Vyas & Anor v Goraya, (t/a Taj Construction Roofing) [2016] EWCA Civ 1095

Case No A1/2014/3769[2016] EWCA Civ 1095
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HER HONOUR JUDGE MAY QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2016
Before
LORD JUSTICE TOMLINSONLORD JUSTICE LEWISONLORD JUSTICE HAMBLEN
Between
Prakash Vyas and Minaxi VyasClaimants/AppellantsRaj Goraya, T/A Taj Construction RoofingDefendant/Respondent
Mr Prakash Vyas and Mrs Minaxi Vyas (Claimants/Appellants) appeared in person for in personMr Raj Goraya (Defendant/Respondent) appeared in person for in personHearing Hearing date : 26 October 2016
JudgmentLord Justice Tomlinson :Introduction
[1]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.[2]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.[3]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.[4]The Defendant has not satisfied the judgment or any part thereof. On 12 April 2016 the Defendant was declared bankrupt.[5]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.[6]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

[7]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.[8]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.[9]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

[10]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 at the rate of £200 per week from 1 August 2012 to 9 February 2013, a claim for a total of £4,000. 8. General damages for distress and inconvenience. The judge does not record how this head of claim was finally quantified, but it appears that it was put forward on the basis that each of Mr and Mrs Vyas and their two adult children should be entitled to recover compensation at the rate of £3,500 per annum for a period of two years and nine months running from the end of February 2012 until trial in October 2014. Thus the total amount claimed under this head is £38,500. 9. An indemnity in respect of a liability to a neighbour for the cost of repair to damage to a party wall, estimated at £1,500. 10. Costs incurred and costs that will be incurred once works resume, put at £84,616.18.[11]On the footing that the Appellants were seeking the higher figure in respect of the cost of the outstanding works, the total claim was thus £386,579.66.

The judgment

[12]The judge awarded £122,307.24 under head 1, which was the median point between the lower and higher figures. Against that she would have allowed a credit of £29,500, being the amount of the contract price remaining unpaid, which would have fallen due on completion of the work by the Respondent, which credit she however reduced to £27,000 to reflect the circumstance that the Appellants had paid £2,500 to PMB Paving to rectify garden paving which was the Respondent’s responsibility. So the amount awarded under head 1 was £95,307.24.

The judge allowed item 5 in its entirety, £12,352.20.

[14]Under head 8 the judge awarded general damages for distress and inconvenience for a period of two years, from the termination of the contract in January/February 2013 until February 2015 by which date at the latest she envisaged the works of repair and completion would be concluded. She awarded damages at the rate of £2,000 per annum for Mrs Vyas and at £1,500 per annum for Mr Vyas and their two adult children.[15]The judge dismissed all of the other heads of claim, resulting in judgment being given for £120,659.44.

The Appeal

[16]The Appellants appeal against the dismissal of their claims under heads 2, 3, 4, 6, 7, 9 and 10. They also contend that the judge should have awarded a greater sum under both heads 1 and 8.

Head 1

[17]Under head 1 the Appellants say that the judge should have awarded the higher figure and that the amount awarded will be insufficient to cover the cost of the required work, which in many if not all cases will require the relevant contractor to start all over again, including therefore the removal of non-compliant and defective work. The extent to which the outstanding work will require contractors to demolish or remove the existing work and to start all over again will of course have been apparent to the expert surveyors who gave evidence at trial. It is apparent from the commentary set out in their two agreed schedules that they had this point well in mind. Under the rubric “Planning” for example the lower figure included a zero item if the work was agreed by Harrow (i.e. by Building Control) “as built” but a figure of £22,526 if there was a necessity to “rebuild completely to comply”. The same is particularly true of structural items - £6,488 “if structural calculations OK roof, box frame, beams, stud partition” but £23,568 “if structural calculations show deficiencies, repair”. I have already mentioned the position concerning electrics and the same is spelled out explicitly in the schedules so far as concerns gas, hot water, plumbing and heating and by necessary implication in respect of all other items when one compares the lower and higher costs. The experts were agreed that the final cost was likely to be a figure lying between the two extremes and the judge was therefore entirely justified in adopting the median figure half way between the two extremes.[18]The Appellants have attempted to introduce into evidence an unsigned statement dated 4 December 2014, and therefore a month after judgment was entered, attributed to Mr Spelzini, which suggests that in practice the actual cost of the required work is likely to be nearer the higher or maximum cost because of additional costs which are not included. These additional costs are listed as:
“Party wall works, insurance reinstatement works, works over and above compliance with statutory requirements only, professional and any legal costs, VAT, skips, licences, building regulation and planning fees, redesign/rebuild costs where existing non-compliant such as moving boiler to ground floor and changing to a Combi; and extra/over cost of replacement fittings where no longer available, such as kitchen units.”
There are difficulties about this list. For example, “redesign/rebuild costs where existing non-compliant” are plainly taken into account in the experts’ agreed schedule of higher works. However that may be, there was no application to introduce on the appeal this new evidence, if the unsigned statement is properly so described, and the Appellants would manifestly be unable to show that this statement could not have been made available by Mr Spelzini for use at trial. In any event this also represents an attempt to introduce new and hitherto unitemised heads of claim. There is no basis upon which this new material can be used to undermine or supplement the surveyors’ agreed evidence given in court to the judge.[19]Mrs Vyas also referred us to a BCIS online reinstatement calculator print-off dated 28 September 2014 which showed that the cost of rebuilding a terraced 3 storey house with four bedrooms of a given floor area in Harrow would be £279,000. I do not believe that this was in evidence before the judge as it bears no trial bundle page number, but in any event it is irrelevant. That is an indicative cost of a total rebuild, not the completion of the more limited works undertaken here.[20]Mrs Vyas submitted that as the new builder will be unable to carry on the work from where the Respondent left off, but will rather have to start from scratch, so the Respondent should not be allowed a credit in the amount of £29,500 representing the amount outstanding under the building contract. This submission misunderstands the manner in which damages are calculated for breach of contract. The purpose of an award of damages is to put the innocent party into the position in which he would have been had the contract been properly performed. Had the contract been properly performed all the works would have been completed and the Appellants would have paid the Respondent £75,000. However the works have not been completed and it is going to cost more than the amount outstanding under the contract to complete them. That means here that the Appellants must be awarded the cost of the outstanding work, but must give credit for the further amount which they would have had to pay to the Respondent had he completed the contractual work. If the position was otherwise the Appellants would end up better off than had the Respondent completed the work, because in that event they would have had to pay him the outstanding £29,500. The point can perhaps be made another way. If after making the contract Mr Goraya had simply refused to carry out any work at all, Mr and Mrs Vyas would have had a claim against him for breach of contract. On the assumption that completion of this work by another contractor would have cost £100,000, the damages would have been £25,000, i.e. the difference between what would have been payable to Mr Goraya to do the work under the contract and what the work in fact cost.[21]For exactly the same reason the Appellants cannot recover from the Respondent the £45,500 which they have already paid him, a claim which Mrs Vyas also advanced before us.[22]Mrs Vyas was adamant that both the judge and the expert witnesses had failed to appreciate that there was further paving work to be done. This is not so. The experts included an amount for paving, patio and fencing. In any event Mrs Vyas failed to understand I think that the judge increased the award of damages to the Appellants to take into account that the Appellants had paid £2,500 to PMB Paving to rectify outside paving whereas it was the Respondent’s responsibility to do that work. Thus the credit due to the Respondent of £29,500 was reduced to £27,000. This is an adjustment in favour of the Appellants.

Head 2

The judge said this at paragraph 42:

“42. I move to the claim described as notional loss of rent. I am confused by this claim. It is not covered by the statements and no questions were addressed to it at trial. As far as I know the Vyas family had no tenants at their house. No further details are given in the pleading. It is for a claimant always to make out their claim and without knowing the basis for this head, i.e. what it is there to compensate for, I cannot make any award.”
[24]I am not surprised that the judge was confused. The pleaded claim was for “9 months loss of rent at approximately £1,500 pcm for the period 4 June 2012 – 9 February 2013 beyond the original contract period.” The judge was obviously not addressed on the point at trial. Damages are of course sometimes recoverable for temporary loss in value of a house rendered uninhabitable, which damages may be measured in a notional loss of rent. However, evidence would be required of the market level at which rent would be payable were the house habitable. Here there was no such evidence. The judge may not have been taken to a letter at page 787 of our bundle, which was I think page 1389 of the trial bundle, dated 15 August 2014, addressed “TO WHOM IT MAY CONCERN” by Subhashchandra Chhotalal Vyas. This letter reads:
“This is to state that the family of Mr Prakash Chhotalal Vyas including his wife Minaxi, daughter Kavita and son Kishan, have been victims of bodged building works by cowboy builders, Mr Rajveer Singh Goraya of Taj Construction Roofing, which has resulted in their property being uninhabitable and extremely hazardous with a vast amount of non-compliant structural, gas, plumbing and electrical works. This has led to real hardship and mental stress and ill health, not mentioning dire financial strain and cash flow implications. While all these issues were going on, and building works having been stopped and litigations issued against the builder, the family of 4 has been living with me and my family in ILFORD, ESSEX. This has not been ex-gratia; there will be a payment involved at some stage as it has cost me financially to house then. I am looking to a payment of £1500 per month towards housing and accommodation costs for the family of 4, not including anything else, it’s simply a cost to cover their housing, a total of £43,500.00 from 4th June 2012 to 9th February 2013 total of 9 Months and from 10th February 2013 – 10th October 2014, jointly a total of 29 months. It should be noted that the Vyas Family will still be accommodating with my family until their property is returned to a habitable condition. Please include these costs in any claims for compensation as like stated before, it has not been ex-gratia, it needs to be settled at some stage as a matter of urgency.”
[25]It transpires that this letter was written by the elder brother of Mr Vyas. Before us Mrs Vyas rationalised this claim as one for the rent of alternative accommodation whilst their own home was uninhabitable. She said that during the relevant period she had on Monday to Thursday evenings cooked a meal for the family in the shed in the garden, using a gas ring powered by propane gas, after which the family had proceeded from Harrow to Ilford to stay the night. The family had also she said travelled to Ilford on Friday evenings and stayed there until Monday mornings. Asked for the provenance of the figure of £1,500 per calendar month, Mrs Vyas explained that the Appellants had ascertained from the RICS website that it would have cost £1,500 per calendar month to rent in Ilford a house comparable to their own in Harrow.[26]The letter from the elder brother of Mr Vyas plainly does not support a claim either for loss of rent as pleaded or for notional loss of rent as presented at trial. There was therefore no basis upon which the judge could have allowed this head of claim. The letter does not demonstrate that the Appellants have incurred any liability to pay rent to the brother of Mr Vyas, and the figure of £1,500 per calendar month, if indeed it relates to the rental value of an entire house, is not an appropriate amount by way of recompense for the brother-in-law housing his relatives, if that is what has occurred. As to that, the explanation given by Mrs Vyas in argument to us is not evidence which was before the judge, still less is it evidence to which we can have regard on the appeal. Again, there has been no application to adduce fresh evidence. There is no basis upon which we can or should interfere with the judge’s dismissal of this head of claim.

Head 3

[27]This head of claim refers broadly to two classes of items. First, it includes claims in respect of materials which were to be and were supplied by the Appellants under the building contract, such as bathroom tiles and bathroom equipment, kitchen units etc which have allegedly been damaged by the Respondent so that they will require replacement. Secondly, it includes items of allegedly badly executed work, which will require rectification, such as reconstruction of the outbuilding roof, treatment of damp and provision of insulation in relation to cavity walls and the laying of the concrete base for the living room extension. The judge was right to reject this head of claim as the costs claimed are included within the experts’ agreed estimate of the cost of repairing and completing the defective and incomplete work. If and insofar as it is alleged that any of the supporting invoices at pages 602 to 694 of our bundle, pages 1151-1246 of the trial bundle, represent replacements of items damaged by the Respondent, it is wholly unclear that this is so. The dates of the invoices and commentary thereon at pages 473-484 of our bundle, pages 1002-1013 of the trial bundle, seem rather to suggest that the invoices represent payment for materials purchased whilst the Respondent was on site which materials it is said have subsequently been damaged by his work or have become useless – e.g. paint left outside and affected by dust etc so that replacement will be required when the remedial work is done. This cost is plainly included within the experts’ agreed estimate.

Head 4

[28]This relates to “other household damages”. The judge rejected this head of claim on the same ground as head 3. This head of claim is described in the Schedule of Loss as “all other household damages throughout the project; including Bedroom Wardrobes, Existing Stair Steps, Refrigerator, Washing Machine, Dining Table and Chairs and all House Curtain Tracks plus many other items, and WC – which has been requested to be kept in use so can be used in Ground Floor Cloakroom. Requested to Mr Rajveer Goraya and Taj Construction workers. Total £11,943.00.” There is no further breakdown, so that it is impossible to discern how this figure has been arrived at. Damages to stairs and bedroom wardrobes are obviously covered by the joinery item in the experts’ schedule. There are receipts for purchases of a refrigerator and washing machine in January 2013 at pages 781 and 783 of our bundle, pages 1380 and 1383 of the trial bundle. The claim in respect of the washing machine is duplicated under Head 3 – see our bundle page 482, trial bundle page 1011. The judge had no evidence before her, photographic or otherwise, to support a claim for a damaged table, chairs, washing machine or refrigerator, as recorded at paragraph 45 of her judgment. There are photographs of wardrobe doors which might show them not hanging correctly although I am not sure that they show damage, but in any event this is a joinery item as already noted. The judge was right to reject this head of claim.

Head 6

[29]Described by counsel as “sundry and additional costs incurred” this item appears in the Schedule of Loss at our bundle page 485, trial bundle page 1014, as “Other Expenses – For the duration of the project to have the necessity which every human being needs we have incurred extra unaccounted costs, caused by the Defendant”. The amount claimed is £14,957.91. The judge said at paragraph 48 of her judgment that she did not know what was involved in this cost. She therefore overlooked pages 485-494 of our bundle, pages 1014-1023 of the trial bundle, being that part of the Schedule of Loss in which this claim is particularised. However the vast majority of the items listed are plainly not recoverable. £3,000, a very round figure, is claimed for providing Mr Goraya and his workers with food and drink in order to keep them happy whilst working on site. This was a voluntary if generous gesture, not a consequence of a breach of contract. Use of a self-storage facility between March and October 2012 was no doubt simply a consequence of the need to store goods whilst work was on-going in the house – a consequence of having the work done rather than of any breach of contract. There are charges for the telephone landline rental during the period when this was apparently out of action, beginning on 6 March 2012, but the contract involved rewiring for the telephone and it was inevitable that the landline would be out of commission for a period. The same point can be made in respect of the claim for 6 months Sky TV rental, the contract calling for repositioning of the satellite dish. In any event, this claim is not supported by evidence of payment. Mrs Vyas did produce to us vouchers said to evidence payment of £2,000 for a pay as you go mobile telephone during the period March 2012 – 5 October 2012, but we could not award this sum on the basis of her assertion to us, not in evidence to the judge, that all of her calls during that period were necessitated by the need to chase Mr Goraya. In any event, there are bound to be many telephone calls generated by having in builders to execute a substantial contract, particularly where the building owner, as here, undertakes the responsibility to source a good deal of the materials. There are un-particularised claims for the cost of making telephone calls in order to seek legal advice and even for chasing Mr Goraya’s solicitor, which are plainly recoverable, if at all, as costs of the action, not as damages. One might ask why the charge for a British Gas Smart Meter connection is for the Respondent’s account? There are car parking charges for attending hospital appointments where the causative link between the Respondent’s breach of contract and the need for Mrs Vyas to attend hospital is plainly not established by the evidence deployed at trial. There is a charge of £500 for the value of Indian traditional clothing allegedly stolen by one of the Respondent’s workers whilst on site. The assertion is that Mr Goraya promised to ensure that his employee returned the garments and then failed to do so. This was neither pleaded nor established as a breach of contract. There is no attempt to link laundry charges of £1,212 with any breach of contract and in any event these charges too are not evidenced. The claim for £2,500 paid to PMB Paving is duplicated, and I have already dealt with it above. The claims in respect of the purchase of propane gas cylinders are however evidenced and I would allow this claim in the amount of £243.70, on the footing that it is apparent from the photographs that some cooking was done on a simple gas ring in the outbuilding whilst the kitchen was unusable. Of course the kitchen would inevitably have been unusable for some considerable period but the first purchase of propane gas is on 5 July 2012 by which time the approximate duration of the contract of 16-18 weeks had come to an end. I would allow the purchase in July 2013 on the footing that it is arguable that the Respondents could not be expected reasonably to have mitigated their loss by that date. The only other item under this head which I regard as properly evidenced and proved are the payments to HSSH Hire in the total sum of £97.50 for the hire of a vibration damped breaker in May 2012 and a vibrating plate in August 2012. The hire of these items was plainly the responsibility of Mr Goraya under the contract and I would allow these items just as the judge allowed the PMB Paving item. It follows that I would allow the appeal under head 6 to the extent of an award of a further £341.20 damages.

Head 7

The judge dealt with this item at paragraphs 49 and 50 of her judgment as follows:

“49. Moving to the claim for liquidated damages arising from the penalty charge, I am not going to make an award in respect of the claim to accrued penalties. I make no finding as to whether the letter of the 11th August 2012 was or was not seen or signed by Mr Goraya at the time. This is a matter which was hotly disputed on the evidence. 50. I can well understand why Mr and Mrs Vyas would have sought to put pressure on Mr Goraya through the introduction of a penalty provision at that stage, however I am not satisfied and it is for them, as Claimants, to prove that the penalty was an agreed variation or part of any new concluded contract at the time.”
The judge does not expressly refer to the report of a graphologist, Elaine Quigley, which was placed before her. It appears from this report that Mr Goraya denied having signed both the letter of 11 August 2012, to which I refer at paragraph 7 above, but also the letter of 11 September 2012 pursuant to which the contract was allegedly reinstated. Nonetheless it is I think clear that the judge had this expert report in mind since she referred to the matter of signature of 11 August 2012 letter as being hotly disputed. I should mention that we have no transcript of the evidence given at trial. Ms Quigley did not give oral evidence, but I will assume that her report was properly in evidence before the judge. It was a matter for the judge what weight she gave this evidence.[31]We pointed out to Mr Vyas that there are some dangers in seeking to rely upon this liquidated damages clause in respect of the period 1 August 2012 to 9 February 2013, as if the clause is applicable it might be said to prescribe the maximum extent of any permissible recovery in respect of losses attributable to delayed completion, and thus impact on some of the other heads of damage claimed.[32]Although the judge did not express her conclusion on this aspect as fully as she might have done, she regarded it as not proved by the Appellants that the liquidated damages clause was incorporated into the contract. The judge was not bound to accept the written evidence of Ms Quigley, who concluded that in her opinion it was probable that Mr Goraya had signed the letters of 11 August and 11 September 2012. Moreover her report defined “probable” as “a preponderance of probabilities over possibilities seems to be a reasonable conclusion” which is not the orthodox approach to proof on the balance of probability. The judge also had to evaluate the evidence of Mr Goraya who she saw and heard giving his evidence in the witness box. The same is true of the evidence of Mrs Vyas who I believe asserted that she had witnessed the signatures – as I have already noted we have no transcript of the evidence given. The judge having had the advantage of seeing and hearing the factual witnesses give their evidence and being cross-examined thereon, an advantage which is denied to us, we cannot sensibly interfere with the judge’s finding that this was not an agreed variation of the contract. I would in any event for my part be concerned with the confusing inconsistency between the letter of 11 August, which asserted that the liquidated sum would be payable “per additional week” if completion was not achieved by 11 September, and the letter of 11 September, which asserted that the “penalty charge” had begun as from 1 August 2012. I would certainly not without more conclude that Mr Goraya’s signature of the two letters, if proved, demonstrated his agreement to pay liquidated damages as from 1 August and, given the uncertainty, I would hesitate long before concluding that he intended by his signature of the 11 September letter to agree to pay liquidated damages as from that latter date given that the same introductory paragraph of the letter records that “Mr Goraya has agreed that the full project will be completed by latest end of September.” In short, the matter is too uncertain to permit of a finding in favour of the Appellants.

Head 8

[33]On this appeal Mrs Vyas sought to persuade us to increase the award by [i] extending the period in respect of which damages for distress and inconvenience were awarded and [ii] increasing the rate at which they were awarded. As to [i] she asserted that the distress and inconvenience are continuing, but as I have already pointed out the Appellants cannot recover additional damages because of their inability to fund the necessary repairs and completion of the project. I also understood Mrs Vyas to complain that damages should have been awarded in respect of the period before February 2013. As to the annual rate at which damages should be awarded, Mrs Vyas submitted that the authorities to which the judge was referred, particularly the decision of Edwards-Stuart J in West & West v Finlay [2014] EWHC 868, indicated that an award both to her and to her husband and adult children of £3,500 per annum would have been appropriate.[34]The judge took into account that the decision of Edwards-Stuart J on this point was in fact varied by the Court of Appeal, see [2014] EWCA Civ 316, although that appears not to have been known by counsel who addressed her at trial. In the Court of Appeal in West it was held that an award for distress and inconvenience in circumstances similar to those under consideration here should not ordinarily, in the absence of particular physical symptoms or illnesses caused by the breaches, exceed £3,000 per annum, a figure adjusted to take into account inflation since the decision in AXA Insurance v Cunningham in 2007 – [2007] EWHC 3023. The sum awarded to Mrs West on appeal was in fact at the rate of £2,000 per annum. The judge was plainly here in no position to find that any of the physical ailments of Mrs Vyas were caused by the breaches. Mrs Vyas had a complicated medical history and the judge had no relevant expert medical evidence. For the avoidance of doubt I should point out that the letter of Dr Jain of 10 February 2016 to which Mrs Vyas has drawn our attention is of no relevance since it describes the situation obtaining three years after the termination of the contract, and one year after the latest date by which the judge envisaged the remedial work ought reasonably to be completed.[35]The judge in fact found that, whilst the family had suffered a considerable degree of inconvenience, they had in their evidence exaggerated its extent. I set out her relevant findings in full:
“54. I turn, finally, to the issue of general damages. Counsel in their submissions agreed that awards, albeit modest, may be made in building cases where inconvenience and distress has been caused. I have been referred by both counsel to the cases of AXA Insurance -v- Cunningham Lindsey and to the more recent decision of Mr Justice Edwards-Stuart in West & West -v- Ian Finlay. Both cases concerned families obliged to move out of their homes whilst works of reinstatement and repair were done. The latter case has in fact been the subject of an appeal earlier this year and I have also looked at the Court of Appeal’s decision when considering this case. 55. Accepting that an award of general damages may in principle be made there are two matters in issue which I have to decide: first, the extent of the stress and inconvenience. The Vyases say that they have been forced to live and sleep altogether in the one-room garden building during the working week and to stay with relatives for baths and washing at weekends. This is disputed by Mr Goraya, who at the very end of the three-day trial produced photos sent to him, he said sent to him by the Vyases’ daughter and taken the previous day, showing bedrooms and bathrooms clearly in use at the house. 56. The second point concerns the period of time by reference to which general damages should be awarded. Mr Rifat submits that any award should be restricted to the estimate of the time which will be needed to complete the works in the experts’ schedule, some four to six weeks. He says that the Vyas family should not be compensated for the entire period from February 2013 through trial to completion of the works as they could, and should, have spent money themselves which they could then have claimed back, on putting the house into a condition where they could at least occupy it, if they are not already doing so, which he asserts that they are. 57. I allowed Mr Goraya to produce the photos which he said he received only that day (he produced mobile phone records to prove such late receipt). They clearly show the bedrooms and family bathroom in use, lights on, boiler working. 58. Mr Patterson submits that as these photos came so close to the end of trial, with so little time for his clients to respond, it would be unfair to permit Mr Goraya to rely upon them. However, Mrs Vyas did have time at trial to respond and was recalled in order to do so. She said that her daughter could not have taken these photos the previous day, she told me what they had all been doing then, and that in any event they showed how the house had been the previous year before all the services were cut off, for safety reasons, following the visit of gas and electricity inspectors. 59. I am afraid that even before I saw the photos I was unconvinced by the Vyases’ extreme account of the way they had been and are living. Photos of the inside of the garden building show absolutely no evidence of any beds or bedding for one person, let alone for four. There are chairs and cooking equipment, a washing machine and cupboards seen in the photographs, clearly some living is being done there but I do not accept that the family sleep or wash themselves there. 60. The section of the photos entitled “current” does not have any pictures of bedrooms or bathrooms, indeed no full room views of any part of the house, save the inside of the garden building. In evidence Kavita, the daughter, said that they did use the house, but only with torches. 61. I had reached the view, on the evidence I had heard and seen before Mr Goraya produced the photos, that the Vyas family were using their house to a greater extent than their witness statements allowed. 62. On this point, regrettably, I conclude that the Vyas family have exaggerated the extent of the inconvenience caused by Mr Goraya’s breach of contract. However, there is still a considerable degree of inconvenience. Walking down the garden through all weathers to eat, congregate, wash clothes, in the clutter of stored belongings without facilities to do so in the main house is doubtless extremely annoying and stressful. 63. Having regard to the authorities the proper level of compensation in these circumstances is, in my view, £2,000 per annum for Mrs Vyas and £1,500 each for her husband and their two adult children. 64. As to the period upon which general damages should be based, I do not accept Mr Rifat’s submission that the assessment should be made by reference only to the four to six weeks which the works of completion are estimated to take. I accept that the Vyases had borrowed all they could raise on the property in order to make the payments to Mr Goraya which they have already made, and that there is no money left, their cards being fully extended. 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. I propose therefore to make an award covering a two year period on the basis, I would hope, that the works of repair and completion will be concluded by February next year at the latest. 67. Accordingly there will be an award of £4,000 for Mrs Vyas and £3,000 for each of Mr Vyas, their son Kishan and their daughter Kavita, amounting to £13,000 in all.”
[36]Cases such as this are infinitely various and fact specific. We could not possibly, without having heard the evidence, or read it in transcript, interfere with the judge’s conclusion that an award at the rate of £2,000 per annum for Mrs Vyas and £1,500 for her husband and two adult children was in all the circumstances reasonable. That is of course the rate adopted by the Court of Appeal for Mr and Mrs West.[37]As to the period in respect of which damages should be awarded, again I do not consider that we can interfere with the judge’s assessment. The judge has taken a period somewhat shorter, but not dramatically shorter, than the period claimed, 2 years 9 months, no doubt to reflect that some disruption was the inevitable consequence of undertaking a building project of this kind and that the inconvenience will not have been uniform. Arguably the judge has been generous to the Appellants as it could be said that by way of mitigation the Appellants should reasonably have taken steps to complete the work within a reasonable time of terminating the contract with the Respondent in February 2013. It seems most unlikely that the works could not reasonably have been completed within a very, very much shorter time than 2 years, assuming of course that the Appellants could have funded them.[38]Finally I would note that the judge has also been generous in making an award of damages to the two adult children. True, the judge in West made an award to reflect the distress and inconvenience of a child of the family, but the point does not appear to have been argued. The adult children of the Appellants were not party to the contract and I am not sure on what basis an award of damages has been made either to them or to reflect their loss. See also McGregor on Damages, 19th Edition, paragraph 29-021 at footnote 108. However, there is no cross-appeal on this point and I say no more about it.

Head 9

The judge dealt with this point in this way:

“52. There has apparently been no quantified claim by the Vyases’ neighbours to date, or at least none that I have seen, nor any evidence underpinning the estimated figure of £1,500. To the extent that it is an estimate of future costs then it will be covered by the experts’ schedule and/or the third party liability insurance of whichever contractor comes in next. In those circumstances I am not going to make any award under this head.”
[40]The treatment by the judge of this head of claim is not satisfactory. It is plain from the correspondence that the neighbour was holding the Appellants responsible for cracking of plaster and destruction of a specialist paint finish, apparently caused by placement of a support stanchion for a new steel beam which was introduced into the Appellants’ home. Further it is plain that the appointed party wall surveyor was as from September 2012 attempting to resolve the matter. A letter from the party wall surveyor dated 28 March 2013 records that two paint contractors had each quoted around £2,500 for the remedial work. Furthermore, I do not consider that there is any basis for the judge’s view that this item is covered by the experts’ agreed schedule of outstanding work. Her conclusion that the cost would be met by the third party liability insurance of whichever contractor completes the project I regret I do not understand. That cannot be so.[41]However the mere circumstance that the party wall surveyor considers that the Appellants should reimburse their neighbour Mrs Hirani for the damage caused by their work is not of course conclusive, or even indicative, that the damage has been caused by negligence amounting to a breach of contract by the Respondent. Some support for the notion that it was so caused is provided by a letter of 18 October 2012 from the party wall surveyor to the Appellants in which he states:
“During the placement of the supporting stanchion for the new beam as agreed party wall surveyor, I had asked the builder to be extremely careful in cutting away masonry on your side of the wall to avoid the foreseeable problems of matching a specialist paint finish on the wall of Mrs Hirani’s lounge. Very little notice was taken and the result is that the party wall was penetrated causing loss of plaster and destruction locally of the render plaster and specialist paint finish.”
[42]We are however in the difficulty that the judge made no finding on this point and we do not know what evidence was adduced before her. In argument before us Mr Goraya pointed out that the relevant drawings for the ground floor extension are dated June 2012, i.e. after the contract was made in February 2012. He maintains that he had discussed with his clients that it was inevitable in the light of the necessity to locate the new steel beam so as to bear upon the party wall that damage would be caused to the other side thereof. There was a warning on the drawing to the effect that there was a risk of cracking in the party wall.[43]Mrs Vyas took issue with all this maintaining that the relevant plans had been submitted to Building Control in January 2012.[44]The short point here is that we cannot possibly resolve this factual dispute on which the lower court does not appear to have received evidence. In other circumstances we could remit this issue to the Central London County Court for resolution, but as the amount at stake is only £2,500 that could not possibly be proportionate. In the absence of reliable evidence, as opposed to argument, we have in my view no alternative but to uphold the judge’s rejection of this head of claim.

Head 10

The judge dealt with this claim as follows:

“53. Costs incurred and costs that will be incurred once works resume, this is the enormous figure of £86,000 odd. In the absence of any elucidation in the evidence or submissions as to what items of loss go to make up this head I can only conclude that such a large figure is in fact referable to the works of repair and reinstatement covered by the experts’ schedule. Accordingly I am going to make no further award under that head.”
Plainly the judge received no assistance from Counsel on this head of damages, but the claim is in fact itemised in the Schedule of Loss. In her skeleton argument for this appeal Mrs Vyas says of this item:
“Costs incurred and costs that will be incurred once works resume totalling £121,885.50. Previous total at Trial was £84,616.18. £30,000 claim of property part use was deducted from the claim; £7,269.32 has been transferred into the Appellants’ Schedule of Costs. Please refer to File 3 Pages 497-513 and Pages 758-788 – Appellants’ Schedule of Loss detailed breakdown and evidence.”
It is not entirely clear to me why this is claimed as a separate head of loss. Since the hearing I have had the opportunity to study closely the Schedule of Loss at pages 497-513. I discover that: (i) It includes what is now called the “property part use rental amount” put at £30,000 which is in fact Head 2; (ii) It includes the claim for distress and inconvenience, put at £30,000, which is in fact Head 8; (iii) It makes further or duplicative claims for laundry, dry cleaning and bed linen washing and duplicative claims in respect of the refrigerator and washing machine with which I have already dealt; (iv) It contains claims for items such as a television and a sofa which apparently were once stored in the self-access store and have since been placed in the Appellants’ outbuilding where they have been affected by condensation and mould. This is patently not a consequence of the Respondent’s breach of contract but of the Appellants’ decision to remove these items from the self-access store and to place them in an unsuitable location.[46]As to the balance of this claim, it consists largely of the estimated future cost of carrying out remedial works, including the replacement of plumbing and other items initially purchased by the Appellants and allegedly damaged by the Respondent. These costs are comprised within the experts’ agreed estimate. There are further purchases of propane gas cylinders but these relate to periods long after the work could reasonably have been completed.[47]Accordingly, I would uphold the judge’s rejection of the claim under head 10.

Conclusion

[48]It follows that I would allow the appeal, but only to the extent of varying the award of damages in paragraph 1 of the Order of 10 November 2014 by substituting for the sum of £120,659.44 the sum of £121,000.64, i.e. an increase in the award of £341.20.[49]Although two days were set aside for the hearing of this appeal the parties completed all the submissions which they wished to make to us by the end of the first day, 26 October 2016. We reserved our judgment and indicated that there would be an opportunity to make submissions about the costs of the appeal after we had given judgment, and that we would give directions in relation thereto when handing down judgment.[50]Pursuant to an enquiry by Mrs Vyas the following day, 27 October 2016, the Civil Appeals Office on my instructions restated the position and made clear that we expected no further submissions prior to delivery of our judgment.[51]On 2 November 2016 Mrs Vyas sent to us further written submissions together with substantial attachments. The greater part of this document is devoted to an attempt to demonstrate that Mr Goraya has substantial assets, including a share in a matrimonial home, is carrying on his construction business through various companies and is regularly remitting funds to family members in India. It seems to be suggested that in this he is assisted by the daughter of Mr and Mrs Vyas, Ms Kavita Vyas, who is apparently now married to Mr Goraya’s brother. All the attachments to the written submissions are said to be evidence in support of these propositions. I remind myself that the judgment includes an award of damages to compensate Ms Kavita Vyas for distress and inconvenience.[52]I must repeat that this appeal is concerned and concerned only with the question whether the judge should have awarded a greater amount of damages to Mr and Mrs Vyas. If the Appellants have evidence to substantiate their allegations concerning Mr Goraya’s assets, that evidence will be highly relevant to the Appellants’ attempts to enforce the judgment against him, but it is of no relevance to this appeal. We are not concerned with and have no jurisdiction to consider issues arising out of Mr Goraya’s bankruptcy or attempts to enforce the judgment.[53]The Appellants must file with the court and serve on the Respondent within 14 days of today, i.e. by 4 pm on Wednesday, 23 November 2016 any submissions which they wish to make concerning the costs of the appeal. The Respondent must file with the court and serve on the Appellants by 4 pm on Wednesday, 7 December 2016 any submissions in response thereto. The Appellants may make any submissions in reply in the same manner by 4 pm on Wednesday, 14 December 2016. Thereafter the court will consider the written submissions and make such order concerning the costs of the appeal as appears appropriate.

Lord Justice Lewison :

[54]I agree.

Lord Justice Hamblen :

[55]I also agree.