Monavon Construction Ltd v Davenport & Anor [2006] EWHC 1094 (TCC)

[2006] EWHC 1094 (TCC)

Case No HT-05-286

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/05/2006

Before

HH JUDGE THORNTON QC

Between

Monavon Construction LimitedClaimant

(1) Mr Simon DavenportDefendants

(2) Mrs Angelika DavenportDefendant

Mr Adrian Hughes (instructed by Lane & Partners LLP, 15 Bloomsbury Square, London, WC1A 2LS, DX 134442 Bloomsbury, Ref: CJW/CBB/2812.1/1068_1) for Claimant

Mr Paul Letman (instructed by Palmers, Solicitors, 19 Town Square, Basildon, Essex, SS14 1BD, DX 53002 Basildon, Ref: APS/CC/Davenport) for Defendants

Hearing Hearing dates: 14 and 15 March 2006 followed by written submissions

JUDGMENT

HH Judge Thornton QC:

[1]The claimant (“Monavon”) is a building contractor and the defendants (“the Davenports”) are the long leasehold owners of a house in Knightsbridge, SW3. The claim and cross-claim arise out of substantial works carried out at the Davenports’ family house between April and September 2004. In total, the claimant claims, as the balance of the sums claimed as due, £116,087.03 and the defendants dispute much of this claim and also cross-claim a sum totalling £181,948.63 representing the cost of completing and remedying part of the work that Monavon contracted to undertake. This cross-claim represents, in part, costs that have already been incurred and, in part, an estimate of intended future expenditure.

[2]Monavon was the second contractor to be engaged by the Davenports to undertake the extensive refurbishment works they wished to have carried out having acquired the house in 2003. The house is located in a beautiful stucco terrace and it was the Davenports’ wish to complete the refurbishment to a very high standard.

[3]Part of the work required planning consent given that the area was a conservation area and all the structural work required the licence of the ground landlords. The outline of the work and some, but by no means all, of the work to be carried out for the Davenports was designed by Mr David Jones, who is a surveyor by profession and the principal of Design Group Nine Ltd (“Design Group Nine”), a multi-disciplinary practise providing architectural and building surveying services. The principal work was to be carried out by a building contractor and the balance, being the specialist installation and interior design work, was to be carried out by specialists engaged directly by the Davenports.

[4]Most of the decisions were taken by Mrs Davenport and all of the liaison with the contractors and the designer were also undertaken by her. Mr Davenport’s only direct involvement in the project was in negotiating and concluding the contracts including the very informal contract with Monavon’s principal, Mr Ian McGowan.

[5]Initially, following the outline design work carried out by Mr Jones, the Davenports engaged a small and largely untried building contractor called TL Construction (UK) Limited (“TL”). This contractor was the incorporated vehicle of its Polish principal and the limited workforce comprised Polish operatives. The contract was a rudimentary, albeit written, contract which incorporated the outline drawings and the mechanical and electrical specifications produced by Mr Jones. The work was paid for in cash and no builder’s specification was ever produced. Mr Jones provided spasmodic but limited supervisory services, the work was paid for at cost and in cash and there was no defined contractual period or completion date or any clear definition of the specialist work such as the electrical work, plastering, joinery or painting work.

[6]The Davenports relied, for the necessary design and detailing decisions, on TL’s expertise supplemented by the workmanship of the various operatives employed by TL and further supplemented by occasional input from Mr Jones during his infrequent visits to the site. In reality, Mrs Davenport provided most of the management needed to keep the work going through day to day close personal involvement and continuous monitoring of the finished product. There was no clearly designated procedure for managing the co-ordination of the work of the building contractor with the directly engaged specialists and this was also left largely to Mrs Davenport.

[7]This phase of the work ran for about nine months up to Easter 2004. The work was carried out in a manner and at a pace which was not to the Davenports’ liking and very substantial cash sums were paid over, undoubtedly in excess of the cost of the work actually executed. Mr Davenport estimated that he paid out about £147,000. This was well in excess of what he had been quoted at the outset and the work was still very significantly incomplete. At Easter 2004, the Davenports were in despair at the enormous delay that they perceived as having occurred and at the poor state of much of the finishing work and they were also very concerned and doubtful about the quality of the waterproofing and electrical work. They therefore terminated TL’s contract.

[8]In the weeks before this termination, the Davenports had engaged, following an introduction from Mr Jones, Monavon to install a new conservatory extension at the rear of the house. When the contract with TL ended in acrimony, Mr Davenport invited Mr McGowan to inspect the works and indicate how much he would charge for remedying the defective work left by TL and for completing the work to the desired high standard. Mr Davenport also obtained quotations from two other contractors. Mr McGowan gave Mr Davenport what he contends was no more than a provisional guide price of about £100,000 which was less than half what the other two contractors had quoted. Mr Davenport therefore decided to engage Monavon.

[9]The work did not go well. It took several months longer than anticipated by the Davenports, contained a large number of defects as they saw the situation and cost far more than they either anticipated or were prepared to pay. In consequence, this action was started.

[10]At the trial, evidence was taken from Mr McGowan, Mr and Mrs Davenport and the two expert surveyors, Mr Robert Bruce and Mr Peter Thatcher. Much of the evidence was taken during the course of an extended site visit attended by all these witnesses during which I was shown, and had explained to me, each defect about which a dispute remained. The parties then submitted written closing submissions without attending court again and invited me to give judgment based on those submissions and the visual and oral evidence I had heard as well as the written evidence and documents adduced before, during and after the trial.

Monavon’s Claims

[11]Introduction. Monavon’s claim required me to decide 5 questions of principle which, once decided, would enable the full sum to which it is entitled and the balance that it may recover to be ascertained following the earlier payments that it has already received.

Claim Issue 1 –Terms of the contract

[12]The contract was entered into by Mr Davenport on behalf of himself and his wife and by Mr McGowan on behalf of Monavon in a coffee shop near the house where the two had gone to discuss and agree the proposed contract so as to be out of earshot of the workmen who were present on site. No written record of the contract was produced, the parties merely shook hands on an oral agreement whereby Monavon would carry out and complete the work at cost with a mark up of 20%.

[13]The Davenports contend that there was a further term that the work would be paid for at cost plus 20% up to a ceiling of £100,000. If the work had not then been finished, the remainder of the work would not be charged for at any greater sum. In other words, the cost of the work was to be capped at £100,000 or whatever lesser sum the work actually cost. It was never clear whether the cap was inclusive or exclusive of VAT.

[14]The only available evidence as to the terms of the contract was given by Mr McGowan and Mr Davenport. Prior to the meeting, Mr Davenport had invited Mr McGowan, who he had met as a result of being introduced by Mr Jones to install the rear conservatory, to inspect the house with a view to giving him a quotation for the cost of undertaking and completing the TL work. Mr McGowan had access to such specifications and drawings as were then in existence since these were located on site although he does not appear to have made much use of them in carrying out his inspection. Mr Davenport had in mind a six figure sum since he had received two quotations from other contractors in excess of £200,000 although he did not inform Mr McGowan of this.

[15]Mr Davenport was clear that Mr McGowan gave him an unequivocal answer to his question:

“how much will you charge?”

According to Mr Davenport, the answer was to this effect:

“A maximum of £100,000”

. Mr McGowan, on the other hand, insisted that this figure, although stated, was given merely as a guide, had no contractual effect and was merely an approximate indication of how much the work might cost if carried out by Monavon on its terms, namely cost plus 20%.

[16]The figure of £100,000 had been given after it was clear to both men that there would be no prices or rates built into the contract. Moreover, there was not provided any definition of the works to be carried out by Monavon by reference to a definitive set of drawings and specifications, there was no clear agreement as to the period of time within which Monavon would be required to carry out the work nor as to what further work would be carried out by other specialists. The arrangements that would be made to co-ordinate the other specialists’ work with Monavon’s work or as to the attendance that would be required of Monavon on these specialists. Moreover, there was no definition of what work TL had done, no schedule of conditions or other definition of the state of the work when Monavon started and no list of the work items required of Monavon. Finally, although Monavon was to inspect and remedy TL’s work as necessary, there was no definition of the amount of work that this would entail or as to whether or not any further unforeseen work resulting from TL’s defects would be carried out within or in addition to the cost ceiling.

[17]In these circumstances, there could not have been any enforceable agreement containing a cost limit. This is because the precise scope of the work to which such a limit would relate was neither clearly defined nor definable at the time the contract was entered into. First and foremost, there was no list or schedule of the work items that were to be carried out and no ready means of quantifying the amount of work needed for any particular work item. The relevant drawings that had been provided were not complete and, in any case, were only outline drawings. There was no definitive specification of work, the items of work were not defined, there was no schedule of rates or other pricing document and the remedial work needed to correct TL’s work was not defined. Moreover, the way in which the work would dovetail with the other specialist work had not been considered Furthermore, on any objective view, the statement made by Mr McGowan, even if it was in the exact terms stated by Mr Davenport, could not have been intended by the two men to have had contractual effect. It was, and certainly would have been taken by an objective bystander to have been, a guide intended to persuade Mr Davenport to enter into an open ended contract of the kind already described. It was not, given the open ended way the work was to be carried out, valued and paid for, capable objectively to have been a statement intended to have contractual effect.

[18]It follows that there was no agreed cost ceiling.

Claim Issue 2 – Alleged 9 August 2004 agreement

[19]This issue arose because on 9 August 2004, Mrs Davenport telephoned Mr McGowan on his mobile on the day after he had gone away on his summer family holiday in an angry mood. Mrs Davenport had been assured that the work would be completed by the time Mr McGowan went away on holiday and she remained behind in London to supervise this completion whilst her family went away ahead of her on the Davenport family holiday. On discovering that the work was incomplete, that the electrical work had failed the relevant tests and that Mr McGowan had left for his holiday, she telephoned him in understandable high dudgeon.

[20]Mrs Davenport’s evidence was that Mr McGowan was immediately re-assuring and clearly acknowledged that he had let the Davenports down. He assured her that all that remained to be finished was some snagging work and that the electrical systems, which had just failed their testing at the hands of the electrical contractor that Mrs Davenport had brought in, were in good working order. She stated that he then assured her that all remaining work would be completed on his return from holiday at no additional cost to the Davenports.

[21]Mr McGowan denied that he had offered to carry out the remaining work at no extra cost but essentially accepted that the rest of the conversation took place as described by Mrs Davenport.

[22]I am satisfied that Mr McGowan did state, unequivocally, that any further work carried out by Monavon on site would not be charged for. I am satisfied of this because such an arrangement would have been in Mr McGowan’s mind in any event. He knew that the remaining work was, essentially, remedial work for which he would not be entitled to charge anyway. He also knew how angry Mrs Davenport was, that it was entirely reasonable of her to feel so let down at that moment and that he needed to achieve some means of smoothing over the fraught contractual relationship that Monavon now had with the Davenports. In consequence, his gesture of agreeing to undertake the remaining work without additional charge was the least he could do and, in reality, reflected what the contractual position then was without such an assurance. It is, therefore, highly credible that this statement was made and I have no reason to doubt the veracity of Mrs Davenport’s recollection of this conversation.

[23]I therefore find that the agreed sums of £1,498.13 plus £14,845.43 are not recoverable from the Davenports, being the sums being charged, inclusive of VAT, of Mr McGowan’s and other operatives’ time respectively after 9 August 2006.

Claim Issue 3 – Mr McGowan’s charges

[24]Within the sums claimed are charges totalling just over £10,700 for the time of Mr McGowan working on site for partial or complete days. This charge is additional to the mark up of 20% which was intended to cover overheads, including management time, and profit. Clearly, the principal overhead in Monavon’s small business was the time and cost of Mr McGowan.

[25]The Davenports contended that they should not have to pay any part of the time being charged for Mr McGowan since his services were entirely covered by the 20% mark up. However, it became clear that Mr McGowan was, in effect, doing two separate things whilst on site. He was firstly managing the site, liaising with Mrs Davenport and Mr Jones and generally acting as part of Monavon’s management. For such services, his time was, and should reasonably be regarded as being, charged and paid for through the 20% mark up.

[26]However, secondly, Mr McGowan was providing on-site working foreman services including undertaking some work on site himself. These services were reasonably provided by Mr McGowan given the difficulties arising form the poor definition of the work and the need to remedy and blend in with TL’s work. Such work would have had to have been carried out by a working foreman had such been employed but Monavon did not employ a working foreman and, instead, used Mr McGowan as a part time working foreman. For such services, Monavon is entitled to charge for on a time basis in addition to the mark up.

[27]The experts have agreed that a reasonable way of splitting the claims for Mr McGowan’s time into irrecoverable management time and recoverable working foreman time is by allowing him to be charged for as an extra on those days on which he worked a full day and to disallow the charges which referred to incomplete days working. I agree with this approach.

[28]In consequence, Monavon may charge for £6,699.50 plus VAT and may not charge for the balance claimed for Mr McGowan of £4,012.50 plus VAT.

Claim Issue 4 – Small tools charges

[29]Monavon included a sum of £841.44, being the cost of purchasing tools such as a percussion core drill and a vacuum cleaner. Mr McGowan explained that the owner of TL left with the small tools being used by his Polish operatives and when these same operatives continued to work for Monavon at the Davenports’ house, replacement small tools were needed. The Davenports contended that it was unreasonable for the operatives to charge for replacement tools against a single job.

[30]In the absence of a clear and detailed code defining what may and may not be charged for on dayworks, the agreement must be interpreted in a commonsense way. Since these tools were necessary, were not available to the operatives and Mr Davenport had agreed to their being re-engaged, I conclude that the reasonable cost of buying these tools could be charged for. The total sum at stake is £841.44 inclusive of VAT.

Claim Issue 5 – Scope of Monavon’s work

[31]There was some debate between Mr Davenport and Mr McGowan as to what was agreed with regard to Monavon’s obligations so far as TL’s work was concerned. I am satisfied that what was agreed was as follows: Monavon would complete all items of work left incomplete, would check TL’s completed work using reasonable methods of inspection and would remedy and complete any defective work that was discovered by a reasonable inspection. Finally, Monavon would marry its work with TL’s work to produce a complete and refurbished house to a high standard. Monavon was particularly asked to check the first fix electrical work largely completed by TL and the damp proofing arrangements in the basement. The Davenports’ Cross-claims Item 1 – Electrical defects

The Davenports’ Cross-claims

[32]The electrical works consisted of the rewiring and re-cabling of much of the house, the installation of lighting and ring circuit systems and all associated installation work. This work, given the requirements of the applicable IEE Wiring Regulations, had to be carried out and tested by those installing the electrical systems so that the complete systems were left having satisfied the applicable tests. When TL left site, the first fix electrical installation had been virtually complete. This work involved the installation of the primary circuits and associated fuse boxes and switch and socket points, being work carried out prior to any plastering and decorative work. Monavon finished off the first fix and also undertook the second fix work, being the lights, sockets and switches.

[33]Thus, when Monavon started work, the various circuits were not complete and no part of the electrical works had been tested or left in a compliant state. In consequence, the remaining installation work involved full testing of everything that had been installed and the satisfactory integration of the first fix cabling that had been installed with the remaining first fix and the entire second fix still to be installed.

[34]Monavon did not attempt to test the electrical work left by TL, probably because there was no electrician working at the house who had the necessary training and qualification to undertake the statutorily required tests. The system was tested in August 2004 by Amteck once it had purportedly been completed by Monavon but remained untested and uncertified for want of a sufficiently qualified electrician. Amteck were electrical contractors brought in by Mrs Davenport to commission and, it was hoped by her, to certify as compliant, the electrical systems installed since the electrical systems could not be used until these steps had been taken. Amteck discovered that the systems as a whole, including the first fix installed by TL and the remaining first fix and the entire second fix installed by Monavon respectively as well as the holistic systems, had been so poorly installed that no part of any system was compliant with the IEE Regulations and the whole of the wiring and cabling and associated work had to be reinstated.

[35]It was clear from the evidence that, in compliance with the IEE Regulations, the cabling installed by TL was obviously defective and non-compliant with the IEE Regulations and that Monavon could and should have tested it before embarking on the second fix work and that, had this testing been undertaken, the defective nature of the first fix work and the need to strip it out and replace it would have been readily apparent to an appropriately qualified electrician.

[36]The two experts were agreed that the cost of the electrical remedial work involved stripping out most of TL’s installation and reinstalling the first fix cabling. This work would have had to have been done by Monavon had it had a contractual responsibility to complete the electrical work since it would not have been possible to repair the first fix cabling, only a complete strip out and reinstatement exercise could have produced a fully compliant set of electrical systems. Thus, if Monavon was contractually responsible for the failure to strip out and replace the defective first fix work, its liability would need to be quantified by reference to the extra cost to the Davenports of having to strip out the entire first fix work installed by TL as well as removing the second fix since this had some defects but, in any case, it could not remain whilst the first fix was removed. This cost is quantified, as agreed by the experts, by comparing the remedial costs incurred by the Davenports when this work was done in October 2004 with the notional cost that would have been incurred had Monavon stripped out TL’s work first and then installed the first and second fixes from scratch itself.

[37]The agreed recoverable was £5,526.03. This was calculated by taking the difference between the full cost of stripping out and reinstatement incurred by the Davenports, being £12,203 and the estimated reduced cost that would have been incurred had Monavon stripped out the first fix and then installed the entire electrical system, being an estimated cost of £7,500. In addition, there was an additional cost resulting from the need to redecorate areas damaged by the stripping out exercise. However, that cost was not ascertained or proved by the Davenports and is not, therefore, recoverable.

[38]Monavon’s contention was that it had no contractual obligation with regard to the work installed by TL, it merely had to take over where TL had left off and it was not established that there were any significant defects in its own installation work.

[39]However, Monavon’s contentions cannot be accepted for two related reasons. Firstly, it is clear that both Mr and Mrs Davenport instructed Mr McGowan that his work was to include checking the electrical installation of TL. Those instructions were not complied with since such checking would have involved appropriate earthing and other tests prescribed by the IEE Regulations being carried out by an appropriately qualified electrician before second fix work started yet no such checking was undertaken. Secondly, by virtue of the IEE Regulations, an installer of a complete electrical system is required to leave the entire set of systems installed with a certificate of compliance with the Regulations before the systems may be used that certified that the systems as a whole were safe, had passed and complied with the necessary tests and qualified for the necessary completion certificate. No such certificate was obtained nor could have been obtained, given the state of both first and second fix work.

[40]For both reasons, in summary, it had been necessary for Monavon to test the first fix wiring and cabling using an appropriately qualified electrician before any second fix work started. Had this work been tested at the outset, its deficiencies would have been immediately apparent and Monavon could then have ripped out TL’s first fix cabling and then installed both the first and second fix electrical works. Monavon’s failure to test and then remove and replace the first fix work was a clear breach of contract and the consequent cost of £5,526.03 is the direct and recoverable consequence of that breach.

Item 3 – Underfloor heating

[41]The hall and rear hall is laid out in three connecting sections, being a front section adjacent to the front door, a middle section adjacent to the kitchen at the rear of the house and a rear section adjacent to a small WC at the rear of the hall. The Davenports intended the whole hall to be heated by under floor heating to be installed beneath the stone floor installed on top. In fact, the front and middle sections had an inadequate heating system installed and no heating system was installed in the rear section. The system that was installed requires some work to be undertaken to it of a relatively minor kind. However, if the system that is required is still needed, the whole of the tiled hall area will need to be taken up, the warming system installed at the front of the hall removed and a new space heating system installed.

[42]What was installed was a system designed to remove the chill from the stone floor tiles whereas, if the hall was to be adequately heated, a space heating system would have been needed. This was and remains the Davenports’ required method of heating the hall, particularly as the Davenport family are accustomed to walk through the house in all weathers bare foot. The issue was, therefore, given the absence of any clearly specified system, what was Monavon’s contractual obligation as to the system to be installed?

[43]A heating layout drawing, Drawing 8000/111, was produced by Design Group Nine in October 2003 which clearly contains a notation referable to the entire hall area:

“Electric under floor heating to Hall”

. No other specification of the required heating system was ever provided. Mr McGowan disputed that this drawing was ever provided to Monavon but Mrs Davenport gave evidence that this drawing was amongst those left on site by TL that were available to and referred to by Monavon throughout its time on site and which she also physically provided to Mr McGowan on site. I accept Mrs Davenport’s evidence, particularly as Monavon must have had some instructions of what work was required and this outline drawing provides the necessary outline.

[44]Mr McGowan could not explain how Monavon came to receive instructions for the heating save that he inferred that he had been provided with a brochure from the manufacturer of the floor Devimat warming system by Mrs Davenport that was actually installed since that brochure was disclosed by the Davenports just before the hearing. What was now contended for by the Davenports was a different Deviheat system also produced by that manufacturer. Mrs Davenport could not remember how she came into the possession of the brochure, she thought she probably obtained it after the system had been installed once it could be seen to be providing inadequate heat in order to ascertain what the system was and how it worked. She emphatically denied that the brochure had been used by her to select the system she required originally and as the means of giving Monavon instructions as to what should be installed.

[45]I reject Monavon’s case that it was instructed to supply and install the Devimat system. Mrs Davenport never instructed Monavon to install such a system and Monavon’s contractual requirement was to install a heating system, not a warming system, as shown on the heating layout drawing which was part of, or which became incorporated into, Monavon’s contract. It was for Monavon to decide and choose on the appropriate proprietary brand of underfloor heating needed to comply with that requirement. As to the brochure, either Monavon first obtained it and subsequently left it at the house and Mrs Davenport picked it up at that stage or Mrs Davenport subsequently obtained it when researching why the system was not functioning properly. Overall, I find that Mrs Davenport clearly relied on Monavon to select an appropriate under floor heating system and played no part in that selection process. Monavon chose an under floor warming system, a selection that amounted to a breach of its requirement to install an under floor heating system. The recoverable damages are agreed in the sum of £5,199.38.

Items 41 – 46 - Dampness in the basement

[46]Introduction. This group of items was the largest in monetary terms since the claim was finally quantified in a total sum of £46,000. This sum represents the cost of stripping most of the plasterwork in the basement area and replastering with appropriate damp resistant plaster since the plasterwork installed by TL and/or by Monavon fails to prevent extensive rising damp coming up from the ground and, in the case of the front cellar, through the walls from the adjacent ground where those walls abut the ground.

[47]Causation. The cause of the extensive damp penetration that has occurred since Monavon left site was agreed by the two experts. The tanking and damp proofing of a basement area located at or below the level of the water table in a clay subsoil which does not readily drain is a critical and crucial exercise since any imperfection in the water barrier will lead, as with the Davenports’ house, to rapid and serious damp penetration into the walls, plasterwork and structure of the house. The necessary barrier should be achieved using a three-fold combination of underfloor waterproof screeding or tanking, an injected or installed damp proof system and waterproof plasterwork which extends over and incorporates the tanking and damp proof systems.

[48]In this case, TL did not, as it emerged in the evidence, install a damp proof system or, if anything was done, it amounted to no more than one of its inexperienced operatives ineffectually attempting to inject something into the walls. The entire basement was replastered. Thus, the damp proofing was entirely reliant on properly installed and finished damp proof plasterwork. No additional screed or membrane was installed since the floors were not hacked up and the basement had, previously, been dry.

[49]To achieve an adequate plasterwork-based damp proof system, two different coats of plaster are required. The first or base coat, normally about 12mm thick, would first be applied. This should comprise, in the type of location similar to the basement area where the coat is a base coat of a waterproofing plasterwork system, a mix comprising plaster applied onto the brickwork or onto a metal or timber stud partition with a plaster-board cladding and using a plaster such as Carlite Bonding or Thistle Hardwall. Over this coat, a second coat consisting of a thin very smooth finishing plaster such as Thistle Multi-finish is applied. Since it was clear that either no damp proof course, or only a totally ineffectual damp proof course was installed by TL and no specialist damp proof injection process was used, it follows that the damp proofing arrangements were totally dependent on the installation of a two-coat plaster coating which fully protected the entire wall surface and provided an integral and damp proof joint with the under floor membrane or screed.

[50]Evidence. The evidence relating to this crucial series of defects was inevitably somewhat disjointed. The experts had not been given the opportunity to prepare reports, their evidence was given by means of their separate comments on the two detailed schedules they had jointly prepared, by pointing out physical features of the defects during the extensive site visit, by oral evidence given somewhat informally at the house following the inspection, by oral evidence from Mr McGowan and the Davenports and by written evidence from Mr Jones as to the state of the plasterwork when TL left site and Monavon started work and the extent of plasterwork carried out by TL.

[51]A dispute arose after the conclusion of the evidence in the period when the parties were preparing closing written submissions. Monavon served a brief witness statement from Mr Jones, purportedly as rebuttal evidence following the Davenports’ oral evidence as to the incomplete state of the plasterwork left by TL. Mr Jones had been, and remained, in New Zealand during the trial and was unavailable to give oral evidence. The Davenports objected to this further evidence being tendered.

[52]The parties included in their written closing submissions their respective contentions as to whether or not I should receive this further evidence. I conclude that I should receive it. It did fall into the category of admissible rebuttal evidence since the Davenports’ evidence as to whether or not TL’s plasterwork remained or whether Monavon itself installed the plasterwork was not fully dealt with in their written evidence and the evidence was potentially crucial in relation to the issue of whether or not Monavon physically installed any or all of the critical plasterwork. In admitting the additional evidence, and in considering all the evidence, from Mr Jones, I was urged to, and did, treat it all with caution since none of it had been tested in cross-examination.

[53]Findings of fact. Monavon contended that it did not install any of the critical plasterwork, neither the base nor the top coats. All it did was to apply finishes, such as the skirting boards and the paintwork, over the plasterwork left by TL. In consequence, any defect of the plasterwork, whether in relation to the mix, the consistence of application or the interface with the underlying screed, that led to the extensive damp penetration through and around the plasterwork was TL’s responsibility. The Davenports contended that the relevant plasterwork had been undertaken by Monavon but, if not, that Monavon had a contractual responsibility to check TL’s work and, unless that work was completely satisfactory, to strip it out and redo it.

[54]It was clear from Mr McGowan and Mr Jones’ evidence that TL had undertaken extensive plasterwork in the basement area. It appears likely that TL had purportedly completed all, or the great majority of both the base and top coating work. This conclusion is supported by the evidence of the amount of plaster materials used by Monavon which Mr Bruce, Monavon’s expert, calculated would have left only sufficient plaster for covering about 20 square metres of the 230 square metres of basement wall finishes since Monavon also had to plaster about 200 square metres and the evidence suggested that a total of 20 square metres was plastered by Monavon.

[55]However, the evidence also suggested that Mr Jones had instructed TL to grind and hack off a strip of plaster 2 – 3 inches wide at the base of the relevant walls. His second statement states:

“[I confirm] the damp-proofing and plastering works to the walls in the basement (apart from limited internal areas) were carried out by TL Construction and not by Monavon. I did not instruct TL Construction to hack off all the plasterwork. I was, however, concerned about the edge detail at the wall/floor junction … The only hacking off works that I instructed were in this area as TL Construction had plastered the walls right down to the floor and I was concerned that this might cause a bridge between the floor (which might be potentially damp) and the walls, enabling water to travel upwards by capillary attraction.”

[56]Both Mr and Mrs Davenport were clear in their evidence that the basement walls were unplastered when Monavon started work. I am satisfied that both were honest witnesses who made every effort to give accurate evidence. However, I do not think that they examined the plasterwork in detail and the plasterwork they saw could well have looked, to their untrained eye, as being less complete than they thought it to have been.

[57]Mr McGowan was equally clear that no plasterwork was undertaken by Monavon in this area. I am not satisfied with this evidence since it is clear that Monavon must have done some plasterwork in this area and Mr McGowan’s evidence was not always wholly reliable in other respects.

[58]I therefore examine this issue by considering all the evidence including that from the three professionals who gave written and oral evidence.

[59]Given the evidence of these experts, including the clear and potentially reliable written evidence of Mr Jones, I am satisfied that what happened is as follows:(1) TL installed a two-coat plasterwork coating on the relevant basement walls without having first installed any, or any sufficient damp proof membrane and certainly without having arranged for a specialist to provide an injected damp proof membrane. As with so much else of TL’s work, this plasterwork was, and looked, of poor quality.

(2) Mr Jones inspected TL’s work and concluded that it was of poor quality, particularly where it bridged or potentially bridged the floor screed and where there remained areas unplastered. He gave instructions for a thin strip of plasterwork to be grinded away and that the uncovered strip should be covered over with a skirting board without being further plastered.

(3) TL partially complied with Mr Jones’ first instruction but the plasterwork hacked away was far more extensive in area than an area with a width of only 2 – 3 inches. TL then left site.

(4) Monavon accepted the responsibility of completing TL’s plasterwork since it did hack away small additional areas of plasterwork and also did replaster about 20 square metres of plaster.

[60]The evidence suggests that the resulting patchwork plaster was inadequate in three respects:(1) The completed plasterwork left an unacceptably wide gap between the floor screed and the plasterwork through which damp could penetrate. There is a fine line between the need for an integral system and for avoiding bridging between screed and plasterwork. The gap actually left by Monavon between the plaster and the screed did not succeed in achieving that difficult required finish.

(2) The replacement plasterwork did not satisfactorily marry up with the TL plasterwork since large but irregular areas of TL plasterwork had been hacked away, the hacking away process had been poorly executed, the remaining TL plasterwork did not provide a good join with the new plasterwork and the new plasterwork was unevenly applied.

(3) The consistence of the mix of plasterwork left by TL was poor and not capable of adequately resisting rising damp coming up from the inadequate plaster/membrane barrier beneath.

[61]Monavon’s liability. In the light of these findings, Monavon’s potential liability becomes clear. Monavon, on any view, was required to complete the plasterwork so that the work it undertook successfully created a damp proof barrier between the floor screed and the plasterwork above it left by TL. Monavon clearly failed to achieve that barrier, in part because it did not properly or fully plaster the gaps left by TL, particularly in the area immediately above the screed located behind the skirting boards, and partly because it failed to achieve a satisfactory bond between the existing plaster coats left by TL and the new coats it was applying. In summary, Monavon took on the obligation to complete the plasterwork so as to achieve a waterproof barrier between the screed and the plasterwork above that TL had left and it failed to achieve this.

[62]Consequence. Had Monavon achieved a satisfactory plasterwork strip or barrier between the screed and TL’s plasterwork, the present dampness would not have occurred and TL’s plasterwork would not have needed to be replaced. Now that the entire area has become infused with extensive dampness, there is no option but to strip away the entire plasterwork in the basement and replaster the basement area.

[63]The experts agree that the cost of replacing the plasterwork is about £46,000. The Davenports did not adduce evidence as to the cost of any consequential redecoration. The recoverable damages for this item are, in consequence, £46,000.

Items 40, 7 and 24 – Dampness and boiler defects in the sub-pavement area

[64]There were three related complaints. Firstly, the vaults under the pavement were plastered by TL but are now admitted damp through from the adjacent ground. The cause of this damp ingress appeared to have been an inadequately mixed plaster. Secondly, the newly installed boiler leaks through the joints of the connecting pipework due to its being poorly installed. The pipework needs to be dismantled and reinstated. Thirdly, the pipework was drilled through walls without supporting sleaves causing a breach in the damp proofing in walls and exacerbating the damp ingress in this area.

[65]The Davenports contended that Monavon had installed the plaster but the evidence was clear that this work had been completed in this area, which was discrete and separate from the remaining areas that were plastered in the basement, prior to Monavon starting work. The Davenports also contended that Monavon should have identified the poor quality of the plaster by using a spike to test the softness of the plaster. It was not proved by them that such a test, which was the only one contended for as the one that Monavon should have used, would have identified the poor quality of the plasterwork and, in consequence, such duty that Monavon to test and inspect the plasterwork in this area, which had been fully completed, although not complied with, caused no loss since any test that should have been carried out, such as using a spike, would not have identified the inadequate plaster.

[66]The lack of sleeving and the inadequate jointing of the pipework to the boiler were both caused by bad workmanship by Monavon and the agreed cost of dismantling the pipework and reworking it was agreed at £1,640.89.

Item 15(a) - Master bedroom, poor paint finish to the wardrobe

(a) - Master bedroom, poor paint finish to the wardrobe

[67]The wardrobe was painted with a roller paint finish although a paint brush finish was specified in the painting specification. The result was a somewhat unsightly finish. The agreed cost of remedying this poor workmanship was £500.

Item 15(b) - Damage to window frame

(b) - Damage to window frame

[68]The right hand window frame in the master bedroom was in a damaged condition where it had collided with the sash fastener which was incorrectly sized for the location. Mrs Davenport gave evidence, which I accept, that she pointed this damage out to Mr McGowan when the Davenports moved into the house in June 2004 as a defect which required to be remedied. The damage was caused by Monavon’s incorrect installation of an inappropriate fastener and the agreed cost of remedying this damage of £85 is recoverable as damages for breach of contract.

Item 16(b) - Doors in master bedroom

(b) - Doors in master bedroom

[69]The doors were painted off site in an eggshell finish whereas a high gloss finish was specified in the painting specification. Mr McGowan maintained that this finish was the best achievable but the experts did not support this case. The Davenports are entitled to require a high gloss finish and the agreed cost of £400 of stripping the doors and replacing the existing paint with a high gloss finish is recoverable as damages for breach of contract.

Item 17(b) - Grout to marble floor in entrance hall

(b) - Grout to marble floor in entrance hall

[70]The experts agreed that a suitable grout had not been used and the grout requires regrouting at an agreed cost of £1,880. Mr McGowan challenged this complaint but the experts agreed that the grout that was used was not a flexible grout as was required.

Item 19 - Kitchen balcony door

[71]The issue was as to whether the Davenports had satisfactorily proved that £505 of the overall cost of remedying this defect of £800 was actually expended. The Davenports were unable to produce an invoice for this work but produced evidence that a cheque was drawn for this amount at the relevant time and, in consequence, they managed to establish that this expenditure was incurred. In consequence, £505 is recoverable.

Item 20 - Stained chair and carpets

[72]The Davenports maintained that a chair and areas of carpet had been badly stained by Monavon’s operatives who had failed to protect them whilst undertaking the redecoration of the house. This damage was, according to Mrs Davenport brought to the attention of Mr McGowan whilst Monavon was still on site.

[73]I accept Mrs Davenport’s evidence that this staining occurred when Monavon carried out, and as a result of Monavon carrying out, the painting work. In those circumstances, the damage was caused by poor workmanship and the agreed cost, being £5,668.84, are recoverable as damages for breach of contract.

Item 22 - Kitchen side panel

[74]A side panel in the kitchen was broken and chipped in the period when Monavon was carrying out work in the kitchen. Mrs Davenport stated that she had been informed by the kitchen fitter that the flooring contractor had admitted to him causing the damage and Mr McGowan stated that the same flooring contractor had denied causing the damage to him.

[75]Clearly someone caused the damage and the most likely person was the flooring contractor. However, the evidence is not sufficient to enable a finding to be made. Thus, this claim fails on the balance of probabilities.

Item 26 - O & M manuals

[76]The Davenports never received the operating and maintenance manuals relating to the central heating and other systems installed in the house. These should have been supplied by Monavon at no additional cost since these would have been produced as part of the cost of acquiring the system.

[77]The Davenports paid £800 towards the cost of producing a replacement set of manuals to the specialist who they commissioned to review the M & E works. There was no evidence that these replacement manuals were ever completed or delivered to the Davenports. This claim therefore fails.

Item 34 - Cracking tile joints

[78]There is an absence of mastic around tiles near the shower in the top floor bedroom. Mr McGowan maintained that Mrs Davenport had instructed him to omit the mastic and that the cracking that occurred was caused by this omission. In fact, as I find, Mrs Davenport instructed Mr McGuire not to use white mastic but did not object to the use of normal mastic. This claim succeeds in the sum of £75.

Item 35 - Fire doors

[79]The claim is for the cost of replacing new doors in the habitable rooms since these do not have half-hour fire resistance as required by the building regulations.

[80]However, it was not clearly established that there had been a breach of the building regulations in installing these doors and, in consequence, this claim fails.

Item 37 - Broken sash cord

[81]The Davenports maintained that this cord was broken following normal use after a period of only 6 months and must, in consequence, have been defective when installed or have been defectively installed.

[82]This item was not proved. The cord could have broken for a number of reasons other than one caused by an inherent defect in manufacture or one of installation. The claim that the defect was one caused by a breach of contract was not sustained.

Item 39 - Kitchen floor

[83]The kitchen floor that was laid consists of tiling which was clearly poorly laid on inspection. It contained grout joints of different sizes, crudely cut tiles and was otherwise uneven. The experts accepted that the only satisfactory way to remedy the defects in this tiling was to take up the entire tiling area and relay it. Mr McGowan maintained in evidence that it would be possible to take up individual tiles and replace these but it was clear that such a solution would not achieve the desired standards of finish.

[84]This item is therefore proved and the Davenports are entitled to recover the agree replacement cost of £3,500.

Item 47 - Shrinkage cracks

[85]There were many shrinkage cracks in the decorations. These had to be repaired but should have been repaired by Monavon. These cracks were the typical type of snagging work carried out at the end of a defects liability period if the contract had standard provisions for such work. In this case, there was no formal contract or contract conditions and the work was being paid for on a cost plus labour and materials basis. It cannot be said that there was an implied term that snagging work would be carried out or that it would be carried out without further payment since such work was not necessary. Furthermore, snagging does not necessarily arise as a result of poor or bad workmanship, particularly if it relates to shrinkage cracks and the like. In consequence, this claim fails.

Item 48 – Loose sash fasteners

[86]These fasteners were of a design that they were susceptible to catching on the upper sash when it is moved down. Moreover, there were inadequate screw fixings for them. However, they were chosen by the Davenports and the claim is restricted to the agreed sum of refixing the fasteners in the agreed sum of £175.

Item 51 - Poor lead detail

[87]A 100mm diameter plastic pipe penetrates the lean-to lead flat roof and the lead flashing is poorly detailed. The Davenports did not establish that this work had been carried out by Monavon and, on that ground, the claim fails.

Item 52 – Exterior decorations

[88]The window cills were repainted in a way that has left them flaking and cracked. The rear cills had been painted with masonry paint and not fully prepared. They were not apparently painted from scaffolding. The front cills were not fully prepared or painted.

[89]The cills all need repainting and this cannot be properly undertaken without scaffolding. In consequence, the cost of repainting may be recovered as damages for breach of contract in the agreed sum of £4,200.

Item 53 & 55 – Wet rot to French doors

[90]Monavon accepts the cost of remedying the doors where existing wet rot was merely painted over in the sum of £100.

Item 54 – Cracked pane of glass

[91]A cracked pane of glass, that was referred to in the list of defects provided to Monavon at the time it ceased work, remained unrepaired having been cracked by Monavon during its work. The agreed cost of repairing this pane is £120 and this is recoverable as damages for breach of contract.

Item 58 – Store shed roof

[92]The work carried out by Monavon is deteriorating prematurely due to poor workmanship when renovated. The agreed cost of remedying the work carried out by Monavon is £60.

Item 59 – Manhole covers

[93]The 2 manhole covers were not double sealed screw down covers. Such covers are required to prevent smell from the drains being emitted and they should have been provided. The manhole covers, therefore, need to be replaced with double sealed screwed down manhole covers at an agreed cost of £2,200. This sum is recoverable from Monavon as damages for breach of contract.

Item 60 – Access to timber decking

[94]The timber decking was installed without any means of access to the drain and roof below. Such access is needed for maintenance and drainage cleaning purposes. It is impracticable to lift the entire decking. Access should have been provided since Monavon was required to provide decking fit for its purpose in the absence of any clear detailing of this work. The cost of providing access is agreed at £350 and this sum is recoverable as damages for breach of contract.

Item 61 – Head of French doors

[95]The head of the door that was installed was fit for its purpose but did not comply with the detail supplied to obtain planning permission and ground landlord’s approval. However, Monavon was not supplied with this detail and, in consequence, was not in breach of contract in constructing an adequate, albeit unacceptable – on aesthetic grounds – detail.

Conclusion – Cross claim for defects

[96]The Davenports’ entitlement to damages for defective and incomplete work is to be ascertained from the findings made in this judgment and from the agreed further items which were agreed prior to the trial and not made the subject of further evidence or findings during the trial.

Overall Conclusion

[97]The parties are to seek to ascertain what net judgment is to be entered in the light of these findings and, having done so, the court will enter that sum in judgment and consider any claims for interest and costs. HH Judge Thornton QC Technology and Construction Court