Jones & Anor v Gallagher & Anor (t/a Gallery Kitchens And Bathrooms) [2004] EWCA Civ 10

Case No B2/2003/1122[2004] EWCA Civ 10
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
(DISTRICT JUDGE HOFFMAN)
Venue Royal Courts of JusticeDate Tuesday, 13 January 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE THOMAS
Between
DAVID ALAN JONESAppellantJOYCE JONESAppellant-v-
Between
MICHAEL JOSEPH GALLAGHERRespondentMRS E GALLAGHERRespondent(TRADING AS GALLERY KITCHENS AND BATHROOMS)Respondent
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J RICH (instructed by Messrs Gwilym Hughes & Partners, Wrexham LL11 1BU) appeared for AppellantsMR A PICKERING (instructed by Messrs Henry Lees, Shropshire, SY13 1AZ) appeared for Respondents
J U D G M E N T

LORD JUSTICE BUXTON:

[1]I will ask Lord Justice Thomas to give the first judgment.

LORD JUSTICE THOMAS: This is an appeal from District Judge Hoffman, sitting at the Wrexham County Court, brought with the leave of that judge. Although it began as a fast track case, it was assigned to the multi track as it over-ran its time limit of one day.

[3]The essence of the points raised by this appeal is, in my view, solely an issue of fact. No point of law arises. The background facts can be briefly stated. On about 27 February 2000 the appellants, who reside at a farm near Wrexham, entered into a contract with the respondents who were kitchen and bathroom suppliers at Whitchurch, Cheshire, for the design, supply and installation of a kitchen. The contract was set out in a quotation dated 27 February 2000 which was accepted by the respondents. The quotation provided for the supply and installation of a Marden handmade, pine fitted kitchen "to match existing dresser cabinet, cabinets, surfaces etc for £7,705". The judge found that the there was no oral variation to that quotation and that the cabinets had to match the wood in colour. It was common ground therefore that, on the findings made by the learned judge, it was a sale by description within section 3(2) of the Supply of Goods and Services Act 1982. The total value of the contract, which included appliances, was the sum of £8,645.[4]The appellants paid the deposit of £2,500 and the installation took place over a number of days at the end of April 2000. The appellants then paid the balance of the price. There was some evidence that, although the kitchen was in full working order by 28 April 2000, the cornice, pelmet and trim were not fitted until 2 May 2000. The difference between the end of April and 2 May is wholly immaterial in the light of the events which followed.[5]On 9 May 2000 the appellants wrote to the respondents. They complained of various matters, such as the size of a cupboard, the splashbacks, splintering where the cupboards had been sawn, wiring, plumbing and other such matters. Complaint was also made about the colour. The letter stated that the "furniture finished colour does not match dresser with runs and inconsistencies."[6]Following that letter, the respondents visited the farm and inspected the kitchen. On 16 May 2000 they wrote a letter dealing with the various points. The letter stated in relation to the colour:
"Furniture finish will 'age' and darken to nearer resemble dresser colour -- other areas will be restained, etc to overcome lightened appearance .... All cabinets to be inspected for restaining and finishing."
The letter then set out how it was proposed to remedy the other items.[7]There was further correspondence. On 1 and 2 June 2000 further work was carried out by the respondents on the kitchen. On 16 June 2000 the appellants wrote setting out their views on the current state of the work. The letter set out a number of matters where they said that the work had not been finished to their satisfaction. It referred to items for which recompense might be sought or items remedied. Nothing was mentioned in that letter about the colour.[8]Over the remainder of June, July, August and September there was further correspondence, and in the entire period between May and September the respondents or their employees visited the property. The judge made no detailed findings as to those visits, but he found that during that period some of the alleged defects were remedied.[9]On 3 August 2000 there was a further letter written by the appellants to the respondents setting out a list of outstanding items, including a complaint about the refrigerator, visible gaps in the plinth, a chopping board and various other matters. In relation to the colour of the units the letter said:
"We are still of the opinion that the colour of the units do not match the existing furniture, despite taking a cupboard door as a sample."
The letter concluded:
"Unless the work is completed to our complete satisfaction by no later than the 7 days from the date of this letter we intend to take the matter further."
Following that letter there was one further letter from the respondents in which they stated that they had a new refrigerator which would replace the faulty one.[10]At the beginning of September the appellants visited their solicitors. Later that month experts were instructed on their behalf. A report was produced on 20 September 2000. It dealt with a number of the alleged defects, some of which had already been identified and others of which were new. It also dealt with the colour match. On 27 September 2000 the appellants' solicitors sent the report to the respondents. In the letter they stated that the appellants would be stripping out the kitchen installed by the respondents and would be seeking competitive quotations from other suppliers. The respondents replied on 20 October. They accepted some of the criticisms, but rejected most including the alleged colour mis-match.[11]At about that time, as the judge found, the appellants removed the kitchen and stored it in one of the out-houses on the farm. Nothing then appears to have happened until 9 July 2001 when the appellants' solicitors wrote to the respondents to tell them that efforts had been made to obtain other quotations to see if the kitchen was capable of restoration, but without success.[12]Proceedings were then commenced on 9 October 2001 in which the appellants sought:(i) recovery of the cost of the kitchen (that is the outlay they had expended of £8,645.00);(ii) the cost of the expert's fee;(iii) the storage charges; and(iv) damages for inconvenience and distress. The judge found that there had been a breach of condition as to the description in that the colour did not match. He also found, as is clear from the items of damages that he awarded, that there must have been breaches of the implied terms under section 4 of the Act in respect of the items, some of which had been complained of. However, he held that the claimants had accepted the goods and lost their right to reject. He went on to hold that they were entitled to damages which he assessed in the sum of £2,000. The largest item was £600 referrable to the colour mis-match. He disallowed the claim for the storage of the kitchen but awarded £500 for inconvenience and stress. The total damages he awarded was for the sum of £2,500.[13]It is clear that the principal complaint made during the trial related to the colour. The judge found that there was a breach of the implied condition; he also went on to hold that in respect of the complaints about a large number of the other defects, some of those were sustainable. Some, for example, related to the kitchen door and the plinth but it is not necessary to set those out. Although there was no express finding by the judge, the respondents accept that it must be clear from the judge's judgment that other defects were found to exist and that there had been a breach of the implied terms under s.4.[14]The judge's findings in relation to the loss of the right to reject were clear. He held that the kitchen was used, goods were stored in the cupboards and ornaments put on the shelves. He also held that the mis-match in colour must have been clear to the appellants when the units were delivered. He also held that no complaint was made until 9 May 2000 and that there was no talk of taking out the kitchen until September 2000. The judge concluded that the appellants had accepted the goods and lost their right to reject.[15]It has been submitted before us that the judge was wrong in law in that the goods had not been accepted and that they had not lost the right to reject. The argument presented to this court was that the judge was not entitled to come to the conclusion to which he came as a matter of law. None of the matters amounted to the loss of the right to reject.[16]The terms upon which a consumer is entitled to reject in circumstances such as this are set out in section 35 of the Sale of Goods Act 1979 as amended. The relevant terms of section 35 are:
"(1) The buyer is deemed to have accepted the goods, subject to subsection (2) below- (a) when he intimates to the seller that he has accepted them; or (b) when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller. (2) Where goods are delivered to a buyer, and he has not previously examined them, he is not deemed to have accepted them under subsection (1) above until he has had a reasonable opportunity of examining them for the purpose- (a) of ascertaining whether they in conformity with the contract .... (3) Where the buyer deals as a consumer (or in Scotland the contract of sale is a consumer contract) the buyer cannot lose his right to rely on subsection (2) above by agreement, waiver or otherwise. (4) The buyer is also deemed to have accepted the goods when after the lapse of a reasonable time he retains them without intimating to the seller that he has rejected them. (5) The questions that are material in determining for the purposes of subsection (4) above whether a reasonable time has elapsed include whether the buyer has had a reasonable opportunity of examining the goods for the purpose mentioned in subsection (2) above. (6) The buyer is not by virtue of this section deemed to have accepted the goods merely because- (a) he asks for, or agrees to, their repair by or under an arrangement with the seller."
[17]Section 59 of the Act makes it clear that where reference is made to "a reasonable time", the question of what is a reasonable time is a question of fact.[18]The scope of section 35 was considered recently by this court in Clegg v Andersson [2003] EWCA Civ 320. Sir Andrew Morritt V-C pointed out at paragraph 63 of his judgment the effect of the change that been made to section 35 as a result of the amendment of the 1994 Act. He said:
"As originally enacted s 35(1) provided that a buyer was deemed to have accepted goods, inter alia, 'when after the lapse of a reasonable time he retains the goods without intimating to the seller that he has rejected them'. Section 59 provided then, as it does now, that what is a reasonable time is a question of fact. The material difference arises from the removal of that part of sub-s (1) to sub-s(4) and the addition of sub-ss(5) and (6). Thus sub-s(5) provides that whether or not the buyer has had a reasonable time to inspect the goods is only one of the questions to be answered in ascertaining whether there has been acceptance in accordance with sub-s(4). Subsection (6)(a) shows that time taken merely in requesting or agreeing to repairs, and, I would hold, for carrying them out, is not to be counted. In these circumstances I consider that time taken to ascertain that would be required to effect modification or repair is to be taken into account in resolving the question of fact which arises under sub-s(4)."
The same issue was considered by Hale LJ at paragraphs 73-74.[19]It is clear that when considering under section (4) what is a reasonable time, regard must be had to the time taken to effect modifications and repairs. However, in the end, what time is a reasonable time is a question of fact. That must be decided in the circumstances of each particular case.[20]During the course of argument before us counsel for the appellant sought to rely on specific periods of time set out in other cases. In my view that is not the correct approach. It is necessary to consider the facts in each particular case and to decide, applying the law as set out in section 35 of the Act, what is a reasonable time.[21]On that basis, the question that arises in this appeal is whether the learned judge directed himself correctly as to the law and whether there was evidence on which he was entitled to conclude that a reasonable time had elapsed. In my view he did not direct himself correctly and there was ample evidence on which the judge was entitled to conclude that a reasonable time had elapsed.[22]It is important, first, to consider the most important of the issues raised at the trial, namely the colour. It is clear that the mis-match in colour must have been apparent on delivery of the kitchen cabinets. No complaint was made until 9 May 2000. Allowing time for the request then made to be considered and remedied, there was a complaint again on 3 August 2000. Even at that time, there was no mention of any intimation of rejection, despite the concluding words of the letter to which I have referred. A further seven weeks elapsed from that time before rejection was first intimated.[23]Considering that evidence, and considering the very detailed evidence that was heard by the learned judge over two days, it is clear to me that there was ample evidence in respect of the principal complaint (and I stress that it appears to us that from the judge's judgment that was the principal complaint at the trial) upon which he was entitled to come to a view as a question of fact that a reasonable time elapsed.[24]It is also important to have regard to the other defects to which I have referred. It was obvious what they were. None of the defects were latent, they were all patent. Quite clearly, in asking for the defects to remedied and by allowing time for the remedies and repairs to be made, that time was not to count against the appellants when the question of reasonable time for the purposes of section 35(4) was considered. However, how those detailed questions were to be taken into account was a question of fact. It is correct to say that the judge did not set out in his judgment details of the way in which he had taken into account the matters set out in section 35(5) and (6). However, it is clear from the evidence before us that some repairs were carried out and that some items were accepted with recompense. It is also clear that there were some items of which the appellants were initially aware and about which no complaint was made, but in respect of which it was later intimated that the goods should be rejected.[25]The judge set out the material provisions of section 35. As we understand it, the matters were argued fully before him. Looking at those passages of the transcript to which our attention has been directed and to the correspondence in the case, I am quite satisfied that there was ample evidence upon which the judge was entitled to conclude that there had been a reasonable time in which the appellant had not intimated the rejection of the goods.[26]The suggestion was made before us that some of the defects required an expert to identify them. That point was not raised in the Notice of Appeal, nor, in my view, having looked at the expert's report, was there any issue raised in that report where the judge should have taken the view that the defects set out therein would not have been obvious to a consumer.[27]In the course of argument before us, a number of complaints relating to the goods were identified. It was suggested to us that in respect of those items nothing had been done or, if something had been done, it had not been adequate. In essence, we were asked to review the evidence that had been heard over two days before the learned judge and reach the detailed findings of fact, in relation to each of the various items, as to when the complaint had first be made, what had been done, whether that was adequate and the time that had elapsed. None of those items, and none of that detail, was identified in the Notice of Appeal. It seems to me quite impermissible for those issues to have been raised at this stage, even if it were ever apposite, given the fact that these were essentially matters of fact for the judge to decide on the basis of a proper understanding of the law.[28]It is right to observe that the judge's judgment could have been more detailed. But, having regard to the way the judge approached the case, to the careful way in which he set out his findings, to the way which the case was argued before him, I am satisfied that he directed himself properly on the law and in relation to the question under section 35(4) of the Act there was ample evidence upon which he could have reached his conclusion. That, in my view, is sufficient to uphold the finding of the learned judge.[29]The judge also referred to the fact that the appellants had accepted the goods by using them. Had that been the only matter and no lapse of time, I am not persuaded that that would have been sufficient. But it is not necessary for me to consider that matter further because there was sufficient in the lapse of time that had occurred for the judge to have been entitled to find that a reasonable time had elapsed before the intimation of rejection was made.[30]On that basis, therefore, I would uphold the judge's judgment and dismiss this appeal.

LORD JUSTICE BUXTON: I agree. I would add only one further short point. Possibly because he perceived the difficulties facing him in seeking to reverse what, as my Lord has pointed out, was the factual assessment of the judge, Mr Rich at one point of his argument submitted that, as a matter of law, it was not open to the district judge to find that the right of rejection had been lost. That submission was not to be found anywhere in the Notice of Appeal but, nonetheless, we permitted it to be opened before us.

[32]The submission was principally based on paragraph 75 of the seminal judgment of Hale LJ (as she then was) in Clegg v Andersson [2003] 1 All ER Commercial 271 to which my Lord has already referred. It is important to bear two points in mind. The first is the nature of the facts in Clegg v Andersson, which related to a large and extremely specialist piece of equipment, a yacht, which did not perform as the buyer wished, and in respect of which the buyer engaged in substantial correspondence with the seller: not in the first instance to make complaint in detail, but rather to examine with the seller what options were open to rectify the difficulties that had appeared. Secondly, Clegg v Andersson was important because it was the first case that came before this court after the amendment of the Sale of Goods Act to which my Lord has referred. It is understandable that in her judgment Hale LJ emphasised the effect of that amendment.[33]The section relevant to our consideration here, as they were relevant to Hale LJ's consideration, is section 35(6):
"The buyer is not by virtue of this section deemed to have accepted the goods merely because -- (a) he asks for, or agrees to, their repair by or under an arrangement with the seller."
[34]Mr Rich argued that the effect of that, as understood by Hale LJ, was that, while a period of repair was in progress, or alternatively as in our present case a period of complaint and request for remuneration was in progress, it was not possible for the buyer to have lost his right to reject. That is not a correct construction either of the Act or of what was said by her Ladyship. The Act stresses that the buyer is not deemed to have accepted the goods merely because he asks for or agrees to their repair. The purpose of that subsection was to correct what had previously been thought, rightly or wrongly, to be the law, that the right to reject was lost automatically if one engaged in discussion or activity about repair. That is no longer the law. Such delay is simply a factor to be taken into account in the factual assessment that is placed on the court. That is plainly what her Ladyship was referring to in paragraph 75 where she does no more than set out the terms of the new Act.[35]When she said at the end of that paragraph, in a passage relied on by Mr Rich: "It follows that if a buyer is seeking information which the seller has agreed to supply which will enable the buyer to make a properly informed choice between acceptance, rejection or cure, and if cure in what way, he cannot have lost his right to reject", I would venture two comments. First, that formulation is closely directed to the facts in Clegg v Andersson: that is to say, where there was uncertainty as to what was wrong and the buyer was seeking professional information from the seller as to what might be done to put it right. That is a long way from our present case, where there were apparent and easily ascertained defects in the goods, more particularly in the nature of the wood and its colour, that were apparent on the very day of delivery, and further defects in the goods in relation to the use of straightforward kitchen equipment: which, as my Lord has said, did not need discussion or an expert to identify what was wrong.[36]Secondly, I am sure that Hale LJ did not intend to go so far as to say that it was generally impossible to lose the right to reject while a buyer was still seeking information. As the next paragraph of the judgment shows, she was clearly relating that formulation to the particular facts of that case, which was a difficult and complicated (and I would add extremely expensive) problem but the consideration extending over a period of only three weeks. There is no absolute rule that a situation in which information was sought cannot involve the loss of a right to reject: because that would be inconsistent with the guiding principle in this Act that assessment of loss of right to reject is a matter of fact to be considered in all the circumstances.[37]As my Lord has set out, it was plainly open to the judge to reach the conclusion that he did and I would therefore equally dismiss this appeal for the same reasons as are set out by my Lord.

Order

Appeal dismissed with costs assessed in the sum of £4,200. Application to be filed within 7 days for appointment to apply to District Judge Hoffman for directions in respect of the costs below.