Cometson & Anor v Merthyr Tydfil County Borough Council [2014] EWHC 419 (Ch)

Case No OCF06502[2014] EWHC 419 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONVenue Cardiff Civil Justice Centre, Park Street, Cardiff, CF10 1ETDate 21/02/2014
Before
MR JUSTICE MORGAN
Between
KEVIN COMETSONClaimantsANGELA TOVEYClaimantMERTHYR TYDFIL COUNTY BOROUGH COUNCILDefendantR&M WILLIAMS LIMITEDThird Party
Mr David Hughes (instructed by Hugh James Solicitors) for ClaimantsMr Michael Brace (instructed by Silver Shemmings LLP) for Defendant/Part 20 ClaimantMr Andrew Kearney (instructed by Morgan Cole LLP) for Part 20 DefendantHearing Hearing dates: 8, 9 and 10 October and 26, 27, 28 and 29 November and 3 December 2013
Judgment

Introduction

[1]The Claimants in this case are Mr Cometson and Mrs Tovey. At all material times, the Claimants have been, and are, the freehold owners of a property at 22 Aberfan Road, Aberfan (“the property”). The property was constructed on three floors. Looking at the property from the road, the property appears to comprise a ground floor and a first floor. However, looking at the property from the rear, because of a change in levels, the property can be seen to have three floors above the level of the ground at the rear. I will refer to the floor at road level as the ground floor and to the floor beneath it as the basement (as that is how it was described in the course of the hearing). I will also refer to the left and the right of the property as it appears from the road. The property comprises two shops at ground floor level with a flat above the shops. The basement consists of accommodation below the shops although during the currency of the present litigation, there were building works outstanding to the basement and that accommodation has not been used to any real extent.[2]The Claimants’ claim is against Merthyr Tydfil County Borough Council (“the Council”) for damages for alleged breaches of a contract between those parties, which contract was entered into on 8th November 2004. This contract provided for the Council to arrange for work to be done to the property as part of a scheme of works, which was called a “Group Repair Scheme”, which included works to a number of other properties in the vicinity. In order to arrange for these works to be done, the Council entered into a building contract with R & M Williams Ltd (“the builder”) in late 2004. Pursuant to this contract, certain work was carried out to the property between around June 2005 and March 2006. Remedial work was carried out to the external render of the property between 28 November 2006 and mid-January 2007. Since then no further work has been done to the property. For part of the time since 2006, and up to the present time, the flat at the property has been let to residential tenants. Also, for part of the time since 2006, and up to the present time, the right hand shop has been occupied by Mrs Tovey, one of the Claimants, where she runs a hairdressing salon. The left hand shop has remained empty as has the basement, where further work undoubtedly needs to be done, by somebody.[3]The Claimants allege that the Council committed multiple breaches of its contract with the Claimants. The Claimants say that substantial remedial work is required and the court should award the Claimants damages by reference to the cost of those works. Further, the Claimants claim for substantial consequential losses. They say that, due to the condition of the property resulting from the Council’s breaches of contract, the Claimants have been unable to let all or part of the property for a substantial period of time and the resulting loss of rent is recoverable as damages from the Council.[4]The Claimants initially sued the builder as a second defendant to their claim. As I understand it, the Claimants’ principal allegation was that the builder owed a duty of care in tort, that the builder was in breach of that duty and that the Claimants’ losses were recoverable as damages for such breach. However, on 14 September 2011, the builder obtained summary judgment in its favour and the Claimants’ claim against the builder was dismissed and the Claimants were ordered to pay the builder’s costs of the claim against it.[5]Before November 2012, the Claimants’ case against the Council was that the contract between them and the Council imposed on the Council the type of obligation that is conventionally undertaken by a building contractor under a typical building contract between an employer and a contractor. On that basis, the Council, it was said, owed the Claimants a duty to see to it that the relevant works were carried out in a good and workmanlike manner, that the materials used would be of satisfactory quality, that the works would leave the property in reasonable repair, that the works would comply with all relevant regulations and statutory requirements and would be done within a reasonable time.[6]Before November 2012, the Council’s case was that it had acted as agents for the Claimants when it had entered into a building contract with a builder and any complaint by the Claimants as to the quality of the building work or as to the time taken to carry out that work was a complaint that they could only address to the builder under that building contract.[7]On 8th November 2012, I directed that there should be a preliminary issue as to the nature of any contract between the Claimants and the Council and as to the express and implied terms of any such contract with regard to the building works to the property.[8]On 30 November 2012, I handed down judgment on the preliminary issue. The neutral citation of that judgment is [2012] EWHC 3446 (Ch). In due course, I will refer in greater detail to the terms of that judgment. In summary, I did not agree with the cases put forward by the Claimants or by the Council as to the nature of the contract between them. I held that there was a relevant contract between those parties under which the Council was obliged to use reasonable skill and care in the provision of the service of arranging for works to be carried out to the property and was further obliged to provide that service within a reasonable period of time.[9]Following my judgment on the preliminary issue, the Claimants amended their Particulars of Claim. They continued to refer to the defects which they said existed in the property and in each case contended that the existence of those defects was the result of the Council’s failure to use reasonable skill and care in arranging for the relevant work to be carried out to the property. The Claimants also contended that the Council had failed to provide the contractual service within a reasonable time. The Council has denied any such breach and it has counterclaimed for the sum of £5,604.38, which is said to be due from the Claimants under their contract with the Council. In addition, the Council has asserted, by way of a Part 20 Claim against the builder, that any liability which the Council is held to have to the Claimants is the result of a breach by the builder of its contract with the Council.[10]The trial of the substantive claim was originally estimated to last 3 days. That estimate was always unrealistic and in the event the trial lasted 8 days. Mr Hughes appeared on behalf of the Claimants, Mr Brace appeared on behalf of the Council and Mr Kearney appeared on behalf of the builder. On the second day of the trial, I went on an accompanied view of the property when all the matters which were said to be relevant were pointed out to me.

The contract between the Claimants and the Council

[11]In my earlier judgment, I described in detail the documents which passed between the Claimants and the Council in relation to the proposed scheme of works in Aberfan which would include works to the Claimants’ property. It is unfortunately the case that those documents showed a lot of confusion, emanating from the Council, as to the relationship between the Council and the Claimants. Not without some difficulty, I came to the view that there was a contract between the Claimants and the Council and that the terms of the contract were essentially recorded in two documents dated 8 November 2004. In relation to those documents, I quote from my earlier judgment where I said: “31. On 8th November 2004, Mr Cometson and Ms Tovey signed a Scheme Consent Form. This form referred to the Housing Grants, Construction and Regeneration Act 1996. The form identified the relevant property as 22 Aberfan Road. The form contained the following terms: “We acknowledge that Merthyr Tydfil County Borough Council intend to undertake a Group Repair Scheme comprising the following properties: [Left blank] We acknowledge that the purpose of the Group Repair Scheme is to carry (sic) eligible works to all the participating properties included within it. (Eligible works are those works, which are needed to be carried out to the exterior envelope of the property to put the building into reasonable repair. The exterior envelope is defined as including any part of the building exposed to the elements such as roofs, walls, doors, windows and may also include works to the curtilage of the building. No internal works are carried out under the scheme unless they are a necessary adjunct to carrying out exterior works or are required to make good the interior following works to the exterior). We further acknowledge that with the issue of a Certificate of making Good Defects all such works will be deemed to have been completed. We hereby confirm that I (sic) wish to participate in the Group repair Scheme and as owner(s) of the above property (hereinafter called “the property”) consent to Merthyr Tydfil County Borough Council arranging for the eligible works to be carried out to the property. We understand that the cost of the works to the property has been estimated at £22,417.53 and that a sum of £5604.38 is payable towards the cost of the works on demand prior to the commencement of the works. We understand that in reliance on the authorisation and consent contained in this document and subject to approval of the scheme by the Secretary or State for Wales, Merthyr Tydfil County Borough Council will enter into a contract for the whole of the works comprised in the Group Repair Scheme. By signing this form we agree to participate in the Group Repair Scheme and to pay an amount not exceeding 25% of the total cost of the works or sum determined by the notional loan.”32. There was a further page which accompanied the Scheme Consent Form (or it may have been the reverse of the Form). This stated that by giving their Scheme Consent, participants agreed to the works being carried out and they became liable to pay an apportioned contribution towards the costs; they also became liable to the clawback provisions described later on that page. The clawback provisions, which were badly expressed, identified circumstances in which the Council could claim from a participant in the scheme the difference between the costs of the works attributable to his premises and the amount of his contribution towards that cost.33. The Scheme Consent Form bears the date 8th November 2004. Mr Cometson said that the date was not in his handwriting. It is likely to have been written by the Council officer who witnessed the signatures of Mr Cometson and Ms Tovey. It is not really in dispute that the Form was signed by them on or about 8th November 2004. I understand that the parties agree that the Scheme Consent Form was varied informally when it was agreed that the Claimants were not required to pay their contribution to the cost of the works before the works started.34. There is a further document dated 8th November 2004, signed by Mr Cometson and Ms Tovey. The heading to this document refers to the Local Government and Housing Act 1989 and the document is described as an Agreement to Pay Contribution. By this document, Mr Cometson and Ms Tovey agreed to pay the sum of £5,604.38 direct to the Council. The document also stated: “We understand that this sum of money is the amount that has been calculated as our contribution towards the cost of the works, and that the Council in acting as our Agent in this matter will pay this money to the builders and agencies involved in carrying out the works necessary.” ”

[Left blank]

[12]In my earlier judgment, at paragraph 41, I pointed out that the Scheme Consent Form did not specify the works which were to be carried out to the property. The Form referred, in general terms, to works to the exterior envelope but it also referred to internal works, if they were required for various stated reasons. Under the Scheme Consent Form, the Claimants were obliged to permit the Council to carry out works of the kind referred to in the Form. The detail of the works was to some extent under the control of the Council. The Scheme Consent Form was a permission by the Claimants to the Council, which permission enabled the Council to instruct the builder to do work on the property. Thus, speaking generally, in relation to the work which the builder carried out to the property, that work was carried out with the permission of the Claimants. I will refer later to the obligations which the Council owed to the Claimants in relation to such work.[13]The trial bundle included an undated document called a “Grant Enquiry Preliminary Survey Report” which was signed by the Claimants and by an officer of the Council. I was not given any specific evidence as to when that document was signed but, on the balance of probabilities, I find that it was signed before the Scheme Consent Form was signed on 8 November 2004. The document refers to the Local Government and Housing Act 1989. It states that it is “for guidance only” and was not an official approval of a grant. The document refers to a booklet, “House Renovation Grants”, and to a set of Guidance Notes. It was the Claimants’ case that these documents were not provided to them, although they signed the document to record that they had read and understood the Guidance Notes. There are many references in this document to the Council providing a grant to the Claimants in relation to the cost of works to be done by the Claimants. This was neither the intended, nor the subsequent, basis of the relationship between the Claimants and the Council. This document may have been appropriate in a case where the Claimants were to carry out work to the property, initially at their own cost, and were then to recover from the Council a grant which would be a contribution to that cost. In such a case, the Council would be concerned that it was not obliged to pay the grant to the Claimants unless the work carried out was done to a standard which was acceptable to the Council. The document stated that the works were to be completed to the satisfaction of the Council and the materials used had to comply with the applicable British Standard and with the relevant Building Regulations. The document then referred to the quality of the intended works and stated that the works were to be carried out in accordance with current regulations, bylaws and codes of practice and the materials used and their performance specification were to be to the satisfaction of the Grants Section of the Council. The document referred to the procedure to be adopted for payment of a grant by the Council to the applicants for the grant. The procedure assumed that the applicants for the grant would have paid an invoice for the works in question and could produce certificates of guarantee in relation to the work.[14]As explained, what was envisaged by the Claimants and the Council when the Scheme Consent Form was signed, was not that the relevant works would be done and paid for by the Claimants but that the Council would enter into a building contract for those works. Thus, it was for the Council to agree with the builder the standards to be achieved by the builder as regards the quality of the works and of the materials used. If the builder did not achieve the contractual standards, the Council could not have turned around and sued the Claimants because the works were not in accordance with the standards specified in the Preliminary Survey Report. It is difficult to fit the wording of this Report into the contractual relationship which the Claimants and the Council subsequently entered into. One option would be to simply ignore the wording of the Report where it specified the standards to be achieved by the Claimants. Another option would be, as the Claimants indeed contended, to hold that when the document described the standards to be achieved by the Claimants, they should be understood to be the standards to be achieved by the Council or, at any rate, the Council was to use reasonable skill and care to see to it that the builder would achieve those standards and if that did not happen then the Council would be in breach of its obligations to the Claimants.[15]In the course of working through the allegations made by the Claimants as to the defective work which was done to the property, I have kept an open mind as to the precise part, if any, played by the references in the Preliminary Survey Report to British Standards and the Building Regulations and codes of practice. Having assessed all of the allegations of defective work, it emerges that nothing in the end turns on whether these references in the Survey Report imposed specific contractual obligations on the Council.[16]Whatever is the position in relation to the references in the Preliminary Survey Report to British Standards and the Building Regulations, and the like, it does seem that the Preliminary Survey Report can be relied upon to identify the type of work which the Claimants were to permit the Council to arrange to carry out in the property. If the Council entered into a building contract with a building contractor to do the specified works, then the Claimants would be in breach of the contract represented by the Scheme Consent Form if they did not allow the building contractor into the property to carry out those works. However, even in this respect the Preliminary Survey Report was not very revealing. It referred, but only somewhat briefly, to works to provide a new roof covering, the provision of new gutters and rainwater pipes, works to the fascia and verge boards, works to the soffit boards, the provision of a damp proof course, treatment for dry rot, the removal of external render and re-rendering and the provision of new windows to the flat. Not much turns on the precise wording of the Report in these respects so that I need not set out the detailed wording, save to note that the question of tanking was referred to by the words “allow for tanking”.[17]As regards the work which was actually carried out to the property, I will refer later in this judgment to the work which was the subject of the contract between the Council and the builder and the extra work which the builder was instructed by the Council to carry out, in the course of doing the works originally specified. As will be seen, the extra works were quite extensive and have been the subject of substantial claims by the Claimants. There was scope for argument as to whether the Council owed to the Claimants the same obligations in relation to the extra work as those which it owed in relation to the original work. I might have been asked to consider whether the Council took on any contractual obligation to the Claimants in relation to the extra work, in circumstances where it appears to be agreed between the Claimants and the Council that the Claimants were never going to be required to make any payment towards this extra work, even though it was fairly extensive work. As it happened, there was no dispute at the recent trial on this point. It was accepted by the Council, and also not disputed by the builder, that the Council’s obligations to the Claimants applied just as much to the extra work as they did to the work originally undertaken in relation to the property.[18]In my earlier judgment, I considered the extent of the obligations owed by the Council to the Claimants in relation to the work which was carried out to the property in accordance with the Scheme Consent Form. In that judgment, I reached the following conclusions:
“44. Although the Scheme Consent Form does not spell out what, if any, obligation is undertaken by the Council it seems to have been implicit in the fact that the Claimants were to pay a sum of money to the Council that the Council would have some obligations. The key to what that obligation was might be said to be found in the reference to the Council “arranging for the eligible works to be carried out” to the Claimants’ property. However, that reference does not provide all of the answers and in fact only gives rise to the next series of questions as to what was involved in arranging the works and what responsibility the Council would have to the Claimants in relation to the work. … 52. Thus far, I consider it is clear that the Council was not to enter into a building contract as agent for the Claimants but the Council did take on an obligation to pay to a third party the monies it received from the Claimants. The question then arises: did the Council take on any other obligations? If so, did they contract with the Claimants to arrange for the scheme to be implemented, to arrange for a building contract to be entered into and to supervise the doing of the work under that building contract? Or did the Council’s obligations go further, so that it effectively took on the responsibility to the Claimants for the works as if it were a main contractor who intended to have the works done by a building contractor as its sub-contractor? 53. In my judgment, it is right to take the step of holding that the Council took on a contractual obligation to the Claimants to organise the works involved. That obligation could not have been an unconditional obligation as early as 8th November 2004. At that stage, it was clear that the Council would only do the Group Repair Scheme if it obtained a sufficient number of participating building owners. In the event, the Council did obtain a sufficient number of participants and it did proceed to implement the scheme. As contemplated by the Claimants and by the Council, the Council entered into a building contract with a contractor. The Council had obtained the commitment of the Claimants to allow the contractor to do work on the Claimants’ property. Someone had to supervise the contractor. It was plainly not envisaged that the Claimants would have that responsibility or even that entitlement. The Council would wish to be able to give instructions to the contractor in accordance with the building contract. The Council would not want individual building owners intervening in those respects. In my judgment, it was implicit in the arrangements created by the documents that the Council did take on responsibility to the Claimants in relation to the works to be done to the Claimants’ property. 54. Should I go further and hold that the Council was effectively in the position of a main contractor with the building contractor as its sub-contractor? Such a relationship would not be an impossible one. Such a relationship would have had considerable benefits for the Claimants. If the terms of the main contract were held to match the terms of the sub-contract in relation to the scope and quality of the works, then a breach by the sub-contractor would also be a breach by the main contractor. If the breach caused damage to the building owner, then the building owner could sue the Council which could pass on the claim to the sub-contractor. 55. In my judgment, I should not take this further step. Taking that step is not necessary in order to make sense of the arrangements which were made. Those arrangements can work well enough on the basis which I have already described whereby the Council took on the responsibility to the Claimants for arranging for the implementation of the scheme, at any rate in relation to the works to the Claimants’ property. The obligations of a main contractor are much more onerous than that. Those obligations would make the Council liable for all the defaults of the building contractor even if the Council was not directly responsible and could not have behaved differently from how it actually behaved. 56. In coming to this conclusion, I take into account the fact that the relationship between the building owners and the Council in this case was quite different from that of a typical employer and a building contractor under a building contract. With the typical relationship, the employer pays for all of the work which is to be done and the building contractor’s commercial interest is in its profit margin within the price payable. If the building contractor sub-contracts part of the main contract works, then it expects to receive from the employer a margin on the price it will have to pay to the sub-contractor. In this case, the Council’s interest in the scheme was as local housing authority. It wished to see the repair of properties in its area. It was to bear 75% of the cost of the works. 57. I conclude therefore that the Council’s obligations: i) did not consist of entering into a building contract as agent for the Claimants; ii) did not involve the Council contracting with the Claimants that the Council would procure the doing of the works to the Claimants’ property so as to be responsible for the quality and progress of those works; iii) did involve the Council contracting with the Claimants to arrange for the carrying out of the Scheme at any rate in relation to the works to be done to the Claimants’ property.” i) did not consist of entering into a building contract as agent for the Claimants; ii) did not involve the Council contracting with the Claimants that the Council would procure the doing of the works to the Claimants’ property so as to be responsible for the quality and progress of those works; iii) did involve the Council contracting with the Claimants to arrange for the carrying out of the Scheme at any rate in relation to the works to be done to the Claimants’ property.”
[19]I then considered, in my earlier judgment, the effect of sections 12 to 14 of the Supply of Goods and Services Act 1982 and concluded that the contract between the Claimants and the Council obliged the Council to provide the service of arranging the relevant works and that it was an implied term of that contract that the Council would carry out that service with reasonable skill and care and within a reasonable time.[20]The Scheme Consent Form referred to works being done to put the property into “reasonable repair”. That phrase was obviously taken from the Housing Grants, Construction and Regeneration Act 1996; see, in particular, sections 60 and 62 thereof. That Act was referred to in the heading to the Scheme Consent Form. The Scheme Consent Form used in this case was plainly designed to be a “scheme consent” for the purposes of section 65 of the 1996 Act. However, as I explained in my earlier judgment, the 1996 Act did not apply to the works which were carried out in this case as it had been repealed with effect from 18 July 2003 by the Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 (SI 2002/1860) and the relevant transitional provisions did not apply to these works. There is nonetheless a strong argument for saying that the phrase “reasonable repair” in the Scheme Consent Form should be construed by reference to the relevant provisions of the 1996 Act.[21]Section 96 of the 1996 Act (which applied to the provisions dealing with group repair schemes, by reason of section 75) provided that:
“In determining … what is reasonable repair, in relation to a dwelling, house or building, a local housing authority: - (a) shall have regard to the age and character of the dwelling, house or building and the locality in which it is situated, and (b) shall disregard the state of internal decorative repair.”
[22]In addition, section 62(6) of the 1996 Act provided that for the purpose of the relevant statutory provisions, the exterior of a building should not be regarded as in reasonable repair unless it was substantially free from rising or penetrating damp.[23]Much, if not all, of the wording of section 62(6) and section 96 can be traced to the cases in the law of landlord and tenant which have considered the meaning of “good tenantable repair” or “good repair” or “habitable repair”. Those cases were collected in the judgment of Lord Esher MR in Proudfoot v Hart (1890) 25 QBD 42, in particular, at pages 50 – 53. In that case, the Court of Appeal approved (at pages 52 and 55) a definition of “good tenantable repair” as: “such repair as, having regard to the age, character and locality of the house, would make it reasonably fit for the occupation of a reasonably-minded tenant of the class who would be likely to take it”.[24]This definition is expressed in language appropriate to a landlord and tenant context but I consider it is helpful in the present context also in showing that when the court is asked to apply the ordinary meaning of a phrase like “reasonable repair” to a particular property, it is right to take into account the age, condition and locality of that property. It can be seen that the definition in Proudfoot v Hart does not specifically mention rising or penetrating damp or decorative repair. Those topics are the subject of more specific case law which is discussed in Woodfall on Landlord and Tenant, Looseleaf Ed., paras. 13.031 and 13.044. It is not necessary in the present case to discuss whether the specific references in section 62(6) and section 96 to damp and to decorative repairs describe a standard of repair which is different from the standard required by the ordinary meaning of “reasonable repair”. As it happens, I do not consider that anything in the present case will turn on that question. If the matter had been relevant, I would have held that because the Scheme Consent Form was so obviously based on the provisions of the 1996 Act, it would have been appropriate to hold that, on the true construction of the Scheme Consent Form, the parties had intended to incorporate the provisions of section 62(6) and section 96 as to the meaning of “reasonable repair” into that form.[25]The use of the word “reasonable” in the phrase “reasonable repair” introduces a matter of degree or judgment as to what will suffice as “reasonable” repair. A building will be in reasonable repair even where there are items that could be made better than they currently are. This approach is in accordance with a line of authority in the landlord and context which establishes that an obligation to repair does not require that the premises be put into perfect or pristine condition: see Woodfall at para. 13.040.[26]Having considered the meaning of “reasonable repair”, it is convenient at this point to make my findings as to the age, character and locality of the property.[27]I had a view of the property during the trial and I was also provided with a report by Ms Ginn, MRICS, a valuer jointly appointed as an expert. There were references in the evidence to the property being 120 years old. At the time of the Scheme Consent Form, the property was laid out as two shops, at ground floor and basement level, with a flat above at first floor level. At that time, the property was rendered externally with a cement render. The windows at the front of the property were sash windows and those at the rear were more modern in appearance. The roof covering appears to have been slates. The locality is described by Ms Ginn. Aberfan is a former mining village. It is a large sprawling village, unfortunately well known because of the Aberfan disaster in 1966. The village is bypassed by the main trunk road so that there is limited through traffic and the village essentially serves the local population. The property is not in an area that could be described as the commercial centre of the village, as it is away from other occupied retail units.[28]I next need to consider what the obligation on the part of the Council to “arrange” the relevant works might have involved. Some matters are plain. It was not envisaged that the Council would do the work itself. Instead, it was envisaged that the Council would enter into a building contract with a contractor to do the work. It must have been envisaged that the Council would enter into an appropriate building contract for that purpose. It must have been envisaged that such a building contract would give to the Council power to inspect and approve the works done by the contractor and to indicate if it was not satisfied by the standard of the contractor’s works.[29]In my earlier judgment, I referred to the Council’s obligation as being an obligation to “arrange” or to “organise” the works. There was an obvious need for the Council to be involved with the arrangement of the works. The works involved in the scheme were being done on a number of properties. The Council did not own the properties where the work was to be done. It would be necessary for the Council to carry out some planning as to how the work should be approached. In my earlier judgment, I referred to two explanatory pamphlets which had been issued by the Council. I stated in my earlier judgment that I was not able to make a finding that Mr Cometson had seen these particular pamphlets. Nonetheless, in order to understand the kind of commitment which the Council might have undertaken under its obligation to arrange for the works to be done, it might be helpful to refer to how matters were described in these pamphlets.[30]One pamphlet had a paragraph headed: “Monitoring Works”. The paragraph then stated that a “Supervising Officer” would monitor the works on site to ensure that the agreed schedule of works was being carried out and there would be inspections by “Grants Officers and Building Control Officers” at appropriate stages. A second pamphlet had a paragraph headed “Contract Supervision” which stated that the Council employed a Clerk of Works to oversee works undertaken by the contractor. The paragraph also referred to a “Resident Liaison Officer” employed by the Council; his job was said to be to liaise with the contractor on behalf of residents and to investigate and resolve any disputes or issues which might arise during the course of the contract.[31]In my earlier judgment, in particular at paragraph 53 which I have quoted above, I stated that “someone had to supervise the contractor” and I made the point that it was not envisaged that the individual property owners would supervise the contractor. Later, at paragraph 59, I stated that the service to be provided by the Council to the Claimants included the “supervision” of the contractor. My use of the word “supervision” was not intended to be a term of art but was influenced by the language of the Council’s own pamphlets. Further, there had been not argument at the trial of the preliminary issue as to the precise content of the Council’s obligation to arrange the relevant works.[32]At the recent trial, there was argument as to what was involved in “supervision” by the Council and whether that word was appropriate to describe the substance of the obligation on the Council to arrange the relevant works. This led to a considerable citation of text book authority as to what might be involved in supervising a building contractor and, by way of suggested contrast, what was involved in carrying out periodic inspections and in valuing and certifying building works. In McGlinn v Waltham Contractors Ltd [2008] Bus LR 233, Judge Coulson (now Coulson J) considered the authorities relevant to the duty of an architect to carry out periodic inspections of works being done under a building contract. Paragraph 218 of the judgment is a helpful summary of the position in that respect. For present purposes, it is sufficient to refer to the last part only of that summary where the judge said the following:
“In the light of these various authorities, I would summarise the legal principles relating to an architect's obligation to inspect as follows. … (f) It can sometimes be the case that an employer with a claim for bad workmanship against a contractor makes the same claim automatically against the inspecting officer, on the assumption that, if there is a defect, then the inspector must have been negligent or in breach of contract for missing the defect during construction. That seems to me to be a misconceived approach. The architect does not guarantee that his inspection will reveal or prevent all defective work: see Corfield v Grant 29 Con LR 58. It is not appropriate to judge an architect's performance by the result achieved: see Jackson & Powell, at para 8–238.”
[33]The general approach summarised in McGlinnis concerned with an architect’s duty to inspect ongoing building work. The present case is concerned with a duty to use skill and care in arranging building work. However, allowing for these differences between the obligations, I consider that the comment made by Coulson J at paragraph (f) of his summary is applicable in the present case; the Council does not guarantee that the way it goes about arranging the building works will reveal or prevent all defective work. There is no assumption that, if there is a defect, then the Council must have been negligent or in breach of contract in relation to that matter.[34]As the case developed at the recent trial, legal arguments as to the scope of any obligation on the Council to inspect the works or even to supervise the builder became less significant. That came about by reason of the matters to which I now refer. The Council entered into a building contract with the builder; I will refer later to the provisions of that contract. Under that contract, the Council was entitled to, and did, appoint a Contract Administrator, a Ms Cherrylee Evans, who was an employee of the Council. Further, as foreshadowed in one of the Council’s pamphlets, it did appoint a Clerk of Works, a Mr Glynne Davies, also an employee of the Council. The Contract Administrator delegated to the Clerk of Works her authority to act as Contract Administrator. As will appear when I refer to the facts in more detail, Mr Davies regularly went to the property to inspect the works being done to it. The Claimants do not contend that Mr Davies’ visits to the property were too infrequent or at the wrong times. Insofar as Mr Davies became aware of matters as a result of such an inspection, then his knowledge is attributed to his employer, the Council. If the Claimants were to contend that Mr Davies did not become aware of some relevant matter, for example, if it were to be alleged that the builder had carried out defective work while Mr Davies was not at the property and so Mr Davies did not become aware of that fact, then there might be an issue as to whether the Council had used reasonable skill and care in carrying out whatever might have been its duty to oversee the works to the property. However, as will be seen, that is not in the end a relevant allegation in relation to any of the matters complained of by the Claimants.

The contract between the Council and the builder

[35]In August 2004, the Council put out to tender the works involved in the group repair scheme (which included works to the property). The tender documents included a Specification and Bill of Quantities. On 6 September 2004, the builder completed the tender documents and offered to do the work for a sum of approximately £590,000. Its tender referred to a proposed commencement date of September 2004 and a proposed completion date 37 weeks after commencement. In due course, the Council accepted this tender. The tender documents stated that the matter would be governed by a contract in the form of the JCT Agreement for Minor Building Works (Latest Edition). On 4 January 2005, the Council wrote to the builder referring to an enclosed “executed copy of the above Contract”. It does not seem that the Council or the builder actually signed the JCT form but it was accepted at the recent trial that the contract between them was on the terms of the then latest edition of the JCT Minor Works contract. The then latest form was the 1998 Edition as amended by Amendments 1 to 5.[36]The relevant JCT form obliged the builder to carry out the contract works in a good and workmanlike manner, using materials and workmanship of the quality and standards specified in the Contract Documents or otherwise to the reasonable satisfaction of the Contract Administrator. The JCT Minor Works form does not specifically contemplate the use of a Bill of Quantities.[37]In the Preambles to the Bill of Quantities, there was a reference to the raking out of joints as necessary to provide a key and for thoroughly cleaning off all loose materials by wire brushing. In relation to timber used in the works, the Preambles stated:
“Where specified the timber is to be vacuum/pressure impregnated to a dry salt retention of 5.3kg of “Tanilith C” per cubic metre of timber. Timber must be brought, as far as possible, to its final dimensions prior to treatment. … ”
[38]The Bill of Quantities described the contract works by reference to all of the properties in the group repair scheme. The Bill did not contain any separate description of the work to be done to the Claimants’ property. The works so described included works to the roofs, fascias and soffits, rainwater installation, flashings, external render, damp coursing, windows and external doors. In relation to the external render, the Bill specified Expamet external beads.

The extra works

[39]The Scheme Consent Form envisaged that the work to be carried out to the property would be external work, with limited (if any) internal work. However, by September 2005, it had emerged that the interior of the property was severely affected by wet and dry rot. On 29 September 2005, the Clerk of Works, acting under delegated authority from the Contract Administrator, gave an instruction to the builder under the building contract (Instruction no. 46) instructing the builder to carry out extra works which included the removal of all internal wall finishes within the basement areas and the raking out of all mortar joints. The instruction went on to state, in relation to “Vertical Tanking”, that the damp proofing contractor had asked the builder to make provision for vertical tanking to be applied to the party wall between the property and the adjoining property, 23 Aberfan Road. This party wall was the right hand wall of the property at basement level. The background to this part of the instruction appears to have been that a decision had earlier been made to tank the front wall and the left hand wall of the property. The instruction also referred to the removal of all floor joists. The instruction then referred to “the landlord”, i.e. the Claimants, being responsible for reinstatement after all the stripping out work was complete. On 9 November 2005, the Clerk of Works gave to the builder Instruction no. 51 which, amongst other things, referred to the removal of two staircases but did not specifically refer to reinstatement of the staircases. On 15 March 2006, the Council gave to the builder Instruction no. 83 which required the replacement of two rear entrance doors and frames.

The witnesses

[40]Although this case does not turn on conflicts of evidence of fact and the credibility of witnesses on such matters, I will comment on the witnesses including the expert witnesses.[41]Mr Cometson is a builder and is also experienced in carrying out damp proofing works. He came frequently to the property to oversee the works while they were being done. He was highly critical of the standard of workmanship carried out by the builder. His comments caused a degree of friction with the builder’s workmen. Mr Cometson took up his concerns with the Clerk of Works. He persuaded the Council to re-do two major parts of the works. The external render was hacked off and re-done. Further, the tanking in the basement was done twice. When the Council took the stance that the work to the property was completed, subject to snagging items, Mr Cometson did not agree. He considered that the Council ought to take out the entire ground floor and reconstruct it, to re-do the tanking and the render in the basement for a further time and to render the exterior of the property for a third time. As will be seen, he was not prepared to let the Council complete what he regarded as only limited work if they were not prepared to undertake the more major works which he considered were necessary.[42]Ms Tovey gave brief evidence as to the effect on her hairdressing business, which she ran from one of the ground floor units, of the fact that the work to the property was still incomplete. There was only limited cross-examination of her evidence and it is not necessary to comment further on her as a witness.[43]Mr Glynne Davies was the Clerk of Works employed by the Council in relation to the Group Repair Scheme. I expect that Mr Glynne Davies knows a great deal about the detail of the matters in dispute. However, his witness statement was only two pages long and did not deal with any matters of detail. In relation to the central allegation that the Council, essentially acting through him, had failed to use skill and care in arranging the works to the property, Mr Glynne Davies contented himself with a sentence in which he said that he had supervised the works “with reasonable skill and care and within a reasonable time” but he did not elaborate. I found the Council’s decision not to serve a fully detailed witness statement from Mr Glynne Davies very surprising. Counsel for the Claimants decided not to put the detail of the Claimants’ case to Mr Glynne Davies. Counsel explained to me that he did not think it appropriate to cross-examine on matters of detail when Mr Davies had not put forward any matters of detail in his evidence in chief. If Counsel cross-examined him on the detail of the allegations, that would allow Mr Davies to give detailed evidence of which the Claimants had no prior notice. I will not comment on whether that was the best course to adopt but I do recognise the problem presented for the Claimants by the Council’s failure to ask Mr Davies to deal with matters of detail. The end result was that I was not assisted by the evidence of Mr Davies, save in relation to one or two matters. However, I will have to decide the case on the evidence which has been placed before me.[44]The Council also served witness statements of Ms Cherrylee Evans and Mr Boon. Ms Evans was the Contract Administrator in relation to the contract with the builder and Mr Boon dealt with the payment by the Council of the builder under that contract. As with Mr Glynne Davies, the witness statements were extremely brief. Each had about one page of text. Neither dealt with any matter of detail. Each witness statement consisted of a statement that the witness thought that he or she had dealt with the matter with reasonable skill and care and within a reasonable time. These witnesses were not cross-examined. I get no help whatever from evidence in this form.[45]The Claimants called an expert, Mr Cort. He is a highly qualified engineer. The building works in this case did not call for any particular skills as an engineer. The defects or the alleged defects in this case raised relatively straightforward issues which were more appropriate for the advice of a building surveyor. In that way, it could be said that Mr Cort was over-qualified for this case. Mr Cort also had a very demanding client in Mr Cometson and it may be that Mr Cort approached his task by adopting an over-critical approach to the building works and coming too readily to the conclusion that any shortcomings in the work amounted to a breach by the builder and the Council. When Mr Cort first advised, he proceeded on the basis that the Council owed the Claimants the kind of duties owed by a builder to an employer under a building contract. Following my earlier judgment, Mr Cort had to reconsider the basis of liability in this case but little changed as he then reached the conclusions that all the matters of which he had earlier complained were failures by the Council to perform its obligation to use skill and care when arranging for the works to be carried out. Mr Cort was also too ready to reach the view that if there was something wrong with an item of work the appropriate response was to condemn the work and to start again, rather than selecting a more limited remedy.[46]The Council called an expert, Mr Ball. He is an experienced building surveyor. Because Mr Cometson and Mr Cort were so highly critical of the performance of the builder and of the Council and because Mr Ball’s evidence was that there was not very much wrong with the works, I initially tended to think that Mr Ball was inappropriately understating matters. At the end of the case, I considered that Mr Ball did on occasion err on the side of understatement. However, on examining the detailed evidence on each alleged defect, I found that Mr Ball’s assessment was generally nearer to what I was persuaded was the appropriate judgment on the matter in dispute.[47]Mr Evans gave evidence on behalf of the builder. He is a director of the builder and an experienced building contractor. Although the builder came under very serious and sustained criticism from Mr Cometson and Mr Cort, I found that Mr Evans gave his evidence in a measured way and in a way which encouraged me to give his evidence some weight based, as it was, on his experience of carrying out projects of the present kind.[48]Mr Cort and Mr Ball, as expert witnesses, were called to give their oral evidence concurrently, as contemplated by para. 11 of PD35 – Experts and Assessors. The builder had not instructed an expert witness but wished to call its director, Mr Evans. Usually, it would not be appropriate to apply the provisions of para. 11 of PD 35 to witnesses of fact or to a group of witnesses some of whom were expert witnesses and others who were witnesses of fact. However, I decided in the interests of efficiency to allow Mr Evans to give his evidence concurrently with Mr Cort and Mr Ball. It seemed to me that it would be helpful to hear what each of these three witnesses had to say about the many detailed matters in dispute, dealing with each topic in turn. I was the more inclined to take this course because the original time estimate of 3 days for the trial was, I considered, seriously wrong (as subsequently proved to be the case). Further, the legal costs of this matter appeared to be wholly disproportionate to the amount which was otherwise at stake and I considered that this unusual step as to Mr Evans giving evidence in the way described might assist in reducing to some extent the length of the trial. In the event, I consider that the arrangements whereby these three witnesses gave evidence concurrently worked well.[49]The Council called an expert, Mr Davies, to give evidence in relation to the Claimants’ allegation that the Council had not arranged for the works to be carried out to the property within a reasonable time. Mr Cort also prepared a separate report in relation to that question and both Mr Davies and Mr Cort were cross-examined when the detailed progress, or lack of progress, of the works was examined. The question of alleged delay in relation to the works is relevant to the Claimants’ claim for damages for lost income due to the alleged delay. However, as will be seen later in this judgment, the Claimants’ case on damages for lost income due to alleged delay has major problems as regards causation. In these circumstances, I will not in this judgment examine the detail of the evidence as to the progress of the works at different stages and it is not therefore necessary to comment on the evidence of Mr Davies or Mr Cort on that question.

The structure of the remainder of this judgment

[50]In the remainder of this judgment, I will work through the Claimants’ allegations as to the defects in the works carried out to the property and as to the alleged fault of the Council. I will take the defects separately. Counsel for the Claimants made clear in his opening that the Claimants’ case was that some of the alleged defects were much more serious and more significant than others. He mentioned four alleged defects in particular, namely, the tanking of the walls in the basement, the render to the walls in the basement, the floor between the basement and the ground floor and the external render. Accordingly, I will deal with those matters in greater detail than will be the case when I deal with the other alleged defects. I will make my findings in relation to the Claimants’ case against the Council. To the extent appropriate, I will decide on the remedial work which ought to have been carried out. I will deal with issues of principle as to damages such as the causation of loss but I will not deal with questions as to quantum which were not addressed at the trial. I will consider the Council’s Counterclaim against the Claimants. Finally, I will deal with Council’s claim against builder.

The tanking in the basement

[51]The Claimants’ pleaded case complains of the following defect in relation to the tanking: “inadequate preparation of substrate for internal waterproof tanking in basement”.[52]I was provided with a number of memoranda of agreement and of disagreement, prepared by Mr Cort and by Mr Ball. Some parts of these are repetitive but I will refer to what I understand to be the overall extent of the agreement and the areas of disagreement. It was agreed in November 2011 that there was no evidence of water penetration to the basement areas. In the areas of disagreement, Mr Cort stated that the tanking of the basement walls was achieved by using Palace Dampshield but that the preparation of the walls was not in accordance with a specification prepared by Palace Chemicals, which referred to cleaning off the wall and filling large cracks and honeycombing with a repair mortar. Mr Cort stated that the bond of the tanking was inadequate and that dry rot had not been entirely removed from the walls. Mr Ball stated that the Bill of Quantities required the tanking to carry a 30 year certificate of guarantee from a specialist contractor. The work was done by specialist contractors, DTD Damproofers Ltd, who gave such a certificate on 9 December 2005 and later re-inspected the tanking system.[53]Mr Cort considered the question of the basement tanking in a number of reports. In his report of 5 February 2008, he stated that the tanking material was a cement based slurry manufactured by Palace Chemicals Ltd. He then referred to a Palace Dampshield data sheet. This contemplated the slurry being applied to a substrate. If the substrate was a wall, the wall should be cleaned and prepared to receive the slurry. Mortar joints should be repaired with a repair mortar based on 3:1 sand:cement mix incorporating SBR. Mr Cort then referred to an area of tanking/render which Mr Cometson had removed; this area was on the right hand wall of the basement, the party wall with the adjoining property. Mr Cort stated that the substrate had been inadequately prepared; there was limewash, loose mortar, inadequately raked out joints and fungal growth. He also said that the wall had not been repaired with a 3:1 mortar containing an SBR compound. Mr Cort went on to say that the tanking would have to be re-done. Mr Cort repeated these views in his report of 20 August 2011.[54]In his report of 10 August 2011, Mr Ball stated that there was no sign of ingress of moisture or dampness in the areas that were tanked. He described the form of construction of the basement walls as random rubble with a black ash and lime mortar. He stated that this mortar was relatively weak and could easily be raked out. He suggested that with this weak mortar it was important that the initial render or tanking slurry was compatible and therefore not too strong a mix. Subsequent coats of render had to be weaker than the initial coating to ensure a full bond.[55]Mr Cort, Mr Ball and Mr Evans gave oral evidence concurrently in relation to the allegation in respect of tanking. Mr Ball said on Day 3 of the trial that the right hand basement wall had not been tanked. This was significant because it was this wall where Mr Cometson had hacked off the render back to the stonework and it was in that area that Mr Cort had said that he had seen inadequate preparation before tanking. Mr Cort was then cross-examined on the basis that the right hand wall had never been tanked and he agreed that his conclusion as to inadequate preparation was based on his assumption that the right hand wall had been tanked.[56]Before Day 5, it had emerged that the right hand basement wall had been tanked but it also emerged that the tanking compound or slurry had not been applied directly to the stone wall. Instead, the stone wall had first been rendered and the slurry was applied to the first coat of render. The wall was then rendered a second time, on top of the tanking slurry. Mr Cort was further cross-examined on Day 5 in the light of these new facts. He accepted that his evidence throughout had been based on the premise that the tanking slurry had been applied to the stone wall. His comments as to preparation of the stone wall had all been by reference to the preparation of that wall for the direct application of the slurry. He was then asked as to whether he could show that the stone wall had been inadequately prepared to receive a coat of render. I had considerable evidence from him and Mr Ball as to the appropriate mix when applying render to the type of wall in question. I conclude that no-one was able to identify any defect in the first coat of render applied to the stone wall, whether as regards the preparation of the wall to receive that coat of render or in relation to the mix of that coat of render. Accordingly, when the tanking slurry was applied to that coat of render, there was no defect as regards the condition of the underlying wall and render to which the slurry was applied.[57]In addition to the opinion evidence given by Mr Cort and Mr Ball in relation to the alleged inadequate preparation before tanking, there is very considerable evidence of fact as to precisely what happened in relation to the preparation of the wall, the application of a render coat to the wall and the application of tanking slurry to the render coat. The Clerk of Works, Mr Glynne Davies, visited the site regularly and kept a diary recording relevant matters. The diary between 8 December 2005 and 15 March 2006 contains numerous entries dealing with this matter. These entries reveal that Mr Cometson came to the site very regularly. By 8 December 2005, Mr Cometson had expressed concern about the preparation of the basement walls for tanking and/or render. These concerns were followed up by the Clerk of Works. Eventually, the Clerk of Works required the builder to hack off the render which had been applied to the wall; it is not clear whether the slurry at that stage was applied directly to the wall or applied to the render coat. The builder did hack off the render. The Clerk of Works then required the builder to rake out and prepare the wall and the builder did so. On or about 27 February 2006, the builder rendered the basement walls. There was a meeting on site on 2 March 2006 attended by the Clerk of Works and Mr Cometson. There are diary entries for 7, 8, 9 and 10 March 2006 which refer to the builder rendering the basement walls. Then on 15 March 2006, the diary entry refers to the damp proofing sub-contractor applying the final tanking coat to the walls. These diary entries support the finding, in accordance with the evidence given by Mr Cort and Mr Ball that the basement walls were prepared for a render coat, a render coat was applied and then the tanking slurry applied to the render coat.[58]It follows that the pleaded allegation of a defect in relation to tanking, on the basis that there was an alleged failure to prepare the basement walls for the direct application of tanking, is unfounded. The tanking slurry was not applied directly to the walls. There is no evidence which would enable me to find that that there was inadequate preparation of the walls to receive a render coat, if that were to be pleaded; I note that it is alleged by Mr Cometson in one of his witness statements. Indeed on the basis of the Clerk of Works’ diaries, I find that the basement walls were properly prepared to receive a render coat. I also find that there was no defect in relation to the application of the render coat to the basement walls. I also find that there was no defect in relation to the application of the tanking slurry to the render.[59]Between Day 3 and Day 4 of the trial, Mr Cort returned to the property. When he later resumed his evidence, he stated that he had seen penetrating damp to the front basement wall, along the roadside. Counsel for the Claimants wished to adduce photographs of what had been seen by Mr Cort in this and other respects. I indicated that I would not permit the Claimants to adduce evidence in the form of these photographs without a clear statement of what evidence was said to be contained in the photographs. I made that ruling because it was apparent that counsel for the Claimants wished to rely on a number of matters of detail which it was alleged could be seen on the photographs and I was not prepared for these matters of detail to be drawn out without the other parties being informed in advance of what it was alleged was shown by the photographs. I left open the possibility that the Claimants could apply to adduce further evidence of specific matters. Following this ruling, the Claimants did not apply to adduce further evidence of specific matters and did not seek to put in evidence any of the photographs. Indeed, Mr Cort did not give any detailed evidence as to the cause of the penetrating damp nor the source of it nor the extent of it. I think Mr Cort would have wished me to take the view that the alleged fact of penetrating dampness supported his view about the defect in preparation of the basement walls. However, Mr Cort’s own opinion evidence when cross-examined together with the evidence of fact has led me to conclude that the wall was adequately prepared to receive a render coat, that the render coat adhered to the walls and that the tanking slurry was properly applied to the render coat. Further, Mr Cort agreed in cross-examination that if there were a defect in the basement tanking it was unlikely that it would emerge for the first time some 10 years after the tanking was carried out. Accordingly, whatever the precise position as to the alleged penetrating damp, it does not enable the Claimants to make good their allegation of a defect in the tanking.[60]Even if the Claimants had established that there was a defect in the tanking, I find that they would not have established any fault in that respect on the part of the Council. The Clerk of Works’ diaries show that the Clerk of Works (Mr Glynne Davies) gave detailed attention to this matter at the relevant time from December 2005 to March 2006. Mr Davies was not cross-examined in relation to what was shown in the diaries. It is true that Mr Davies only dealt with matters in general terms in his oral evidence. As I stated earlier, counsel for the Claimants explained to me that he did not cross-examine Mr Davies on matters of detail because that would have permitted Mr Davies to give detailed evidence about such matters without that evidence having been disclosed to the Claimants in advance of Mr Davies giving evidence. I agree that Mr Davies’ witness statements were extraordinarily brief and I would have expected them to have addressed the allegations in detail rather than simply making sweeping general statements. Nonetheless, I have the admissible evidence in the diaries as to what happened and Mr Davies was not cross-examined so as to cast doubt on the reliability of the diaries. Mr Cometson in one of his witness statements comments in detail on the diary entries but I do not consider that that commentary allows me to make different findings from the views I have expressed. Mr Cort also commented on the diary entries but the comments were addressed to the Claimants’ allegation that the Council did not deal with matters within a reasonable time. I do not go so far as to say that, because counsel for the Claimants did not cross-examine Mr Davies on the subject of tanking, it is not open to him to make a submission that there was fault on the part of the Council in relation to tanking but, even if it is open to him to make that submission, I consider that the submission is contrary to the evidence of fact represented by the diary entries.

The internal render in the basement

[61]The pleaded allegation is that the mix of the render applied to the interior basement walls was “inadequate” and complains about the “flatness” of the render.[62]The memorandum of agreement states that the the application of the render to the tanking system does not contribute to the performance of the tanking system; I interpret this to mean that the render does not contribute to the damp proofing of the wall. Mr Cort added that the render applied did not conform to the Palace Chemicals’ specification which referred to a 4:1 sand:cement render with additive. He stated that the applied render was soft, powdery and of poor alignment and unsuitable for receiving a plaster skim coat. Further, at the base of the wall, the render bells out. Mr Cort stated that the render (and the tanking) should be removed and replaced in its entirety.[63]In his report dated February 2008, Mr Cort referred to a report by Sovereign Chemicals which indicated that the render in one area, which had flaked off, has a cement:sand ratio of between 1:7 to 1:8. In his report of 20 August 2011, he commented that, by contrast, there were other areas where repaired areas of the render were hard and durable. He also stated that the belling out of the render at the bottom of the wall was a result of the amount of water used in the render.[64]Mr Ball dealt with the internal render in the basement in the report he prepared for the Council on 18 July 2007, before this litigation began. He stated that it was not the intention of the render to bring the wall to a vertical line. He stated that the tanking and the render would follow the contours of the existing wall structure and would not rectify deviations in verticality. He added that the wall had moved laterally and vertically. He stated that the deviation was in the region of 20 – 25 mm and, in one isolated area, 40 mm. He stated that to add further render to bring the wall to a vertical line would add to the weight of the render to an extent which would exceed the capacity of the bonding agent applied to the tanking and the render would fail. He also described the bell effect at the foot of the wall as a feature of cementitious tanking systems. He suggested this was good practice to prevent a weakness at the junction between the wall and the floor. He stated that the position at the base of the wall was often hidden by floor screeds and skirting boards. He then added that the practical response to the condition of the render was to dry line the walls. He stated that Mr Cometson’s requirement that the walls be brought to a vertical line with minor tolerances only went substantially beyond the capacity of the materials which had been used.[65]On 2 February 2010, Mr Ball attended a meeting with representatives of the Council. A note of that meeting was disclosed to the Claimants in these proceedings. In the note, which was not made by Mr Ball, he is recorded as saying that “the workmanship internally in the property was poor in many locations”. The note went on to refer to the internal render as being “very poor”. The note recorded that the cost of rectifying the poor work would be in the region of £15,000 to £20,000. On 21 July 2011, Mr Ball made a witness statement which referred to this note. He stated that the recollected that his view had been that the work in the basement area was poor particularly in respect of the application of the “render/tanking system”. His witness statement also explained that the figure of £15,000 to £20,000 was a general figure for work which included the installation of dry lining to the basement walls.[66]In his report of 10 August 2011, Mr Ball stated that the choice of the mix for the render was governed by the initial coat of render being compatible with the background to which it was applied and that the mix should be progressively weaker with a later coat of render. He stated that a mix of 1:4 as suggested by Mr Cort would have been too strong in this case. He repeated some of the comments he had made in his report of 18 July 2007. He added, however, that poor workmanship had contributed to the belling effect at the base of the wall. He stated that it would be possible to plaster the render by applying a bonding agent or by dry lining using a “dot and dab” application.[67]Mr Cort’s oral evidence was in accordance with this earlier report. When cross-examined, he was prepared to accept a render mix of 1:1:6 of cement:lime:sand would be acceptable.[68]Mr Ball oral evidence was that a mix of 1:3 was too strong and that a mix of 1:1:6, cement:lime:sand, was more appropriate. A mix of 1:1:6 would have a somewhat sandy finish. He said that the test result of 1:7 or 1:8 was not typical of the render as a whole, as the test sample was from the weakest area of render which had flaked off the wall. A mix of 1:1:6 would be stronger than 1:7. He was cross-examined about the note of 2 February 2010, to which I have referred. He said that the reference to the “render/tanking system” was in effect to the render as one could not see the workmanship in relation to the tanking. He agreed that the work to the render was not good. He said that if it were suggested that the render should be removed and re-done, the answer would be “no” and instead the walls as so rendered should be dry lined.[69]Mr Evans of the builder stated that a mix of 1:3 was too strong for the walls in question; it was too hard and sucked moisture out of the walls. He was referred to a Clerk of Works’ instruction in relation to 17 Aberfan Road which directed that the mix be changed from 1:3 to 1:1:6 cement:lime:sand. Mr Evans gave evidence that when Mr Cometson had complained about the condition of the internal render, the builder had offered to dry line the basement walls but Mr Cometson had not accepted that offer. Mr Evans also said that dry lining was possible and would have produced a satisfactory finish. He added that if further render were applied to improve the verticality of the wall, the additional render might pull the existing render off the wall.[70]There was a lengthy debate between Mr Cort on the one hand and Mr Ball and Mr Evans on the other as to how satisfactory it would be to have dry lining of the basement walls. It was said that the ability to fix items to the walls would be impaired. As against that, the fact that the walls were tanked should inhibit fixings in any event.[71]I find as follows in relation to the internal render of the basement walls. A render mix of 1:3 would have been too strong and therefore inappropriate. A mix of 1:1:6 would have been appropriate. The mix which was used was in some areas weaker than 1:1:6. The evidence did not distinguish in detail between the areas where the render was weaker and where it was stronger. The render had bonded properly. The weak mix was the result of poor work. The slumping of the render towards the floor was the result of poor work. The right response to the poor workmanship to the render would have been to dry line the basement walls. If the walls had been dry lined then the walls would have been in reasonable repair. The Council through the builder offered to dry line the walls. The Claimants refused to accept that offer but it was a reasonable offer and I consider that it ought to have been accepted. If the offer had been accepted, then the walls would have been dry lined at no expense to the Claimants. I do not find that the Council was at fault in relation to the condition of the render. I do not think that there was any reasonable action open to the Council which would have prevented the poor workmanship and which the Council failed to take. When the Council found itself with a case of poor workmanship in relation to the render they reasonably offered to dry line the walls at no expense to the Claimants.

The ground floor

[72]The Claimants’ pleaded case referred to a number of alleged defects in the floor as follows:(1) The timber joists ought to have been pressure impregnated with preservative and painting preservative on to the joists was not sufficient.(2) The joists were not treated in any way with any preservative where the joists had been cut.(3) The joists were not regular in size so that the level to which a ceiling would be affixed was not even.(4) The joists should have been wrapped at their ends but they were not.(5) The joists were poorly aligned over the central RSJ support.(6) There were no lateral restraints to the joists.(7) There was inadequate bearing over the RSJ support beams.(8) The bolting of the joists where they lapped was ineffective.(9) Noggins should have been provided.[73]Mr Cort and Mr Ball agreed the following in relation to these allegations:(1) Preservative had been applied to the joists by brush and not by pressure impregnation.(2) The two experts could not quantify the diminution in the performance of timber where preservative was applied by brush rather than by pressure impregnation.(3) The two experts could not say whether the ends of the joists had been treated with preservative.(4) Joists which are installed into a cavity wall or adjacent to a cavity wall do not require end wrapping.(5) Where timber joists bear on steel beams, they should be provided with adequate bearing over the full joist area using packing shims where necessary.(6) It is good practice to use regularised timber for floor joists where it is known that a plasterboard ceiling is to be secured to the soffit.(7) Noggins should have been provided to provide adequate lateral stability to the joists.(8) If it is decided that the floor structure is not to be replaced, then the joists should be injected with a product such as ProBor 50 Preservative Paste to enhance the protection against woodwork and wet or dry rot.[74]I have already referred (in paragraph 37 above) to the statement in the Bill of Quantities which referred to the use of vacuum/pressure impregnated preservative “where specified”. It was not established that pressure impregnation had been “specified” in relation to the timbers used in the ground floor.[75]Mr Ball commented on the floor joists in his report to the Council on 18 July 2007. He accepted that the joists had not been wrapped around the ends but he did not think that this was necessary although where the joists rested on a solid wall, wrapping of the ends was good practice. He pointed out that the former joists had lasted in excess of 100 years without the benefit of wrapping and without the walls being tanked. He referred to the BRE recommendation that joists be protected by a DPC under the joist and that new timber should be pressure impregnated and exposed ends should be treated with brush applied preservative. He considered that the floor need not be replaced but that the end bearings of the joists should be saturated with preservative.[76]The note of the meeting on 2 February 2010 between Mr Ball and the Council referred to “joists incorrectly wrapped”.[77]Mr Cort stated in the Memorandum of Disagreement that the floor did not comply with BS 8417:2003 and BS 5268-5:1989 which he said required pressure impregnation with preservative. He also said that the end grain of the joists should have been capped with DPC. In that Memorandum, Mr Ball stated that there was no evidence of moisture staining to the end of the joists. He commented on the need for pressure impregnation. He considered that the floor was serviceable and complete replacement was not required.[78]In his expert report, Mr Cort explained his views on the matters in dispute. He relied upon the statement in the Bill of Quantities. He referred to the British Standards mentioned above. He accepted that end wrapping of the joists was not necessary where they rested on one skin of the cavity wall.[79]In his expert report, Mr Ball described the preservative which had been applied to the joists. He stated that he had established that the ends of the joists had been treated with preservative. He commented on the suggestion of wrapping the ends of the joists and suggested this would not be necessary where the joist rests on one skin of the cavity wall and, further, that wrapping a joist may promote wet rot in some circumstances. He considered that the alignment of the joists would be covered up by a ceiling. He stated that the builder had used solid strutting between the joists. He considered that no remedial works were necessary.[80]Mr Cort, Mr Ball and Mr Evans all gave oral evidence and were cross-examined on the alleged defects in the floor. They disagreed about the contractual requirements between the Council and the builder as to pressure impregnation of the joists. They disagreed about the interpretation of the British Standards. They disagreed about the need for wrapping of the end grain of the joists or the use of joist gloves. Mr Evans gave evidence that the work of replacing the floor was not part of the original contract works. When the Council instructed the builder to replace the floor, the builder obtained joists which were not pressure impregnated with preservative and applied preservative by brush. He said that there would have been difficulties in sourcing and obtaining Tanilith treated timber; Mr Cort stated that there would not have been difficulty in obtaining suitable pressure impregnated timber. The Council accepted the brush applied preservative. The end grain of the joists was treated with preservative.[81]Based on the above evidence, I make the following findings in relation to the alleged defects in the floor. Some of the matters pleaded by the Claimants received no real attention in the course of the evidence and to that extent it does not appear necessary to make any findings about such matters.(1) Pressure impregnation. The contract between the Council and the builder did not require the use of pressure impregnated timber. Such timber was not specified by the Council. When the builder delivered non-pressure-impregnated timber to site, it was accepted by the Council. I do not consider that it has been shown that the British Standards relied upon by Mr Cort require the use of pressure impregnated timber. The experts were not able to quantify the difference in performance between pressure impregnation and a brush application of preservative. It may be that pressure impregnation is a better prospect for the very long term particularly in challenging conditions but in this case, given the life of the building and the fact that the conditions were not challenging, I do not consider that the Council was at fault in accepting brush application of preservative.(2) On the evidence, it seems likely that the end grain was treated with preservative.(3) I do not consider that it was necessary to wrap the ends of the joists or to use joist gloves. Mr Cort accepted that this was so in relation to the joists where they met the cavity wall at the front of the building. I consider that it was not necessary to wrap the ends or use joist gloves at the rear of the building because the joists which were taken out did not show damp staining and the rear elevation was relatively sheltered.(4) The floor joists were not perfectly aligned for various reasons. However, there would be no real difficulty in attaching a ceiling to the joists by using battens and plaster board. The alignment did not mean that the joists were not in reasonable repair.(5) In their original Memorandum of Agreement, Mr Cort and Mr Ball agreed that where timber joists bear on steel beams, they should be provided with adequate bearing over the full joist area. In this case, the builder used slate shims between the beams and the joists but the shims did not cover the full area of the joist bearing on the beams. In the course of the evidence, Mr Ball appeared to accept, at least some of the time, that the shims should be re-done. At other times, he made a reasonably persuasive case that no further work in this respect was required. Mr Evans stated that the shims could easily be re-done although he did not think that such work was needed. On balance and with some hesitation in view of the differing views which have been expressed, I consider that the way in which the shims were applied in this case was poor and not good enough to be acceptable even when applying the concept of reasonable repair as I have earlier explained it. I consider that the Council ought to have required the builder to re-do the shims.(6) The position in relation to the noggins is very similar to the position in relation to the shims. At one point, Mr Ball appeared to be ready to accept that the noggins were inadequate. At other points he suggested that they were good enough. On balance and with hesitation, I consider that the noggins are not good enough and that the Council ought to have required the builder to re-do the noggins.(7) The position in relation to injecting the existing floor with Boron is also somewhat difficult to assess. The Memorandum of Agreement suggested that the if the existing floor remains (and I consider that it need not be replaced) then the floor should be injected with Boron or a similar preservative. However, as the evidence became more detailed in the course of the trial, it seemed to me that there was insufficient reason to inject the floor with Boron or a similar preservative. I consider that it has not been shown that the Council was at fault in not requiring the builder to carry out such work.[82]The result of these findings is that I hold that the Council ought to have required the builder to re-do the shims and the noggins. The Council did not arrange for this to be done because it took the view that it was not obliged to do so. If it had appreciated that it ought to arrange for the shims and noggins to be re-done, it should have asked the Claimants for access to have that work done. If it had asked, then it is likely that the Claimants would have declined to give such access. I will discuss the question of access for remedial work in more detail below. Further, I record that in view of the Claimants’ insistence that the whole floor be replaced, it would have been sensible for the Council not to arrange for this work to be done until it was established whether the Council would be liable to arrange for the replacement of the floor. Nonetheless, the fact remains that the Council ought to have arranged the re-doing of the shims and noggins.[83]Save in relation to work in respect of the shims and the noggins, I hold that the Council was not required, and is not now required, to arrange for any further work to the floor and, in particular, is not required to arrange for its replacement.

The external render

[84]The Claimants’ pleaded case referred to a number of alleged defects in the external render as follows:(1) Some areas of the pebble dash render were inadequately covered with stones.(2) The projection of the render bells above window openings was not uniform.(3) There were deep holes at the upper corners of the door heads.(4) The render bells between storeys had voids.(5) Galvanised angle beads were used on the front elevation when stainless steel beads ought to have been used.(6) There were gaps in the render on the front elevation.[85]In the Memorandum of Agreement, Mr Cort and Mr Ball agreed the following:(1) With this building, the external face of the walls may be subject to a degree of deviation both horizontally and vertically.(2) If the render were to be removed, it is unknown whether it would be possible to improve on the current position as regards straightness and alignment.(3) There can be a slight variation in density with a pebble dash finish.(4) Some loss of pebbles occurs with time.(5) If the rendering as a whole is not re-done, no work is appropriate in relation to the render bells above windows.(6) Excessive voids to the horizontal bell drips to the gable elevation should be filled with cement.(7) There was no reference to stainless steel angle beads in the contract between “the parties”. (I interpret this to be reference to the contract between the Claimants and the Council).(8) If the court decides that stainless steel angle beads are not required, then damaged areas of galvanised angle beads should be repaired using Galvafroid or similar (as opposed to bitumen paint).(9) The only section of missing render is a small area shown in a photograph taken by Mr Cort.[86]In the Memorandum of Disagreement, Mr Cort stated that the appearance of the render was unacceptable, that patch repairs would also be unacceptable and that the external render should be removed and re-done. He also stated that he detected hollow, i.e unbonded, areas and voids. He also criticised the render bells. He said that the galvanised angle beads should be replaced with stainless steel. In that Memorandum, Mr Ball stated that removal of the render could be damaging to the structure. He discussed how it came about that there were areas of the pebble dashing without good stone density. He proposed that new stones be applied with a proprietary bonding agent. He advised against replacement of render bells. There were minor voids beneath some render bells. Larger voids could be filled with render. He stated that the use of galvanised angle beads was acceptable, particularly in this location. There was a small area of missing render.[87]In his expert report, Mr Cort referred to the fact that the pebble dash render was the second render coat which was applied as part of the works to the property. The first coat of render was a plain render. He said that the loss of stones from the pebble dash render was evident in 2007 or 2008. He said that the affected area could be patched but that the result would be unsightly so that the entire rear elevation should be re-rendered. The defective render bells reinforced that need. Mr Cort had not been able to check the bonding of the render but he considered that there was a lack of bonding at door and window reveals. The render should have been aligned and straight and it was not. There were defective areas and voids at render bells and at the junction with the gable end soffit. He said the render bells above windows were unacceptable and there were deep holes at the upper corners of the door heads.[88]In his expert report, Mr Ball stated that there was only one area where there had been a loss of stones in the pebble dash. This was a small area. The solution was to apply pebbles to the existing finish using a proprietary bonding agent. The cost would be about £50. The alignment and straightness of the finish was dictated by the underlying structure. The finish was compatible with the age and construction of the building. The resulting finish in relation to the render bells was again consistent with the age and construction of the building. Any small voids in the area of the render bells could be filled at a cost of £15. Voids above door heads should be filled with render. Galvanised angle beads were acceptable and any areas of damage should be treated with Galvafroid.[89]Mr Cort, Mr Ball and Mr Evans gave oral evidence and were cross-examined in relation to the alleged defects to the external render. Mr Cort said that there were incomplete areas of render at the apex on the side elevation. This was doubted by Mr Ball and Mr Evans and if there were any incomplete areas, they were de minimis. As regards the suggested minor voids underneath render bells, Mr Ball stated that the standard of work was acceptable and the areas in question would not cause dampness. Mr Cort disagreed. As to the missing pebbles in one area of pebble dash, it was said that a sufficient density of pebbles were there once and over a period, some of the pebbles fell away. The pebble dash render appears to have been applied in early 2007. Mr Cort inspected the render on 11 January 2008. There was considerable discussion as to the suitability of Mr Ball’s solution of applying pebbles with a proprietary bonding agent. As to the angle beads, Mr Evans accepted that the Bill of Quantities specified a type of angle bead which if one had followed up the cross reference would have revealed that the Bill specified stainless steel angle beads. However, the builder did not appreciate that stainless steel angle beads were specified and ordered and fitted galvanised angle beads in this property and some others. The Clerk of Works noticed that galvanised angle beads were being used and brought it to the attention of the builder. The Clerk of Works did not require the builder to remove the galvanised angle beads from this property but withheld monies from the builder on the ground that the builder had not complied with the contractual specification. Mr Cort said that the angle beads should now be removed and replaced with stainless steel angle beads. Mr Ball and Mr Cort said that the area of corrosion which could now be seen was very minor and could be treated. Mr Evans stated that the builder had already offered to treat the angle beads with Galvafroid.[90]Based on the above evidence, I make the following findings in relation to the alleged defects to the external render:(1) I find that Mr Cort has not established that there is any problem as to hollowness or lack of bond in relation to the external render.(2) There is one area where, by January 2008, pebbles had fallen from the pebble dash. The result was a deterioration in the appearance of that part of the rear elevation of the property. The effect on the appearance of the render was not, and is not, very serious. There was no clear evidence as to whether this deterioration was manifest shortly after the pebble dash render was applied in early 2007. I have considered whether it might be said that when the render was first applied, the position was satisfactory and that the deterioration only became manifest later and, if so, whether that would exonerate the Council under its contract with the Claimants. The period between the application of the render and Mr Cort’s inspection was short (early 2007 to January 2008). The Council did not present the argument that the position was satisfactory when the pebble dashing was first applied. With some hesitation in view of the state of the evidence, I conclude that the area of the render where the stones had fallen away was not left in good repair when the render was completed. The appropriate work which the Council should have arranged to have done to put the render into reasonable repair was the work recommended by Mr Ball, that is, applying more pebbles with a proprietary bonding agent.(3) The condition of the external render as regards alignment and straightness amounted to reasonable repair of this old structure.(4) The finish as regards projection of render bells over windows amounted to reasonable repair.(5) The minor “voids” beneath render bells did not mean that the render was not in reasonable repair.(6) It is agreed that the Council is required to fill the larger holes in the render above door heads in order to arrange for the building to be in reasonable repair.(7) Mr Cort has not established that there is missing render at the apex of the gable.(8) There is agreement that there is an area of missing render and that the Council is required to arrange to re-do this area to arrange for the property to be in reasonable repair.(9) The Council was not at fault in accepting the non-specified galvanised angle beads when it found they had been provided by the builder. Although there was not really any evidence as to the state of the angle beads at the time when practical completion was or should have been certified, there was no real opposition to the suggestion that the Council is required to treat the angle beads with Galvafroid to deal with any minor areas of damage which have resulted in some extent of local corrosion.[91]The result of these findings is that I hold that the Council was required to arrange for the builder to deal with the matters in (2), (6), (8) and (9) of my findings. The Council did not arrange for this to be done because it took the view that it was not obliged to do so. If it had appreciated that it ought to arrange for these matters to be dealt with, it should have asked the Claimants for access to have that work done. If it had asked, then it is likely that the Claimants would have declined to give such access. I will discuss the question of access for remedial work in more detail below. Further, I record that in view of the Claimants insistence that the external render be replaced, it would have been sensible for the Council not to arrange for this work to be done until it was established whether the Council would be liable to arrange for the replacement of the render. Nonetheless, the fact remains that the Council was responsible for arranging for the builder to deal with the matters in (2), (6), (8) and (9) of my findings.

The roof

[92]The Claimants’ pleaded case referred to two alleged defects in relation to the roof, as follows:(1) The plastic dry verges were not the correct proprietary units for the Redland Cambrian system;(2) The roof flashing was not sufficiently high.[93]The Memorandum of Agreement stated that there was no ingress of water resulting from the roof verge which was used. It was said that the roof verge was twisted but that this was a matter of aesthetics only. It was also agreed that there was no damage or ingress of water as a result of the manner in which the flashing was installed.[94]Mr Cort suggested that the contract between the Council and the builder imposed an obligation on the builder to use the proprietary units for the Redland Cambrian system, known as the Redland Ambi-dry System.[95]I find as follows:(1) The Redlands literature relied upon by Mr Cort does not require the use of the Ambi-dry System in connection with a Redland Cambrian roof.(2) The contract between the Council and the builder did not require the use of the Ambi-dry System; nor did the contract between the Claimants and the Council.(3) The use of plastic dry verges by the builder was satisfactory.(4) The fact that the plastic dry verge was twisted does not prevent the verge and the roof being in reasonable repair.(5) The lead flashing may have replaced the former lead flashing and the new flashing may have been placed in an existing groove, although the evidence was not clear on this point. The workmanship in respect of the lead flashing was very good. The ability to take the flashing to a greater height was restricted by the lack of space to do the work. In any event, the lead flashing was in reasonable repair. It is relevant that that area of the roof was sheltered by the verge and barge board of the adjoining roof.(6) There was no breach of contract by the builder.(7) There was no breach of contract by the Council.

The shop front

[96]The Claimants’ pleaded case referred to five alleged defects in relation to the shop front:(1) There was no upstand on the lead flashing to the shop front.(2) The shop front timber frame was not securely fixed.(3) The stanchions of the shop front timber frame were embedded into the concrete threshold.(4) The shop door had been cut down.(5) The dwarf wall was built as a cavity wall but without insulation.[97]The experts’ Memorandum of Agreement considers what remedial work would be appropriate if the court were to hold that the door is of insufficient height. It is agreed that it is not good practice to embed the door frame in cement or concrete but it is also agreed that this was the method employed in the original construction. The Memorandum also discusses whether the dwarf wall was a repair of the pre-existing wall and the possible application of the Building Regulations.[98]I make the following findings in relation to the shop front:(1) The shop front was taken out for the purpose of building the dwarf wall.(2) It was accepted during the course of the hearing that the dwarf wall was built in accordance with the Building Regulations at the time of its construction. Mr Cort’s contention that the Building Regulations required the dwarf wall to be insulated was based on Buildings Regulations which came into force on 6 April 2006, which was after the wall was built.(3) It was an agreed fact (see the Memorandum of Agreement dated November 2011) that the stanchions of the doors were embedded in the cement or concrete with the original form of construction. Mr Cort argued otherwise in his report dated August 2011 but this was before the Memorandum of Agreement. In any event, the photographs of the original shop fronts show the stanchions embedded in cement or concrete. It may be that the extent to which the stanchions were embedded in cement or concrete increased to a modest extent by reason of the new floor joists being deeper, and sitting higher, then the original floor joists. However, the difference was modest and I consider that it was satisfactory for the Council to arrange for the shop fronts to be put back in essentially the same way as they were before. I consider that in this respect the stanchions were in reasonable repair.(4) It may be that the height of the door opening was reduced to a modest extent by reason of the greater depth of the new floor joists (referred to in (3) above) but the difference was modest and the shop front when replaced was in reasonable repair.(5) The Council should have arranged for the shop fronts to be securely fixed but they did not do so.(6) Mr Cort did not establish that there was any defect in relation to the lead flashing upstand.

The basement stairs

[99]The Claimants’ pleaded case referred to three alleged defects in relation to the basement stairs:(1) The basement stairs were light duty.(2) The basement stairs were placed 50 mm from the wall, leading to excessive bounce in the stairs.(3) The wall at the basement stairs was not properly rendered with the render parallel to the section above.[100]The experts’ Memorandum of Agreement recorded that the staircase was of standard domestic construction and that if the staircase were to be used for other than domestic use it required to be strengthened. The experts were not certain whether the Building Regulations required enclosure of the staircase.[101]There was an issue as to whether the builder was obliged to install a staircase under its contract with the Council and whether the Council was obliged to arrange for the installation of a staircase under its contract with the Claimants.[102]The original contract between the Claimants and the Council provided for the Council to arrange for works to the exterior envelope of the property. That contract stated that no internal works were to be carried out under the scheme unless they were a necessary adjunct to carrying out exterior works or were required to make good the interior following works to the interior. The provision of a staircase between the basement and the ground floor was not within those contractual requirements.[103]On 29 September 2005, there was a meeting between Mr Cometson and the Clerk of Works. The latter’s note of that meeting recorded that it was agreed that the Council would arrange for further works to be carried out. The further works involved the removal of all internal finishes to the basement. The note specifically listed the removal of the staircase in the basement. The works described in the note did not include the provision of a new staircase in the basement. Instead, the note recorded:
“After the removal of all defective materials, the landlord has been explained his responsibility in reinstatement.”
This note formed the basis of a direction (no. 46) to the builder to do the works described in the note. A later direction (no. 51) to the builder referred to the removal of 2 staircases, but it is not clear to which staircases this referred. There was no instruction to the builder to install a staircase in the basement. It is probable that the builder installed a standard domestic staircase simply for the purpose of the builder being able to get from the ground floor into the basement without going out of the building. The builder has not made any charge for this staircase as extra work under its contract with the Council. On these facts, I find that the Council did not instruct the builder to install this staircase and the installation of the staircase was not part of the works to be done under the contract with the builder. Further, I find that the Council did not contract with the Claimants that the Council would install a staircase in the basement and, indeed, the Claimants acting through Mr Cometson agreed that he would be responsible for reinstatement following the clearance of the basement including the removal of the pre-existing staircase.[104]In relation to the render in the area of the staircase, I find that the render was applied adequately given that the walls in that area were not straight. It would not have been appropriate to try to apply more render in that area in order to produce a more even or straight finish. Too much render would tend to cause the render to come away from the wall. There was also a complaint that a trimmer joist was out of alignment, although it is not clear that this matter was pleaded by the Claimants. I find that the trimmer joist was adequate in view of the distortion in the building.

The stairs to first floor

[105]The Claimants have pleaded that the stairs to the first floor were inadequately supported. Mr Cometson gave evidence that he had done work to secure the stairs. He did not give any detail of the work which he had done nor of any cost which he incurred. On this evidence, I am not able to make a finding that the Council was in breach of contract in this respect.

The timber render stop

[106]The experts agreed that it was not good practice to use timber as a buried render stop. Mr Evans did not attempt to defend the use of a timber render stop. He said that he would have replaced the render stop as a snagging item. Mr Ball suggested that the Clerk of Works could have accepted the timber render stop and deducted a sum from the builder. I find that the Council could have, and should have, required the builder to replace the timber render stop with an angle bead as a snagging item.

Timber packing door frame

[107]The Claimants have pleaded that timber packing was used to secure the external PVC door frames. The experts’ Memorandum of Agreement recorded their agreement that this was not good practice and that plastic packing should have been used in compliance with BS 8213-4:2007. It was further agreed that there was no evidence that the timber packing had been detrimental to the performance of the doors.[108]Mr Ball suggested that the timber packing could be accepted by the Clerk of Works. Mr Cort considered that the timber packing should be replaced by plastic packing and that this was a snagging item. I find that the Council could, and should, have required the builder to replace the timber packing with plastic packing as a snagging item.

Notching of the floor joists

[109]The Claimants have pleaded that the floor joists were notched with 75 mm notches because the door lintels were constructed too high. On the evidence of the experts, I find that the notching of the floor joists does not prevent the floor being in reasonable repair. No further work was needed. Neither the builder nor the Council are in breach of their respective contracts in this respect.

The windows

[110]The Claimants’ pleaded case referred to three alleged defects in relation to the windows:(1) Some windows are out of square.(2) Some windows have inadequate packing between the frame and the glass.(3) The windows are not fit for purpose.(4) Two first floor front windows and one first floor rear window are not fitted with limiters or external guarding.(5) One first floor rear window has a faulty mechanism.[111]The experts’ memorandum of Agreement records their agreement that restrictors should be fitted to the windows.[112]I make the following findings in relation to these allegations:(1) The agreement between the Council and the builder provided for tilt and turn windows replacing the earlier sash windows. The window openings were on the large side for tilt and turn windows. That agreement did not provide for the builder to fit restrictors and the builder was not in breach of contract by not fitting restrictors. However, the Council should have arranged for restrictors to be fitted.(2) The Council could, and should, have required the builder to repack and adjust the windows at the end of the defects liability period.(3) On Mr Ball’s evidence, the Council offered the Claimants to arrange for repacking and adjustment of the windows. I will later refer to the specific correspondence in relation to that matter.(4) The Council should arrange to repair the faulty mechanism to the rear first floor window.

The rear basement doors

[113]The Claimants plead that the rear basement doors have been damaged by scoring during the removal of protective covering. This is accepted. I find that the Council could, and should, have required the builder to arrange for a plastic repair of this defect. Such a repair would have put the door into reasonable repair.

The rear basement windows

[114]The Claimants plead that the rear basement windows have been damaged as a result of render on the frames. It is not clear on the evidence as to the extent of any such damage. I find that the damage was de minimis. I further find that any such damage could be easily repaired. There is a further reason, at least in relation to one of these windows, why the Council did not have to arrange for such a repair. The windows were pre-existing windows. They were double glazed and about 15 years old at the time of the works. The Council was not required to, and did not, arrange for their replacement. One of these windows was broken on 28 October 2005 when there was a forced illegal entry into the property. The Council was not liable to arrange for the repair of the broken window. I consider that the right way to deal with the broken window was to replace the unit, frame and all. That work was not the responsibility of the Council.

Summary in relation to defects

[115]I can now summarise the items where I have held that the Council should have arranged for the work to be done better or (in the case of the restrictors) should have required additional work:(1) Replacement of shims in relation to ground floor.(2) Replacement of noggins in relation to ground floor.(3) Application of pebbles to small area of pebbledash on rear elevation.(4) Filling of holes above door heads.(5) Making good missing render.(6) Treatment of galvanised angle beads with Galvafroid.(7) Secure fixing of shop front.(8) Replacement of timber render stop with angle bead.(9) Replacement of timber packing of door with plastic packing.(10) Fitting restrictors to windows.(11) Repacking and adjustment of windows.(12) Repair to scratch on rear door.

Issues as to damages

[116]Prima facie, the Claimants are entitled to recover as damages the reasonable costs of remedying the defects which I have listed above. I was not asked at the trial to place a figure on those costs nor was there argument as to the relevant date for assessing that cost. However, there was argument as to whether in some or all respects, the Claimants had failed to mitigate their loss so that they should not recover some or all of the costs of remedying the defects. To consider that argument, I need to refer to what happened in the relevant respects and to make further findings.[117]On 7 June 2007, the Council wrote to Mr Cometson with a list of the works for which the builder was claiming payment from the Council. The Council asked Mr Cometson to comment on this list and to identify any items which had not been undertaken or were incomplete. Mr Cometson did not reply to this letter so the Council wrote to him again on 19 June 2007. This appears to have led to a meeting (described as “lengthy”) between Mr Cometson and the Council on 4 July 2007. At the start of the meeting, Mr Cometson made a large number of complaints about the works but an internal email within the Council of 5 July 2007 records that the complaints were in the end reduced to some seven matters. The Council decided that it would look into the matter further and decide what action to take against the builder.[118]The Council then instructed Mr Ball to report and he met the Council on 10 July 2007. On 18 July 2007, Mr Ball wrote a report for the Council. He discussed the various matters raised by Mr Cometson and in relation to most of those matters, he concluded that no further work was appropriate. However, he did recommend further work in some respects. On 19 July 2007, the Council emailed the builder asking for its comments on Mr Ball’s report. On 20 July 2007, the Council wrote to Mr Cometson enclosing a copy of Mr Ball’s report and referring to three matters, namely, the holes in the external render in the area of the door heads, the need to fix restrictors to the windows and to repack and overhaul the windows and a question as to whether the ends of the joists had been treated. The Council told Mr Cometson that it had written to the builder asking it to carry out remedial work in relation to the first two of these matters.[119]On 7 August 2007, the builder informed the Council that the ends of the joists had been appropriately treated. On the same day, the Council wrote to Mr Cometson, stating that the ends of the joists had been appropriately treated and that the builder accepted that the holes in the renders and the windows required attention and that the builder would return to site to remedy those matters. The Council asked Mr Cometson to notify the Council of an appropriate time for the work to be done. Mr Cometson did not reply to that letter. The Council wrote to him again on 24 October 2007 stating that failure to respond would prevent completion of the works.[120]On 7 November 2007, Ms Tovey replied to the letter of 24 October 2007. She did not put forward a date when the works could be carried out. Instead, she asked for a comprehensive list of remedial works and a time schedule for completion of such works. She also enquired whether the Council would provide new shop fronts. On 16 November 2007, the Council wrote to Ms Tovey stating that it did not have any keys to enable it to obtain access to the property. It stated that the Council would not provide new shop fronts. It stated that having been advised by Mr Ball, the Council would do the works recommended by Mr Ball; that was a reference to work to the holes in the render in the door heads and the work to the windows. The Council stressed the need for access to be given to allow these works to be done. On 21 November 2007, Ms Tovey replied. She asserted that the Council did have keys to the property; I have not been asked to resolve that issue of fact. She criticised Mr Ball’s report as not being comprehensive. There appears to have been another letter from the Council to Ms Tovey on 26or 28 November 2007.[121]On 3 January 2008, the Council wrote again to Ms Tovey asking for access to do the remedial works they had identified. There was no reply to that letter. On 7 February 2008, the Council wrote again to Ms Tovey asking for access to the property. It stated that if she failed to reply to this request by 15 February 2008 the Council would assume that she did not require any further action to be taken against the builder and the matter would be closed. There was no reply to that letter.[122]When he gave evidence, Mr Cometson told me that he was not interested in giving the Council access for limited work as he took the view that far more extensive work was required.[123]In relation to the items of work the subject of the above correspondence from the Council, namely, the filling of holes in the render in the door heads and the fitting of restrictors and other work to the windows, the Claimants have failed to mitigate their loss. The Council made a reasonable offer to arrange for the builder to do these remedial works. It would have been reasonable for the Claimants to allow the Council to arrange for the builder to do these works. The fact that the works remain outstanding and will have to be carried out at the Claimants’ expense was not caused by a breach of contract by the Council but was caused by the Claimants’ refusal to agree access for the Council to perform its contract in this respect.[124]The decision in the last paragraph only applies to the items which the Council offered to have carried out in 2007/2008 and does not extend to the other defects which I have found to be their responsibility. If the Council had offered to arrange for the remedy of those other defects, then the Claimants would probably have refused access because, as Mr Cometson told me, he was not interested in limited work of this kind. However, the Council did not offer to arrange for that work to be done but instead contended that only more limited items of work needed to be done. Accordingly, the Claimants did not fail to mitigate in respect of the other defects.[125]In addition to the Claimants’ claim for the cost of the appropriate remedial works, the Claimants also claim consequential losses which they say that they suffered by reason of the breaches which they alleged against the Council. The claim is for some £73,000 loss of rent from the flat and the two shop units. In relation to the flat the pleaded loss is said to be for the period from 1 January 2006 to 1 September 2008. In relation to shop unit 1, the pleaded loss is from 1 January 2006 to 1 June 2008 which was around the time that Ms Tovey began to use that shop. In relation to what is described as the cellar to shop unit 1, the pleaded loss is from 2 June 2008 to date. In relation to shop unit 2 and its cellar, the loss is from 1 June 2006 to date.[126]Although this claim for loss of rent is a very substantial one, there was next to no evidence to support the pleaded case that the alleged loss of rent was caused by breaches of contract committed by the Council. The Claimants appeared to treat it as self-evident that during the period until the Council completed all the works which the Claimants said were the Council’s responsibility, there could be no profitable use and no income from the vacant parts of the property. It should be remembered that the Claimants’ case is that the Council was liable to re-tank and re-render the basement and to take out and renew the ground floor, as well as other works. I can understand that if the Council were in breach of contract by not re-tanking and re-rendering the basement and not replacing the ground floor, the Claimants might be reasonable in deferring lettings of the second shop and the basement until that work was carried out. Even then, I would have to consider whether the Claimants mitigated their loss by leaving parts of the premises vacant rather than doing the remedial works themselves. However, I do not consider that I need to address that last matter. The reason is that the Council was not liable to re-do the tanking and the rendering of the basement nor was it liable to replace the ground floor. Accordingly, the Claimants cannot say that their decision to leave part of the ground floor and the basement empty was the result of breaches of contract by the Council.[127]In relation to the minor defects which I have found were the responsibility of the Council I consider that the existence of those minor defects should not have prevented the Claimants making use of or letting the vacant parts of the premises.[128]I have also considered the position in relation to the external render. The Council had to render externally on two occasions. The second set of works was only completed in January 2007. The Claimants contend that this work should have been completed about a year earlier and so they lost income for one year on account of the delay in completing the render works. I do not need to decide one way or the other whether the Council was in breach of contract by failing to arrange for the completion of the second render coat earlier than they did. There are two reasons for that. The first is that when the second render coat was completed in January 2007, the Claimants wrongly contended that it needed to be removed and re-done. If that render coat had been completed in January 2006, rather than January 2007, the Claimants’ position would have been the same. On this basis, the Claimants were no worse off after January 2006 in this respect. Further, there is no evidence that the state of the external render between January 2006 and January 2007 was the cause of the Claimants’ decision to leave the property unused and unlet. That decision was on the basis of the extensive work which the Claimants wrongly alleged needed to be done to the interior of the property, in particular the work alleged to be necessary to the tanking and the internal render and the ground floor.[129]It follows that the Claimants are entitled to the reasonable cost of remedying the defects in sub-paragraphs (1), (2), (3), (5), (6), (7), (8), (9) and (12) of paragraph 115 above, but no other damages.

The Counterclaim

[130]The Council counterclaims the sum of £5,604.38 under its agreement with the Claimants. The Council is entitled to be paid this sum although this sum and the damages to which the Claimants are entitled may be set off against each other.

The Part 20 claim

[131]The Council seeks to pass on to the builder its liability to pay damages to the Claimants. I have held that the Council’s liability to pay damages to the Claimants relates to the items in sub-paragraphs (1), (2), (3), (5), (6), (7), (8), (9) and (12) of paragraph 115 above.[132]Based on my earlier findings of fact in relation to those items, I consider that the Council has established that each of these items is a breach of the building contract between the Council and the builder.[133]I find that the builder is not liable to indemnify the Council in relation to any damages payable by the Council to the Claimants in respect of the matter in sub-paragraph (6) of paragraph 115 above, because the builder’s liability to the Council in relation to the non-provision of stainless steel render beads has already been the subject of a deduction by the Council of the sums due to the builder. The Council did not argue the contrary.[134]The remaining items in paragraph 115 in respect of which the Council is liable to pay damages to the Claimants are all snagging items within clause 2.5 of the building contract in this case. The builder has the benefit of that clause which allows the builder to carry out such items of which the Council complains. It will usually be cheaper for a builder to deal with snagging items itself as compared with the employer bringing in another contractor with the builder paying the charges made by the other contractor. On the authority of Pearce & High Ltd v Baxter (1999) 66 ConLR 110, the sums payable by the builder to the Council in relation to these items are to be assessed by reference to the cost to the builder of returning to remedy those matters. The Council did not argue the contrary.[135]The last matter raised by the builder relates to the retention of a part of the sum otherwise due under the building contract between the Council and the builder. Under clause 4.3 of the contract, the Council has retained the sum of £16,585.00. Although I have not quantified the sums which will be due from the builder to the Council in relation to the builder’s own costs of remedying the matters for which it is responsible under the Part 20 claim, it seems very likely that those costs will be well below the sum retained. If the building contract related only to this property, then it ought to be relatively simple to assess the costs which are due from the builder under the Part 20 claim and to calculate what part of the retention is to be paid to the builder. However, the building contract relates to many more properties in addition to this property and I understand that there are or may be other matters requiring assessment and calculation before the final position in relation to the retention is known. I therefore cannot determine what that final position is. It is therefore appropriate for the court to determine (if they are not agreed) the sums due from the builder to the Council in accordance with my findings on the Part 20 claim and those sums are then to be taken into account when the parties operate the provisions of the building contract as to the correct treatment of the retention. If there is any difficulty in relation to the drafting of an appropriate declaration to this effect, it can be mentioned following the hand down of judgment.