3

This is my judgment upon the trial of five preliminary issues concerning the liability of TW and NHBC. Issues 1 and 2 arise between Mr and Mrs Thomas and TW. Issues 3, 4 and 5 arise between Mr and Mrs Thomas and NHBC. None of the preliminary issues concern GB.

4

In what follows, I shall first set out the relevant parts of the pleaded cases against TW and NHBC. Then I shall set out the terms of the preliminary issues and consider them in turn.

5

I am grateful to Mr Newington-Bridges, Mr Coulson and Mr Townend, counsel respectively for Mr and Mrs Thomas, TW and NHBC, for their submissions.

The cases against TW and NHBC

6

The particulars of claim state that earth at the Properties is retained by a “wooden pole retaining wall system” (that is, the Walls) that was also used by TW in the construction of other properties on the estate where the Properties are situated; that defects have become apparent in the Walls; that sections of the Walls have already failed; and that the Walls are not fit for their purpose and need to be replaced.

The claim against TW

7

The contracts for sale between Mr and Mrs Thomas and TW contained contractual warranties by TW that the Properties would be constructed in “a good and workmanlike manner in accordance with the terms of the relevant planning permission and building regulation consent and the relevant specification of the National House Building Council.” Although the particulars of claim set out the warranty, they do not rely on breach of warranty as a cause of action. This is no doubt because the limitation period for any such claim would have expired long before proceedings were commenced.

8

Instead, as against TW the claimants rely on causes of action in tort. Paragraph 16 of the particulars of claim sets out a claim based on misrepresentation:

“By way of correspondence in or about December 2005 / January 2006, TW's conveyancing solicitors, Cameron McKenna (‘CMS’), represented to the claimants that the Properties (and in particular the Walls) had been properly constructed and were in any event covered by TW's own warranty and/or NHBC's warranty. Furthermore, TW failed to excavate properly the lower section of the garden at the Properties and replace with clean stone as they agreed to do and as documented in a letter to GB from CMS dated 16 January 2006. In reliance on and induced by these representations, the claimants purchased the Properties.”

The falsity of the alleged representation that the Walls had been properly constructed is set out in detailed particulars of negligence in paragraph 21. The falsity of the alleged representations that the Walls were covered by TW's own warranty and by NHBC's warranty is set out, albeit rather indirectly, in paragraph 30.

9

Paragraphs 17 to 20 of the particulars of claim allege that TW owed to the claimants duties of care at common law and by statute:

“17. As the party responsible for construction of the Properties, TW owed a duty of care to the claimants, arising both at common law and pursuant to the Defective Premises Act 1972 (‘the 1972 Act’).

18. TW's statutory duty, pursuant to section 1 of the 1972 Act, was to see that its work was done in a workmanlike and professional manner, with proper materials[,] so that the dwellings would be fit for habitation when completed.

19. TW's common law duty of care was to take all reasonable skill and care in the construction of the Properties and to ensure that the Properties, when constructed, were fit for purpose.

20. Further or alternatively, TW owed the claimants a duty of care to exercise all due skill and care in the performance of its services. As such it was the duty of TW at all material times to act with all due care, skill, competence and diligence to be expected of a builder/developer constructing a new build property.”

Paragraph 21 alleges breach of those duties of care; eight particulars of defective construction are set out. Paragraph 23 alleges that it was reasonably foreseeable that a failure to construct the Walls properly would result in loss and damage to the claimants.

10

The plea of loss and damage is at paragraphs 30, 31 and 32:

“30. In the premises and by reason of TW, its respective servants or agents acting in breach of the aforesaid duty or being negligent and/or misrepresenting that the Walls had been properly constructed and were covered by warranty or warranties, the claimants have suffered loss and damage.

31. The aim of damages will be to put the claimants in the position they would have occupied but for TW's negligence. The cost of remedying the Walls is estimated to be £200,000.

32. Alternatively, the appropriate measure of loss is the diminution in the value of the Properties. It is estimated that such diminution also equates to about £200,000.”

The claim against NHBC

11

Paragraphs 34 and 35 of the particulars of claim state that the Properties had the benefit of a 10-year Buildmark Warranty and that the claimants intimated a claim under the Warranty in respect of the Walls within the 10-year period. There is no dispute between the parties on those points.

12

Paragraphs 36 to 43 allege that the defects in the Walls are within the scope of cover provided by sections 3 and 4 of the Warranty. Section 3 covered the cost of remedying physical damage caused by a defect in, among other things, “Retaining walls necessary for the structural stability of the house, … its garage or other permanent outbuilding.” Section 4 covered the cost of repairs needed “where there is a present or imminent danger to the physical health and safety of the occupants of the Home because the Home does not comply with the requirements of the Building Regulations that applied to the work at the time of construction or conversion …” (I shall refer to the terms of the Warranty more fully below.) Paragraphs 44 to 46 allege that NHBC wrongfully refused cover.

13

For present purposes, the critical issue appears from paragraph 28 of NHBC's defence:

“Paragraphs 43 to 46 are denied:

(a) There is no entitlement under Section 3 of the Warranty because the alleged Defect is not in any parts of the house listed in part A of Section 3. The log retaining walls are not necessary for the structural stability of the houses or the garages.

(b) There is no entitlement under Section 4 of the Warranty because there is no present or imminent danger to the physical health and safety of the occupants of the Home.

(c) No non-compliance with the requirements of the Building Regulations is alleged and the pleading of the claim under Section 4 of the Warranty is, therefore, incomplete and cannot succeed.

(d) Further, or in the alternative, there is no entitlement under Section 4 of the Warranty as there is no non-compliance with the requirements of the Building Regulations. The log retaining walls did not fall within the definition of ‘building work’ under Regulation 3(1) of the Building Regulations 2000 and, therefore, are not controlled under the Building Regulations.”

The preliminary issues

14

On 11 February 2019 District Judge Vernon directed that the following issues be determined as preliminary issues:

...

To continue reading

Request your trial
2 firm's commentaries
  • Construction Law: Our Christmas Top Ten For 2019
    • United Kingdom
    • Mondaq UK
    • 16 December 2019
    ...enforced the terms of the building contract up to the point of issue. Thomas & Anor v Taylor Wimpey Developments Ltd & Ors [2019] EWHC 1134 (TCC) Judgement: 9 May 2019 Home owners brought a claim for common law negligence against Taylor Wimpey in respect of an allegation that the lo......
  • Defective New Build Properties – Bringing A Claim Against Your Developer
    • United Kingdom
    • Mondaq UK
    • 6 November 2019
    ...their claim may face, such as those pleaded in the recent case of Simon Thomas & Ors -V- Taylor Wimpey Developments Ltd & Ors [2019] EWHC 1134 (TCC) in which it was held that the claim was not brought within time and therefore could not This is a complicated area of law but often wi......
5 books & journal articles
  • Procurement
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...or demonstrate that the representation in question was made negligently (ie, carelessly): homas v Taylor Wimpey Developments Ltd [2019] EWhC 1134 (TCC) at [41], per hhJ Keyser QC. 489 Davis & Co (Wines) Ltd v Afa-Minerva (EMI) Ltd (1973) 9 BLr 99 at 109–110, per Judge Fay QC. See also Banqu......
  • Statutory regulation of work
    • United Kingdom
    • Construction Law. Volume III - Third Edition
    • 13 April 2020
    ...because the retaining wall was not an integral part of the houses or garages on the property: homas v Taylor Wimpey Developments Ltd [2019] EWHC 1134 (TCC) at [66]–[70], per HHJ Keyser QC. 50 Eg, Building Regulations &c. (Amendment) (Wales) Regulations 2013 (SI 2013/747); Building (Amendmen......
  • Table of cases
    • United Kingdom
    • Construction Law. Volume I - Third Edition
    • 13 April 2020
    ...AC 1 III.25.48 homas v TA Phillips (Builders) Ltd (1985) 9 Con LR 72 II.10.162, II.14.141 homas v Taylor Wimpey Developments Ltd [2019] EWHC 1134 (TCC) I.4.153, II.10.100, II.10.103, II.10.115, III.18.15, III.19.12, III.19.38 homas Borthwick (Glasgow) Ltd v Faure Fairclough Ltd [1968] 1 Llo......
  • Negligence
    • United Kingdom
    • Construction Law. Volume II - Third Edition
    • 13 April 2020
    ...[1989] AC 177 at 206; Murphy v Brentwood District Council [1991] 1 AC 398 at 475; homas v Taylor Wimpey Developments Ltd [2019] EWHC 1134 (TCC) at [17], per HHJ Keyser QC. 321 Horbury Building Systems Ltd v Hampden Insurance NV [2004] BLR 431 at 438 [27], per Keene LJ (CA). 322 However, as ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT