Eribo & Anor v Odinaiya & Anor [2010] EWHC 301 (TCC)

Case No HT 08 625[2010] EWHC 301 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/02/2010
Before
MR JONATHAN ACTON DAVIS QCSitting as a Deputy of the High Court Queen’s Bench Division
Between
Dr Frank EriboClaimantsDr Lynda EriboClaimantAdekoyejo OdinaiyaDefendantLogicplough Property LtdDefendant
Miss Jane Davies (instructed by Berrymans Lace Mawer) for ClaimantsMr Odunaiya in person for DefendantsHearing Hearing dates: 9-12;16-19 November 2009; 14 th December 2009, and 19 th February 2010
JudgmentDeputy Judge Acton Davis QC :
[1]This is a dispute arising out of design and refurbishment works carried out by the First or Second Defendants at the Claimant’s home. There is a wide range of issues to be decided but the essence of the case is that the Claimants allege that the work done was late, was grossly defective and requires extensive and costly remedial works. Those allegations are, in the main, denied and a Counterclaim is brought to recover alleged under-payment.[2]For the greater part of this litigation, and for the whole of the trial, Mr Odunaiya has acted in person. Litigation is a stressful experience but I pay tribute to Mr Odunaiya for the careful and courteous manner in which he presented his submissions and in which he cross-examined. There are strong feelings on both sides of this case. Credibility is one of the central issues and in my assessment of the parties, I have reminded myself that Mr Odunaiya not only has to give the evidence in support of his case but also has to present his case in the adversarial arena. I also have to make allowances for the fact that the Defendants were, in the main, without legal assistance in the preparation of their case. Thus witness statements and schedules do not always contain the detail that is customary when lawyers are involved in their preparation.[3]Dr. Lynda Eribo and Dr Frank Eribo are married to each other and live at 200 Willesden Lane, London, NW6 7PR. That is a property which they bought in October 1999. They live at that house with their three children whose ages range from 25 to 28. It is a substantial property. The house is a two-storey detached building originally built in the 1930s. It has been extended and altered to include attic rooms and a two-storey side extension. A further single storey extension extends to the rear swimming pool complex. At the front there is a large garden area that has been paved over and provides parking for approximately eight cars. To the rear is a rectangular grassed garden and patio with single storey buildings on two sides including the swimming pool and the “mess room”. The Claimants, whilst being medical doctors, are also extremely experienced in the world of business. In particular they run a company called Residential Care Limited which owns eight care homes. Dr Lynda Eribo has been involved in ten renovations of those eight care homes. The care homes provide social care for people with learning difficulties living in the community. That social care includes lodging, boarding, personal care and educational and vocational assistance. Dr Lynda Eribo is also heavily involved in the medical world in Nigeria. In that capacity she is known in Nigerian political circles and has access to Nigerian politicians. Dr Frank Eribo is a consultant radiologist in the United Kingdom.[4]The First Defendant moved to England in 1993 after obtaining an Honours Degree in Electrical and Electronics Engineering in Lagos, Nigeria. On his arrival in England he undertook several jobs to support his family whilst he studied. He studied at City University, London and obtained a Masters Degree in Information Systems & Technology. Following that he worked as an Information Technology Consultant for Oracle Corporation. He worked in the Expert Data Warehouse Team and consulted with several large corporations on behalf of Oracle.[5]The Second Defendant is a limited company (Company number 04550159) which on the evidence before me is registered at Idera, Royston Grove, Hatch End, Middlesex HA5 4HS. Counsel for the Claimants says in her note on the suggested typing corrections to the draft judgment that that address has changed. Be that as it may, the company was incorporated on 1st October 2002. It is run from offices at 107, Marsh Road, Pinner, HA5 5TA. The Second Defendant is a small family run concern. The First Defendant’s wife, Mrs Odunaiya, helps with the running of the company and is Company Secretary. She was present in Court throughout and provided quiet assistance to her husband in the presentation of the case.[6]The Second Defendant provides building services including mechanical, electrical and IT services, delivering the PlayNest bespoke home.[7]According to the Defendants’ literature, a PlayNest home is a bespoke development or renovation designed to create perfection in lifestyle home design using “technological advancements” “to take care of nest stress”. “Nest stress” is defined by the Defendants as the “extra challenges and irritations that centre on our homes and the need for us to see to a myriad of small tasks and issues before we can relax and enjoy our own spaces”. The Proposal Document given to the Eribos [TB4/1] indicates that in a PlayNest house the specification could include a programmable irrigation system, a fully automatic climate-control system, appliances are turned on and off when the occupant is busy or away from home and extend to the drawing of blinds and turning on and off room lights, including television and radio. If a burglary or fire alarm has been triggered the house will automatically telephone the owner to inform him, whereupon if a video telephone is installed in the house, the owner can carry out an inspection from wherever he may be. If a delivery is made, upon the delivery driver pressing the door bell (or phone) the house will telephone the occupant so that the occupant can talk to the driver and open the motorised garage door so the package can be left therein. The occupant when driving home can start cooking dinner, turn on music and ensure that the house is warm and ready for the occupant’s arrival home.[8]PlayNest is a trademark of the Second Defendant. Mr Odunaiya gave me a compact disc (which he had also given Dr Lynda Eribo) so that I could understand better and in greater detail the comfort provided to the owner of a PlayNest system. There were no facilities in Court to watch the DVD. I undertook to, and did, watch the DVD outside Court hours.[9]Mr Odunaiya says in his witness statement [TB3/68 para.7] that he has undertaken many successful projects including his own home and construction projects in Harrow, Crouch End, Camden, Eastcote and Wembley all of which have involved the construction of new build properties. He and his company attracted the attention of The Times Newspaper which published an article about him and PlayNest on 29th January 2006 [TB/4/107].[10]Before considering the defects themselves I must first decide a number of issues arising out of the Contract itself.[11]The Eribos were put in touch with Mr Odunaiya by a close friend Dr Soyombo. Dr Soyombo is not only a close friend of Dr Lynda Eribo but she is also a cousin of Mr Odunaiya. Dr Soyombo suggested that Mr Odunaiya be given the opportunity of doing refurbishment works that the Eribos had determined that they wished to be done. As Dr Lynda Eribo put it she believed that the house “would benefit from a 21st Century upgrade”. Dr Soyombo obtained approval to approach Mr Odunaiya. Initially, Mr Odunaiya was reluctant because the Second Defendant had never previously been involved in any major renovation work: all previous developments had been new build developments. However, he felt that he should at least attend the Eribos’ house out of courtesy to his cousin Dr Soyombo.[12]Dr Eribo says that the first meeting was on 18th June 2005. Mr Odunaiya says that his first visit was on 20th June 2005. I am not persuaded that the difference of recollection is of any relevance whatsoever. It is common ground that at that first meeting there was a broad discussion of what Dr. Lynda Eribo wished to achieve. She said that she was looking for an upgrade in quality to the decorations, fixtures and fittings and amenity and services. She explained that she wanted two condensing boilers and there was some preliminary discussion about it being sensible to re-wire because the floorboards would have to be taken up to lay the under-floor heating and the “CAT.5” for the home automation equipment. Mr Odunaiya also said that he would visit the property again to take photographs before making a proposal tailored to the Eribos’ property and needs. Dr. Lynda Eribo is insistent that Mr Odunaiya represented that he would treat the job as if he were working on his own home.[13]Dr. Lynda Eribo says that Mr Odunaiya returned to the property on Sunday 19th June 2005. He brought his laptop for a presentation. That presentation, as Dr Eribo accepted, was the DVD which I have already mentioned.[14]Mr Odunaiya’s witness statements do not contain all the detail which emerged in evidence. I remind myself that the 3rd witness statement, and probably the 2nd, was not prepared by a lawyer and that Mr Odunaiya, at the time when he prepared those statements, would not have been aware of the need to set out his case in the detail to which lawyers are accustomed in the preparation of their client’s witness statement.[15]However, when Mr Odunaiya gave evidence he made clear that he visited the premises for the first time on 20th June 2005, he went there on 22nd June 2005. He went also on 24th June. His final visit before starting the works was on 27th June because that was the day he made the phone call to organise the skip.[16]In the Defence at paragraph 12 [TB1/26] Mr Odunaiya refers to showing a power point 2003 presentation slide (which he annexes to the Defence). Those slides are at [TB4/86-104]. In his witness statement at paragraph 20 [TB3/71] he again says that those were what he presented.[17]Dr. Lynda Eribo says that she was shown the DVD which she describes as “breathtaking” but that she has never seen the slides at [TB4/86]. I accept that evidence, I am persuaded that Mr Odunaiya is simply wrong when he says that he showed the power point presentation. He accepts that he did show the DVD and Dr. Lynda Eribo confirms that to be accurate: when Mr Odunaiya was preparing the Defence and his witness statement he made a simple mistake.[18]It is common ground that the important meeting occurred on 24th June 2006. Mr Odunaiya says that at that meeting he gave to Dr. Lynda Eribo the proposal [which is at TB4/1] a timetable [which is at TB4/58-61 (showing completion on 26.12.2005)] and a document identified as the specification/ room data sheets found at [TB4/12].[19]There was discussion of those documents. Mr Odunaiya is insistent that the Proposal Document is what he describes as the “Brochure for which if, for example, you were buying a car, you would choose which of the various options you wanted”. The Claimants say that is a contract document. The Proposal includes at TB/4/5 the following words:
“You will be provided with a detailed easy-to-understand timetable describing the renovation activity – a complete ‘what will be happening and when’ timeline that you can monitor daily, if you so desire, for total peace of mind,”
It further provides: “this is not a promise; it’s a guarantee – a contractual guarantee. When you sign a contract with PlayNest, we provide a penalty clause for your benefit: in the unlikely event that we are unable to give you the keys to your newly renovated home on or before the date stipulated in the Contract, we pay you £500 for every week that we run late. It doesn’t matter if a part arrives 2 weeks late, or an equipment came in the wrong colour. Those aren’t your problems, they’re our problems. All we ask is that the detailed contractual agreements are honoured to the letter”.[20]Dr Eribo says that she went meticulously through this specification. She says that the document was not a full specification because it did not contain a complete description of the works agreed. She questioned the gaps and she was told by Mr Odunaiya that he had taken note of all the agreed items and that they were included in the price.[21]There was discussion about the addition of the kitchen to the works leading to Mr Odunaiya returning on 27th January 2005 with the document at Bundle 4/77. I believe it to be common ground, but if not I find based on Dr. Lynda Eribo’s evidence, that at that meeting he also gave the letter which is at [4/141], the document which is at [4/34] which includes the kitchen and the time schedule at [4/60 and 61] which includes the kitchen work but still shows completion on 26th December 2005. Dr Eribo does not say in her witness statement at paragraph 33 [TB3/10] that she was given another copy of the Proposal at [TB4/1].[22]Dr Eribo is insistent that she was very anxious that the work be completed by 26th December 2005. Mr Odunaiya agrees that that date was discussed but that it was always considered as a target date. In my judgment, he is wrong in that recollection. 200 Willesden Lane is a family house. Dr Frank Eribo had to live elsewhere during the building works as did two of the children. I entirely accept that Dr. Lynda Eribo required of the Defendants that the work be completed by 26th December 2005. However, I am not persuaded that the Proposal Document at [TB4/1] was intended to become, or ever became a Contract Document. In my judgment Mr Odunaiya’s comparison with a car brochure is apt. In the contractual idiom, it is a “mere puff” given to a potential customer for that customer to learn of the range of the services and facilities which could be provided if that customer wished. Those chosen by the customer should find their way into the specification/room data sheet, the contractual version of which including the kitchen is at [4/34].[23]I fully accept the argument put forward by Miss Davies that it is an incomplete specification. There were other items provided which were not within the specification. Indeed on Day 7 Mr Odunaiya accepted that works not listed were supplied.[24]Thus, although the notes to the specification included at [4/35] the following provision:
“(1) This Contract excludes any works not specifically listed in this detailed Specification”
The Defendants waived that provision because they supplied items as part of the fixed price contract, in other words they supplied items which were not the subject of a Variation Order.[25]It follows from my conclusion at paragraph 22 above that the clauses within the Proposal at [TB4/5] cited at paragraph 19 above were not terms of the Contract.[26]I accept that the time schedule at [4/60-61] was a Contract Document. It was provided by Mr Odunaiya on 27th June 2005 as part of the contract package. In my judgment the contract package consisted of the specification at [TB4/34] and the timetable at [TB4/60].[27]The Eribos’ case is that the Contract was completed between them and Mr Odunaiya personally and/or the Second Defendant.[28]The Proposal [TB4/1] makes clear that PlayNest is a trademark of Logicplough Property Limited. Further, the specification says:
“I hereby request that the work is carried out in accordance with this specification and that the quoted price, I also authorise Logicplough Property Limited to submit and apply on my behalf for all necessary plans, planning permission and other documents required by law. I hereby confirm that all valuables will be removed from the proposed renovation site as Logicplough Limited cannot be held responsible for any loss of valuable items.”
The final specification of 27th June which includes that provision [4/34] was signed by Mr Odunaiya on Dr. Eribo’s copy “for Logicplough Property Limited”. The letter at [TB4/141] gives the name of the relevant account as “Logicplough Property Limited”.[29]Dr. Lynda Eribo says that she read the documentation “meticulously”. She is a business woman with considerable experience of renovation works through her business. In my judgment it is unlikely in the extreme that she would have expected Mr Odunaiya to be contracting personally and I am persuaded that she was under no such misconception. She would have known from the documentation that the contracting party was Logicplough Property Limited. I cannot accept that Dr Lynda Eribo would sign any document without first reading it carefully. Moreover, on 27th June 2005 Dr. Lynda Eribo gave Logicplough Property Limited a cheque for £10,000. That was the date when the Contract was signed. The case is also pleaded as argued against Mr Odunaiya personally as a collateral contract. I entirely accept that Mr Odunaiya did make a number of representations to Dr Eribo about the extent of his personal involvement about supervising the works and the satisfaction and pleasure that they would derive from the completed works. Mr Odunaiya, on behalf of the Second Defendant, wanted the business. But those representations were all made on behalf of the Second Defendant. Thus I dismiss the claims against the First Defendant whether as a personal contract, a personal collateral contract or in misrepresentation. Similarly I reject the plea that Mr Odunaiya owed a personal duty of care to the Claimants. It is neither fair nor just nor reasonable to impose such a duty when the contracting party was the Second Defendant.[30]Before turning to the progress of the works, I should record that three witnesses of fact gave evidence in person, Dr. Lynda Eribo, Dr. Frank Eribo and Mr Odunaiya. Dr Soyombo prepared a witness statement [TB3/110] and was to give evidence on behalf of the Defendants. However, she did not attend Court. Mr Odunaiya elected not to give any explanation for her non-attendance. I indicated that I would read the statement and give such weight to it as I thought appropriate in the light of the fact that she was not subject to cross-examination.[31]The progress of the Works Among the difficulties which I face is that Mr Odunaiya’s witness statements do not always give the responsive detail to the Eribo witness statements which would ordinarily be expected. Some of the Defendants’ case emerged in greater detail in his oral opening speech, some during cross-examination which he carried out and some during his own cross-examination. As I set out above, I understand why that should be so. In the remainder of this Judgment, I address the factual issues as best I can. It seems that virtually everything is in dispute. Were I to address all issues including those which seem of no or little practical significance, this Judgment would be disproportionately long and delayed in its production. Therefore I consider only the factual issues which appear to me to be important.[32]Dr Eribo says in her witness statement [TB3/12 paragraph 39] that they moved out of the house “on or about 30th June 2005”. The Eribos’ pleaded case [TB1/10 para.17] is that the Contract Works commenced on 28th June 2005. In Ms Davies’opening at paragraph 14 she says “the Claimants moved out of their home and work began on 27th June 2005”. In the Defence [TB1/35] it is said “pursuant to the signed Contract the Second Defendant commenced works on 27.6.05”. His witness statement does not mention any date.[33]At paragraph 41 of her witness statement Dr. Lynda Eribo [TB3/13] says “the first day Mr Odunaiya had his demolition men on site, 28th June 2005…”.[34]The manner in which I reconcile the conflicting pleadings and evidence is to determine that the Contract Works commenced on 28th June 2005 but the Eribos did not move out until 30th June 2005.[35]Thereafter, until the family moved back into their house on 22nd June 2006 Dr Frank Eribo was living in King George Hospital accommodation during the weeks and spent the week-ends at his brother-in-law’s house in Harrow Wealdstone. Their daughter was renting in Chiswick, one son was at University in Bristol and the second son remained in the mess area, which is totally separate from the main house and has with the swimming pool area, lighting power and heating systems that are separate from those of the main house. Dr. Lynda Eribo herself was either in Nigeria or when in London stayed with her sister in Barnes Hill, Wembley with the occasional week-end at the Hilton Hotel in Watford.[36]One of the disputes is the extent to which the Claimants cleared those parts of the house where refurbishment works were to be carried out. Mr Odunaiya says that a certain amount of belongings were left behind which was the cause of delay and disruption. He points to a photograph at [TB/4A/397] to make good that submission. Plainly, the Eribos did not entirely empty the relevant parts of their house. However, I am satisfied that they removed from harm’s way almost all of their belongings. I am not satisfied that that which was left was any material cause of the delays which occurred.[37]As is entirely in the ordinary course OF SUCH CONTRACTS, particularly where not all the Employer’s Requirements are set out in writing, variations occurred. There were works to the laundry, the acquisition of a bed with an integral television in the master bedroom in July 2005, a change in the specification for the whole of the ground floor from marble to granite in July 2005 (Invoice 22nd March 2007), the removal of a chimney breast in Frank Junior’s bedroom in September/October 2005, planning permission for an extension to the loft and a new layout to the existing loft space. I mention items such as these (and others below) because part of Mr Odunaiya’s explanation for the delay is the number of additions, variations and changes of mind.[38]In October 2005, when negotiating with Mr Odunaiya in relation to the works for the loft, the Eribos decided to add works to the patio, the RHS external corridor and Mess Room. Mr Odunaiya provided a further specification [TB4/77-84]. It is clear from that document that the price was agreed at £37,500 and that the duration was 6 weeks from 3rd October 2005. Again, that specification was not a complete list of the works which had been agreed to be done. For example, it did not list the new walls, doors and wardrobes for the loft which had been agreed or the fact that the Defendants were to extend the underfloor heating to the whole of the loft space. Dr. Lynda Eribo says at paragraph 66 of her witness statement [TB3/21] that they were assured by Mr Odunaiya that the works themselves would take 6 weeks and that they would not delay the works to the ground and first floors. Dr. Lynda Eribo adds “he was clear that the completion date of 26th December would not be affected and, in fact, the agreed duration for the works was timed so that all works could be completed by 26th December. We agreed to proceed with the works on that basis”.[39]In the Defence it is said at paragraph 29(c) [TB1/37] that:
“The First Defendant informed the Second Claimant that in order to do the works in the loft the first floor works would have to stop as it was a fundamental principle that finishing decoration work started from the top down….”
I can identify nothing in Mr Odunaiya’s witness statements in support of that averment. In any event, I have reached the clear impression that Dr Eribo was extremely anxious that she and her family be back in the house by 26th December 2005. In my judgment it is unlikely in the extreme that she would have agreed the additional contract for the loft, patio, RHS external corridor and Mess Room if she had been given any indication that to do so would jeopardise her intended end date of 26th December 2005.[40]In the Defendants’ version of the chronology [TB3/109A-L] added by Mr Odunaiya during the course of the case, Mr Odunaiya asserts a six-week delay to the Works the subject of the original Contract as a result of the Agreement dated 3rd October 2005. No evidence, other than his assessment, is put forward in support of that allegation. I do not accept that there was that period of delay occasioned by the Contract made on 3rd October 2005 or, if there was, that there should have been any such delay. Mr Odunaiya would have mentioned it in October 2005 if the consequence of those Works was delay. He did not do so. There was one period of delay in relation to the loft works which Dr Eribo accepts. There was some delay in the grant of planning permission for a loft extension and four rooms and the Eribos suggested that the work be stopped to the loft, and re-started when planning permission was given. They wished to re-negotiate the contract insofar as it applied to them. Mr Odunaiya said that the refund would be only £5,000 if he stopped work on the loft and the Eribos instructed him to continue. During their discussions there was, recognises Dr. Lynda Eribo, a delay of a couple of days. Mr Odunaiya in his table at [TB3/109E] does not say that the delay was any longer than 2 days.[41]I should add that in order to get the works to the loft started Dr. Lynda Eribo says at paragraph 67 of her first witness statement [TB3/21] that they paid the Second Defendant £30,000 deposit on 1st October 2005. She adds “on receiving the deposit Mr Odunaiya promised to accelerate the works and to complete by the end of November 2005 so that we could occupy the property prior to Christmas”. Mr Odunaiya does not challenge that assertion in his witness statements, nor did he do so in cross-examination of Dr. Lynda Eribo. Those failures do not enable me to conclude that simply because there was no challenge, he must have said those words to Dr Eribo for the reasons set out at paragraph 14 above. Nevertheless that, it seems to me, is an important element of Dr. Lynda Eribo’s evidence. Without finding as a fact that there was an agreement to accelerate the work, it seems to me to be entirely appropriate to infer that even by 1st October 2005 Mr Odunaiya still planned to complete by 26 December 2005. Thus none of the changes or variations to date could have had any causative effect. That conclusion includes the effect of the controversial visit to Nigeria. I note that in his schedule at [TB3/109C] no period of delay is asserted by reason of that trip but paragraph 35(b) of the Defence [TB1/41] asserts that that trip “increased the works required at the property”. Mr Odunaiya asserts that she instructed him to attend a meeting with the Housing Minister in Nigeria. Her version is that she arranged for an introduction to the Housing Minister in Nigeria. He arrived on a Sunday, paying for his own travel and the meeting occurred on the Monday morning. It seems that Mr Odunaiya now accepts (see the Schedule mentioned above) that there was no causative delay by reason of that visit. To the extent that it is necessary to do so, I prefer Dr Eribo’s version of the events. If he had been instructed to attend, he would not have paid for his own air fare.[42]At [TB1/42 para 35(vi)] the Defendants plead that there was a long running leak the rectification of which was outside the scope of works. The Claimants were unable to locate the stopcock and as Mr Odunaiya explains in his witness statement [TB3/80 para 51], “Eventually after three months delay, Thames Water managed to install a new stopcock as the old one had been buried by long completed work somewhere in the main road”. The Eribos’ response [TB3/27 para 84] is that they had been living in the house since 1999, there had been no leaks between then and June 2005. The leaks started only when the Defendants were in occupation of and carrying out works to the house. The matter was exacerbated by a manhole in the garage, due to its being blocked by debris from the Defendants works.[43]In his schedule [TB3/109C] Mr Odunaiya asserts a delay of 9 months occasioned by Thames Water’s delay of 3 months. I recognise that delaying events cause knock-on effects and that it is simplistic to say that even if Mr Odunaiya is correct a delay of 3 months by Thames Water could not produce a consequential delay of more than two months suffered by the Defendants but it is impossible to accept the factual allegation of a 9 month delay, unsupported as it is by any other evidence.[44]In any event my view overall is that the damage was probably done by Mr Odunaiya’s workforce. I see no reason to conclude that Dr Eribo is wrong when she says that there was no evidence of the leak before the workforce moved in. I have no doubt that had Dr. Eribo been aware of the leak prior to the inception of the Defendants’ works she would have asked him to arrange for its repair at the Eribos’ cost.[45]At paragraph 35E of the Defence [TB1/42] there is an allegation that the loft works were modified greatly to make it easy to fit a rear Dormer. It is said in the pleading that the duration of delay was one week. I cannot find that item of extra work in Mr Odunaiya’s chronology at [TB3/109A] nor is there any reference to it in Mr Odunaiya’s witness statement. Dr. Lynda Eribo says at paragraph 71 [TB3/23] that she does not know what is being referred to in that sub-paragraph. She says that there was no agreement with Mr Odunaiya that he should fit a Dormer window as part of his works for the loft area. There was an agreement that he was to fit a Velux window in the rear bedroom and a skylight in the landing. The Velux window was not fitted until 22nd June 2006, after the Defendants had built the room without installing a window. The window remains uncompleted. The skylight over the stairs was not fitted either. I cannot conclude that there was any delay based upon the material which I have seen.[46]The chronology moves on to November 2005. When Dr. Lynda Eribo returned from Nigeria she says that she found that the work was not even halfway completed [TB3/23 para 72]. It was at this stage in the chronology that a dispute arose in relation to Thames Water. In his schedule at [TB3/109F] Mr Odunaiya alleges a delay of 3 months. I cannot see any mention of this episode in the Defence (although my attention has been drawn to paragraph 20c(iii) [TB1/33] which claims only some consequential redecoration) but it is mentioned in Mr Odunaiya’s first witness statement at [TB3/79]. Mr Odunaiya says that the requirement of a substantial boiler resulted in the need for a new supply and that Thames Water took months to install the new supply. That greatly affected the works because without water supply the newly installed boiler could not be started. There was no heating to the entire property. That caused the appearance of hairline cracks in gypsum plastering.[47]There is a dispute about whether the new supply was at Mr Odunaiya’s insistence or whether it was a genuine requirement.[48]I accept that the events which I have summarised must have caused delay. A connection date was obtained for 19th December 2005 and Dr. Lynda Eribo says that she was assured by Mr Odunaiya that thereafter it would take a period of 3 weeks to complete the renovation after the connection. Thus, given the Christmas holiday, Dr. Lynda Eribo expected the works to be completed 3 weeks after the builders returned from holiday on 9th January 2006.[49]Mr Odunaiya denies that that conversation took place. I am persuaded that there was such a conversation. In my judgment any householder believing that the project was to be finished by 26th December 2005, who discovered that the mains water was to be reconnected only on 19th December 2005 would be eager to discover from the contractor the effect of that upon the completion dates. I accept that the consequence of the delay in obtaining the connection was that for that reason alone the completion date of project was 30th January 2006 and that Mr Odunaiya informed Dr. Lynda Eribo that that was so.[50]According to the Defendants’ schedule at [TB1/109F] the next variation is dated 22nd January 2006 and consisted of a replacement basin for Sophie’s room. There is a dispute about whether or not when it was first fitted in August 2005 dissatisfaction was expressed by the Claimants. The Claimants say that they expressed dissatisfaction in August 2005, and that can be seen from an exchange of emails at [TB4/150 and 151] but the Defendants nevertheless installed the basin. In January 2006 the Claimants requested that the basin be changed. In my judgment it is inherently unlikely that the Defendants would have installed the basin in August 2005 if they were asked not to do so. The Defendants claim a delay of one day.[51]At [TB1/109F], the subsequent item mentioned is on 23rd January 2006 when it is said there was a 3 day delay due to the addition of new works, namely the erection of a rear Dormer window and 2 front rooflights to the house for which permission was given by Brent Council on 28th February 2006 [TB4/160]. I assume that this is the same item as that referred to by the Defendant in its appendix response to the Claimants’ closing submission headed “Pause to Loft Works” at paragraph 26. The delay claimed in the Defendants, schedule is 3 days. In his e-mail dated 30th March 2006 [TB4/166 at 167] Dr Frank Eribo contemporaneously accepted delay in the work to the loft. I accept a delay of 3 days.[52]On 29th January 2006 according to the Defendants’ schedule at [TB1/109G] there was a delay of 2 days caused by an upgrade to the lighting and garage pump. I can find no reference to that in the evidence or in the submissions put in on behalf of the Defendant.[53]The subsequent item at [TB1/109G] is in February 2006 and concerns an upgrade to the gas cooker. A delay of 1 week is claimed. No reference to that is made in the Defendants’ response to the Claimants’ closing submissions. In Dr. Lynda Eribo’s witness statement at [TB3/26 para 81] some evidence is given. Dr. Lynda Eribo required a replacement cooker but that which was installed was not what she wanted. She therefore objected to its installation. There was a dispute about whether the one that was installed was an upgrade and thus an extra which Dr. Lynda Eribo says that she reluctantly conceded. I accept the Defendants’ case. I find it unlikely that the Defendants would have installed something which they knew was not wanted and to a considerable extent the concession made by Dr Eribo in paying for the new cooker recognises the point made by the Defendants. Some delay was occasioned, probably less than a week.[54]The next item at [TB1/109G] occurs in late February/early March when there is delay because of the works in the loft categorised by the Defendants as “Second Loft Stop”. Delay claim lasting 2 weeks is claimed, I treat this item as part of the item at paragraph 51 and subsume it in the period of 2 days.[55]On 3rd March 2006 [TB1/109G] it is said by the Defendants that there was a delay of 4 weeks because it was discovered that the neighbours had broken the gate sensor therefore the gate control could not be completed. The Defendants refer to an e-mail from them dated 3rd March 2006 at [TB4/162]. It is unnecessary to go into the rights and wrongs of that dispute because on 11th April 2006 the Defendants sent an e-mail [TB4/169] which promises completion of the “whole house…including loft, kitchen and garage” by 13th May 2006. Thus any delay occasioned by the broken gate sensor must have been taken into account by the Defendants when they sent that e-mail.[56]For the same reason I pass over the dispute concerning the dimmable switch upgrade plus aerial boost [TB1/109H], the “bath to shower upgrade in loft” and in the “supply and programming of new pad controller” [TB1/109J].[57]By June 2006 the Claimants, as Dr. Lynda Eribo explains, [TB3/31 at para 95] decided to move back into the house on 22nd June 2006. She refers to there being numerous faults and defects. In particular she says, “There were constant power failures, faults, telephone and internet and with the electric gates. There were leaks from the bathrooms, the toilets did not flush correctly, there was a leak in the Laundry Room, the bedrooms were not finished, the joinery and decorations were incomplete, the air-conditioning was not working, the heating was defective and the loft works were not finished. Some fittings were defective. The kitchen, though functional, was incomplete…..You never knew when something would go wrong or what problem would be discovered next, and some of the workmen were still coming and going.” [TB3/32]. Additionally, Dr. Lynda Eribo speaks at [TB3/32 para 100] of encountering difficulties in contacting Mr Odunaiya.[58]According to the schedule at [TB1/109J-109K] there were further variations and delays. I accept that the work was done but I am wholly unpersuaded that any delay was thereby caused. On any view of the evidence Dr Frank and Dr Lynda Eribo had found this a difficult relationship and were disappointed in the standard of work and time taken by the Defendants. It is inherently unlikely that if additional work was ordered it is the sort of work which would have caused any meaningful delays.[59]By 21st September 2006, it is clear that the Eribo family had had enough. On that date all the electrical systems broke down. There was no power to the house. The Eribos were unable to contact Mr Odunaiya (although and I have checked the date, the 21st September 2006 was a Thursday). By now over 4 months had passed since the e-mail of 11th April 2006 [TB4/169] which promised completion by 13th May 2006. The Eribos contacted a BT engineer to check the telephone lines. The following day an employee of the Defendants came to the premises. Later that day Mr Odunaiya complained that the BT engineer had interfered with the system.[60]There is a factual dispute about whether or not the BT engineer did interfere with the system. The practical consequence of the outcome of that dispute is nil. The system did not work adequately before the BT engineer visited the premises and it cannot therefore be said that anything which the BT engineer may or may not have done had any long term effect. For what it is worth (and that is little) having considered the photograph at [TB2/5421] I think it likely that the BT engineer did carry out some sort of minor interference with the PlayNest system. However, that he did so has no practical effect.[61]On 2nd October 2006 the Eribos commissioned an independent surveyor, Mr Tarling to report on the state of the Works. He reported that day and his report is at [TB4/238]. His report is relied on by the Claimants not to prove the defects he refers to but to justify their termination of the Contract. In those circumstances it is unnecessary for me to set out Mr Tarling’s detailed conclusion. He formed an adverse view of the work which had been done. Of the security/ computer control system he says “this is inoperable. A computer expert will be required.” His conclusion is as follows: “4.1 The Works are significantly incomplete and many fixtures and fittings are missing. 4.2 …the standard of work accomplished is low, falls below minimum NHBC standards and defective. 4.3 Preparation for decoration was poor, inappropriate and has caused damage. 4.4 The floor tiling and underfloor heating is so poorly installed that it requires stripping out in its entirety… 4.5 All rooms are affected by defects. Rooms with floor tiling are worst affected as the whole floor areas will require stripping out rendering the rooms unusable for one week or more. 4.7 Removal of floor tiling will also require re-plumbing of the underfloor central heating system and in some rooms removal of fitted cupboards…”[TB4/258].[63]In the light of that report the Eribos decided to terminate their contract with the Defendants [TB3/35 para 106]. Hence they refused access on 5th October 2006. By e-mail dated 6th October 2006 [TB4/195] Dr Frank Eribo said, “In the meantime please do not arrange for anyone to come to our house until you hear from us further”.[64]The Claimants say that the cumulative effect of the Defendants’ breaches relating to defective and delayed work was sufficiently serious to justify the Claimants bringing the Contract to an end. The Defendants say that the Claimants acted unlawfully in terminating the Contract.[65]Earlier in this Judgment I have decided there was no provision for liquidated damages in the contractual arrangements between the parties. The chronology of delays and variation is relied upon by both parties to deal with the case on the assumption that the contractual arrangements included a provision for liquidated damages. The Defendants argue that time is at large whereas the Claimants say that nothing done by them amounted to any act of prevention. Those arguments fall away because of my conclusion that there was no liquidated damages clause.[66]However, I have considered the chronology in some detail because such matters fall for consideration when determining whether the termination of the Contracts was or was not justified. Although neither party called any expert evidence to deal with the effect of additional work alleged and or variations on the progress of the contract works, I have done my best to form a view on the evidence which I have read and heard because the delays are of some bearing on the termination issue. The termination issue also includes the standard of work achieved by the Defendants.[67]In Sutcliffe v Chippendale & Edmondson [1971] 18 BLR 149 at 161 H.H. Judge Stabb QC considered the decision of the Court of Appeal in Yeoman Credit Limited v Apse [1962] 2 QB 508 and said:
“I take the view that the whole combination of circumstances that then existed…did justify the Plaintiff in ordering the Contractors off the site. I think that their manifest inability to comply with the completion date requirements, the nature and number of complaints from sub-contractors and Mr Collick’s own admission that in May and June the quality of work was deteriorating and the number of defects was multiplying, many of which he had tried unsuccessfully to put right, all point to the truth of the Plaintiff’s expressed view that the Contractors had neither the ability, competence or the will by this time to complete the work in the manner required by the Contract.”
[68]I have already decided that the Contract did not contain a fixed completion date (for the purposes of a Liquidated Damages clause) but as I set out in paragraph 22 above, Dr Lynda Eribo made clear that completion was to be by 26th December 2005 and even on Mr Odunaiya’s evidence the 26th December 2005 was the target completion date. That date was missed but the correspondence bundle shows that subsequent to that date there were two promised completion dates. Both those dates were missed. I take into account that there were some delays which were not the Defendants’ fault. Equally I take into account that there were some variations and additional work. But there was nothing that justified delay until September 2006. Further, it was abundantly plain to me from the manner in which the Eribos gave their evidence that by the Autumn of 2006 they were both at the end of their tether. They had endured living apart beyond the target completion date, as extended They had endured returning to the house some 6 months after the target completion date, but found themselves in an environment where little seemed to work and when it did work was wholly unreliable. The Defendants and their employees were on site far less often than the Eribos were entitled to expect. I regard them as being wholly justified in viewing the total failure of the electrical systems on 21st September 2006 as being the final straw. Indeed, once Mr Tarling had reported on 2nd October 2006 I think it fair to say that they had no alternative but to terminate the Contract.[69]I should make plain that amongst the difficulties in dealing with this part of the case is that those events and matters relied upon by the Defendants as being extra work, variations or causes of delay appear in different places in the material before me at different times. For example some appear in the Defence, others in the witness statement and further items appear in the subsequent schedules which have been produced by or on behalf of the Defendants. Incidents which are pleaded in the Defence do not always find an echo in the witness statements. I make no criticism of the Defendants for that, nor do I treat it as a credibility issue. It is a function (and no more than that) of the Defendants finding themselves in a position where they are handling a complex case without legal assistance. I suspect (as perhaps is inevitable) that Mr Odunaiya will say that I have overlooked or misunderstood items which he says are causative of delay and disruption. Taking the evidence as a whole, I am entirely satisfied that the Eribos acted reasonably in terminating the Contracts.[70]Before turning to the claim for defective works itself I must deal with one preliminary point. The Defendants accept that there are some defective works which Mr Odunaiya values at £31,817 as set out at paragraph 10 of his supplementary witness statement. He relies upon Pearce & High v Baxter [1999] BLR 101. Mr Odunaiya relies upon the first paragraph in the second column of page 104 of the Judgment given by Evans LJ. Pearce & High was a case on the JCT Minor Works form. In particular, the case concerned the effect of clause 2.5 of that form of contract. There is no express provision to that effect in the contractual arrangements between the parties to this case and I can see no ground for implying such a term. In any event as Evans LJ made clear in the second paragraph of the first column of page 104, that interpretation of clause 2.5 is subject to what is said in Hudson’s Building & Engineering Contracts (11th Edition) paragraph 5-051. The Editor of Hudson says: “It is suggested, however that this latter view fails to take account of the not uncommon case of an owner who, by reason of a past history of unsatisfactory work or dilatoriness, may have reasonably lost confidence in the contractor’s willingness or ability to remedy the defects satisfactorily, and who therefore reasonably prefers to bring in another contractor. …. Since explicit language is rarely used in the clauses on this particular point, it is submitted that the Courts should, notwithstanding Lord Diplock’s dictum, be slow to imply a term that the contractor would in all cases have an unqualified right to re-enter and remedy defects himself for breach of which damages would be recoverable from the owner”.[71]I see no reason to imply a term to that effect in this case. It is neither reasonable nor necessary, nor an obvious inference and the contract works perfectly well without it.[72]In my judgment for the reasons summarised in paragraph 68 above and in view of the entire history of this project and the advice of Mr Tarling, the Claimants were not only entirely justified but entirely correct in not inviting the Defendants to return to site to complete and remedy the work which they had done.[73]The original works have not been completed satisfactorily and I must therefore address first the defects and the quantification. My task is not made easier by the fact that the Defendants have chosen not to call any expert evidence, although in consequence they were given permission to adduce the written evidence of their experts at trial. The Claimants have tendered their expert evidence for cross-examination.[74]Building Defects A. Underfloor heating and flooring These fall into two parts:(i) Underfloor Heating(ii) and other “Building Defects”.[75]Underfloor heating Evidence for the Claimants was given by Mr Gillies [TB2/tabs 3 and 4 and by Mr Doherty [TB2/tabs 6, 7 and 8]. The Defendants had an expert who signed a joint statement with Mr Gillies in May 2009 (the exact date does not appear from the document) but the Defendants have served no further reports on this item.[76]Mr Gillies’ evidence is as he paraphrased when giving evidence-in-chief, “the defect in the ground floor underfloor heating was the air gap between the tray and the boarding, the thickness of the boarding and the thickness of the adhesive behind the tiles. A void between tray and boarding means that the heating is not conducted as well as where there was contact, and the gap should not be there”.[77]I accept that evidence. I reject the Defendants’ arguments by reference to the Warmafloor system because the system which he installed was a Myson system.[78]Similarly, he explained in evidence that the horizontal arrangement of the heating pipe is defective in that as is shown in the photograph [TB2/208] the pipes are not set out as shown on the drawing at [TB2/308].[79]In my judgment, for those reasons, the underfloor heating was defectively installed.[80]It follows from my acceptance of that evidence and from the evidence of Dr Eribo that the heating does not work adequately [her witness statement at TB3/31 at para 97] that the underfloor heating system does not perform adequately.[81]The Defendants suggest [Mr Odunaiya’s witness statement at TB1/204] that commissioning is required. However, that is inconsistent with their Written Opening at paragraph 81 page 26 where the Defendants say that “the heating and plumbing works were fully commissioned and no defects were identified at the time”.[82]For the avoidance of doubt I accept Mr Doherty’s evidence that commissioning would not address the defect: see TB2/296 para 2.2.1. The additional suggestion made by the Defendants is that Mr Doherty should have flushed the system before commencing the test and that running the system without commissioning may have damaged the system. There is no evidence that there was a need to flush the system nor is there any evidence that using the system in its current condition would damage or has damaged the system. Equally the suggestion that missing actuators are causative of the inadequate heat output is not made out on the facts because on the second floor there are no valve actuators, on the first floor there is the correct number of actuators and on the ground floor there is only one actuator missing out of eleven.[83]In my judgment the extent of the defects is such that the underfloor heating requires total replacement on all three floors. The cost claimed is £17,500 in respect of labour and materials. The claim for labour is based on Spons Guides. I have some doubt about the reliability of the figures supplied by the Spons Guide in the current market. However, no alternative evidence is before me other than that which is in the Defendants’ closing submission to the effect that all that needs to be done is to replace the actuators and manifold. In the light of my findings on the extent of the defective work, that suggestion is unacceptable. Previously Mr Odunaiya had suggested that replacement should not cost more than its installation [TB3/95 para 36]. However, given the defective nature of the installation, I cannot regard its cost as any guide. I award £17,500. Additional claims are made in relation to Contingency, Prelims and professional fees (calculated by reference to the conventional percentage). I award those sums at £1,750, £2,625 and £2,187 respectively. I deal with VAT below.[84]Cost of replacement of the flooring The consequence of a complete replacement of the underfloor heating on all floors is that access to the whole of each floor is required. The sum claimed is £74,709.88. In this instance there are some figures put forward by the Defendants’ former expert. However, he did not attend on site during the opening-up works, he did not report on these costs, save by adding comments against some of the Building Scott Schedule. There is no evidence from him as to his reaction to Mr Gillies’ views on his proposed costs and scope of work. In those circumstances I am unable to place any weight on the figures which he suggests. The Defendants deal with this aspect of quantum at pages 107-109 of their closing submissions but I find little assistance there. I award £74,709.88. Additional claims are made in relation to Contingency, Prelims and professional fees (calculated by reference to the conventional percentage). I award those sums at £7,471, £11,206 and £9,399 respectively. I deal with VAT below.[85]Other “Building Defects” At page 39 of the Claimants’ written closing submissions is a table which helpfully summarises the defects. I deal with each alleged defect in that order by reference to the Issue numbers.[86]Issue 8(a): I award £287.50. I am satisfied that the work is necessary. I am not satisfied that the need for replacement is because of wear and tear as is suggested by the Defendants.[87]Issue 8(b): I do not need to decide this issue.[88]Issue 8(b)(ii): I do not need to decide this issue.[89]Issue 8(b)(iii): I do not need to decide this issue.[90]Issue 9(a): Mr Tarling was not called to give evidence. However, he lists some defects [TB4/241]. Mr Gillies lists numerous defects in the quality and installation of the outside door [TB2/70]. The Defendants’ former expert agrees upon the replacement of ironmongery but thought that the doors and frame were of acceptable quality. I accept Mr Gillies’sevidence. At page 111 of the Defendants’ closing submissions it is said “the Claimants had decided to improve the quality of the door…”. I am aware of no evidence to support that assertion. I award £2,250.[91]Issue 9(b): It is said the doors to the first floor landing have been cut too short and draught excluders fitted in order to plug the gaps. I accept that is so. There is a suggestion by the Defendants’ expert that the joinery is acceptable but I am unable to agree. I do not accept that the quantum is excessive and award £2,500.[92]Issue 9(c): The photographic evidence is to the effect that the doors are defective. At page 112 of the Defendants’ closing submissions there is reference to the loft re-start and then a suggestion that “it is unimaginable that a contractor would have the audacity to remove doors from a site and hang it in the same site…” yet that appears to have been what has occurred. I award £400. I reject the suggestion that the Claimants agreed to allow the Defendants to re-use the old cracked doors. That is entirely inconsistent with the approach of the Eribos to this refurbishment.[93]Issue 9(d): The Defendants admit a loose hinge and a door handle. I accept that the other minor defects are made out. I award the sum of £500.00.[94]Issue 10(a): The Defendants argue that the doors were not part of the Contract. However they had to remove the doors in order to replace the floors. It seems to me that if in the course of removing the doors they also removed the handles they are responsible for the replacement or re-fixing of those handles. I award £701.[95]Issue 10(b): Similarly the Defendants argue that floor keeps were not part of the Contract Works. However, replacement of the flooring must include the removal of the doors and their reinstatement. In order to secure the doors closed a hole in the new granite flooring is required. I award £720.[96]Issue 11: Mr Gillies explained [TB2/72] that the design is defective in that the fish tank is unusable. The design was that of the Defendants. The Defendants say that the Claimants chose the design [closing submissions page 114]. If by that is meant that the Claimants approved the design prepared by the Defendants, that can only have been in ignorance of the defects described by Mr Gillies. I award £3,351 as suggested by the Claimants’ expert. The whole installation requires replacement and the sums suggested by the Defendants’ former expert and the Defendants are clearly inadequate.[97]Issue 12(a): It is common ground that the vanity unit in Sophie’s room is unfinished. It seems to be suggested that that in part was because Sophie did not get up until 9.30-10.00 each morning. I do not regard that as an adequate explanation. I award £2,500. I discount the view expressed by the Defendants’ expert.[98]Issue 12(b): It is suggested that the damage to the vanity unit was caused by the Claimants. I do not accept that suggestion. I award £500.[99]Issue 13(a): The Defendants say that they did not fit the built in cupboards in issue. I have considered the Schedule at [TB1/173(22-26)]. None of the entries on their face refer to built in cupboards. The Defendants’ comment thus does not deal with the relevant defect. I award £1,937.[100]Issue 13(b): Again the Defendants argue that these items are outside the contractual arrangements. Again, my difficulty with that assertion is that as part of lifting the floors, the doors had to be removed. Similarly after replacement of the floors the Defendants had to refit the doors and should have refitted them properly. I award £1,070.[101]Issue 14: In my judgment the framing of this issue is inaccurate. The dispute does not concern the radiator boxes themselves but the visibility of the AV units which have been installed inside the original radiator boxes. In essence the complaint is that the effect is unsightly because the white units are visible behind the metal grilles. The units require painting in a dark colour, although there is additionally some finishing work. Thus the objection made at page 117 of the closing submission by the Defendants to the effect that the radiator boxes were not fitted does not meet the complaint. Furthermore, in the sample chosen the air-handling unit cupboard is badly finished as is apparent from the photographic evidence. I award £1,447.96.[102]Issue 15: The Defendants accept at page 117 of their closing submissions that they were “obligated to produce the best possible finish to the ceilings, within their capacity”.[103]Issue 16: In principle I accept that the decorations to the ceilings are not in accordance with the Defendants’ obligations. As Mr Gillies points out in his responses in the Building Schedule, the ceiling is wavy, uneven and cracked and is not plumb with the cupboards. There are signs of at least three infilled light holes. With respect to the kitchen Mr Gillies says at [TB2/73] that the finish is “disappointing and visually annoying”.[104]However, it is said that the decorations have been adversely affected by leaks. In particular it is said that there was a leak from a bath and that that leak has endured for a period of 3 years. When cross-examined Mr Gillies said that he did note an area of water staining the rear wall. I can see no suggestion in the comments of the Defendants’ former expert that there was any evidence of damage from leaks in the ceiling. Furthermore, there is an absence of a ceiling rose and it is unlikely that that absence was caused by leaks. On the balance of probabilities I am not persuaded that the damage to the ceilings was occasioned by water leaks. I find it inherently unlikely that the Eribos would have permitted a leak to run for three years. I award £10,315.77.[105]Issue 17: The Defendants in their closing submissions cross-refer to the explanation as to the leak given at page 117. I accept that the walls are cracked. I reject the explanation that leaks were responsible. I award £7,934.80.[106]Issue 18: I accept the evidence of Mr Gillies and his comments under B/1.8.4. I award £2,683.[107]Issue 19(a): Mr Gillies says at [TB2/73] that the quality of finish in the cloakroom is poor. There is evidence that the ceiling needs repainting and that the ceramic tiles have uneven joints and are broken. Although the Defendant says at page 119 of their closing submissions that the under-sink cupboard was outside the contractual arrangements, it looks as though the under-sink cupboard has been worked on by the Defendants who removed the doors, their handles and bolts and re-fixed them defectively. The proposal at [TB4/6] says that the “cloakroom will be updated to give a lasting impression to visitors. Whilst the cloakroom will be completely gutted out…”. I award £875.[108]Issue 19(b): Again, I accept Mr Gillies’ evidence that the ceiling surface is uneven in a number of areas where the edges have been incorrectly fixed and the surface needs to be cleaned off, prepared, skim coated and fully re-decorated. The Defendants say that the damage was done by the subsequent work of another who installed a curtain rail. The defects described by Mr Gillies are inconsistent with the damage having been caused by the fitting of a curtain rail. I award £714.75.[109]Issue 19(c): I have to make a decision on the batch. At the outset there were only two items to consider but, as in a number of cases, the Defendants withdrew what had appeared to be admissions of liability. I accept Mr Odunaiya’s explanation that there was an element of misunderstanding, but as a consequence of what has occurred I must decide this by reference to sample. I accept Mr Gillies’ description at [TB1/173] and the photographic evidence. I reject what is suggested by the Defendants at page 120 of their Closing Submissions because it is inconsistent with the findings of Mr Gillies. I award £2,178.50.[110]Issue 19(d): There is evidence that the patio tiles are loose. There is subsidence of the patio tiles in several locations. The consequence is they must be taken up and re-laid. The Defendants say at page 120 of their closing submissions that the damage is due to the breaking down of the sub-base structure. The Claimants’ expert says is that there is no evidence of foundation problems. The Defendants do not identify any such evidence. I award £240.[111]Issue 19(e): The Defence is that defects would have been picked up in snagging. In the light of my decision on determination of the Contract that argument fails. I award £150.[112]Issue 20: It is said by the Defendants at their closing submissions at page 121 that there is duplication. The schedules have been re-checked by the Claimants’ expert and duplication is denied. In fact these items of work are to remedy defects in the building works which were created by the Defendants during their works. They do not relate to any future builders work which will be involved in the re-wiring. I award £930.04.[113]Additional claims are made in relation to Contingency, Prelims and professional fees (calculated by reference to the conventional percentage). I award those sums at £4,418.63, £6,627.95 and £5,523.29 respectively. I deal with VAT below.[114]M&E Claims Again there is a helpful summary table at page 56 of Ms Davies’ closing submissions. The sum in respect of Issue 21 should be £13,090 and not the figure there appearing which is £18,600.[115]Liability is in issue but there is little or nothing in the Defendants’ closing submissions at pages 102-103 on liability. It may be that liability was denied because there was a misunderstanding of what was meant by “total rewire”. For the avoidance of doubt I interpret the Contract between the parties to mean that the rewire was of those areas of the house which the Defendants were refurbishing, that is to say the ground, first and second floors of the main house.[116]The installation has been condemned. See the report and photographs at [TB4/351 and following]. I am entirely satisfied that a rewire is required.[117]As to the remedial costs I have considerable sympathy with the Defendants’ submission that the cost supported by Mr Doherty is on the high side. Mr Doherty recognised that he had taken the upper end.[118]On the other hand I find that ATA Services quotation obtained by the Defendants is unrealistically low. It is a desktop exercise in that they have not visited site and there are a number of matters omitted from their quotation. It does not include for the air-conditioning power supply, the remote control curtain draw power supply and it seems, does not include the correct number of sockets in some of the rooms. Those items are given just by way of example.[119]Doing the best I can I think that the proper course is to take £3,000 from the CPFM quotation of £20,000 which less the deductions (amended as appropriate) made at paragraph 214 of Ms Davis’s submissions gives a total (before addition of a claimed 10% for today’s prices) of £10,450.[120]The justification for the addition of 10% explained by Mr Doherty is to reflect the passage of time from when the CPFM quotation was produced in late 2006. In my judgment a more reliable approach to updating the quotation would have been to have obtained an updated quotation from CPFM. Mr Doherty adds 10% because he “looked around and saw the conditions in the industry” and made use of the Spons Quick Guide. If anything, I would expect the difficult trading conditions to result in a lower rather than a higher price. In my judgment it is unsatisfactory simply to add 10% on the basis of a “look round”. I award £10,450.[121]Issue 21(b): Ms Davies’ submissions consider the doorbell, the electrical power for curtain actuator and some missing wall lights. The Defendants’ closing submission cover a range of deductions. I can only address this by reference to the agenda for trial which is as set out in Issue 21(b).[122]I accept the submissions made by Ms Davies at paragraphs 215, 216 and 217 of her closing submissions. No deductions for these items fall to be made.[123]Issue 21(c): Ms Davies makes no submissions. It seems from the Defendants’ submissions that only one item was concerned namely the tumble drier. I accept what is said.[124]Issue 22(a): Mr Doherty speaks to the remedial costs. The justification is at [TB1/186]. When giving evidence he added that the daily labour rate is taken from practical experience. In relation to the listed items Mr Odunaiya admitted liability during the course of giving evidence. I accept Mr Doherty’s rates on these items. I am not entirely certain of the derivation of the Defendants’ 75%. I award the sum claimed which is £1,917.[125]Issue 22(b): I am satisfied that the listed items are indeed defects. I adopt what is said by Ms Davies at paragraph 224–239 of her closing submissions. (save in relation to paragraph 233 where I have accepted above what is said by the Defendants). A deduction of £100 from the sum claimed must be made in relation to that. Thus in respect of item 22(b) I award £2,900.[126]Issue 22(c): Liability and cost are agreed. At page 106 of its closing submissions the Defendants say that but for the unlawful termination of the Contracts they would have been completed. I have already decided that issue above. I award £450.[127]In relation to the M&E claim I award in respect of Issue 21 £10,450, Issue 22(a) £1,917, Issue 22(b) £2,900 and 22(c) £450. That produces a sub-total of £15,717. To that must be added BWIC 5% on electrical only of £552.50 which creates a sub-total of £16,269.50. Contingency at 10% and Preliminaries at 15% must be added which produces a total before Value Added Tax of £20,336.87.[128]AV/IT& Security Again, I take as my agenda the summary of the claim supplied by Ms Davies which is at page 66 of her written closing submissions.[129]The language used by Mr Eshun to condemn the installation is clear and unambiguous. For example, at TB2A/390 at paragraph 10 he says: “Many of the systems were not operational and their installation does not comply with good practice and/or is defective. It seemed to me that the Defendants lack the knowledge and experience to design and install the systems they had proposed to an adequate standard.”.[130]Subsequently at TB2A/521 (after the provision of some information by the Defendants) Mr Eshun expresses his view in the following way:
“In my opinion the quality of the installation is so poor and inadequate that it is the worst installation I have seen in more than 30 years in the building industry.”
[131]On 26 November 2009 Mr Odunaiya provided further evidence and submissions which served to do no more than reinforce Mr Eshun’s opinion:
“The Defendants’ submissions of 26 November have not altered my view that the Defendants have an incomplete understanding of the systems and installation techniques required. It remains my opinion that the installation is very poor and will require substantial remedial works. Indeed as I stated in my second report in September 2009, the quality of the installation is so poor and inadequate that it is the worst installation I have seen in more than 30 years in the building industry.”
[132]I have no alternative but to accept that evidence.[133]In the light of that I can deal with the issues of liability on this aspect of the case in a compendious manner. In particular, I conclude that the criticisms made by the Defendants in evidence and in their written closing submission of the approach taken by Mr Eshun to the defects as a matter of fact is based upon their incomplete knowledge and experience of the systems which they proposed.[134]I record that I have read and considered carefully all that is in the witness statements and other material put in by the Defendants including their closing submissions but I have read nothing which causes me to alter the overall impression which I obtain that, unwelcome though it will be to Mr Odunaiya, I accept all of Mr Eshun’s criticisms. It follows that in relation to each of the items shown in the table at page 66 of Ms Davies’ closing submission, the Claimants establish liability, leaving only the question of quantum.[135]As to quantum, again it is unnecessary for me to consider the items in close detail. Mr Eshun speaks to and justifies the remedial costs. There is very little material other than what is suggested by the Defendants to challenge the costs given by Mr Eshun. To the extent that challenge is made, in my judgment it is met by Mr Eshun’s evidence that the Defendants lack the knowledge and experience to design and install the equipment which they said that they would supply. Indeed it would be inconsistent of me, having accepted that evidence from Mr Eshun, to take any other course than to accept his estimate of the remedial costs where the only criticism which I have heard comes from Mr Odunaiya himself. Accordingly, in relation to the AV/IT & Security defect I award a total of £42,061. VAT[136]The Defendants maintain that they did not charge VAT on the works which they carried out. It is said in the Defendants’ closing submissions that:
“It was agreed on 20th June 2005 that works to the house would be rated at 0% VAT under VAT Notice 719 (which was withdrawn in August 2009 by HM Revenue & Customs).”
[137]Whether that be so or not, there can be no doubt that VAT will be charged on the remedial works. VAT Notice 708 explains at Section 21 that work to an existing building is normally standard-rated. There are exceptions, but none of those exceptions apply.[138]It follows that if the Claimants are to be put in the position which they would have been in had there been no breach of contract, their damages must include the liability to Value Added Tax on the remedial works.[139]The Claimants also have a claim for overpayment. The way in which the case is put is that payments were made by mistake. I have been unable to find any response from the Defendants to that argument in their written closing submissions. However, in my judgment there is no evidence of mistake. As appears from paragraph 410 of Miss Davies’ closing submissions money was paid to the Defendants on demand. It is said that the money would not have been paid if the Claimants had known that the monies demanded were in excess of the agreed contract sums or for variations which were not true variations. It is said that those are the two relevant mistakes.[140]I am not satisfied that is how it was. The course of dealing is that for wholly understandable reasons the Eribos were extremely anxious that the building works progressed. They seem to have kept little financial control over the progress of the works and the money that they paid. In effect, if there was a request for money, they satisfied it. That was their deliberate decision. There was no mistake. I reject the claim for overpayment, save in relation to the claim for 3 curtain poles which were paid for but, as the Defendants admit, not delivered. That claim is £4,500 which I award. The claim for investigations prior to the decision to terminate the contract is not a claim for damages. If it be recoverable, it as costs of the claim.[141]General damages are available for inconvenience and distress “where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation”, see Watts v Morrow [1991] 1 WLR 1421 at 1445. It is said that because one of the purposes of the contract between the parties was to cure “nest stress” the very object of the contract was to provide pleasure, relaxation, peace of mind or freedom from molestation (see paragraph 458 of Miss Davies’ closing submissions).[142]But the claim in this case is different. The real claim here is for the stress, inconvenience and overall unpleasantness suffered during the course of the refurbishment works which went badly wrong. All domestic refurbishment works (whether successfully completed or not) are accompanied by disruption to the householders’ relaxation and peace of mind. The timing for the claim does not make any difference: it remains a claim for general damages by reason of refurbishment works having gone wrong. These works went wrong but I am not persuaded that general damages lie in a case such as this. Counterclaim[143]The first limb of the Counterclaim is that they are owed £10,002 by the Claimants based upon the assertion that every invoice issued was for monies that were due. In my judgment, just as it is impossible to disentangle the sum paid by the Eribos, so it is impossible for the Defendants to show that they are owed additional monies. I have looked carefully through the invoices and the various calculations supplied but I cannot be satisfied on the balance of probability that any further sum is owed to the Defendants by the Claimants for the work which was done.[144]The second part of the Counterclaim is at TB1/245 and is in the total sum of £7,500.00. At page 236 of the closing submissions put in by the Defendants it is said that the total is £8,812.00 by reference to a document at TB1/91 which is Annex B to the Defendants’ Response to a Request for Further Information. The total on page 91 is also £7,500.00.[145]Be that as it may, it is based upon some form of agreement that the Second Defendant agreed to carry out the work at cost with any budget savings being passed on to the Claimants provided the Claimants would allow the property to be viewed by prospective future customers of the Second Defendant; see [TB1/32 paragraph 19(d) of the Defence and Counterclaim]. That sub-paragraph refers to Appendix 4 which is at TB1/58 which contains the same items as those listed at TB1/91 (without any valuation). Whilst it is the case that the Eribos were probably prepared to recommend, at least initially, the Defendants to visitors I do not accept, and Dr Eribo denied [TB3/11 paragraph 37] that there was any such agreement.[146]The Counterclaim fails.[147]In my consideration of the issues raised by this litigation I have not considered the issue the subject of Bundle 8 which is headed “Documentation in Relation to Applications to Adjourn and Subsequent Investigation into Relation to the Authenticity of the Materials” for the reasons which I now mention briefly. The background to that bundle is that there was an application to adjourn the trial which was then listed to start in October 2009. That application was heard by H.H. Judge Toulmin CMG QC. The application was made by the Defendants because it was said that Mr Odunaiya’s mother was ill in Nigeria. It is said by the Defendants (and contested by the Claimants) that the consequence of that application was that unpleasant and distressing events occurred in Nigeria. I do not go into any greater detail because it is unnecessary for me to do so. Both parties canvass their version of what happened or did not happen in Nigeria. In particular a bundle was produced by the Claimants which contained witness statements. None of the makers of those witness statements was called to give evidence and no application was made to adduce the evidence contained in the witness statements. In my judgement whatever may or may not have happened in Nigeria arising out of the application to adjourn is entirely irrelevant to the issues in this litigation. Moreover, on the material available to me and without cross-examination of the makers of the witness statements, it is impossible to make any determination in relation to those events and I decline to do so.[148]There will be judgment for the Claimants against the Second Defendant for £126,787 (underfloor heating costs), £60,756.19 (other building defects), £20,336.87 (M&E claim excluding underfloor heating), £42,061 (AV/IT & Security) and £4,500 for the curtain poles. On my arithmetic that is a total of £254,441.06. On that sum Value Added Tax is due of £43,739.69 so as to produce judgment for a VAT inclusive sum of £298,180.75. The claim against the first Defendant is dismissed. The Counterclaim is dismissed.[149]I would be grateful if Counsel for the Claimants could check my arithmetic and produce an Order which reflects the findings made in this Judgment for discussion with the Defendants. When this Judgment is handed down I will hear argument on costs. There will be no argument on or award of interest because the cost of the remedial works has not yet been incurred, that being the element of their pleaded claim on which the Claimants have succeeded. In principle, interest will run on the claim in respect of the curtain poles but that is de minimis.