West & Anor v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC)

Case No HT-11-380[2013] EWHC 868 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2013
Before
THE HON. MR JUSTICE EDWARDS-STUART
Between
MR STEPHEN WESTClaimantsDR CAROL WESTClaimantIAN FINLAY & ASSOCIATES (A FIRM)Defendant
Jonathan Selby (instructed by Hewitsons) for ClaimantsRichard Coplin (instructed by CMS Cameron McKenna) for DefendantHearing Hearing dates: 19 th- 22 nd November 201226-29 th November 201217 th December 2012
Judgment

Introduction

[1]In June 2005 the Claimants, to whom I shall refer as Mr and Mrs West, or the Wests, bought a house in Putney, No. 63 Deodar Road, for £1.7 million. The house had five floors and was on a sloping site leading down to the River Thames. The lower ground floor was below ground level at the front of the house but was at about ground level at the rear.[2]The Wests wanted to make fundamental changes to the layout of the house, and to the ground and lower ground floors in particular. The problem was that they had a limited budget. At first, it was £250,000 and then subsequently they increased it to £500,000. After some initial discussions with an architect whom they subsequently decided not to use, they were introduced to the Defendant, to whom I shall refer as IFA. IFA effectively consisted of Mr Ian Finlay, who was its sole principal.[3]After protracted discussions the Wests eventually agreed a specification of work with Mr Finlay, but this was on the basis that they would arrange the procurement of certain discrete parts of the work themselves - such as a new conservatory and a kitchen - thereby not attracting either IFA’s percentage fee or the contractor’s overheads and profit on those items. In June 2006 they entered into a building contract with a contractor called Armour for £292,000, excluding VAT. The prices initially obtained by the Wests from other contractors had been beyond their budget, and so Mr Finlay introduced Armour. After some negotiation Armour submitted a price that the Wests were prepared to accept.[4]Unfortunately, the project proved to be a disaster. About six weeks after the Wests moved into the house in May 2007, when the work was supposed to have been completed, they found extensive damp in the lower ground floor. Experts were called in and it was concluded that no proper waterproofing had been carried out by Armour.[5]The Wests blamed both Mr Finlay and Armour for this state of affairs. During the course of the investigations into the cause of the damp the Wests were advised to have the mechanical services and electrical installations properly checked by an independent expert. This revealed that there were serious problems with both the plumbing and the electrical works also, such that it was eventually decided that all the newly installed mechanical and electrical (“M&E”) services would have to be completely removed and replaced.[6]The Wests managed to find alternative accommodation in the same road, into which they moved with their small son, Jacob, who had been born at the beginning of the year. In the end, the Wests were in this accommodation for some 20 months whilst the remedial works to No 63 were planned and carried out.[7]In this claim the Wests are suing IFA for negligence, not only in relation to the advice (or lack of it) in relation to the treatment required for the lower ground floor to prevent damp, but also for Mr Finlay’s failure to notice the defects in the M&E installations and to have them put right. In addition, in the course of the remedial works it was discovered that the new floor slabs that had been installed by Armour in the lower ground floor were defective. These had to be removed and replaced. The Wests claim the costs of dealing with these problems, together with various consequential losses, from IFA. There are also included in the claim some other relatively minor defects that are said to be the responsibility of IFA.[8]Armour subsequently became insolvent and so the claim that had been intimated against it is no longer pursued. Initially, IFA denied liability, contending that all the problems were the result of defective workmanship by Armour or its subcontractors. IFA has contended also that the remedial works actually carried out by the Wests went far further than was reasonably required to remedy the defects and therefore involved substantial betterment for which no proper credit has been given in the claim.[9]By the end of the trial liability was effectively admitted, albeit for some items only, and, contrary to the position taken in its opening submissions, at one point IFA appeared to be asserting that in 2006 the Wests would have decided to opt for a fully tanked solution to deal with the damp in the lower ground floor At paragraph 2(1) of IFA’s closing submissions. However, at paragraph 185 it was submitted that, if properly advised as to the cost, the Wests would have declined to have the work done. The reason for this somewhat ambivalent position was that IFA was by then contending that the cost of a fully tanked solution to the damp proofing would have been over £65,000, for which the Wests should give credit in their claim. . But it was now IFA’s primary case that as a result of Armour’s poor financial position the defective workmanship, if discovered by IFA, would never have been rectified and completed in any event.[10]These issues of liability and causation are further complicated by the fact that IFA contends that its terms of engagement include what is known as a net contribution clause. This is in the following terms:
“Our liability for loss or damage will be limited to the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you.”
[11]The effect of this clause is in issue. But if it has the meaning for which IFA contends, the Wests raise questions of whether it is fair and reasonable within the meaning of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999.[12]The claim is for a total sum in excess of £800,000. Mr Jonathan Selby, instructed by Hewitsons, appeared for the Wests, and Mr Richard Coplin, instructed by CMS Cameron McKenna, appeared for IFA.

No. 63 Deodar Road

[13]No. 63 was the left-hand house of a pair of semi-detached houses (viewed from the front). The front door was on the right-hand side of the ground floor and opened directly (through a small lobby) into a large room which, from the left hand side led on to a “galley” kitchen and from the right-hand side led on to the stairwell, where there were stairs leading down to the basement and up to the upper floors. Beyond the kitchen was a gallery which served as a dining area: this did not go all the way to the rear of the house but looked onto the floor below. On the first and second floors there were five bedrooms, together with three bathrooms. On the top floor there was a sun room, which gave onto a roof terrace.[14]At the front of the lower ground floor a room had been created out of an old cellar. A corridor from this room led, via a small lobby and stairs going down to a cellar, towards the rear of the house, passing a utility and boiler room, lavatory and the stairs up to the ground floor. At the rear, looking out onto the garden and then the river, was a large reception area, part of which was under the dining area and part of which was double height. This was extended into the garden for about three quarters of the width of the house by a two storey conservatory, beside which was a door leading into the garden. The floor of the conservatory and lower ground reception area was roughly at ground level, whereas at the front of the house the upper ground floor was slightly above ground level.[15]The Wests wanted to extend and replace the old conservatory with an elegant glazed box and to turn the existing reception area into a new kitchen and dining area. They wanted to keep the mezzanine arrangement but to open up the ground floor so as to remove the existing kitchen and turn the whole of the rear part of the ground floor area into a reception room.

Events leading up to the appointment of IFA

[16]Before the Wests purchased No 63 they had set their budget at about £1.8 million, that was about £1.5 million for the property and £300,000 for subsequent refurbishment. Mr West had a childhood friend who was an architect practising in London, Mr Daniel Wright. His firm was called Foundation Architecture. Mr West approached him for advice. In February 2005 they heard that No 63 was on the market for a price of just under £2 million and the Wests went to see it with Mr Wright. They noticed that in the front room in the lower ground floor, which had been the former cellar, there were signs of damp on the walls: there were two large areas where the plaster was peeling off the wall. They told Mr Wright that they wanted to replace the heating, plumbing and electrics throughout and to deal with any damp in the lower ground floor. In terms of alterations, they told Mr Wright that they wanted to open up the lower ground floor so as to create a large open plan area and to replace the existing conservatory with what Mr West described as a “sleek, minimalist “glass box” with a glass door opening straight out into the garden”. In addition, they wanted to remove the galley kitchen on the upper ground floor to create a larger living room and then to create a kitchen and dining area in the lower ground floor.[17]Mr West says that Mr Wright told them that this package of work would cost about £250,000. With hindsight, that proved to have been very over optimistic, but in the light of it the Wests decided to make an offer for the house.[18]The Wests continued to discuss the project with Mr Wright, including their proposal to lower the level of the entire lower ground floor to create more ceiling height - it was the implementation of this proposal which led to many of the subsequent problems in the lower ground floor. In April 2005 they appointed Anglia Building Surveying to carry out a survey, asking them to focus particularly on the need for damp proof works and the condition of the boiler and central heating. The report indicated that the property was generally in satisfactory repair, but that work was required urgently to overhaul or renew the central heating system and plumbing and, also, within the fairly near future, to deal with some rising damp in the basement.[19]On 15 April 2005 Mr West sent the survey to Mr Wright, and asked him to arrange for a damp proof specialist to visit the property. Mr Wright undertook to do this and confirmed that he would arrange for the specialist to check the whole of the lower ground floor to investigate the extent of tanking and check the walls for damp. Mr Wright apparently did this and, on 28 April 2005, he emailed Mrs West to say that the comments from the damp proof specialist were encouraging and that he would send them the report. In fact, he never did so. All that is known about the findings of the damp proof specialist is what Mrs West was told in the email. This was as follows:
“The damp specialist’s comments are encouraging in that very little work is recommended. The basement walls are dry (even in the unused room) and he proposes only localised use of waterproof render in problem areas such as the wall behind the door in the unused room that the plaster is falling from. . . . He’s going to write a report and post it to me asap so I’ll forward you a copy.”
[20]On 16 May 2005 Mr Wright advised the Wests to allow “upwards of £5,000 for localised tanking, plastering and making good” in the lower ground floor following the lowering of the floor slabs. A few days later the Wests exchanged contracts for No 63, their offer of £1.7 million having been accepted.[21]Mr Wright had also obtained various proposals from consultants, such as a quantity surveyor and a services engineer. Mr and Mrs West then put together the various estimates that they had received and this, to their horror, came to a figure of over £410,000. They discussed this with Mr Wright, whose reaction, which Mr West described as disconcerting, was that he thought that the costs would be even higher. It was at this point that relations between the Wests and Mr Wright began to sour and by the autumn of 2005 they decided to part company. By this time the Wests had still not received terms of engagement from Foundation Architecture and so there was a dispute about the amount of fees to which Foundation Architecture was entitled. At this point it is unnecessary to say any more beyond the fact that the Wests did not pay the amount demanded by Foundation Architecture because they considered that it had not done the amount of work that it claimed (in terms of achievement of the relevant RIBA fee stages). In addition, whether as a result of this dispute or for some other reason, Mr Wright never sent a report by the damp proof specialist to the Wests and, so far as I am aware, they never pressed him for it.[22]In the late autumn of 2005 the Wests met Mr Ian Finlay, to whom they had been introduced through a mutual acquaintance, in order to show him the house and to discuss what they could achieve within their budget. In his witness statement Mr West said that they met Mr Finlay on 4 November 2005 to discuss their original brief, and that at this meeting they emphasised their priorities again, which were “the fundamental damp, structural and services work which would only make sense to do “once” as part of this major renovation”. He said that they also showed Mr Finlay the damp patches in the cellar and lower ground hall - the latter having apparently appeared since they first saw the house.[23]At about the same time they received a quote from a design and build contractor who produced an estimate for their proposed works of about £640,000. He made it clear that in his view localised repairs would not be suitable as a method of treating the damp.[24]By this time the Wests had realised that they were going to have to increase the budget to £500,000, to include everything. Mr West said in his witness statement that Mr Finlay seemed quite optimistic about this budget and even suggested further ideas. By the end of November 2005, the Wests had decided to go with Mr Finlay. By this time they had showed him the basic floor plans produced by Foundation Architecture, and discussed with him what they liked and did not like about those proposals. Mr West says that they told Mr Finlay that they needed to sort out the damp and replace the entire M&E services, but that they would be prepared to leave some rooms fitted out as shells for completion later - but that was really a matter for Mr Finlay to consider.

The appointment of IFA and events leading up to the variation of IFA’s engagement

[25]In December 2005 the Wests supplied Mr Finlay with structural survey drawings produced by a firm of engineers, Trigram, which referred to “WATERTIGHT RC WALLS W/ (ASSUMED) INTERNAL TANKING TO THE ARCHITECT’S DETAILS”. During the rest of that month IFA continued to develop designs and plans in discussion with the Wests. At the same time Mr Finlay told the Wests that they would need to appoint an M&E consultant to design the new M&Eservices. Mr Finlay recommended a Mr Steve Elphick, of SEA. Mr Elphick produced proposals which included a fee of £3,500 for the full design of the services and the production of tender documentation, with additional services such as site visits, to be charged at an agreed fee per visit.[26]Mr Finlay told the Wests that he thought that SEA’s design charge was reasonable, but that his other proposals were too expensive and would probably not be necessary. Mrs West subsequently wrote to Mr Elphick by email accepting his quotation for the design, but saying that they would review the question of site supervision with Mr Finlay in due course. In an email to her husband at the same time, she said that the last part of her email to Mr Elphick about site supervision was written on the advice of Mr Finlay. I did not understand this to be disputed.[27]On 27 January 2006 the Wests had a further meeting with Mr Finlay at which they discussed the plans and also costs. At about this time Mr Finlay provided the Wests with detailed costs that he had obtained from a quantity surveyor, which came in well over budget at a figure approaching £650,000, excluding fees. These proposals did not include any provision for tanking of the lower ground floor. Otherwise, it included, as Mr West put it, their complete “wish list”.[28]On 7 February 2006 the Wests met Mr Finlay again and agreed the fee for his engagement at 8% of the construction cost. This was in addition to £2,000 for his preliminary work and assessments. By this time Mr Finlay had met representatives of the companies who were to provide the “glass box” and a new staircase.[29]This led to IFA’s formal engagement which was signed by both parties on about 11 February 2006. It was for the provision of normal architectural services as set out in the RIBA Conditions, together with limited cost advice (not amounting to a normal quantity surveying service). It stated that it would be necessary for the Wests to employ a consulting engineer and a consulting services engineer. The fees were stated to include twice weekly visits to the site “in connection with administering the Building contract”.[30]The third page of the document contained the conditions of appointment, which ran to 5 paragraphs. The first of these said that the attached Conditions of Appointment for Small Works would apply: these ran to 4 pages. The second paragraph of the conditions of appointment was in these terms:
“We confirm that we maintain professional indemnity insurance cover of £1,000,000.00 in respect of any one event. This will be the maximum limit of our liability to you arising out of this Agreement. Any such liability will expire after 6 years from conclusion of our appointment or (if earlier) practical completion of the construction of the Project. Our liability for loss or damage will be limited to the amount that it is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you.”
[31]It is common ground that Mr Finlay took no steps to explain what this paragraph meant, if, indeed, he understood it himself. In answer to a question from the court he said that he did not think that this was a clause limiting his liability, although when it was pointed out to him that the £1 million limit was not much over half the cost of the house, he accepted that there could be circumstances in which the clause might limit his liability to his client. Mr West said in his witness statement that he and his wife did not consider this clause at the time and therefore did not appreciate its effect. I will deal with this evidence and the effect of this clause in a separate part of this judgment. It is not in dispute that the terms of this clause had not been negotiated between the parties.[32]In mid March 2006 IFA put the work out to tender. The Wests were looking for a contract sum from the contractor of about £300,000, which was to exclude the kitchen, the conservatory and some of the bathrooms. Four tenders were received. Two were excluded as being too expensive, and the two cheapest were either a little above or a little below £560,000. The Wests asked Mr Finlay to look at the tenders again in order to see what might be excluded with a view to bringing the price closer to the Wests’ budget. At about this time Mr Finlay suggested that the tender documents should be sent to another contractor, Maurice Armour (Contracts) Ltd (“Armour”). Apparently Mr Armour had approached Mr Finlay a little earlier asking if he knew of any work that might be available. Mr Finlay said, and I accept, that Armour had worked with Mr Finlay on several projects in the past.[33]In May 2006 Armour’s tender came in with a price of just over £370,000 and a programme of 26 weeks. So far as the Wests were concerned, this was much more encouraging. Mr Finlay then managed to delete items with a total value of about £110,000, which left a revised contract price of just over £260,000. This had been done by taking further items outside the contractor’s package, such as wood floors, decorating, sanitary ware, tiling, glass balustrades and so on. This way, these items would not attract the contractor’s overhead and profit.[34]Armour had been described to the Wests as a “dirty builder”, meaning, I assume, that his site housekeeping was not good. However, Mr West said that they were assured by Mr Finlay that Armour would be fine. This is evidence that I readily accept, since it was clear from Mr Finlay’s evidence that at that stage he had considerable confidence in Armour. At the end of May 2006 the Wests met Mr Armour with Mr Finlay and Mr West says that they were satisfied with his responses to their questions. Mr West said that they even asked Mr Armour what his opinion was on the damp in the cellar.[35]Encouraged by the outcome of this meeting the Wests agreed to engage Armour as the main contractor. IFA prepared the contractual documentation. One allegation made by the Wests is that Mr Finlay did not recommend the “With Design” variant of the form, which not only imposed specific design obligations on the contractor but also required him to have professional indemnity insurance to cover that aspect of his work.[36]On about 19 June 2006 Armour entered into possession of the site to start the strip out works. It appears that by then Mr Finlay had prepared the contract documents and had agreed a contract price of £292,600 with Armour, although the contract documents had not been signed. In early July the Wests received the contract documents and were surprised to see that the price was not the £260,000 odd that they thought they had agreed. However, at some point they signed the final page of the Schedule of Works which showed the contract price of £292,600. At about the same time as the Wests received the contract documents, Armour sent in his first invoice. This prompted a query from Mr West about the central heating costs. He told Mr Finlay in an email dated 6 July 2006 that he had just received the invoice and would like to pay immediately but wanted an answer on these costs before he did so. Mr Finlay replied the following day to say that he had talked this through with Armour, his quantity surveyor and with Mr Elphick. He said that Armour did not see why he should make any reduction; the quantity surveyor thought that Armour’s price was reasonable and Mr Elphick thought that Armour’s price was on the cheap side. Mr Finlay went on as follows:
“My own view is that its (sic) reasonable (in the 20 or so years I’ve worked with Armour he has never been a “bandit” price-wise) and he has overall delivered a price substantially cheaper than others, and that his price should be accepted. In all my dealings with Armour he has never been motivated by greed but rather an honest payment for an honest endeavour. . . . You should accept his price and pay the first certificate; delayed payment would send out a bad message and from a purely practical point of view it would have a bad effect on his cash flow which would lead to an inevitable slowing of progress . . . ”
[37]Mr West replied to this email on 10 July 2006 in the following terms:
“I’ve paid Armour’s invoice in the interests of sending a good message to him. However, as your client I’m extremely unimpressed with the way that both of you have handled this, notwithstanding your comments about “bandits”
. We sat down with you for hours at the start of June, trying to slice out work to get back to the project budget of £500k. We removed almost every item of work that could conceivably wait till later, even small things, & Carol and I spent a weekend stripping the house to save a bit more. We also lowered the spec of the heating system, despite Elphick’s reservations, in the promise of saving another £5k or so, & only reintroduced underfloor heating in the master bed/bath and family bath because (a) there was no way to fit radiators in the master suite & (b) you told us the cost implication would be minimal. The agreed contract sum was just over £260k, & we expected to see that sum in the final contract. The actual contract sent to us is over £290k. No one seemed to think it was worth informing us of the changes or rise before the contract was signed by Armour & work began, even though we said over & over again that we wanted to agree everything up front to avoid arguments like this later. I don’t really care if Armour & the QS think the new price is reasonable - it is clear from the tender process that people’s ideas of “reasonable” can differ by several £100k, and that’s just within London - the point is that it is £30k (+ VAT) more than the price we agreed. Are you seriously telling me that the u/floor heating in the master suite & family bathroom costs £10k MORE than the radiator system?”[38]Pausing there, this email is revealing for two reasons. First, it shows that the Wests kept a very close eye on what was going on and were not reluctant to intervene in fairly forceful terms when they saw fit. Second, whilst the Wests may well have been justified in complaining about the increase in the contract sum, of which it seems they had not been adequately forewarned, Mr West’s response reveals a somewhat hard approach towards the contractor on this domestic project. The process of excluding items from the scope of Armour’s contract meant that the contractor’s profit on the job was being steadily reduced whilst, at the same time, the Wests remained committed to, for example, a very expensive kitchen costing well in excess of £30,000. In the context of a domestic building contract, the emotional commitment of the employer is invariably high and so the demands on the contractor and architect are correspondingly increased: the maintenance of good relations between employer, architect and builder is therefore crucial.[39]Whilst the Wests’ approach may have been justifiable from a purely commercial point of view, I suspect that it may have laid much of the ground for what followed. Three emails sent by Mr Finlay in the latter part of July 2006 show the extent to which relations between the Wests and IFA had deteriorated by the end of that month. The first, dated 19 July 2006, was to Armour and contained the following passage:
“Can you itemise any extras so far + put a cost against them so I can issue any necessary architect instructions + so that fancy pants knows what his ongoing costs are.”
[40]The same day, Mr Finlay sent an email to Spiral Stairs, who were being approached in relation to the provision of the new stairs leading down to the lower ground floor, which was in the following terms:
“. . . the client has had to downscale because of cost: so that I need a stair with a glass balustrade for about £7k (fitted) apart from die laughing what (if anything) can you guys offer?”
[41]Two days later, on 21 July 2006, Mr Finlay sent an email to Mr Elphick about a meeting with Armour’s plumber in order to finalise the plumbing design. This contained the following passage:
“. . . (West is on the warpath and is unconcerned where the excrement lands that he is threatening to throw). We need to be all singing from the same hymnsheet and not indulging in “after you Claude”
. Hopefully this meeting will clarify and engender confidence in each other so that Wests huffing is neutralised and the job can be done in a calm and sensible atmosphere. ” Whilst these messages reveal that Mr Finlay had begun to form a jaundiced view of Mr West, the last of them shows that he was still prepared to see the project through to completion in a professional manner.[42]On 2 August 2006 Mr Finlay wrote to Mr West to say that he wanted to change his fee agreement to reflect the fact that he was having to work with a number of specialist contractors, as well as with Armour. In this letter he said:
“Six (or more) weeks ago I raised the question of fee structure with you, simply because the nature of the implementation of the project has substantially changed since the percentage fee agreement was made: this type of agreement is predicated on a “simple” one-stop shop type of building contract with a single contractor being responsible for all work including any specialist sub-contractors. Now however, for reasons we are all aware of, the method for achieving the completed construction has changed to a multi-headed beast of several contractors all with individual contracts with yourselves. This leads to potentially much more organisation for both the “shell” contractor (Armour) and the architect/contract administrator (me). There is a provisional sum in Armour’s contract to cover possible expense in this regard: it may never be used. As for myself it would be reasonable to negotiate individual percentage fee agreements with you for all of the various contracts: and as these are relatively small amounts of money (each) a high percentage per contract is what the RIBA recommends. However, as I touched on some weeks ago, bearing in mind your financial targets, I feel it is more reasonable to revert to a time/hourly charge: so that I would only charge for direct input with any of your contractors, including Armour. You must also be aware that my fees are based around a construction cost of £310,000-00 and that figure reflects the level of my professional indemnity to you (currently a “shell” contract of roughly £290K plus £20k slack). If for example you wish (as seems to be the case) for me to be actively (ie professionally) involved in the signing off of the Glasspace installation this accrues a level of risk/indemnity and would need a fee to reflect that. We need to iron little glitches like this so that we’re all comfortable with the outcome: I suggest that we do this at our next site meeting (? tues 15th Aug?) ”
[43]Mr West replied on 10 August 2006 in the following terms:
“We do not agree that the nature of the project has changed substantially since we signed a contract with you in February. We agreed a fee of 8% for the standard RIBA schedule of services including coordination of consultants, specialists and suppliers and project managing all works to completion. Therefore, we are at a loss as to why you would suggest an extra time fee for dealing with the Armour, Elphick & co - particularly when the liaison with Elphick has not gone at all well. We agreed from the beginning that key aspects e.g. kitchen and glass extension would be undertaken by separate contractors with no architect’s or contractor’s fees on top. Some further small items such as flooring & supply of fittings/sanitaryware have been given to specialists for reasons of cost, but this has been discussed/suggested by you over the past months without your ever mentioning extra fees, & indeed most of the work to find suitable fittings, negotiate prices, etc. has fallen to us. We agreed this with Armour at our meeting before his tender was accepted. Also, as you say, your fees have all been based on a contract of £310K whereas the current version is around £290K (and intended to be around £265K), so there is already slack built in. Re GlasSpace our original agreement confirmed your indemnity insurance of £1M, with liability limited to “the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you”, and that is still the case - GlasSpace provide their own warranty, and we are simply asking you as project manager and “independent arbiter” to confirm when the work has been completed & we should release the 5% retainer to GlasSpace.”
[44]By a further letter dated 31 August 2006 Mr West confirmed that he and his wife agreed with IFA’s suggestion of drawing a line after invoice 1356 and thereafter moving to a time charge, but proposing a cap on the fees charged on this basis of £9,000 plus VAT. This letter brought the correspondence about IFA’s terms of engagement to a conclusion.

The dispute and the issues

[45]As the Wests put it in their opening submissions, there are three major issues which form the backdrop to this claim:(1) The allegation that IFA failed to specify any adequate damp-proofing measures for the lower ground floor with the result that, shortly after the Wests returned to the property, widespread damp was discovered in the lower ground floor. This meant that the lower ground floor had to be “gutted” to enable proper damp-proofing measures to be applied and all the refurbishment work to the lower ground floor had to be carried out a second time (although the conservatory was retained). In addition, the new kitchen units became irretrievably damaged by damp.(2) The quality of the M&E work carried out by Armour: it is the Wests’ case that this was so poor throughout that it had to be ripped out and replaced.(3) The quality of the concrete slab installed by Armour in the kitchen/dining area. The Wests allege that this did not comply with the structural engineer’s drawings with the result that, once the lower ground floor had been gutted to permit the damp-proofing measures to be installed, the kitchen/dining area slab had to be broken out and replaced.[46]In addition, there are four other aspects of the work that are the subject of complaint by the Wests, although the financial implications of these are comparatively minor when set against the three major problems set out above. These are as follows:(1) The conservatory slab was not approved by the local authority Building Control and was incorrectly installed: this led to a lengthy process of negotiation with the local authority, and excavation for inspection, to enable the conservatory slab to be “signed off” so that the appropriate Building Regulations certificate could be issued.(2) IFA failed to carry out certain other steps to ensure that Building Control approval was granted in connection with the refurbishment works.(3) IFA failed to allow for a suitable ventilation scheme in the ground/lower ground floor area.(4) The new glazed upstand to the balcony on the first floor terrace (in front of the study) left large gaps through which children could fall and other areas of railing over which a small child could climb.[47]Put in rather more precise terms, the principal issues in the case in relation to liability and causation can be summarised as follows:(1) Did IFA give the Wests appropriate advice in relation to damp proofing treatment to the lower ground floor? What advice would he have given if the matter had been addressed, and would that advice have been adequate? If such advice had been that the only way to prevent future ingress of moisture consequent upon a change of ground water levels was tanking the lower ground floor to the full height of the walls, would the Wests have accepted it and been prepared to pay for the costs of it?(2) If such advice had been given and followed, what credit against the claim should be given for this?(3) If IFA could properly have given different advice, would the Wests have accepted it? If so, what would have been the financial consequences?(4) Since it is common ground that the waterproofing to the lower ground floor slab as installed was not adequate to prevent the ingress of moisture, was this the result of a defective design by IFA or any failure of IFA to inspect the work properly whilst it was being carried out?(5) Was IFA responsible for the damp penetration in the walls of the lower ground floor in the areas where services had been installed or had entry points?(6) Were the kitchen units or any of them already unfit for reuse by reason of the presence of mould when they were taken down? If not, was the damage consequent upon the storage of the units in the house damage for which IFA is liable?(7) Is IFA liable for the defects in the construction of the lower ground floor slab?(8) Should IFA have advised the Wests that the contract should be on a standard form that provided for contractor’s design?(9) Should IFA have taken proper steps to ensure that the M&E design drawings and calculations were checked by SEA?(10) Did IFA fall below the standards of a reasonably competent architect when inspecting the work during his visits and, if so, should he have noticed defects in (a) the mechanical services installation and/or (b) the electrical installation?(11) If yes, when should IFA have noticed the defects and what steps should a competent architect have taken thereafter?(12) If IFA had acted with the care and skill of a reasonably competent architect would the mechanical services installation and the electrical installation have been properly carried out? If so, would there have been any resultant delay in the completion of the works?(13) Did IFA take proper steps to ensure that Building Control approval was granted in connection with the refurbishment works?(14) Did IFA fail to make proper provision for suitable ventilation in the ground/lower ground floor area?(15) Was IFA in breach of duty in designing the glass barrier to the roof terrace such that there were gaps between the new barrier and the existing iron railing and/or in respect of the retention of the existing iron railing? If so, what loss did this cause?(16) If IFA is liable to the Wests, is the recoverable loss limited to the costs wasted by entering into the contract with Armour?(17) Was the loss caused by the delay in deciding upon the appropriate method of damp proofing the lower ground floor one for which, subject to issues (1) - (3) above, IFA can be liable?(18) Did any of the additions or variations to the remedial works that were not caused by any need to rectify the defects for which IFA is liable prolong the time taken to carry out those works?(19) If so, and if the Wests were advised at the time of instructing such additional or varied works that they would not be expected to delay the remedial works, is any such delay that in fact occurred a loss for which IFA can be liable?(20) Was the net contribution clause a term of IFA’s engagement, either initially or following the variation in August 2006? If so, what is its effect?[48]There is also a raft of issues in relation to quantum. I will deal with these in a separate section of this judgment.[49]In the next part of this judgment I shall take the various liability issues in turn, but before doing so it may be convenient to identify the witnesses who gave evidence and to summarise my views of the evidence that they gave. The witnesses Stephen West

The witnesses

[50]Stephen West has a D Phil in theoretical physics. His first degree was also at Oxford, where he read physics. In January 2006 he was appointed Managing Director of the Global Modelling and Analytics Group of Credit Suisse. There were about 40 people in the teams for which he had responsibility. Since he is not practising in the field of his doctorate, he refers to himself as Mr West. He married his wife, Carol, in August 2004 and they lived in a two bedroom flat in Limehouse, near Canary Wharf. Their eldest son, Jacob, was born on 11 January 2007. Their second son, Harry, was born on 29 November 2008.[51]As his background would indicate, Mr West is a highly intelligent man and he has a very good eye for detail. It is unfortunate that the Wests were initially led to believe that they could carry out the works that they wished to do at No 63 for a sum in the region of £250,000. This was a completely unrealistic figure. However, by the time they met Mr Finlay the budget had increased to £500,000. Even so, this was not a generous amount given their expectations. Whilst they wanted to have the elegant glazed extension to the rear of the house and a high end kitchen from Pedini, they took a completely different attitude to base building costs which they were determined to drive down wherever possible. They were, I have no doubt, difficult and demanding clients and I consider that there is some force in Mr Finlay’s complaint that Mr West was determined to micro manage the project.[52]However, on the whole I found Mr West to be an impressive witness. With one exception, I find that his memory of the events of 2005 to 2009 was good, no doubt assisted by the fact that he had obviously prepared himself carefully for the trial. I thought that he was an honest witness and he was prepared to make concessions where the occasion demanded. However, I consider that his recollection about asking Mr Finlay for advice about the damp in the lower ground floor is not entirely correct - an important point which I address in more detail later in this judgment.[53]He was cross examined robustly about the extent of the remedial works and the consequent claim against IFA. He said that before instructing any variation or addition to the remedial works to include work that went beyond rectification of the original defects, the Wests were careful to satisfy themselves that the proposed additional or varied work would not prolong the length of the remedial works. On this I accept his evidence, as I do generally, since it is largely supported by the contemporaneous documents. However, Mr West was also insistent that if, for some reason, the additional or varied work did result in delay to the completion of the remedial works - perhaps because, as he put it, one contractor tripped over another - the loss caused by the delay should still be recoverable from IFA. He took the view that where he had satisfied himself on advice that carrying out an additional piece of work would not affect the completion date, if for some reason it did, then that was a loss which he could recover from IFA.[54]Whether, in relation to any particular addition or variation, he is right or wrong about that is in my judgment a matter for the court; I do not regard it as a ground for criticising Mr West. The subtleties of concepts such as intervening events, remoteness of damage and scope of duty are not ones that are eagerly embraced by the non-legal mind. Many people who are the victim of a breach of duty, and who then act reasonably thereafter, tend to see all the mishaps which follow as the responsibility of the original tortfeasor. Carol West[55]Carol West also has a doctorate. Hers is in developmental neuroscience, before which she had obtained a first class degree in biochemistry. She is an academic and ran a research laboratory at University College London. She practices as Dr Irving, her maiden name, and in these proceedings she has been variously referred to as Dr West, Mrs West and Dr Irving. Without intending any disrespect I shall, for the sake of clarity, refer to her throughout as Mrs West or Carol West.[56]Mrs West was not subjected to a sustained cross examination, and the only real challenge to her evidence was in relation to the storage of the kitchen. Being a microbiologist, she was all too well aware of the relevance of finding mould on part of a kitchen unit that was probably made of wood (or some form of wood composite). Whilst she accepted that there was always a possibility that when the kitchen was finally unwrapped after storage the mould might have disappeared, she said that, as a scientist, she understood how unlikely that would be. She explained that once fungal spores penetrate into the wood, they cannot be removed by wiping over the surface with bleach. She found herself frustrated by this because, as she said, she had been “bashing on” for weeks and weeks that the kitchen units should be taken off the wall so that they could be stored in safety. Ian Finlay[57]Ian Finlay is a practising architect with some 40 years’ experience. He has a first class degree in architecture. He is the sole principal in IFA, although he has two CAD (computer aided design) draughtsmen to assist him. His practice is solely concerned with residential properties, and he deals with everything from small loft conversions to substantial refurbishment projects with a value of up to about £750,000. He generally had about five or six projects, sometimes more, on the go at any one time.[58]I did not find Mr Finlay to be a very reliable witness. There were errors, both in the Defence served on his behalf and in his witness statement, that should not have been made. I will take two examples. First, in the Defence it was alleged that a drawing, sketch No. 928/SK100 which showed the slab perimeter waterproofing joint details, had been provided to the contractor on site, when this was clearly not the case. It emerged in the course of the evidence that this sketch, and a revised version of it, 928/SK100 A, had both been produced in October 2007 - well after the relevant events - in response to questions raised by Hewitsons, the solicitors instructed by the Wests.[59]Second, at paragraph 17 of his witness statement, Mr Finlay said this:
“Whilst it is always preferable to have a mechanical and electrical engineer appointed in respect of the project as a whole, if the Wests did not want to commit to appointing SEA at this stage, I did not consider this to be a problem; I understood that the contractor, Maurice Armour, would be appointing competent plumbers and electricians to work on the project and was aware of the Wests budgetary constraints.”
[60]The last part of this paragraph was simply untrue. The point in time to which Mr Finlay was referring in the first part of the paragraph was January 2006. At this stage the shortlist of potential tenderers had not been prepared and, in any event, Armour was not on it. As Mr Finlay explained later in his witness statement, Armour first appeared on the scene in April or May 2006. Accordingly, there was no way in which the unanticipated appointment of Armour in May 2006 could possibly have affected a decision taken in January 2006 in relation to the appointment of a services engineer to inspect the works.[61]Mr Finlay’s recollection of the events of 2005 and 2006 was poor. The same must be said of his record keeping: it is apparent from the contemporaneous documents that Mr Finlay did not regularly keep records of matters such as the issue of drawings. In relation to sketch No. 928/SK100, which Mr Finlay accepted had not been produced at the time, Mr Finlay said that he discussed the relevant detail with the contractor on site and prepared a rough drawing showing the detail, which he drew both on a piece of paper which he gave to the contractor on site and also on a wall in the lower ground floor. However, there is no copy of that drawing or any contemporaneous record of its issue. Nevertheless, I am prepared to accept in principle that this happened. What I am not prepared to accept is that the detail shown on the drawing that Mr Finlay prepared at the time was in all relevant respects the same as the detail shown in SK 928/100: there is no certain way of knowing precisely what the contemporaneous sketch showed.[62]I do not consider that Mr Finlay was in general an untruthful witness, but there was at least one occasion in his evidence where his answers were unquestionably untrue. This was in relation to the applications for payment made by the contractor and Mr Finlay’s valuation of them. Armour made applications for payment at fortnightly intervals which were then valued by Mr Finlay. He would then issue a Certificate for Payment, which consisted of a single piece of paper, which would be sent to the Wests and to Armour. As is usual with such certificates, it stated the valuation date and the amount due, but it did not disclose the amount which had been applied for by the contractor or the date on which that application had been submitted. The questions proceeded on the assumption that the valuation date was the date on which Mr Finlay valued the application, rather than the date on which the application itself was based. Mr Finlay did not dissent from this.[63]An analysis of these certificates showed that on at least six occasions the valuation date shown on the certificate was earlier than the date of Armour’s application. When asked about this in relation to the first two certificates, Mr Finlay suggested that it must have been an error caused by cutting and pasting from one document into another. Mr Finlay was then taken to the second certificate, which was issued on 18 July 2006 and gave the valuation date as 14 July 2006 although the application was not made until 17 July 2006. This demonstrated that his answer was not even plausible on its face, since the previous certificate showed the valuation date as 3 July 2006. If Mr Finlay had copied the earlier document and used it as the basis for the later one but failed to alter the valuation date, one would have expected the latter to show the valuation date again as 3 July 2006 - not 14 July 2006.[64]When confronted with this difficulty, Mr Finlay could only suggest that the mistakes were the result of computer ineptitude or clumsy typing. I did not find any of these answers credible. Every single one of the applications submitted by Armour was certified by Mr Finlay in the full amount applied for. I strongly suspect that the reason why Mr Finlay backdated the valuation dates on some of the certificates was so that it would not appear to the Wests that on some occasions he was valuing the application on the very day that he received it, which might have suggested to them that he was simply rubber stamping Armour’s applications and not valuing them at all. He could do this because the Wests did not see copies of Armour’s applications.[65]There is one other incident about which Mr Finlay’s credibility was put seriously in issue. It is alleged by Mr West there was to be a handover meeting on 4 May 2007, the date on which, according to Mr West, it had been agreed that they would move into the property. Some support for this is found in an email from Mr West to Mr Finlay dated 2 May 2007, following a meeting at the property in the previous evening, in which he set out a long list of matters that required attention and then concluded with the words “Confirmed handover on Friday - many thanks”. However, it may be that Mr Finlay and Mr Armour had merely agreed that the Wests could move into the property on 4 May 2007, rather than that there should be an actual meeting on that day. For his part, Mr West may have assumed that if there was to be a handover, Mr Finlay and Mr Armour would be present.[66]Mr West’s evidence was that when he went to the site for the expected meeting, neither Mr Finlay nor Mr Armour was there; the only person he found was Armour’s foreman.[67]Mr Finlay said, both in his witness statement and in evidence (Day 5/110), that he went to the site that morning but Mr West was not there, although he did see the foreman. He said that he arrived at the site at about midday, stayed for 20 minutes or so and then left. The following day Mr Finlay sent an email to Mr West, timed at 9:02 am, which was in the following terms:
“Am off on annual leave as of Tues 8th until Mon 21st. Maurice is capable of dealing with remaining issues over the next couple of weeks. (He knows about my absence and I’ve discussed matters with him) Stephen Elphick is dealing with the radiator issue and will be in contact very shortly. I will look forward to speaking to you on the 21st/22nd. Ian”
Ian”[68]In the circumstances I find it very surprising that in this email Mr Finlay made no reference to the fact that he had been to the house the previous day for the meeting that had been arranged and had not found Mr West there. He said that he was not best pleased, and when I asked him why he had said nothing about it in the email he was unable to give me any satisfactory reason. What he said was: “it is a bit like having your hand slapped lots of times and in the end you tend to withdraw from confrontation” (Day 5/111).[69]It seems very unlikely that Mr Finlay did in fact go to the property at any time that morning, because at 11:51 am he sent an email to a company called Eagle in relation to lock locaters, which concluded with the words:
“If further info is required please let me know soonest”
. However, he did not give his mobile number (and it was not on the printed text of the message), which he might have been expected to do if he was about to go out for the afternoon. He said that his office was about 20 minutes’ drive from the property, so if the timing of this email is accurate, he could not have been there before 12:15 at the earliest.[70]There is also a copy of an e-mail from Mr West to Eagle dated 4 May 2007, timed at 14:03, in which he wrote “I am leaving the office now but will be on my phone all afternoon”. This strongly suggests that, at least so far as Mr West was concerned, no handover meeting had been arranged for that morning, but that there could have been one arranged for that afternoon. It is certainly consistent with his going to the house that afternoon.[71]I did not get the impression that Mr Finlay was lying about having been to the house that day, but the contents of these documents would suggest that he did not go as he said he did. It is reasonably clear from his email earlier that afternoon that Mr West thought that the meeting, if there was to be one, had been fixed for later that afternoon. It is therefore possible that Mr Finlay did go to the property shortly after midday but had left before Mr West arrived. But if that had happened, when Mr West arrived the foreman would surely have told him that Mr Finlay had been there earlier that afternoon and had just left. In these circumstances I would not expect Mr West to have accused Mr Finlay (and Mr Armour) of failing to turn up to the meeting on that day, which is what he did in an e-mail dated 15 May 2007.[72]Taking the evidence as a whole, I consider that it is reasonably clear that Mr West thought that a handover meeting had been arranged for the afternoon of 4 May 2007 and that he went to the house that day, probably arriving at some time after 3 pm. It is possible that Mr Finlay went to the house, arriving at about 12:30 pm or thereabouts, stayed for 20 minutes or so and then left. However, I think that it is much more likely that neither Mr Finlay nor Mr Armour thought that a meeting had been arranged for the afternoon of 4 May 2007, with the result that neither of them went to the property that day. This provides a much more plausible explanation for the absence of any reference to the meeting in Mr Finlay’s email of 5 May 2007.[73]Mr Finlay’s recollection of events being as poor as it is, I consider that it is very likely that he has no recollection of going to the house on 4 May 2007 one way or the other. In my view it is quite possible that during the intervening five years he has persuaded himself that he did go to the house that day, and that this is why he gave the evidence that he did. But even though I am not prepared to find that Mr Finlay’s evidence on this point was given dishonestly, it leaves me even less inclined to accept his evidence about what happened during the project unless that evidence is corroborated by the contemporaneous documents or the inherent likelihood of events. Elizabeth Tooth[74]Ms Tooth was the expert architect instructed on the half of the Wests. She wrote two reports, one written in November 2009 and the other in August 2012. Her reports were comprehensive, if a little convoluted. She came across as a witness who knew what she was talking about and I thought that she gave evidence reasonably objectively. My only reservation about her evidence was that I found her approach to be a little academic and over strict. However, her evidence was not shaken in any material respect in cross examination and, save where I indicate otherwise, I accept it. Christopher Fleming-Jones[75]Mr Fleming-Jones was a Senior Architect employed by Saunders Boston, the firm for which Ms Tooth also worked. He had been a practising architect for 36 years. He became the project architect for the remedial works in about March 2008, by which time the strip out works were already in progress.[76]Mr Fleming-Jones struck me as a straightforward witness upon whose evidence the court could rely. He was asked about the laying of the replacement floor slabs during the remedial works and, in particular, what steps he had taken to observe that work being carried out. As it turned out, he was unable to be present and so he contacted the structural engineer who, too, was not able to attend. He therefore asked Mr West, who was on site at the time, to take photographs of the pouring of the concrete. Mr Fleming-Jones said that he did not check the delivery note for the concrete in order to make sure that it corresponded with the mix that had been specified.[77]Mr Fleming-Jones said that the need to investigate the condition of the floor slabs laid by Armour did have some effect on the timing of the remedial works, although he said that the whole tender process did not run as it should have done because some of the contractors approached declined to tender and there were problems with others. It was his opinion that the contract period was not extended by the additional work requested by the Wests that was over and above the required remedial work. He said that he thought most of the house needed redecoration because of all the mess and dust created during the remedial works. Paul Carter[78]Mr Carter has worked as a surveyor in the building preservation industry since 1983, having completed an apprenticeship in structural waterproofing. He is a certified Remedial Damp proofing Surveyor, a qualification recognised by the British Chemical Damp Course Association (as it was then known). In 1998 he was elected to the Board of Directors of the Institute of Remedial Treatment Surveyors (now called the Institute of Specialist Surveyors and Engineers). He was then currently a co-director of a company called TASC Associates Ltd which provides services in the field of training and education of new employees in the building preservation industry. In short, he is clearly very well qualified to inspect and report on the damp proofing of buildings.[79]Mr Carter was instructed in July 2007 and he carried out an initial survey of the property on 25 July 2007 at a time when the Wests were still living in it. In those circumstances he was able to carry out a visual inspection only. On that occasion he reported that there were signs of water ingress and damp staining to the front wall of the games room (in the recess at the front of the house) and around the area where the mains water service entered the building. In the lower ground floor hallway he found excessive moisture readings in an area of the wall where the plaster had been removed. In the kitchen/dining area various small sections of the plaster had been removed and high moisture readings were obtained in those places. He said that in several areas visible damp/salt staining was evident, with blistering of the painted finishes.[80]Mr Carter visited the property again in December 2007, after the Wests had moved out, when various areas of the walls had been exposed so that he was able to carry out a more thorough investigation. By way of example, his description of the condition of the lower ground floor kitchen/dining area was as follows:
“Wall composition - varies in density of render. Visible assessment of sand to cement ratio is from 3:1 to 8:1 with stronger mixes over weaker. In between layers of gypsum trapped. Structure still not adequately exposed. Visible dampness to masonry. Poor mortar joint composition. Render layers - there has (sic) been various render/finish coat applications applied over existing render/finish coat applications. Plasters also applied directly over painted finishes.”
Plasters also applied directly over painted finishes.”[81]Mr Carter then produced expert reports in August 2008 and August 2012. In addition, he participated in the discussions between the expert architects and contributed to their joint statement. He struck me as an authoritative witness who knew what he was doing and I formed the impression that his evidence was given entirely objectively. He was not cross-examined at great length and the major area of challenge was the extent to which the render and finishes on the walls to the lower ground floor had been removed and replaced by the original contractor, Armour, in 2006. Mr Carter accepted that it could not be assumed that all of the original render had been removed by Armour. Subject to this point, Mr Carter’s conclusions were broadly supported by other material before the court and, save where I specifically indicate otherwise, I accept his evidence. Alexander Fleming[82]Mr Fleming has been a partner in William J Marshall & Partners since 2006. He has nearly 40 years’ experience as a practising architect. I thought that Mr Fleming was, on the whole, an impressive witness. However, he had not visited the property until very shortly before the trial and so he did not have the advantage of seeing the property before the remedial works were carried out. His views on the state of the property in 2006 and 2007 were based on contemporaneous reports by other experts who had visited it but did not give evidence. Although he gave evidence with authority, I consider that his evidence must be approached with the reservation that he had no first-hand experience of seeing the basement of No 63 prior to the remedial work.[83]He had devised a remedial scheme which involved exposing the perimeter of the slab and effectively extending the existing membrane up the walls. He accepted that this scheme would not provide adequate protection against hydrostatic pressure, but only against the migration of moisture. It was his view that this was an acceptable risk given the location of this property and the local conditions. However, he readily accepted that this was a risk that would have had to be discussed with the client so that an informed decision could be taken by the client as to whether or not to accept it.[84]I have to say that I do have some reservations about Mr Fleming’s scheme, even accepting his qualification about the risk, because it does seem to me that it would be very heavily dependent on the quality of the contractor’s workmanship and there is contemporaneous evidence that suggests that the membrane was not installed in accordance with the original specification. If this was the position, as I consider it probably was, then the risks inherent in adopting Mr Fleming’s scheme would have been even greater. However, his assessment of the state of the property in 2006 in the light of the information then available to the Wests was cogent and merits careful consideration. Colin Topp[85]Mr Topp obtained a City & Guilds Advanced Craft Certificate in London Institute Plumber’s Work in 1973. He was a registered plumber and licensed by Corgi. For five years earlier in his career he was employed as a plumbing project engineer and then he progressed to the role of senior building services engineer. From 1997 he has been the principal of his own practice.[86]Mr Topp struck me as a man who knew exactly what he was talking about, and his evidence was given with authority. His evidence was not shaken in spite of a lengthy cross-examination. I was impressed by his evidence and I accept it without reservation. Peter Welch[87]Mr Welch is the Group Commercial Director of WSP Group Limited, a position that he has held since 2000. He is a chartered engineer with nearly 40 years’ experience in the mechanical services industry. He started his career as a mechanical design engineer and he is not a trained plumber. The principal difficulty facing Mr Welch, which was not of his making, was that he was not instructed until February 2012. Accordingly, he did not have the opportunity to see the original work after it had been exposed and of course he did not visit the site during the remedial works.[88]It seemed to me that Mr Welch adopted a rather negative approach to his role and I did not derive a great deal of assistance from his evidence. He was a little inclined to make points that tended to favour his client even though they were not relevant in the circumstances of this case. For example, in the schedule setting out the points of agreement and disagreement between the mechanical services experts, in relation to the defect “No insulation to heating pipework”, Mr Welch said:
“PJW has seen no evidence that the services specification was provided to the Architect and does not consider it reasonable to suggest that an Architect should read or would understand a services specification. An Architect would not necessarily have been aware that thermal insulation of hot and cold water pipe was a specification requirement in this dwelling.”
[89]However, Mr Welch acknowledged in his report that he had read the witness statement of Mr Finlay in which the latter said, at paragraph 63:
“. . . On 25 October 2006 I received an email from SEA in which Stephen Elphick warned that the plumber did not seem to be up to speed, and was “trying to wriggle out of insulating the pipework under the floorboards”, despite the fact that this was included in SEA’s specification. Stephen Elphick requested that I discuss this with Maurice Armour, at the next site visit and I then told Maurice Armour to tell his plumber to insulate the pipework in line with the specification . . .”
[90]The documents show that Mr Finlay was provided with the M&E services specification in 2006 but it emerged in cross examination that Mr Welch had never made any enquiries about whether or not Mr Finlay had received a copy of the specification before compiling his answers in the agreed statement. In fact, he said that although he had met Mr Finlay twice in meetings he had never asked him anything at all about what he may or may not have known, or about anything else that might have assisted Mr Welch in his capacity as an expert witness. Further, when I suggested to Mr Welch that his observation in the agreed statement was not relevant to a situation where the architect in question had himself acknowledged that he was well aware of the relevant provision of the specification, I thought that his answers were evasive and unsatisfactory.[91]Another curious and rather unsatisfactory feature of his evidence concerned a statement that he made in the second joint statement of the M&Eservices engineers, which he had signed on 16 November 2012, which was in the following terms: “Peter Welch confirmed that although his Report dated 23/8/12 had been prepared as an Expert Advisor, this statement has been prepared with him acting as an Expert Witness." When he was asked about this he said that he probably used the expression “expert advisor” as a result of the instructions he had received from his instructing solicitors,and that he “picked the phrase” from there. I was told a day or two later that CMS Cameron McKenna had given Mr Welch no such instruction. This seems to me to amount to an attempt to provide evidence as an expert on some qualified basis, which is completely unacceptable. Stephen Elphick[92]Mr Elphick is the principal of Stephen Elphick Associates (“SEA”), and had been in practice as an M&E engineer for 28 years. He had had a loose working relationship with Mr Finlay for some 5-6 years before this project and the two obviously knew each other fairly well. He was called on behalf of Mr Finlay, but his evidence was very brief. He was a straightforward witness and I formed the view, both from reading the contemporaneous correspondence and seeing him give evidence, that he was a person who was prepared to speak his mind when he thought it necessary. David Simper[93]Mr Simper produced two reports. His first report was dated 2 October 2012, his second report was dated 12 November 2012. In addition, he produced three joint expert statements with his opposite number, Mr Huntley. Mr Simper is a practising quantity surveyor with over 48 years’ experience in the building and civil engineering industries. He frequently acts as arbitrator, adjudicator and expert witness in construction disputes.[94]Mr Simper gave his evidence in a direct and dispassionate manner. He was ready to make concessions where they were called for and as a result there was little in his evidence that remained contentious. Much of the evidence given by each of the expert quantity surveyors was dependent on the opinions of others and, ultimately, on the conclusion of the court in respect of those opinions. On the whole, I accept Mr Simper’s evidence: where I do not I shall make that clear. Christopher Huntley[95]Mr Huntley produced three reports: a principal report dated 3 October 2012, a supplemental report dated 12 November 2012 and a short addendum report dated 26 November 2012. Mr Huntley is also a highly experienced quantity surveyor, with over 35 years’ experience. He has worked for well-known construction firms carrying out all the activities of a practising quantity surveyor. In 1985 he founded his own practice and has acted as an expert witness on numerous occasions.[96]Mr Huntley’s evidence did not get off to a good start. In his report he had not disclosed either the nature of his instructions or the questions in respect of which his opinion as an expert was required, and so the statements to the contrary in his expert’s declaration at the end of his report were not correct. Whilst I accept that this was an oversight, albeit a careless one (and not only the fault of Mr Huntley, I suspect), it indicated a potential for a somewhat cavalier approach to his role as an expert which I found to be fulfilled by some aspects of his subsequent evidence.[97]I will give two examples of this. The first was his evidence in relation to an item in the schedule QS 3. That concerned a leak in the underfloor heating that caused damage to the room below. It is a very small item, worth about £400. Mr Simper commented that Mr West had advised that the damage was caused by the underfloor heating pipes being held together by a bent nail. Mr Huntley’s comment in the schedule was:
“Not agreed. It is unreasonable to bring an action against a designer for a pipework leak.”
[98]When Mr Huntley was challenged about the basis on which, as a quantity surveyor, he was expressing an opinion as to the liability of an architect, he said he had been advised that it was not a nail that caused the leak but a push-fit joint that failed. However, he then admitted that at the time when he wrote the comment he did not know about the possibility that it was a push-fit joint that had failed. This seems to me to be an example of an expert venturing into an area which is not his area of expertise. Whilst I can see that in the ordinary course of events it might be unlikely that an architect could be to blame for a leak in a pipe, it seems to me that an expert should be cautious to express any view about such a matter, particularly if he is an expert in a different discipline. Mr Huntley’s willingness to do so is an example of a somewhat lax approach to his role as an expert.[99]The second example is his evidence about the Armour final account. Mr Huntley’s evidence was that this would have been for about £340,000, some £50,000 more than the contract price. Since Armour had been paid about £300,000, he suggested that Armour was owed about £40,000 plus VAT by the Claimants when it left site. Mr Huntley’s conclusion had been based on IFA’s valuation No 15 dated April 2007. Mr Huntley had “grossed up” those items of work which were partly incomplete and where, in each case, Mr Finlay had assessed the extent of the completed work in terms of a percentage. The total amount contained in this valuation was £316,000, less the retention of about £16,000.[100]The principal flaw in Mr Huntley’s approach is that it assumed not only that Armour had completed the work but also that the work had been properly done. Mr Huntley was shown in cross examination a drawing marked up by Mr Finlay on 25 July 2007 indicating various items that were either not done or incomplete, or which were defective. Mr Huntley admitted that he had made no allowance for that incomplete or defective work when assessing the value of Armour’s notional final account. In my view, this completely undermines Mr Huntley’s assessment, albeit a provisional one. It is also noteworthy that Armour’s liquidator subsequently confirmed to Mr West that Mr Armour had indicated that no sum was due to the company from Mr West.[101]Mr Huntley was also very critical of the procurement exercise leading up to the contract for the remedial works. In evidence he said that there was “certainly compelling evidence that there were other tenders available for the remedial works” (Day 8/144). In fact, I find that there was no such evidence. Of the five companies on the original tender shortlist, three did not put in a bid. Of the remaining two, one (Cosmur) was only prepared to leave its bid open for acceptance for a period of 7 days, although it had not visited the site. Mr West was unwilling to accept a tender (assuming that it was still open for acceptance) from a contractor who had not visited the site, and Mr Huntley conceded that this was a reasonable approach. However, shortly after Cosmur had visited the site it withdrew its tender because its M&E subcontractor was no longer prepared to support its quote. The sixth contractor, A P Maidstone Ltd, was a subsequent addition to the tender list, having been recommended by Mr Carter. Whilst it had submitted a tender that was very attractively priced, Mr West and Mr Fleming-Jones became concerned that it was a specialist damp-proofing contractor and not a general building contractor with any experience of this type of work. In the event, as Mr West explained in evidence (Day 3/43-44), it proved impossible to obtain any satisfactory references so that its tender was not acceptable. The Wests eventually engaged REassure, the only contractor remaining of the five who were on the original list.[102]It seems to me that Mr Huntley’s reference to there being compelling evidence of the availability of other tenders was simply wrong: it was not a fair appraisal of the situation. In this respect I did not consider that Mr Huntley’s approach reflected the degree of objectivity that the court is entitled to expect from an expert. The extent of the damp, the advice that should have been given and the results[103]Before I embark on this section of the judgment, I remind myself of the observations of Ramsey J in Cooperative Group Ltd v John Allen Associates Ltd [2010] EWHC 2300 (TCC) in relation to the proper approach to be taken in a contractual claim for a failure to exercise reasonable skill and care by a professional man. He said, at paragraph 339 of his judgment, that the approach can be expressed in the following terms:
“(1) The first stage is for a claimant in a claim against a construction professional for negligent design, to establish what would have happened if the construction professional had in fact exercised proper care and skill. (2) If the claimant establishes that, if the construction professional had used proper care and skill, the claimant would have proceeded with the construction of the building in accordance with the proper design carried out by the construction professional then the measure of damages will be the costs of remedying the defects but less a credit for any higher costs which would have been payable for a proper design in the first place. (3) If, however, the claimant would have abandoned the project to construct the building if the construction professional had produced a properly prepared design, then the loss would be measured by reference to the wasted expenditure.”
[104]I propose to follow that approach. What advice should Mr Finlay have given in relation to the need for damp proofing?[105]It is effectively accepted that there was no proper discussion about the risks and options in relation to damp in the lower ground floor and that accordingly IFA gave the Wests no advice about the need to deal with it and that, had Mr Finlay discussed the matter with the Wests, they would have required at least some damp proofing work to be carried out to the lower ground floor. To the extent that this was not admitted by IFA, I find that this was the case.[106]But it was IFA’s case, as opened, that Mr Finlay’s design involving the use of a Visqueen membrane and waterproof render would, if implemented properly, have been capable of satisfactorily preventing the damp that subsequently manifested itself in the lower ground floor of the property (see IFA’s Opening Submissions, paragraph 308).[107]However, by the conclusion of the trial IFA’s position was that the case was really about quantum based on a proper analysis of liability. Indeed, IFA in its closing submissions went so far as to assert that if the Wests had been properly advised, they would have had the basement fully tanked out in the manner that was finally done during the remedial works But see the footnote to paragraph 9 above . On this basis, it is asserted that the Wests must give credit for a very substantial sum which it is said that this work would have cost.[108]It is not disputed that a competent architect in Mr Finlay’s position should have raised with his client the question of damp proofing the lower ground floor. It is accepted that Mr Finlay did not do this and that he was therefore in breach of his duty to the Wests. At the very least, in the absence of any relevant information about damp penetration Mr Finlay should, in my judgment, have made his own assessment of the problem and discussed it with the Wests. It would not have been very difficult or time consuming to take a damp meter, which he had, and to carry out a brief survey. What is less easy to say is what such a survey would have revealed.[109]So the first question that has to be answered is what would have happened if Mr Finlay had raised the question of damp proofing with the Wests. In my view, at least two things are reasonably certain. First, Mr Finlay would have asked (or been told) about the survey of the property by Anglia. It is inconceivable that in such a conversation the Wests would not have told Mr Finlay about the Anglia survey: indeed, they would probably have provided him with a copy of it.[110]This report, prepared in April 2004, said that:
“The walls to the basement are tanked with a waterproof tanking system which we assume comprises a water resistant render coating with plaster to finish. You are referred to our comments regarding Rising and Penetrating Damp later in the report for any additional details on these matters.”
In the section on Rising and Penetrating Damp, the report said this:
“High/medium damp readings were found to the basement lobby and other small areas. This may indicate either historic [words missing] You should have the property inspected by a specialist damp-proofing company to determine the full extent of any rising and penetrating damp throughout the property and to obtain a report and estimate for all necessary remedial works prior to exchange of contracts.”
[111]Second, the Wests would have told Mr Finlay that Mr Wright, their former architect, had arranged for a damp proofing specialist to visit the property. They would have told Mr Finlay what the specialist had told Mr Wright, namely that little work was recommended since, apart from one or two places, the basement walls appeared to be dry. All that was proposed by this specialist was the localised use of waterproof render “in problem areas such as the wall behind the door in the unused room that the plaster is falling from”. This advice tended to confirm the statement in the survey that the lower ground floor had been tanked.[112]I have little doubt that this is what would have happened if Mr Finlay had raised the issue of the damp proofing with the Wests. I must now go on to consider what advice Mr Finlay would have given to the Wests and how they would have responded to it.[113]It was agreed by the experts that in 2006 the appropriate options in the case of No 63 were to tank the lower ground floor fully (ie. floor to ceiling) or, possibly, to tank it up to a particular height, or to carry out localised patch repairs on the assumption that a waterproof render was already in place and was, for the most part, effectively keeping out the damp.[114]Ms Tooth’s view was that where the cost of tanking was not significant in relation to the overall cost of the work being proposed, an architect ought to recommend it as a matter of routine. It was the only way to guard against future changes in the hydrostatic pressure in the surrounding soil.[115]Mr Fleming’s position was that he would take the client through the available options and then leave the decision to the client. He was firmly of the view that the problem at No 63 was damp, which is the spread of moisture through a substrate - principally by capillary action, rather than free water coming through under pressure. I did not understand this to be contentious, at least so far as the situation in 2006 was concerned, although it was agreed that the possibility of free water coming through under pressure was one that could not be ruled out if local hydrostatic conditions were to change at some time in the future.[116]I would have expected the Wests to ask Mr Finlay about the available options. In any event, it was common ground that at that stage Mr Finlay’s duty was, at the least, to explain what the options were and the risks attached to them. As I have said, it was Mr Fleming’s view that this was all that Mr Finlay needed to do and that he could then properly leave the decision to his clients. In the light of the inspection by the damp proofing specialist that had already been carried out prior to purchase, I would have expected the Wests to ask specifically whether they needed to do any more than carry out local patch repairs as that specialist had reportedly recommended.[117]It must be remembered that Mr Finlay was an architect, he was not and was not expected to be a damp proofing specialist. But as an architect he would be expected to be aware of the relevant British Standards and of the different forms of treatment for damp in buildings that were available. It seems to me that the approach of both Ms Tooth and Mr Fleming is one that a competent architect in Mr Finlay’s position could reasonably have taken.[118]Mr Finlay said in evidence, and I accept, that he had not detected any particular problem with damp at the property (although I accept also that he made no proper investigation into it). His approach was that the proof of the pudding was in the eating: in other words, that the absence of any sign of damp (apart from at one or two places) suggested that such previous damp proofing work as had been carried out had, on the whole, been effective. I consider that there is some force in this. Mr Finlay’s opinion at the time was supported, albeit for not quite the same reasons, by Mr Fleming. The thrust of his evidence was that a competent architect in Mr Finlay’s position, but one who was also in possession of the Anglia report and had been told of the advice of the damp proofing specialist instructed by Mr Wright, could properly have concluded that the existing damp could be dealt with by localised patch repairs. I accept this view.[119]Having seen Mr Finlay, I consider it highly likely that, if the matter had been discussed, he would have told the Wests that whilst obtaining a written report from the previous damp proofing specialist, or instructing a new specialist, was a potential option, he, Mr Finlay, did not see that very much would be gained by it. He would no doubt have said to the Wests what he said in evidence, namely that companies who specialise in damp proofing are in the business of selling their services and might well recommend a remedial scheme that went beyond that which was necessary.[120]So if there had been a discussion about what damp proofing of the lower ground floor ought to be carried out and the various options available, as there clearly should have been, I think it is likely that, having regard to the survey and the conclusions attributed to the damp proofing specialist, Mr Finlay would have told the Wests that, in his view, it was probably better to leave the problem to the builder and to instruct him to carry out localised damp proofing where it appeared to be necessary. In these circumstances I would have expected Mr Finlay to carry out an informal survey of the lower ground floor walls using a damp meter so that he could give the necessary instructions to Armour. If Mr Finlay had done all this I do not consider that he could have been criticised.[121]I now turn to consider what the Wests might have done if Mr Finlay had given advice in these terms. On 26 April 2005, very shortly before receiving the report of the damp proofing specialist, Mr West wrote to Mr Wright in the following terms:
“. . . if the damp specialist hasn’t found anything significant today either, that will be a big relief. We decided to wait until we heard his final conclusions before going back to the agent about the remedial work, since it could have a big impact on the cost of the work, & hence any reduction in our offer.”
[122]This shows that the Wests recognised that major damp proofing works could be expensive and they wanted to know, before making a final offer for No 63, whether or not such work was likely to be necessary. Having received the report of the advice of the damp proofing specialist, it seems that they proceeded on the basis that the necessary damp proofing of the lower ground floor would not be a significant item of expenditure and I am sure that this governed their thinking thereafter.[123]I consider that Mr West’s recollection in evidence about persistently raising his concerns in relation to damp with Mr Finlay was not entirely reliable. It is clear that he raised the problem with Mr Wright and that this led to the inspection of the property by the damp proofing specialist that Mr Wright instructed. However, the conclusions of the specialist, as relayed to the Wests by Mr Wright, would have been what they wanted to hear and I have no doubt that they derived significant comfort and reassurance from what they were told - with the result that their concerns about damp were much allayed. It may be that Mr West has in his own mind transposed some of the conversations that he had with Mr Wright into conversations with Mr Finlay, but, for whatever reason, I find that Mr West has significantly overstated the emphasis that was given to the question of damp proofing of the lower ground floor in his discussions with Mr Finlay.[124]By this I do not suggest that the Wests said nothing to Mr Finlay about damp - I think that it was probably mentioned at one or more of their early meetings - but I do not accept that it was discussed “almost every time” Mr Finlay and the Wests went down to the lower ground floor (as later alleged by Mr West in his email dated 25 June 2007, following the discovery of damp in the lower ground floor).[125]It is a remarkable feature of this part of the case that, in spite of the very substantial number of emails that were exchanged between the Wests and Mr Finlay during the first 6 months of 2006, the Wests have not identified a single reference to the question of damp proofing to the lower ground floor during this period. If Mr West had been discussing the question of damp proofing as regularly as he suggested, then there would have been references to it in the correspondence. On 3 May 2006 Mrs West sent Mr Finlay a spreadsheet showing the breakdown of the costs. This included no provision for (or references to) damp proofing work, apart from an allowance for “Sika Render to Inner Face of Retaining Wall” in the new light well in the sum of £1,125, the removal of a provisional sum for damp treatment to the Games Room on the lower ground floor (which was stated to be “By Others”), and the inclusion of a provisional sum for damp treatment to the Vestibule in the sum of £500. At this stage the Wests must have been aware of the fact that no provision had been made for any widespread treatment of damp in the lower ground floor.[126]I consider that the only explanation for the absence of any references to any significant damp proofing work is that the reassurance provided by the conclusions of the damp proofing specialist instructed by Mr Wright the previous year meant that the Wests no longer saw it as a real problem. They probably assumed, not unreasonably, that any areas of localised damp could and would be dealt with by the builder.[127]To summarise, if Mr Finlay had been provided with the Anglia survey and told of the conclusions of the damp proofing specialist - as he would have been once the issue of damp proofing had been raised, I consider that he would probably have advised the Wests that they could proceed on the basis of the advice reportedly given by the specialist instructed by Mr Wright (although he should at the same time have made it clear that this was not a solution that could be relied on to cope with any future changes in ground water levels). In doing so, he should have advised the Wests to allow a provisional sum of about £5,000 for any damp proofing work that might be found to be necessary during the course of the refurbishment.[128]As I have already said, if Mr Finlay had advised the Wests in these terms I do not consider that his advice would have been negligent, although I accept that it was not the only advice that a reasonably competent architect in his position might have given. Further, I consider it likely that the Wests would have accepted that advice if it had been given. In reaching this conclusion I should make it clear that I am not rejecting the evidence of Ms Tooth as to what she considered an architect should have done in the ordinary course of events: what made this situation different was the fact that the Wests had already received advice from a damp proofing specialist that the walls in the lower ground floor were dry and that all that was required were localised patch repairs. The damp proofing of the new lower ground floor slabs and the junction with the walls[129]The experts are agreed that in adopting the design that he did for the waterproofing of the new lowered slabs (even if it was supplemented by the details shown on the later sketch) Mr Finlay fell below the standard of a reasonably competent architect. I accept this view.[130]Further, I agree with Ms Tooth that if Mr Finlay failed to give any instructions to Armour about the need for localised repairs to the waterproof render or to specify the precautions to be taken where new electrical fittings or conduits were to be chased into the walls, or where there were entry points for services, that would also fall below the standard of a reasonably competent architect. No such written instructions have been found and it has not been suggested that there were any. However, in his witness statement Mr Finlay said that “in early 2006” he discussed with Armour and the project foreman how services and fixings would have to be planned so as to avoid cutting into or penetrating the waterproof render. In evidence, he said that this should have read “in early September 2006”: clearly such discussions could not have taken place in early 2006.[131]The experts have agreed that the render was punctured at points where services were installed in the lower ground floor. Mr Fleming accepted that if there was no detail or instruction to avoid this, then it would be a design problem. I do not consider that a discussion with the builder in general terms, even if Mr Finlay did have such a discussion with Armour as he said he did, is sufficient. I consider that a competent architect should provide at least illustrative details of typical types of installation, but there is no evidence that this was done by IFA. Further, I consider that Mr Finlay should have checked that his instructions in this important area were being carried out. There is no evidence that he did this.[132]The consequences of the failure to specify a proper detail for the waterproofing of the new (lowered) ground floor slabs and in relation to other work affecting the lower ground floor walls, such as the installation of services, or to check that what was specified was being installed, were serious. Within months of the work being carried out there was extensive damp in the lower ground floor. This gave rise to the need to strip out much of the lower ground floor and to devise a solution that would eliminate the damp. The defects in the construction of the new floor slabs[133]IFA’s specification for the new lowered floor slabs was as follows:
“construct ground slab; comprising 150 thick concrete grade C35 reinforced with single layer of A142 mesh on Visqueen or similar gas membrane on 50 thick plain insitu concrete blinding bed laid on 150 thick well consolidated granular material; membrane turned up 150 at all edges; floated surface.”
[134]When the slabs were opened up it was found that they had not been constructed in accordance with the specification. In the kitchen area, the reinforcement was A193 mesh instead of the A142 mesh specified. That mesh was installed in the middle of the slab. In the dining room area the slab had no reinforcement and it was only 100 mm thick in some places. In all the slabs the concrete was well below the strength which should have been achieved if the correct mix had been used.[135]Ms Tooth’s evidence was that Mr Finlay should have inspected the floor slabs at the appropriate stage during construction, or arranged for a structural engineer to do so in his place. Ms Tooth clarified this by saying that the relevant time to inspect would have been when the reinforcement had been placed and the installation was ready for the concrete to be poured. Ms Tooth says that if this had been done, the defects in the slabs would have been identified and could have been rectified at the time.[136]Mr Fleming did not agree with this view. He considered that the construction of floor slabs such as these in a domestic project was a standard operation that would not ordinarily require an architect to be present when it was carried out.[137]I would not go so far as to agree with Mr Fleming that an architect need not attend the pouring of a floor slab in a domestic project: it seems to me that an architect probably should be present when this type of operation is being carried out if that is reasonably possible. In this case, Mr Finlay was required to visit the site twice a week, so arranging to be present when a slab was being poured should not have been difficult. However, I accept Mr Fleming’s evidence that an architect would not be expected to check the precise depth of the excavation or the mix of the concrete, unless he was put on notice that something was obviously wrong. In relation to the latter, his view is broadly supported by the evidence given by Mr Fleming-Jones in relation to the remedial works. As Mr Fleming put it, the architect would “want to see that it was generally OK” (Day 8/46). In terms of whether or not work was “generally OK”, I consider that an architect would be looking to see that the work appeared to be in accordance with the specification. For example, if the design of a strip foundation specified that it was to be 750 mm deep, I would expect an architect to notice if the trench for it was only some 300-400 mm deep because such a difference ought to be readily apparent. However, I would not necessarily expect an architect to notice if the trench was only 600-650 mm deep instead of being 750 mm deep. That might not be immediately obvious. It is, of course, all a question of degree but, in general terms, I accept Mr Fleming’s evidence that one would not ordinarily expect an architect to be carrying a ruler and measuring every dimension, unless he or she had some particular reason for concern about some particular aspect of the work.[138]In fact, any allegation in relation to the depth of the excavation fails on the facts because Ms Tooth said in evidence that the remedial works did not involve either replacing the substrate or redoing the excavation - “that was all deemed to be okay” (Day 7/9). She said she thought that the cause of the variability in thickness of the slabs might have been that the level of the hard-core was too high in places (Day 7/10).[139]As it turned out, the first part of the issue (that Mr Finlay should have inspected the pouring of the slabs) became somewhat academic because Mr Finlay said in evidence that he was in fact present when the concrete was poured for one of the slabs. I find that it was the slab for the kitchen area because Mr Finlay said that he saw the reinforcement. He said that he did not check the mix of the concrete.[140]In the case of the slab in the kitchen area, I do not consider that Mr Finlay can be criticised for failing to notice that a different mesh was being used or that the concrete was not of the correct mix. Mr Fleming said in his report that the difference between A142 and A193 mesh is not very obvious, and there is no evidence as to whether the use of a different mesh actually mattered. In fact, Ms Tooth herself said that, from a photograph, she could not have told the difference between an A193 or an A142 mesh, “but an engineer might be able to” (Day 7/12). So far as the mix of the concrete is concerned, I accept Mr Fleming’s evidence that an architect should be concerned if the consistency of the concrete was obviously wrong - in that it was visibly too liquid or too dry. However, there is no evidence before the court as to what the appearance of this concrete might have been.[141]The final criticism of the construction of the kitchen is that the reinforcement mesh was not laid at the correct level, in that it was in the middle of the slab and not towards the top. This allegation was made in a letter from PD Consulting Engineers dated 9 May 2008, but that letter does not explain either what is meant by the “middle” of the slab or why the position of the reinforcement was a breach of the specification.[142]The specification for the structural works that was prepared by the engineers, AND Designs, provided that ground bearing slabs were to be as follows, unless noted otherwise:
“150 mm thick with A142 mesh top (40 mm cover)”
. AND’s drawing for the lower ground floor, 01 C2, had a note in relation to the new floor slabs which stated “NEW 150 THICK C35 CONCRETE SLAB REINFORCED WITH 1 No LAYER A142 MESH TOP (NOM 25 mm COVER AND MIN 400 mm LAPS )”.[143]It is clear from these documents that there had to be at least 25 mm of concrete cover to the reinforcement in the slabs. “NOM” is short for nominal, which is in contrast to minimum. A nominal dimension is permitted to accommodate tolerances, whereas a minimum dimension is one that must always be maintained after making allowance for tolerances. The purpose of the reinforcement is to give the concrete strength in tension and, generally speaking, the closer it is to the centre of the slab the greater the strength that it gives. However, whether the reinforcement should be placed towards the top or the bottom of a slab depends amongst other things on the direction of the anticipated load. But reinforcement always needs to be covered by a sufficient thickness of concrete to prevent corrosion and deterioration. I am not aware of any evidence that suggests that the performance of the slab in the kitchen area was likely to have been diminished in any way because the reinforcement was placed at a lower level within the slab than the depth indicated by the note on the drawing. Indeed, there is no evidence as to the precise level within the slab at which the reinforcement was laid.[144]I am therefore not persuaded that the position of the reinforcement within the slab in the kitchen area was a departure from the specification that was likely to have any adverse impact on the long-term performance of the slab. Further, short of taking a ruler to the excavation, I am not satisfied that Mr Finlay should have noticed that the reinforcement was lower than it should have been: of course, once the concrete had been poured to a level that was higher than the reinforcement, there would be no ready means of knowing what the final cover was.[145]For these reasons I consider that the Wests have not proved that Mr Finlay was in breach of his duties in relation to the actual construction of the floor slabs. He was present when one of the slabs was poured and I consider that that was sufficient: if Ms Tooth is to be taken as saying that Mr Finlay should have been present when each separate part of the floor slabs was being poured (and I am not sure that she is), I would not agree. In my judgment, there is insufficient evidence to make good the allegation that Mr Finlay should have noticed the defects in the floor slab in the kitchen area or that he should have been present when the concrete was poured for the other parts of the slabs. There was nothing to put him on notice that Armour might not do the job properly. The presence of any of those defects is not, in itself, evidence of negligence by Mr Finlay.[146]However, I consider that these findings may have a fairly limited impact on the claim as a whole. In his closing submissions (at paragraph 99) Mr Selby submitted that the defects in the slabs “should have been identified at the time the slabs were laid, or shortly afterwards”. Assuming that Mr Finlay had been present when the slab in the dining area was laid and had realised, perhaps halfway through the pour, that Armour was not proposing to include any reinforcement, then the operation would have been stopped.[147]If one assumes further, in the Wests favour, that this would have led Mr Finlay to check the mix of the concrete, both for the dining room and for the slab already laid in the kitchen, with the result that he discovered that the mix was not in accordance with the specification, then it is perhaps likely that a decision would have been taken to break out the slabs and lay them again.[148]The decision to break out the slabs would not have been one that would have been taken lightly, and I would have expected IFA to have consulted both the Wests and the engineer before reaching a decision. If the decision to replace the slabs had been taken very soon after they had been laid (say, within a week), as the Wests contend, I would not have expected it to take so long to break out and remove the concrete already installed as it would take if the concrete was fully cured. When the two slabs were broken out and replaced the following year during the remedial works, the whole operation took about 3 weeks (3-23 June 2007). I consider that it would have taken at least 2 weeks if the work had been done in 2006 soon after the slabs had been laid, so if IFA had noticed the defects in the floor slabs, the original contract period would have been extended by about 3 weeks (1 week to decide what to do and 2 weeks for the work). In respect of that 3 week delay caused by the need to replace the slabs, Armour would have been liable for liquidated damages at the rate of £1,000 a week.[149]But the other consequence of this is that the Wests would have had to remain in their flat for a further 3 weeks before moving into No 63 and would thereby have lost the rent that they could otherwise have obtained. Accordingly, if I had found IFA liable for the defects in the floor slabs, the Wests would have had to give credit for 3 weeks rent that they would not have been able to obtain. The extent of the remedial works required to deal with the damp[150]In terms of the remedial works that were reasonably required following the discovery of the extensive damp in June 2007, by the conclusion of the trial there were really only two options. The solution advanced by those acting for the Wests was to carry out a full Type A, Grade 3, tanking as described in BS 8102:1990. The alternative proposed by Mr Fleming was to carry out repairs to the waterproof connection between the floor slabs and the walls by cutting out the perimeter of the slabs and forming an effective joint between the membrane and the render on the walls, and to deal with the rest of the damp penetration by way of localised repairs.[151]Mr Fleming accepted that his was not a solution that would deal with any future change in ground water levels that might lead to hydrostatic pressure against the membrane below the slabs, because the membrane as laid would not be able to prevent water ingress from this cause (the reasons for this were given by Ms Tooth at Day 7/116-117). However, he considered that this was an acceptable risk.[152]Thus there was a conflict of evidence between the experts as to the scope of the remedial work that was reasonably required. In relation to the floor slabs, the detail provided by Mr Finlay for maintaining the continuity between the Visqueen membrane that was to be laid below the new floor slabs and the waterproof render to the walls resulted in what Mr Fleming described as “an unsealed overlap” in the relevant location and a likelihood that a waterproof render installed in the relevant area would be likely to crack, thereby providing a potential for water ingress.[153]In relation to the scope of the necessary remedial work, Mr Fleming said (at paragraph 12.4 of his report):
“In my view there is insufficient evidence of the extent of water ingress that occurred to justify new damp proofing to be installed for all areas of walls and floors in all of the rooms on the lower ground floor. The areas exhibiting damp on the walls are associated with fixings or conduits and socket boxes which penetrated the wall coatings: these could have been cut out and replaced with waterproof render.”
[154]Mr Fleming’s proposed remedial works involved cutting out the existing plaster and render in locations affected by damp and the removal of any electrical fittings in the affected areas. New waterproof render was then to be applied. As already noted, Mr Fleming’s proposal to deal with the interface between the new slab and the existing wall was to cut out carefully the floor tiles adjacent to the perimeter wall and then break out the floor screed and slab below so that the joint between the membrane and the render could be remade. This work would, of course, have necessitated the removal of all of the kitchen units and other fittings in the relevant areas of the lower ground floor.[155]I consider that Mr Fleming’s proposed remedial work to remedy the absence of proper continuity of the waterproofing between the slabs and the walls was not a scheme that anyone could have advised the Wests to adopt in 2007 after the discovery of the damp. There are three reasons. First, I agree with the view of Ms Tooth that the proposed method for repairing the joint between the slabs and the walls would be dependent on achieving an almost impossibly high standard of workmanship. Second, it is difficult to know to what extent the work carried out by Armour may have damaged the integrity of the original damp proofing, with the result that it is difficult to be confident that localised patching that might have been possible in 2006 would still be satisfactory after extensive damp had appeared. Third, on this aspect I prefer the evidence of those experts who saw the situation in 2007 for themselves to that of Mr Fleming who did not.[156]In my judgment the position in the summer of 2007 was very different to that in the summer of 2006. As I have already noted, No 63 was inspected by the damp proofing specialist in April 2005 who advised that little work was required. For the reasons that I have already given I consider that, if Mr Finlay had been made aware of that advice, he would not have been negligent if, in those circumstances, he had not advised the Wests to adopt a full tanking solution to deal with the damp in the lower ground floor.[157]But in 2007 the situation was quite different. Extensive damp had appeared, most but not all of it slightly above floor level. At that stage the Wests, quite reasonably, took advice from Mr Carter, a damp proofing specialist. He was strongly of the view that the only solution to the problem was a complete re-tanking of the lower ground floor in accordance with the British Standard.[158]Mr Carter visited No 63 in December 2007 after several areas of the walls of the lower ground floor had been exposed for inspection. Taking his findings very shortly, he concluded that the render had not been applied in a consistent manner throughout the lower ground floor: that the composition of render was not consistent, with widely variable sand to cement ratios; that in some places render had been applied over light weight plasters, whereas in other places it had been applied directly onto painted finishes; that there was no evidence of any proper key to the masonry as would have been required to achieve a proper bond with the render coats; and that in some places the existing floors did not have a continuous polythene membrane.[159]In the light of his findings, I consider that Mr Carter’s advice was justified. The knowledge of the condition of the property in the summer of 2007 - so far as penetration by damp was concerned - was completely different from the assumptions that had been made in 2005/06 before the refurbishment works were carried out by Armour. But for the purposes of the claim it does not matter whether or not Mr Carter’s solution was the only viable option. If it was a reasonable solution for a damp proof specialist in Mr Carter’s position to have reached, and if it was reasonable for the Wests to accept that conclusion, then in principle the cost of carrying out the works recommended by Mr Carter is a loss that flows directly from IFA’s negligence. I consider that both of those conditions were satisfied.[160]In my judgment it was reasonable for the Wests to accept Mr Carter’s advice, not only because the advice was in itself reasonable but also because the need for such work was supported by the architect whom they had instructed, Ms Tooth. Although it is true that for some time Ms Tooth and Mr Carter disagreed about the method of waterproofing that should be adopted, they were in no disagreement about the nature and scope of the work required. Further, Mr Fleming accepted that the course adopted was one “which a lot of damp specialists might take” (Day 8/36). The discharge of IFA’s duty in relation to the M&E works[161]It is clear from Mr Finlay’s own evidence that he took no steps to carry out any form of regular or methodical inspection of the M&E installation as the work progressed. He said himself that he only looked at the M&E work “in a very general way, at best” and he accepted as self-evident that he had placed too much faith in the contractor, Armour. This was a conclusion with which Mr Fleming felt constrained to agree.[162]What is more surprising is that Mr Finlay was not prompted to take a closer interest in the M&E installation when it became, or should have become, clear that all was not well. On 23 October 2006 Mr Elphick wrote to Armour, with a copy to IFA, in the following terms: “There are a number of immediate issues that need to be resolved with the Plumber and your good self which should now be relayed to Ian Finlay. Issues that the Client keeps addressing at this practise (sic) to which we have been waiting for answers for the past two to three weeks. Having spoken to the Plumber this afternoon, we would now request that the following are addressed: …[6]Controls specification of what is actually being supplied with drawings and wiring details.[7]All pipework below floor boards to be insulated. (Plumber said that there is not enough room; this is as per the spec and to comply with Building Regulations Part L, and must be installed)[8]All pipework below floor boards to be pressure tested before the flooring contractor is allowed to start works. …[11]Would you also note that as of today’s date we have not been sent ANY copies of any of the calculations on this project including that of heat losses, pipe sizing, radiator sizing, pump head calculations etc; These must now all be addressed as this project will have to be signed off by Building Control. Would (sic) please ensure that these items are now relayed back to Mr Finlay as a matter of urgency.” It seems likely that this letter followed a visit to site by Mr Elphick, although it is not clear when that visit took place. Mr Elphick said in evidence that he thought he visited the site once, at some time between July and September 2006 (Day 5/116). I conclude that Mr Elphick must have visited the site very shortly after the plumber started his first fix. The evidence did not establish whether Mr Elphick’s reference to speaking to the plumber that afternoon in his letter of 23 October 2006 was to a telephone call or a face to face conversation. I consider that it was more likely to have been a telephone call in which he asked the plumber to provide the relevant information (Mr Elphick having been chased by the Wests). I reach this conclusion because on the previous day, Sunday 22 October 2006, Mr Elphick sent a strongly worded email to Mr West refuting the criticisms that he had not been providing information to Armour. The email concluded with Mr Elphick saying “as we are away from the office the beginning part of next week, any further details will have to wait”. This suggests very strongly that Mr Elphick did not visit the site on Monday, 23 October 2006.[163]It is a poor reflection on Mr Finlay that his reaction to Mr Elphick’s letter of 23 October 2006 was to forward a copy to Mr West saying simply “Passing the Buck time!!!!”. However, reverting to the same theme, Mr Elphick followed up his letter with an email to Mr Finlay two days later, on 25 October 2006, in which he said:
“Spoken to Maurice earlier today, he appears to be up to speed now, more than can be said for the plumber. One word of caution, the plumber is trying hard to wriggle out of insulating the pipework under the floor boards. Insulation is included within my specification, therefore it has been costed so it will not be an extra. Insulation is also part of Building Regulations submission which NOW cross references the new document “Domestic Heating Compliance Guide” another document from Prescott’s office. Can you discuss with Maurice on your next site visit.”
Can you discuss with Maurice on your next site visit.” Mr Elphick sent a further email to Mr Finlay on 30 October 2006 saying that “Notwithstanding the comments from the plumber, my specification calls for all pipework hidden to be insulated”.[164]In my view it is clear that this correspondence should have put Mr Finlay on the clearest notice that the pipework was not being installed in accordance with the contract. Instead of suggesting that Mr Elphick was “passing the buck”, Mr Finlay should have taken prompt steps to resolve the problem. In my judgment he should have advised the Wests that Mr Elphick should be instructed to visit the site, together with Mr Finlay and Mr Armour, in order to resolve the issue about the insulation. This should have happened at the end of October or, at the latest, early November 2006. I am satisfied that if the Wests had been told that such a site visit was necessary, they would have agreed to meet Mr Elphick’s fees for attending site.[165]It is clear from the photographs and the evidence of Mr Topp, that not only was insulation not being fitted as the specification required, but also there were numerous other defects with both the mechanical and the electrical installation. So far as the mechanical installation was concerned:(1) In places pipes had been laid too close to one another so that insulation could not be fitted as required by the specification. In addition to the problem of fitting insulation, it is bad practice to lay copper pipes carrying hot water close together (or in contact with joists or brickwork) because thermal movement can cause them to “click” together or against some other hard surface and this produces irritating noises. Mr Topp said that in No 63 this problem was widespread below the first and second floors.(2) In places heating pipework was laid in contact with hot water pipework: this can be dangerous because the former is likely to be set to about 80°C, whereas the hot water will usually be set to about 55-60°C. The effect of water in the hot water system being heated to excessive temperatures by adjacent heating pipes can result in scalding water coming out of hot taps.(3) In the floor below the master bedroom pipes carrying hot and cold water were laid in close proximity to underfloor heating. In addition, in other places cold water pipework was laid in close proximity to other pipework carrying hot water. The result was that when some cold taps were opened the water sometimes ran warm for some time.(4) Pipes were not always properly clipped in position. There were isolated instances of pipes being held in a position by a nail. This was particularly prevalent in the lower ground floor and in ducts and cupboards.(5) Many pipework joints showed traces of excessive solder and the systems had not been flushed prior to being brought into use. The heat exchangers of the boilers were found to be full of black magnetite sludge and debris including copper filings and particles of solder. The hot water cylinders contained large amounts of flux residue and particles of solder. In addition:(6) The boilers were not connected as the specification required, which was that each should be capable of serving the whole system: instead one served the upper floors and the other served the lower floors, so that there was no back up if one broke down.(7) The heating output for the kitchen, dining and conservatory area was about half the capacity required. The same applied to the master bedroom and its en-suite area (and the thermostat for the latter was installed in a cupboard).[166]It was agreed between the expert architects that items(1) to (4) above, if visible at a time when an architect should have been visiting the property, should have been apparent to a reasonably competent architect. I agree. In an email to Mr West dated 11 October 2006, Mr Finlay said that “you should have shares in copper: he [the plumber] claims to have laid over 100 metres of pipe already on the top floor alone!”. Accordingly, I find that it is very likely that defects (1) and(2) at least would have been there for Mr Finlay to see from about mid October 2006 onwards if he had made a point of looking at the work whilst it was being carried out, as I find he should have done.[167]So far as the electrical installation was concerned:(1) In places lighting, small power, alarm, door control and voice and data cables were wrapped around and/or in close contact with other services.(2) Joints between cables were often not made using proper junction boxes.(3) In at least one place, an electrical cable was not installed vertically, as convention requires, but at a 45° angle.(4) Items such as switches were not of the same style throughout.[168]The M&E experts agreed that item (1) was one that, if visible at a time when an architect should have been visiting the property, should have been apparent to a reasonably competent architect. Again, I agree. These were defects of which some would have been apparent from fairly early on during the electrical first fix, and probably at the latest by early November 2006 when the electrical installation was said to be 40% complete. In addition, a competent architect should have known that cables chased into walls should be installed either vertically or horizontally.[169]However, as Ms Tooth pointed out, once an M&E engineer was called in, all these defects would have been noticed. In this case that would have been Mr Elphick who was, of course, the author of the M&E specification.[170]One serious failure by Mr Finlay, in my view, was that he did not take any steps to ensure that the contractor (or his subcontractors) submitted the required design drawings and calculations to SEA for comment and approval as the M&E services specification required. In his email of 23 October 2006, which was copied to Mr Finlay, Mr Elphick made it very clear that he had not been sent any relevant calculations for the design of the plumbing and heating installations, but Mr Finlay’s only reaction was to accuse Mr Elphick of “buck passing”: in effect, Mr Finlay did almost nothing about it. This failure was a breach of duty by IFA and was a direct cause of the fact that certain parts of the M&E systems, such as the boilers and the underfloor heating, were not correctly installed or were not of the correct capacity.[171]Whilst I accept that Mr Finlay - as an architect - could not have been expected to notice matters such as the incorrect arrangement of the boilers or inadequate capacity of the underfloor heating, these would have come to light if IFA had ensured that the relevant drawings or calculations had been submitted by Armour to SEA in accordance with the specification. These defects could then have been put right at a fairly early stage without any disruption or additional cost. These are defects, therefore, in respect of which IFA is liable to the Wests. Causation – the M&E works[172]I have now found that Mr Finlay fell below the standard to be expected of a reasonably competent architect in failing to notice the poor quality of the M&E services installations and in failing to take any steps to ensure that Armour’s M&E calculations and drawings were submitted to SEA.[173]As I have already explained, Mr Finlay was alerted to the fact that the plumber was being very resistant to installing insulation to the pipework as the specification required by late October 2006. This should have prompted him to look at the mechanical works critically during his next visit to the site. Further, what he would and should have seen on that visit should have prompted him to ask Mr Elphick to visit the site (with the consent of the Wests, of course).[174]Once this problem in relation to the insulation had raised its head and Armour and his plumber had effectively arrived at an impasse, which must have been what happened (since the insulation was never fitted), I consider that Mr Finlay should have discussed the matter with the Wests before certifying any further money in respect of the central heating and plumbing works in response to application 10, which was submitted on 27 November 2006. If, by this time, Mr Elphick had been called in - as I have concluded that he should have been - and had noticed the defects in the electrical installation, the same would apply to those also.[175]On the basis of the evidence as a whole and, in particular, the photographic evidence, I have no doubt that if Mr Elphick had visited the site, during mid or late November 2006, which I consider is what should have happened, he would have been very critical of the quality of the workmanship throughout the M&E installations. Valuation 10 shows that, as at 27 November 2006, the central heating and plumbing was said to be 50% complete, as were the electrical works. The amounts included in the valuation for these items were £15,000 and £7,600, respectively.[176]On the assumption that roughly half of this work was defective, it would probably have cost something of the order of £7,500 to rectify the defects in the central heating and plumbing and about £4,000 in relation to those in the electrical works (I have reached these figures by taking about 50% of the amounts in the valuation and assuming that much of the removed pipework and some of the removed electrical installation could have been reused, which would offset the cost of removing the defective parts of the installations). These are not insignificant sums, but they show that if the problem had been caught early enough, the cost of rectification would have been relatively small by reference to the contract value - which by then was a little over £300,000. By the end of August 2006, provisional sums to the value of £16,000 had been omitted and additions to the work had been instructed to the extent of about £26,000.[177]However, it is likely that Mr Elphick’s investigation would have thrown up the question of whether there was really any need for all the pipework to be insulated (Mr Elphick accepted that the specification went further in this respect than the Building Regulations required). I think it is probable that Mr Elphick might have been persuaded, in order to assist the plumber, to relax the requirement for insulation to the pipework in some places. That would at least have eased the financial burden on the plumber of having to re-install some of the pipework.[178]I asked Mr Fleming what an architect should do in this situation - namely, where a subcontractor is refusing to comply with the specification and rejecting suggestions that his work is not up to standard. He said that if there was to be any suggestion of varying the contract by, for example, omitting some of the insulation from the specification, the architect would have to take instructions from his client. He said that an architect in this position would have to be careful to guard against giving the contractor too much leeway, but not at the risk of forcing him into insolvency. Mr Fleming considered that such problems ought to be capable of resolution and should not inevitably lead to disaster - but, as he put it, one must be careful not to give the contractor “too much slack”. Although these views are based on a hypothetical situation, I accept them as being realistic.[179]The case for IFA is that the success of the Wests’ claim hinges on the implicit assertion that Armour would have completed the works. Mr Coplin submitted also that the Wests’ case depended on the further assumption that Armour would have completed its works to the specification and standard of the corresponding remedial works. Mr Coplin’s written opening, at paragraph 420.4, then continued as follows:
“If, for example, the court finds that Mr West would have insisted on the works currently claimed for in relation to defects in [Armour’s] M&E works (and in circumstances where Mr Finlay acted properly by seeking to have the M&E installation verified towards the end of the project), the court should have little difficulty in coming to the conclusion that [Armour] would not have completed the works.”
In IFA’s closing submissions, at paragraph 5, Mr Coplin submitted that:
“. . . it is not understood how the Court can make a factual finding that, had Mr Finlay acted non-negligently, Armour would have completed the works and in particular completed the M&E works. This would be a surprising and wrong conclusion in the circumstances that in fact pertained . . .”
So, in effect, IFA was asserting that the work under this contract would never have been properly carried out and completed irrespective of how competently IFA had acted.[180]I do not accept these far reaching submissions, if I have understood them correctly, for three reasons. First, it is inherently unlikely that a contractor would have committed himself to a contract that he could not complete and I consider that very cogent evidence would be required to demonstrate this. Second, I consider that Mr Finlay should have called in Mr Elphick in early November 2006, not in about January 2007 (a date that featured prominently in cross examination) or when the work was concluded, because he should have responded to Mr Elphick’s warnings in the latter part of October 2006 about the plumber’s resistance to installing insulation. Third, Armour was under no obligation to carry out the work other than in accordance with the Contract. The fact that the Wests changed certain aspects of the specification during the remedial works is neither here nor there: that is a matter that goes only to damages.[181]These considerations apart, I consider that this is one of those cases where the onus is on IFA, having been found in breach of duty, to show that even if it had acted with reasonable care the damage would probably still have occurred: see Phethean-Hubble v Coles [2012] EWCA Civ 349. That was a case of a collision between a cyclist and a motorist. The case for the injured cyclist was that the motorist was going too fast. The case of the motorist was that the accident would probably still have occurred in any event even if he had been travelling at a reasonable speed. Longmore LJ, at paragraph 90, said this: “The injury which occurred was injury of a kind likely to have been caused by that breach: see Clerk & Lindsell, Torts, 20th Edn, para 2-07. In these circumstances I do not consider that it is necessary for the claimant to prove positively the negative proposition that the accident would not have occurred if the defendant had been going at a safe speed; realistically it should be for the defendant (who has already been found to be in breach of duty) to show that even if he had been driving at a non-negligent speed, the accident would still have occurred. The judge was not satisfied that that was the position and neither am I. The claimant should succeed."[182]The facts of this case do not provide a precise analogy but if, by parity of reasoning, the burden of proving that the work would never have been completed if IFA had discharged its duties is on IFA, then I consider that IFA has not discharged it.[183]There is a further issue as to whether this case has been properly advanced in the Defence Paragraph 15.5(7) was a non-admission as to “whether Armour would have undertaken and/or rectified [the M&E defects]had they been instructed to do so”; paragraph 15.5(8) asserted that the defects were the consequence of the "insolvency of Armour rather than of anything the Defendant did or did not do". . It is arguable that it has not, but it is reasonably clear in my view that the Claimants have always been put to proof of their case and, in any event, the overall burden of proving their loss rests on them (subject to the Phethean-Hubble point).[184]To summarise: I find that IFA should have responded to Mr Elphick’s email of 26 of October 2006 by taking prompt steps to check the quality of the M&E works. Unless Mr Finlay was satisfied that it was being carried out to an acceptable standard, and in compliance with the contract - which, on the evidence, he should not have been, he should have asked Mr Elphick to inspect it. If Mr Elphick was not prepared to do this on an informal basis, Mr Finlay should have asked the Wests for their agreement to this course. I consider that if the Wests had been asked, they would have agreed.[185]Having seen Mr Elphick, I am not in much doubt that if he had inspected the M&E installation in about mid November 2006 he would have condemned much of it, and would probably have done so in fairly robust terms. If Armour had not undertaken to remove and replace the non-compliant work, I consider that it would have been IFA’s duty, acting under clause 3.16 of the Contract, to issue an instruction for the removal of the work that was not in accordance with the contract.[186]I consider that it is more likely than not that if IFA had obtained an appropriate undertaking to remove and replace the non-compliant work, both mechanical and electrical, or had issued an instruction under clause 3.16, Armour would have complied with it - if necessary, by replacing either the plumber or the electrician, or both. However, I have little doubt that in this situation Mr Armour would have pressed strongly for payment in full of the amounts claimed in valuations 9 and 10 (if it had been submitted by then) in order to assist with his cash flow. If this had happened, I am confident that Mr Finlay would have advised the Wests to agree to this in order to prevent the work grinding to a halt for lack of funding. On balance, I consider that the Wests would have agreed to this once they appreciated, as they would have done, that if they did not do this Armour might walk off the site.[187]If IFA had taken the steps that I have outlined above, I consider that the likelihood is that Armour would have completed the works, albeit later than it should otherwise have done. I would expect that, in the light of the progress of the works up to that time, the need to remove and replace some of the existing M&E installation would probably result in a delay, or further delay, to completion of about 6 weeks. This is a period of delay for which the Wests would have to give credit in their claim for damages, for the reasons given above in relation to the defect in the slabs. I consider that this delay would have been sequential to the earlier delays that had occurred as a result of problems with GlasSPace[188]I reach this conclusion in the light of what actually happened during May and June 2007. Although the last payment to Armour was in respect of valuation 15, which was certified on 11 April 2007, Armour continued to attend at the site until the latter part of June, albeit somewhat intermittently and not in great strength, in an attempt to complete the works. This was in spite of the fact that Mr Finlay was away from about 7 May 2007 until about 5 June 2007. Having returned to work Mr Finlay met Mr Armour on site on 8 and 19 June 2007: after the latter meeting he told Mr West that he was hoping to issue the Practical Completion Certificate at some time during the following week. On 20 June 2007 Armour forwarded radiator calculations from the plumber to Mr Finlay.[189]In my judgment, Armour’s conduct between May and June 2007 was not that of a contractor who did not intend to complete the job. I consider that during this period Armour was making some efforts, if not particularly vigorous ones, to complete the work. What in my view changed the position was the discovery of damp in the lower ground floor in the latter part of June 2007. On Monday, 25 June 2007 Mr West sent two furious e-mails, one to Mr Finlay alone and the other to Mr Finlay and Armour, to complain about widespread damp in the lower ground floor.[190]Armour then instructed Bryhill Technical Services to investigate the damp. Having inspected the property they produced a report dated 28 June 2007 in which the writer said that moisture staining to the internal plaster was noted on the lower parts of the left hand (external) flank wall in the kitchen/dining room area. The author concluded that this was the result of the lateral penetration of moisture owing to the high external ground levels. The work recommended was to strip off the existing plaster to the whole of the flank wall, and to part of the internal wall between the kitchen and utility room, and to apply waterproof plastering to the full height of those walls.[191]A meeting was arranged for 11 July 2007, which was to be attended by Mr West, Mr Finlay and Mr Armour. It was Mr West’s evidence, which I accept, that it was at this meeting that Mr Armour offered to give up his retention in return for a release from any further obligations under the Contract.[192]A further argument was advanced by Mr Coplin to the effect that Armour would never have completed the work because by the summer of 2007 it was insolvent. Armour was wound up by an order of the court dated 16 June 2010 as a result of a petition bought by HMRC dated 29April 2010. Armour’s accounts for the year ended 31 March 2009 showed that its current liabilities exceeded its total assets by about £57,000. The corresponding figure for the previous year was about £10,000. So it is clear that from March 2008 onwards Armour’s financial position was getting worse.[193]However, back in June 2000 Armour had been the subject of a Company Voluntary Arrangement (“CVA”). The terms of this required Armour to make a lump sum payment of £5,000 initially and thereafter monthly contributions of £550 for five years, making £38,000 in all. It seems that Armour did this because a Certificate of Completion of the CVA was issued on 31 October 2005. In my judgment this shows a creditable determination by Mr Armour to pay off his creditors and demonstrates also that he had a viable business from which he could do it. By the time Armour tendered for the Wests’ contract in May 2006 it had put the CVA well behind it. Rumour apart, there is no material to suggest that Armour was insolvent at any stage during 2007.[194]I therefore reject the submission that Armour’s financial position in 2007 was such that it would never have completed this contract. The net contribution clause[195]For ease of reference, I will set out again the relevant words of this clause:
“. . . Our liability for loss or damage will be limited to the amount that it is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you.”
[196]This clause has to be construed in its context. By 11 February 2006, when the Wests entered into the agreement with IFA, it was already understood that several aspects of the work would be procured directly by the Wests and would not form part of the main building contract. The Wests overall budget for the work at that time was about £500,000, of which they were hoping that the main building contract would not amount to more than about 60%. IFA was aware of this position.[197]On one reading of the clause the words “other consultants, contractors and specialists appointed by you” means everyone with whom the Wests entered into a contract in relation to this project apart from IFA.[198]However, against the background that I have set out above, the reference in the clause to “other consultants, contractors and specialists appointed by you” can be read as referring to the various specialist contractors or suppliers with whom the Wests were proposing to enter into direct contracts outside the main building contract. The expression “other . . . contractors” is not one that readily describes any party other than IFA, because IFA was not a contractor. However, it would be appropriate if it was intended to refer to any contractor other than the main contractor whose contract IFA would be expected to administer. This seems to me to be a natural reading of the words in their context.[199]Regulation 7(2) of the Unfair Terms in Consumer Contracts Regulations 1999 provides that:
“If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail . . . ”
[200]As I have set out above, in his letter to IFA dated 10 August 2006, Mr West wrote:
“We agreed from the beginning that key aspects e.g. kitchen and glass extension would be undertaken by separate contractors with no architect’s or contractor’s fees on top . . . We agreed this with Armour at our meeting before his tender was accepted. Also, as you say, your fees have all been based on a contract of £310K whereas the current version is around £290K (and intended to be around £265K), so there is already slack built in. Re GlasSpace our original or agreement confirmed your indemnity insurance of £1M with liability limited to “the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you”, and that is still the case - GlasSpace provide their own warranty, and we are simply asking you as project manager and “independent arbiter” to confirm when the work has been completed & we should release the 5% retainer to GlasSpace.”
[201]Against the opening words of the first paragraph quoted above Mr Finlay annotated on his copy of the letter: “YES AGREED”. Against the last part of the second paragraph - the words “project manager and ‘independent arbiter’” - Mr Finlay wrote: “FINE UNDERSTAND”.[202]Mr West’s letter, and Mr Finlay’s annotations on his copy of it, suggests to me that both of them understood the words of the net contribution clause to be directed to the consultants, contractors and specialists who had been or were to be instructed directly by the Wests outside the scope of the main contract with Armour. In my view, each of them had in mind the clear distinction between, on the one hand, the Armour contract on which IFA was receiving a percentage fee and, on the other, the contracts between the Wests and the other suppliers and specialists on which IFA was not receiving a fee. This accords with my view as to the natural meaning of the words.[203]It seems to me, therefore, that there is, at its lowest, doubt about the true meaning of the net contribution clause. In that case the regulations require the court to give the clause the interpretation that is most favourable to the Wests. In these circumstances, it is not necessary for me to decide whether or not on its true construction the net contribution clause is to be given the meaning that I consider the parties were attributing to it. But if I had to do so, I would hold that, in the context of the factual background to this agreement, the clause means what I consider the parties thought it meant, namely that it does not apply so as to limit IFA’s liability to the Wests in a situation where the other party liable is Armour.[204]For the sake of completeness, I should deal briefly with the argument that the clause is unfair under regulation 5(1) of the Regulations. In order to satisfy the test for unfairness under that regulation the term must be contrary to the requirements of good faith and be one which causes a significant imbalance in the party’s rights and obligations arising under the contract to the detriment of the consumer. These requirements are cumulative. I was referred to the guidance on this test that was provided by Lord Bingham in Director General of Fair Trading v First National Bank plc [2002] 1 AC 481, at 491, where he said:
“The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any factor listed in or analogous to those listed in Schedule [2] to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial morality and practice.”
[205]In my view, it cannot be said in this case that Mr Finlay was guilty of any lack of good faith in the sense described by Lord Bingham in this passage. He was not out to take advantage of the Wests. Mr Finlay said in evidence (Day 4/92) that this clause was recommended by the RIBA for use in an architect’s contract, but from materials that were put in evidence I am not satisfied that he was right about this. But I am prepared to accept that it was his belief at the time that this was a form of wording that was, or was at least consistent with, one approved by the RIBA for use in an architect’s terms of engagement. The form of contract with the contractor[206]The Wests contend that IFA should not have recommended the use of the JCT 2005 Intermediate standard form of building contract, but should have used a standard form that provided for contractor’s design. These forms of contract require the contractor to have professional indemnity insurance in respect of his design obligations. Armour did not have any such professional indemnity insurance. It is also alleged that Mr Finlay should have advised the Wests that SEA should check Armour’s design information and the installation of the services on site.[207]The specification for the M&E services provided by SEA was essentially a performance specification, so it required the contractor to produce the detailed design of the M&E installation. It provided specifically that the M&E contractor was to submit certain drawings and calculations to SEA within 14 days of appointment. Thereafter the contractor had to submit his completed design and installation drawings to SEA for comment prior to any works starting on site.[208]The effect of these arrangements, if properly implemented, was that the contractor had responsibility for the detailed design of the M&E services but that the completed design had to be submitted to the services engineer for approval before the work started. Mr Elphick said that this was his understanding of how it was intended that the contract should operate, but that it did not happen in practice.[209]It was the opinion of Ms Tooth that, since the contract involved a design obligation on the contractor, a form of contract should have been used that provided for contractor’s design thus ensuring that the contractor would have the appropriate professional indemnity insurance.[210]Mr Fleming’s view was that it was not unusual in domestic scale works for there not to be a requirement for insurance in respect of design work carried out by subcontractors. As Mr Fleming put it:
“It seems to me that IFA proceeded in a way quite often found amongst architects overseeing refurbishment works and where the contractor had carried out the previous work successfully.”
[211]In the context of a contract where the contractor (or relevant subcontractor) has an obligation to produce a detailed design and to submit it to the services engineer for comment and approval, the risk of inadequate design by the contractor is much reduced. Whilst I agree with Ms Tooth that it would have been good practice for IFA to specify a form of contract that provided for contractor’s design, in circumstances where the contractor’s design had to be approved by the services engineer I accept the evidence of Mr Fleming that IFA’s approach was one that a reasonably competent architect could properly take. The investigation into the defects and the course of the remedial work The initial stages[212]As I have already said, by the end of June 2007 it was apparent that there was a serious problem with damp in the lower ground floor and that this would probably require the new kitchen to be removed in its entirety to enable remedial work to take place.[213]Various experts were called in. I have already mentioned that Bryhill Technical Services were instructed by Armour to investigate the damp and that they produced a report dated 28 June 2007 in which the writer concluded that it was the result of the lateral penetration of moisture owing to the high external ground levels. Another specialist firm, instructed by the Wests, considered that the situation in respect of the damp was much more serious than the Wests had appreciated and said that they did not wish to get involved. They recommended Mr Paul Carter. By contrast, a Mr Cox of Bartholomew’s, who had been instructed by IFA to investigate the damp, thought that it was the result of the works drying out. This was not a view that was supported by any other expert. In about mid July 2007 the Wests decided to instruct their present solicitors, Hewitsons.[214]Mr West said in his witness statement, and I accept, that from the outset they were concerned to take care to ensure that the expenses that they incurred were reasonable, so that they would be able to recover them in full in any subsequent claim.[215]Towards the end of July the Wests met their solicitor and Mr Carter at No 63 and formally instructed both of them to act on their behalf. Mr Carter advised that the conditions in the house were not suitable for a baby. By early August the Wests had decided to abandon further discussions with either IFA or Armour.[216]At about the same time, realising that they were going to have to move out of No 63, the Wests had been looking for alternative accommodation and they found an apartment in a house in Deodar Road. This was available at a rent of £1,600 per week. By this time the Wests had started to make friends in the area and did not want to move elsewhere if they could avoid it. They were able to negotiate the rent for the apartment down to £1,400 per week, and so they decided to take it. Their previous flat in Limehouse was let, and in any event it was not a convenient place to be living if they wanted to keep an eye on what was happening at No 63. In adopting this course, I consider that the Wests acted entirely reasonably.[217]On 8 August 2007 the Wests received a preliminary report from Paul Carter. This followed a “non-destructive” inspection of the house in order to establish the scope and extent of the damp proofing work required. Having noted that the design of the waterproofing did not appear to comply with BS 8102:1990, Mr Carter’s summary of the position was in these terms: “2. There are certainly workmanship issues that are unresolved and the standard of work encountered thus far we feel is very poor and most certainly do not comply with recognised good work practices.[3]The whole problem is that at present the property has no effective damp proofing/waterproofing installation and therefore the dampness present with (sic) only worsen in time.[4]Unfortunately the prognosis is exceptionally poor and in our view there is a requirement for a complete waterproofing installation in accordance with BS 8102:1990, table 1 grade 3/4 environment, which will entail the complete strip out of the lower ground floor, back to main structure . . .[5]If as we believe the complete lower ground floor needs to be refurbished we would expect a “ballpark” cost in excess of £300,000.00 to be considered.”[218]On the advice of their solicitors, the Wests then instructed Ms Tooth to act as an independent expert architect. Ms Tooth in turn recommended Mr Colin Topp to act as an expert in M&Eservices. For the remedial work, Ms Tooth advised the Wests to engage a reliable and trusted contractor, rather than to put the job out to tender. The latter course, in her view, would both take longer and involve a greater risk. The contractor that she recommended was Specialist Roofing Services (“SRS”), also known as Noble House. The investigation into the M&E installation[219]On 2 October 2007 Mr Topp visited No 63 to inspect the M&E installation. Two days later there was a site meeting, attended by Mr Carter, Ms Tooth and a representative of SRS. The Wests moved out of No 63 on 8/9 October 2007. On 26 October 2007 Mr Topp issued his first report. He had not exposed any of the concealed pipework, so his report was based on what he could see from walking round the property. He described it in evidence as a broad brush exercise, with a view to establishing whether the scope of the necessary remedial work was likely to be measured in hundreds of pounds or thousands of pounds. Mr Topp noted that much of the pipework appeared to be uninsulated (because when cold taps were turned on warm water came out), that there were clicking and banging noises when the heating was turned on, that the boilers had been connected so that one served the upper floors and the other served the lower floors (contrary to the specification), and that the radiators did not correspond with those indicated on the drawings, and that the whole system had not been fully flushed and cleaned. So far as the electrical installation was concerned, Mr Topp said that it had not been installed in accordance with SEA’s drawings and that no test certificates had been provided.[220]On 9 January 2008 there was a meeting on site at which Mr Topp explained, on a room by room basis, the nature and scope of the work that was likely to be required and the extent of the consequent disruption in the form of lifting floorboards, removing skirtings, and so on. By this time further defects had been discovered in the M&E installation, including defects in the quality of the electrical wiring, to such an extent that Mr Topp concluded that the most economical solution would be to replace the whole of the M&E installation. Mr Topp was also of the view that the boilers and many of the radiators would have to be replaced as well.[221]Mr Topp carried out further investigations at No 63 on 23 April and 18 June 2008. As I have already mentioned, he found large quantities of flux residue and particles of solder in the hot water cylinders and large amounts of black magnetite sludge and other debris in the heat exchangers of both boilers. There were signs of extensive corrosion in the radiators, particularly the panel type radiators. Mr Topp recommended that the boilers and panel type radiators should be replaced, together with all the heating pipework (because there was insufficient space to move pipes that had been laid too close together).[222]In relation to the hot and cold water services, Mr Topp regarded the risk of premature failure of the hot water cylinders as justifying their immediate replacement, together with all the pipework (for the same reason as in the case of the heating pipework). In addition, he found that the cold water booster pump, whilst apparently in working order, did not have the capacity to provide the required flow rate and therefore he recommended its replacement.[223]Mr Topp’s conclusion At paragraph 6.7.5 of his report dated 5 August 2008. in relation to the electrical services was as follows:
“Although technically the installation could be adapted and made good it is likely that given the amount of work necessary to segregate cables etc it would be more cost effective to replace all the electrical services. It is also likely that it will prove very difficult to find a contractor who is willing to adapt and make good the installation given the condition and extent of defects. Many of the light fittings can be reused, however it would not be recommended to attempt to reuse switches and socket outlets that have been exposed to dust and grit as there would be no guarantee that they would then work effectively.”
[224]In cross examination Mr Topp elaborated on his reasons for his conclusions. He was pressed in particular about his reasons for condemning the boilers, having described them as being in apparent working order at the time of his initial inspection. He explained that at that stage all he was able to do was a tightness test on the pipework and the gas services and to check that the valves and thermostats were working. To be certain that a boiler was fit for service it was necessary to investigate the heat exchangers. He explained that the boilers should not have been connected until the system had been flushed through, because otherwise, as he put it, “you get all the rubbish into the boilers” (Day 6/34). He said that what was found in the heat exchangers was the sort of residue that you would normally find in the system that had been installed for many years. He said that a possible reason was that a lot of flux had been used and left in the system, which created a flux solution that was eventually flushed into the heat exchangers.[225]I found Mr Topp’s evidence to be cogent and convincing and I accept it. In my judgment, the remedial work to the M&E installation that was recommended by Mr Topp was reasonably necessary and was a direct result of IFA’s breaches of duty, both in relation to the failure to check the work as it was being carried out and the failure to take any steps to ensure that Armour’s calculations and design drawings for the M&E installation were submitted to SEA for comment and approval. The continuing investigation into the damp[226]The process of deciding upon the appropriate form of remedial work followed a fairly chequered path. By the time of the site meeting of 9 January 2008 there had developed a debate about the type of damp proofing treatment that should be carried out. Ms Tooth favoured a combination of Natcem and Kemperol, whereas Mr Carter preferred a Sika solution (for present purposes the precise differences between the two do not matter, apart from the fact that the Sika treatment generated more moisture). When Mr Fleming-Jones was appointed the project architect in March 2008, he supported the Sika solution.[227]In the meantime, in November 2007, SRS was instructed to carry out certain exposure works in the lower ground floor of No 63 in order to enable a better assessment of the extent of the damp problem. In December 2007, a Mr Coleman was instructed on behalf of IFA to inspect the property. He concluded that the extent of the damp was limited to 1 m above floor level in the kitchen/dining area. He concluded that the damage was not consistent with simple drying out of construction work, as had been suggested by Mr Cox. For reasons that were not explained, Mr Coleman was not instructed as IFA’s expert or called as a witness, even though he was said to be a leading authority on dampness and timber decay. As Mr Coplin put to Mr Carter (on Day 5/132) and Mr Carter agreed.[228]In his second report, dated 22 December 2007, Mr Carter recommended that core samples should be taken from the new concrete slabs. At that stage he considered that it would be necessary to remove all the wall plasters, floor screeds and internal walls (if less than 200 mm thick or of a particular type of construction). However, he was not recommending the removal of the floor slabs themselves. By the end of January 2008 Ms Tooth and Mr Carter were still in disagreement about the appropriate method of tanking and this debate continued through February.[229]By the end of February, Saunders Boston decided that Ms Tooth should focus on expert witness work and that Mr Fleming-Jones should take on the responsibility for the remedial work. This led to a resolution of the tanking debate because on 11 March 2008 Mr Fleming-Jones advised the Wests to adopt a Sika solution. On 14 April 2008 Wing Preservation provided the first quotation for the tanking of the lower ground floor. At about the same time trial holes were being excavated in order to establish the precise composition of the new lower ground floor slabs.[230]By the end of April 2008 three tenders had been received for the damp proofing works and Mr Carter recommended Aquarend, who were instructed to proceed on 7 May 2008. Two days later, PD Consulting advised that a significant amount of the slabs in the kitchen and dining areas would have to be removed as a result of various defects (the combination of low strength concrete, variable thickness and, in some places, lack of reinforcement). The placing of the contract for the main remedial work[231]In mid May 2008 IFA’s solicitors advised those acting for the Wests that they did not wish to inspect the exposed M&E installations and that they would give notice if they wished to have an opportunity to inspect the slabs. No such inspection ever took place. By this time the Wests had decided, on advice, not to engage SRS to carry out the remedial works and so the work would have to be put out to tender. There had been a problem because SRS had been instructed under a letter of intent which limited their expenditure to £10,000, a limit which they greatly exceeded to the annoyance of the Wests and their advisers. Further, by this time Saunders Boston had begun to lose confidence in SRS, whom it described as insufficiently responsive. However, SRS was instructed to break out and replace the floor slabs in the kitchen and dining areas.[232]On about 9 June 2008 SRS started work on removing the slabs. The replacement slabs were poured on 21 June 2008.[233]On 1 July 2008 the contract for the remedial works was put out to tender. Five contractors had been identified initially as potential tenderers. I have already referred to the unhappy history of the tender process. Although Mr Huntley had been critical of the form of the tender package that was sent out, Mr Fleming-Jones explained in evidence why he had done what he did and his evidence about it was not challenged. To the extent, therefore, that IFA makes any criticism of the tender process, I reject it.[234]Several witnesses, including Mr Finlay himself, said that contractors who were asked to tender for a remedial scheme in a case where a previous job has gone wrong invariably inflate their prices to allow for the perceived additional risk that such contracts carry. However, Mr Huntley considered that IFA was being “asked to pay a premium of at least 20%” on the items claimed. When it was put to him that Mr Finlay had himself said that contractors willing to get involved in remedial schemes “often charge a premium to reflect that risk”, Mr Huntley was reluctant to comment. He said that Saunders Boston would have had a much better prospect of obtaining good, competitive prices if they had done the groundwork beforehand of taking up references and ensuring that the contractors in question were interested in tendering (Day 8/147).[235]If Mr Huntley is to be taken as saying that the tender prices were higher than they should have been because the necessary groundwork which he described had not been carried out, I would not accept his evidence. The evidence as a whole was clearly to the effect that contractors who are asked to price a remedial works scheme invariably build in a premium to reflect the additional risk. Further, as Mr Simper pointed out in his report, the position is aggravated where the contract involved is a domestic project where the contractor will be dealing with homeowners.[236]I accept this evidence. The position by the end of August 2008 was that Saunders Boston were in discussions with three contractors: REassure (formerly Richard Ellis) and Cosmur Construction, who had been on the original list, and A P Maidstone who had been added subsequently on the recommendation of Mr Carter. The other three contractors on the original list had declined to tender. The Wests were particularly interested in Cosmur and A P Maidstone because their prices were about £100,000 lower than the price quoted by REassure.[237]However, in early September Cosmur withdrew its tender because it could no longer support its price for the M&E works. This left REassure and A P Maidstone. Mr West was cross-examined at some length about the reasons for selecting REassure and not A P Maidstone. He said that on 29 August 2008 A P Maidstone provided a brief quotation for some further work. Its business writing paper, on which the quotation was prepared, was headed “Alliance Preservation”. This prompted Mr West and Mr Fleming-Jones to carry out an internet search. Alliance Preservation turned out to be a building inspection, damp proofing and timber rot company which operated by franchise. A P Maidstone appeared to be a franchisee. As Mr West said, this rang warning bells because A P Maidstone did not appear to be a conventional builder. Nevertheless, Saunders Boston continued their attempts to obtain suitable references for A P Maidstone.[238]Mr West then explained how A P Maidstone provided the names of two potential referees and then almost immediately asked Saunders Boston not to contact them, because one was a woman going through a divorce and the other had been recently burgled. They promised to send two further names. These proved to be quite useless: one was a company who had provided A P Maidstone with finance, but knew nothing about its qualities as a builder, and the other was an architect who had never actually worked with A P Maidstone.[239]On 12 September 2008 Mr Fleming-Jones sent an email to the Wests to report the results of his investigations into the most recent references provided by A P Maidstone. He said that he had spoken to a firm of architects in London who told him that A P Maidstone had recently started a new contract for the refurbishment of a flat in Limehouse. They were one week into the contract and the architect said that so far he had been impressed with their performance and organisation. However, he said that he had no previous knowledge of A P Maidstone. The other person to whom Mr Fleming-Jones spoke told him that he had known a Mr Floyd, of A P Maidstone, but had not had any recent business dealings with the company. He said that Mr Floyd was honest and trustworthy but that he had no knowledge of the quality of his work.[240]In the meantime Mr West continued discussions with REassure in an attempt to negotiate a better price. As he said, “they might be the only ones we ended up with as a valid option, so while we had any negotiating power I thought I might as well use it”. This was a prudent course to take, because that is what happened and the Wests issued a letter of intent for the remedial works to REassure on 15 September 2008.[241]I am in no doubt whatever that Saunders Boston and the Wests did everything they reasonably could to obtain the best tender for the remedial works, but the market was against them. It is submitted in IFA’s closing submissions (paragraph 213) that the Wests “had a choice between A P Maidstone and REassure”. Indeed, IFA went so far as to submit that the court would be bound to award damages on the basis of the lower quotation from A P Maidstone. In my judgment, these submissions are misconceived. I consider that Saunders Boston and the Wests were fully entitled to conclude that A P Maidstone had not provided Saunders Boston with any satisfactory evidence that it had the capability to carry out the remedial works at No 63. Whilst the report of the architect referred to in Mr Fleming-Jones’s email was encouraging, not much reliance can be placed on a report that is based only on one week’s work. If the Wests had engaged A P Maidstone and the works had gone badly wrong, IFA would, I suspect, have submitted that the decision to use A P Maidstone was imprudent. The causes of the delay to the start of the remedial works[242]As this narrative reveals, it was well over a year after the discovery of the serious damp in No 63 before a contractor was engaged to carry out the remedial works. This is, on the face of it, a long time. For the reasons that I have just given, I consider that no criticism can be made of the length of time, some 2½ months, that it took to appoint a contractor for the remedial works after the tenders had been sent out. Further, I consider that the difficulties encountered were reasonably foreseeable.[243]I turn now to the two other major causes of delay: the extended debate about the appropriate type of tanking and the need to replace the lower ground floor slabs. I will deal first with the debate about the tanking.[244]Ms Tooth first expressed reservations about the use of Sika at a meeting on 4 October 2007. Her principal concern was the creation of excessive water vapour. She recommended as an alternative a combination of Natcem and Kemperol. She said in later correspondence that she had assumed that Mr Carter would consider this alternative and respond with his views. At a site meeting on 9 January 2008 Mr Carter indicated that he did not consider that Ms Tooth’s alternative was a recognised system and that he would probably recommend the use of a Sika system.[245]On 25 January 2008 Mr Carter confirmed that he could not approve a Kemperol system as being suitable for a BS 8102:1992 grade 3/4 tanking system. If that was to be the choice, his company would not take responsibility for it. On 12 February 2008 Ms Tooth wrote a long letter which included her advice about tanking options: she maintained the position that she did not recommend the Sika option. On 20 February 2008 Mr Carter reiterated his concern about Ms Tooth’s options. He said that she needed to demonstrate that her proposal was supported by BBA British Board of Agrement: a body which deals with the approval of construction products. certificates.[246]By this time the Wests were becoming understandably frustrated by the conflicting advice that they were receiving from their experts. On 27 February 2008 Mr West wrote to Mr Blair, a director of Saunders Boston, saying that he and his wife would trust Saunders Boston to use the system that they thought most appropriate.[247]As I have already mentioned, during the following month the decision was taken that Ms Tooth should focus on expert work and Mr Fleming-Jones would take over as project architect. Ms Tooth said in evidence (Day 7/46) that as time went on the circumstances changed and that she would not in the end have recommended the Kemperol option. This change of mind seems to have coincided with Ms Tooth’s change of role. In any event, for whatever reason, by early March it seems that Saunders Boston had come round to accepting a Sika solution and that was the option recommended to the Wests on 11 March 2008. Although this difference of opinion about the appropriate tanking solution had been simmering since October 2007, it was not until the meeting of 10 January 2008 that the difference of opinion became a serious issue and a potential obstacle to progress. If it had not been for this, I would have expected the decision on the appropriate tanking solution to have been taken by the end of January 2008. As it was, it was not taken until 11 March 2008, some six weeks later. However, Ms Tooth said, and I accept, that the main cause of the delay in implementing the remedial works was the extent of the investigation work that was required (Day 7/55-56).[248]The issue is whether this delay in resolving the disagreement about the appropriate remedial treatment is one for which IFA is in law responsible. The Wests submit that they behaved reasonably and responsibly throughout, and it was not their fault that their experts could not agree on the appropriate remedial solution. IFA, by contrast, contends that it should not be liable for this delay because it was not reasonably foreseeable that the experts appointed by the Wests would disagree so unreasonably with each other.[249]I was referred by Mr Coplin to the decision of the Court Appeal in Mulvenna v Royal Bank of Scotland [2003] EWCA Civ 1112, in which Sir Anthony Evans said, at paragraph 33:
“The authorities to which we were referred in connection with the legal issues of “causation” and “remoteness” demonstrate that the concept of reasonable foreseeability is not a complete guide to the circumstances in which damages are recoverable as a matter of law. Even if the loss was reasonably foreseeable as a consequence of the breach of duty in question . . ., it may nevertheless be regarded as “too remote a consequence” or as not a consequence at all, and the damages claim is disallowed. In effect, the chain of consequences is cut off as a matter of law, either because it is regarded as unreasonable to impose liability for that consequence of the breach (The “Pegase” [1987] 1 Lloyd’s Rep 775, per Robert Goff J), or because the scope of the duty is limited so as to exclude it (Banque Bruxelles SA v Eagle Star [1997] AC 191), or because as a matter of common sense the breach cannot be said to have caused the loss, although it may have provided the opportunity for it to occur (Galoo Ltd v Bright Grahame Murray [1994] 1 WLR 1360).”
[250]In Cooperative Group Ltd v John Allen Associates Ltd [2010] EWHC 2300 (TCC), Ramsey J made the following observations about the appropriate measure of damages in a case of professional negligence against engineers: “369. In this case it is not in dispute that remedial works are appropriate to remedy the effect of excessive differential settlement in the floor slab at the supermarket. The question is what the scope of those remedial works is. That question, in my judgment, has to be answered by reference to two principles. The first is that CWS are entitled to that sum of money which will put them in the same position as they would have been had the contract been performed . . .[370]The second principle which applies to the recovery of damages is that of reasonableness. In this case, where there are three different remedial schemes, CWS would be entitled to the cost of their preferred remedial scheme providing that such a remedial scheme was not unreasonable. In assessing whether such a scheme is unreasonable the court has to consider the cost of those remedial works compared to the benefit obtained by the remedial works; the intention to carry out the more expensive remedial works, to the extent that it goes to reasonableness; whether comparing the preferred remedial works with the proposed remedial works there is no sufficient overall advantage in the proposed remedial works. Overall therefore there is a requirement that the sum to be awarded by way of damages is to be reasonable as between the parties in addition to the obligation on a party to act reasonably in mitigation of its loss: see Ruxley Electronics Ltd v Forsyth [1996] 1 AC 344 per Lord Jauncey at 357F; per Lord Mustill at 361B and per Lord Lloyd at 368B and 369G; British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Company of London Ltd [1912] AC 673 at 689. ”[251]It is clear that it was a reasonably foreseeable consequence of a breach of duty by IFA in relation to the damp proofing work that the Wests would have to seek expert advice about the extent of the problem and the measures that were reasonably necessary to deal with it. If a claimant is faced with two alternatives and is advised by his experts (acting reasonably) that one is the appropriate and reasonable solution, a decision to follow that advice will usually result in the costs of the relevant remedial work being recoverable (see Skandia Property UK Ltd v Thames Water [1999] BLR 338).[252]This assumes that the sequence of events described in the previous paragraph is reasonably foreseeable as well as being a reasonable course for the claimant to adopt. The problem becomes more difficult when the claimant acts reasonably but the sequence of events in which he finds himself was not reasonably foreseeable. Suppose, for example, that after spending several weeks investigating the problem, the expert instructed by the claimant is disabled by a road accident so that the claimant has to start again and seek advice from a second expert. Whether or not the wasted costs of instructing the first expert are recoverable from the original wrongdoer raises questions of causation and foreseeability of loss, and not of the reasonableness of the claimant’s conduct.[253]Answers to questions of foreseeability are often a matter of impression, rather than the product of a detailed analysis. Another consideration is whether it is fair and reasonable that the costs of this dispute should fall on IFA rather than on the Wests: see Ruxley v Forsyth [1996] AC 344, per Lord Lloyd at 368A, 370A. The fact that the Wests may have some form of redress against one or other of their experts is a factor to be considered (if the position is reasonably clear), but in my judgment it cannot be decisive of the answer to the question.[254]In this case I am not in a position to express a view as to whether or not the view taken by Ms Tooth was a view which no reasonably competent architect ought to have taken, although I have to say that it would surprise me if that was the case. Indeed, her fears about the damaging effect of the moisture that would be created if a Sika treatment were adopted may well have been justified. Accordingly, this issue cannot be approached on the basis that it is a case where an expert subsequently instructed to advise the claimant has been negligent.[255]I disagree with Mr Coplin that it was not reasonably foreseeable by an architect in IFA’s position that, if he gave negligent advice in relation to damp proofing, different views might be taken by experts subsequently instructed by the Wests about which method of tanking should be adopted. Although no criticism can be made of the Wests, they were responsible for instructing Ms Tooth and Mr Carter and it might be said that it would be fairer that the loss should lie where it falls rather than being laid at the door of IFA.[256]In my judgment, it would be fair and reasonable for IFA to be liable for some of the delay that was caused by the disagreement about the appropriate remedial works, but I consider that in this case the issue took longer to resolve than it should have done and that it would not be fair and reasonable to hold IFA liable for all the delay that I find was caused by this disagreement. However, as Mr Fleming-Jones pointed out, there were other things causing delay in early 2008, such as the need for further investigation into the cause and extent of the damp. Doing the best I can, and using my own experience of delay in building contracts, I consider that 4 of the 6 weeks delay in resolving the disagreement about the form of treatment was probably critical delay to the remedial works as a whole.[257]I consider that it would be fair and reasonable to hold IFA liable for 50% of this period of critical delay, namely 2 weeks. I have not overlooked the long established rule that if a type of loss is foreseeable it is in principle recoverable, even though the extent of it would not have been foreseen. However, I consider that modern authority has mitigated the effect of this rule by imposing a requirement that it must be fair and reasonable to hold the defendant responsible for the whole or part of the loss in question: see, for example, Cooperative Group Ltd v John Allen Associates Ltd [2010] EWHC 2300 (TCC). The delay caused by the defects in the floor slabs[258]It is clear that the need to remedy the defects in the floor slabs must have caused some delay. The instruction to SRS to carry out the work was given on 3 June 2008 and the work was completed by 21 June 2008. Although the existence of the defects in relation to the thickness and absence of reinforcement were known by late April 2008, I do not consider that it was unreasonable for the Wests to seek a second opinion from an engineer as they were advised to do following a site meeting held on 23 April 2008. That second opinion was received on 9 May 2008. On 23 May 2008 those engineers confirmed that, in their opinion, the remedial works that they had recommended were reasonable.[259]Mr Fleming-Jones accepted in evidence (Date 4/52) that the discovery of defects in the slabs had some effect on the delay in putting the remedial works contract out to tender, but he was not asked to put a figure on the extent of that delay. As I have said, the work itself took 18 days from the time when the instruction was given, to which I would add a further 3 days to allow the concrete to cure sufficiently so that it could be walked on without causing any damage, particularly at the edges. This is therefore a total delay of 21 days.[260]I have no doubt that some additional delay was caused by such matters as the need to investigate the condition of the slabs by digging trial holes and sending of samples for testing. However, these events were running in parallel with the finalisation of the scope of the M&E remedial works, the preparation of the tender documents for both the main remedial work and for the damp proofing work. In the absence of any programme identifying a critical path through the works, I can do no more than take a broad view, which is that the works to rectify the defects in the slabs probably added about 1 month to the overall delay to the start of the remedial works. This is a period for which IFA is not liable so credit must be given for it. Other heads of claim The first floor roof terrace[261]This allegation relates to a new glazed balustrade that was installed to the rear of the first floor balcony. The original guarding consisted of a dwarf brick wall - about 500 mm high (according to the plans) - into the centre of which an iron railing had been fitted. The railing was about the same height again as the wall.[262]The rear part of the wall and the railing above it was removed and replaced by a glass balustrade, which I estimate to have been about 1.1-1.2 m high. The balustrade panels were rectangular and were not cut so as to accommodate the dwarf walls at each end. This left a gap between the balustrade and the original side railing (which had been cut) on the left hand side (looking towards the river), and on the other side between the balustrade and the side extension of the adjoining property. The latter was above the original dwarf wall, which had no railing on it (or from which the original railing had been removed), and was about 400 mm wide. It was a clear danger. Ms Tooth said that when she went on to the balcony her stomach turned when she saw the gaps at the ends of the balustrade.[263]The Wests advanced the case, for the first time in their closing submissions, that IFA should have had the end glass panels cut in an L shaped profile before the glass was hardened so as to protect the gaps. This case was based on some answers given by Mr Fleming in cross examination to the effect that it was possible to harden glass after it had been cut into a profile. However, there was no evidence that it was in fact possible to obtain hardened glass cut to a profile in the market or what it would have cost to do it. If profiled panels in hardened glass could have been obtained in the first place, then the Wests would have had to pay for them.[264]But an additional problem facing this case is that, according to Ms Tooth, the existing iron railing on the left hand side was itself a risk. She said that it could be climbed and so presented a high risk to the safety of children. Mr Fleming, who had not seen the original railing, disagreed. Having seen the photographs, I prefer the evidence of Ms Tooth. In my judgment the dwarf wall did present a risk for a child: it would not have been difficult for an agile three year old to climb up onto the dwarf wall using the railing and then climb over the railing itself. Whilst I think that three year olds often have a greater awareness of risk than that for which they are usually given credit, I consider that a prudent parent of small children would not wish to take the risk of leaving the original iron railing as the only means of protection. Indeed, the Wests themselves were not prepared to take that risk because in the course of the remedial work the original iron railing was removed and replaced with a slightly higher railing (which came up to about the same level as the top of the glass balustrade).[265]If the original railing on the left hand side was to be replaced in any event, it would have involved only a marginal additional cost (if any) to design it so that it married up with the glass balustrade so as to eliminate the gap. The gap on the right hand side could only be protected by having a small section of railing designed specifically for the space, which is what has now been done. Again, unless the end glazed panel of the balustrade had been cut in an L shape so as to extend across the gap, the insertion of a short section of railing to protect the gap would have been a cost that the Wests would have had to incur in any event.[266]Accordingly, in the absence of any evidence that it would have been possible to obtain appropriately shaped hardened glass panels or as to what they would have cost, and having regard to my finding that the existing railing presented a safety risk to small children, I consider that the Wests have failed to establish that any failure of specification by IFA in relation to the protection of the gaps has caused them any loss. Any instruction to Armour to carry out the appropriate work would have been a variation under the contract entitling Armour to be paid for it. The Pedini kitchen[267]The Wests claim the costs of a new kitchen (less the costs of the original electrical items) because the original units became damaged by damp. There is an issue as to whether there was any significant damage by damp prior to the removal of the units or whether all the damage was caused during storage.[268]The kitchen units had to be removed in order to carry out the remedial works. The problem was what to do with them. One option was to store them in the reading room on the upper ground floor in suitable conditions so that they would not be affected by damp. The alternative was to have them stored elsewhere during the period of the remedial works. Clearly the latter option would be more expensive: Pedini’s quote for storage (obtained in February 2008) was £150 per week plus VAT. For an anticipated contract period of 20 weeks this would amount to £3,600.[269]On 13 November 2007 Saunders Boston carried out an inspection of the kitchen units, which were still in situ, and noted various scratch marks on one of the doors and on the stainless steel worktops. The latter appeared to be consistent with items being dragged across the surface of the worktops. At that stage there were no visible signs of damp. At the end of November 2007 Pedini advised Mrs West that the environment in the house would be unsuitable for storage of the kitchen units. However, Pedini told Mrs West in the following month that they would not be able to remove the kitchen until February. Understandably, she was concerned that the units might become damaged if they remained on the walls. On the 11 December 2007 Saunders Boston advised that the kitchen units could be stored satisfactorily on the mezzanine floor provided that they were screened from the rest of the house by some temporary protection and that there was some form of heating. Mrs West wanted to obtain a report from Pedini about this.[270]The minutes of the meeting held on 10 January 2008 record the following:
“The estimated cost of removing, storing and re-installing the kitchen is £25,000. The original cost of the kitchen was £33,000. [Mrs West] to ask Pedini their cost for carrying out the works. It was noted that Pedini were extremely difficult to deal with, did not want to deal with the job any more but [Mrs West] would still try and get an answer. Pedini have advised that if the kitchen is removed they will void all guarantees. The best option may be to purchase a new kitchen as it is unlikely that it can be removed, stored and re-installed without damaging. Agreed that all parties would review once the kitchen had been removed to see that losses are mitigated. A Saunders Boston representative will be present during the removal works to see that it is carefully removed.”
[271]I am not clear how the estimated figure of £25,000 was derived, or whose estimate it was. At any rate, Mrs West proceeded to try and obtain a quotation from Pedini, which they agreed to do whilst making it clear that they would not accept any liability for damage caused during removal/storage/re-installation. On 5 February 2008 Pedini produced a quotation, which was for about £12,500 assuming a storage period of 20 weeks (this figure comes from an email sent by Mr West because the quotation from Pedini in the trial bundle appears to be incomplete). As I have already mentioned, the charge for storage was £150 per week plus VAT.[272]However, when providing this quotation Pedini said that they would not be able to remove the kitchen units until 3 March 2008. The Wests thought that this delay was too long and so it was decided to have the kitchen units dismantled by SRS under the close supervision of a representative from Saunders Boston. A note of that operation records that one of the wall units had mould growth on the back, which was cleaned off but it was recorded that a “shadow” remained.[273]Mrs West was not present when the units were removed, but she said in evidence that when she heard about it she became very concerned because she felt that once mould had penetrated into wood it would be very difficult to get rid of it. As I have already noted, she accepted that there was a possibility that when the kitchen was finally unwrapped after storage the mould could have disappeared but she said “as a scientist, I understood how unlikely that would be”. She expanded on this by explaining that the visible mould was only about 10% of the actual fungus. The other 90% was made up of the mycelia, which are the fungal hyphae growing inside the wood. She said also that there would also be fungal spores within the wood which could not be wiped off with bleach once they had penetrated into the fabric of the unit.[274]Mrs West appended to her witness statement a paper entitled “Microscopic fungi in dwellings and their health implications in humans” by two Slovakian academics. It was decided that Mrs West could not give evidence as an expert, and so this part of her evidence has been ignored, but in my view the evidence that she gave in cross examination and to which I have just referred is admissible because it goes to Mrs West’s state of mind and therefore to the reasonableness of her actions. In this context, whether her views were scientifically right or wrong is irrelevant.[275]When the kitchen units were finally unwrapped it was found that they were seriously damaged by damp. I find that they were unusable. I find also that the unit which was found to have mould on it when it was taken down was not fit to be reused. However, I do not know how much of the kitchen as a whole that unit represented (in terms of cost).[276]As IFA rightly anticipated, Mr Selby for the Wests relied on the well-known passage in the speech of Lord Macmillan in Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452, at page 506:
“Where the sufferer from a breach of contract finds himself in consequence of that breach placed in a position of embarrassment the measures which he may be driven to adopt in order to extricate himself ought not to be weighed in nice scales at the instance of the party whose breach of contract has occasioned the difficulty. It is often easy after an emergency has passed to criticise the steps which have been taken to meet it, but such criticism does not come well from those who have themselves created the emergency. The law is satisfied if the party placed in a difficult situation by reason of the breach of duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.”
[277]It seems to me that this is a paradigm case for the application of the principle stated by Lord Macmillan. The Wests were in a quandary. The cost of storing the kitchen units off site was likely to be some several thousand pounds more than the cost of storing them on site (assuming a contract period of at least 20 weeks). If they had opted to do that they would probably have been met by an argument that they had failed to mitigate their loss, because it would have been said that the units could have been stored on site. Further, there was the added problem of further delay before Pedini could move the units, which would cause further delay to the investigations and therefore carry other costs. I should add that it seems reasonable to me that if the kitchen units were to be dismantled, removed, stored off site and then re-installed, it should be done by their supplier, Pedini.[278]It can now be seen, with the benefit of hindsight, that the decision to store the units in No 63 was a mistake. In response to a question from the court as to whether the choice of where to store the units was obvious or whether it was something about which one just had to take a view, Mr Fleming said that it was the latter.[279]Mr Coplin submitted that: the kitchen units should not have been stored on site if Sika treatment was being proposed; the units were not properly protected during storage; and the damage to the units was caused by the unreasonable decision to store them on site. Accordingly, it is submitted that IFA should not be liable for the damage to the units.[280]These submissions must be taken in stages. For the reasons I have already given, I find that the decision to store the kitchen units on site was not an unreasonable decision. The Wests and those advising them were placed in a difficult situation and there was probably no right answer for those facing the problem at the time. I am quite satisfied that the decision to store the units on site was not a decision that breaks the chain of causation between IFA’s breach of duty and the damage to the units.[281]Mr Coplin’s more formidable point is whether the failure to protect the units properly during their storage is conduct that does break the chain of causation. I am prepared to assume, in IFA’s favour, that the mould that was subsequently found on the units is consistent only with a failure to store them under proper conditions. It is clear that Saunders Boston intended that the units should be properly protected and stored under controlled conditions (using dehumidifiers). However, there was very little evidence about what actually happened. In cross examination Mr Fleming-Jones said “I think certain items such as the kitchen were put away in a sealed environment” (Day 4/54). He was not asked any further questions about the storage conditions, yet he was probably the only witness who could have given evidence about this from his own knowledge.[282]Mr Coplin relied on an email from Mr West dated 24 October 2008 in relation to the kitchen in which he said:
“It was originally supposed to be carefully wrapped, protected etc. which Noble didn’t do as they assumed it could just stay “reconstructed” in the Reading Room for the duration.”
However, in his second witness statement Mr West said that Saunders Boston were “satisfied” with the storage of the kitchen in the reading room.[283]So the evidence about the conditions under which the kitchen units were stored is very sparse. It is clear that the units were carefully dismantled and prepared for storage under the supervision of Saunders Boston, but that is about as far as the evidence goes. There is no evidence on which the court could make a finding of a want of reasonable care in relation to the storage of the kitchen units. I think it most likely that, as things turned out, the kitchen units remained in storage for too long and that the precautions taken were not adequate for such a prolonged period of storage. In the absence of any evidence of negligence in connection with the storage of the kitchen units, I cannot see how an allegation that the chain of causation was broken can succeed.[284]For these reasons I conclude that the Wests are entitled to recover the cost of a new Pedini kitchen (less the electrical items). If I am wrong about this, I would in any event find that they were entitled to have the entire unit that was found to be contaminated with mould when the units were taken down replaced and to recover that cost from IFA. On any view, that was a direct and foreseeable consequence of IFA’s breach of duty. Of course, this conclusion assumes that it would have been possible to replace that part of the kitchen on its own. I do not in fact know whether or not that was the case. The ventilation of the kitchen/dining area[285]This allegation concerns the lack of ordinary ventilation to the kitchen/dining and conservatory area.[286]The relevant requirements are set out in Approved Document F1 issued under the Building Regulations 2000. This document came into effect on 6 April 2006, shortly before the tender documents were sent to Armour. I am not aware of any difference between Approved Document F1 and its predecessor that is material to this part of the claim.[287]Approved Document F1 provides that habitable rooms must have three types of ventilation. First, there is to be extract ventilation for rooms where large amounts of water vapour or pollutants are released, such as kitchens and bathrooms. Second there is to be background ventilation to provide fresh air and prevent condensation: this is also called whole building ventilation in Approved Document F1. Background ventilation for habitable rooms has to be to the outside air and has to consist of an equivalent area of 8000 mm². Third, there is purge ventilation (known as rapid ventilation in the previous document), which enables the removal of large concentrations of water vapour or pollutants. Opening windows are the classic example: so when the toast is burnt there should be windows that can be opened to provide immediate ventilation and remove the smoke.[288]SEA’s drawing 343/10 A dated 14March 2006 provided for ventilation of the kitchen/utility room by a note which was in the following terms:
“A) Rooms to have the mechanical extract ventilator capable of extracting not less than 30 litres per second with booster to 80 litres per second (may be intermittent in operation). B) Total area not less than 8000 sq mm permanent ventilation (trickle vents) C) Mechanical ventilator to have extract direct to external air.”
[289]It is clear, as Ms Tooth explained in evidence, that item C relates to item A. This therefore provides for two of the types of ventilation that are required: the extract ventilation and the background ventilation. However, it made no provision for purge or rapid ventilation. This is perhaps understandable, because purge ventilation is usually provided by windows or opening lights which are not part of an M&E specification.[290]In my view no criticism is to be made of this note on SEA’s drawing. It dealt properly with the M&E aspects of the ventilation. In addition, I consider that no relevant criticism could be made of IFA if either the required extract or background ventilation was not properly installed by Armour. This is because these are matters that I would expect to be checked and addressed at the stage when the M&E installation was commissioned. If that ventilation had not been properly provided, then that would be a matter for the contractor to rectify. However, even if all had gone well, the commissioning of the M&E installation would probably not have taken place until May or June 2007. If, for whatever reason, Armour was unwilling or unable to rectify it at that stage, that is not a matter that could be laid at the door of IFA.[291]Accordingly, in relation to the extract and background ventilation, I consider that any breach of duty by IFA (and I do not feel able to make any finding that there was such a breach of duty) has not caused any loss to the Wests. Unless Armour was prepared to provide the necessary ventilation, they would have had to meet the costs of installing such ventilation themselves.[292]However, I consider that the position is different in relation to the purge ventilation. The glazed conservatory or “glass box” that was provided by GlasSpace had no opening windows or panels. Mr Finlay said in cross examination that he knew now (implying that he did not know at the time) that the GlasSpace conservatory had no ventilation openings. He went on to agree (at Day 5/99) that, as the coordinating architect, he had to ensure that there was some way of providing ventilation to the lower ground floor by some mechanical means.[293]In my judgment, therefore, Mr Finlay should have found out what, if any, ventilation would be provided in the GlasSpace conservatory and, if none, to specify an alternative means of purge ventilation. This he did not do and in my view that was a breach of his duties as the architect. In fact, the Wests go further and say that there were three circular roof lights or “port holes” in a flat roof above the original kitchen, but that in IFA’s design these were removed.[294]There is no evidence that these “port holes” would or could have been easily opened (or, indeed, opened at all) from the kitchen. Unless there was some ready means of opening them, they would not in my view have satisfied the requirement for purge ventilation. Accordingly, I reject the suggestion that the “port holes”, if retained, could have provided a compliant means of providing purge ventilation.[295]If IFA had considered the question of purge ventilation of the lower ground floor at the time of preparing the schedule of works, there would have had to have been appropriate provision in the tender documents for such ventilation and one would have expected the price quoted by the tenderer to have increased accordingly. So unless the amount now claimed for the installation of the required mechanical ventilation is greater than the additional amount that the Wests would have had to pay if that ventilation had been included in the original tender, there is no loss. I can find no assistance on this point from the numerous quantum schedules that have been prepared. Accordingly, unless I have missed something, this head of claim must fail for want of proof of any loss. The failure to obtain approval to the installation of the conservatory floor slab[296]This head of claim is for the cost of opening up the paving and supporting concrete outside the conservatory in order to enable the building inspector to check the conservatory slab. Unlike the slabs in the kitchen and dining areas, the conservatory slab was a structural component. It was designed as a raft and was thicker around its edges because it was designed to support the conservatory. It appears that the slab had not been inspected during construction by anyone from the local authority building control, and Saunders Boston were unable to demonstrate to building control that it had been inspected by either Mr Finlay or the engineer at the time. Accordingly, building control insisted on having it opened up so that it could be checked.[297]However, Ms Tooth said in evidence (Day 7/72) that it was decided that it would be less disruptive to inspect the slab from outside by excavating through the patio and viewing the conservatory slab from there, instead of taking up part of the conservatory slab itself inside the house. Between the patio slab and the conservatory slab there was a drainage slot to take away surface water below which was an Acodrain. The operation of excavating into the patio slab to create inspection points from which to view the conservatory slab involved removing part of the Acodrain.[298]In the end, the building control officer was satisfied with what he saw and so no work was required to the conservatory slab itself. The claim is therefore for the cost of opening up the patio for the purpose of the building control officer’s inspection.[299]In these circumstances I find that the costs of this work could in principle be properly recoverable from IFA, but only if IFA was in breach of duty in relation to the lack of any inspection of the conservatory slab during construction by the building control officer. That is the issue to which I now turn.[300]On 18 July 2006 Wandsworth Building Control granted conditional approval under the Building Regulations. Requirements included in the conditions were for the submission of information showing that the thermal elements of the extension met the required U-values and submission of full details of the conservatory (which must have included the slab). Mr Finlay accepted in cross examination (Day 5/76-77) that, although he had all the relevant information in relation to matters such as the U-values of the conservatory and the details of the conservatory slab construction, he did not submit all the relevant material to Wandsworth Building Control. Clearly he should have done, as the experts agreed. To the extent, therefore, that this failure has caused the loss to the Wests, I find that such loss is recoverable from IFA.[301]However, the failure to submit relevant information to building control does not mean that IFA was responsible for any failure to notify building control of the date of construction of the conservatory slab so that a building control officer would have the opportunity of checking it during construction. IFA submits that giving notice of such matters to building control is the responsibility of the contractor, not of the architect.[302]It seems to me that there are two aspects to this. I think that IFA may be right in submitting that it is usually the contractor who notifies building control when a foundation or other structural component is about to be constructed. However, in this case a building control officer could not carry out any meaningful inspection of the construction of the conservatory slab unless building control had already been provided with all the relevant drawings and calculations (if any). These IFA had not supplied. It may be that if Armour had notified building control of the imminent construction of the conservatory slab, IFA would have been jolted into supplying the relevant information. However, the fact remains that in the absence of the relevant construction details a building control officer could not inspect or approve the construction of the slab.[303]For these reasons, therefore, I consider that IFA is liable for the expense incurred in excavating the inspection pits in the patio and any associated consequential costs. Quantum issues[304]IFA disputes the quantum of the Wests’ claim at almost every turn. There are three Scott Schedules setting out the disputed items, many of them for a few tens or hundreds of pounds.[305]IFA’s primary case on quantum is that, whatever IFA had done, Armour would not have completed the work and so the claim should properly be regarded and assessed as a claim for wasted costs. I have already rejected that argument.[306]IFA’s secondary case is that it is not liable for the M&E defects or the defects in the slabs and so the damages must be assessed on the basis that IFA is liable for the tanking only. Whilst I have accepted IFA’s submission in relation to the slabs, I have rejected its case in relation to the M&E installation.[307]In my view it would not be a proportionate use of judicial time for me to analyse the claim on each of the two alternative scenarios (and the various different nuances of the factual permutations to which they may in turn give rise) and then assess the damages that would be recoverable in each situation. This judgment is long enough already. I shall therefore confine myself to considering the proper measure of damages in the light of my findings of fact.[308]When REassure carried out the remedial work it was instructed, at the instigation of the Wests, to carry out additional work that was not the result of any breach of duty by IFA, and the new M&E installation was not the same in all respects as that which had been specified originally by SEA. Many other minor building alterations, such as the fitting of cupboards, were also carried out. In his closing submissions Mr Coplin identified about 40 items of additional or varied work.[309]The extent of this can be judged from the fact that REassure’s final account was for £454,978, whereas the original contract price was £359,038. However, of that final account the sum claimed against IFA is limited to £383,895. The manner in which the proportion attributable to IFA has been assessed has been the subject of severe criticism on behalf of IFA. It is said that a “top-down” approach has been adopted: in other words, taking the amounts actually spent and extracting the sums that are said not to be attributable to IFA. Mr Coplin’s underlying complaint is that the exercise should have been done the other way round: by identifying those items of expenditure that were properly attributable to IFA’s breach of contract and building up the claim in that way.[310]Where several different causes have contributed to an aggregate loss, that approach may be essential. But in this case the expenditure has either been caused by the original defects or by variations or additions introduced by the Wests during the remedial works. In order to determine the extent of the remedial work caused by the defects in the original work, I can see nothing wrong in principle with the approach that has been adopted by those advising the Wests. What is more difficult, I accept, is to distinguish between expenditure caused by matters for which IFA was responsible and expenditure caused by matters for which Armour was responsible. However, that is a matter for the court and not for those advising the Wests. As it happens, the task has been made a little easier because I have found that IFA is liable not only in respect of the damp proofing but also in respect of the M&E installation. Accordingly, there has been no need for the court to embark upon the exercise of apportioning responsibility for the remedial work between those two causes.[311]I indicated to the parties during closing submissions that I might find myself unable to deal with every disputed item - there are well in excess of a hundred of them - because the time taken to do so might unduly prolong the time taken to prepare this judgment and be disproportionate. A further complication is that in the case of many items the amount put forward has depended on the case on causation being asserted by the party concerned. However, I have decided to deal with every item in the claim, albeit on a fairly broad brush and robust basis, rather than put the parties to the additional expense of preparing further schedules in response to my primary findings of fact.[312]The task of the court has not been made easier by the fact that IFA’s response to the causation and quantum of the claim has shifted as time has gone on. This is a defence that has been conducted in the manner reminiscent of pre CPR defences by some liability insurers (although, in this case, professional indemnity insurers). In general, experts were instructed very late in the day and sometimes as a result, through no fault of their own, the evidence that they could give was of limited value. Likewise, IFA’s case on quantum has emerged and developed as the trial approached and, indeed, during it. Matters for which credit must be given against the claim[313]I have already mentioned the delay that would have occurred to the original contract if IFA had discharged its duties to the Wests in relation to the M&E installation. The effect of that delay would be to postpone the date when the Wests would have moved into No 63 by 6 weeks and therefore to reduce the period during which they could have let their flat in Limehouse.[314]I have also found that Mr Finlay should have advised the Wests to allow a provisional sum of £5,000 for localised repairs to the existing damp proofing. That is a cost that was not in fact incurred and so the Wests must give credit for it.[315]There is also the question of the tanking itself. Since I have found that Mr Finlay would not have advised the Wests to carry out a full tanking of the lower ground floor, that is not an expense that they would have incurred. However, they now have a house with a fully tanked basement which confers a substantial element of betterment. In my judgment the appropriate way to give credit for that is to assess the difference between the value of No 63 in May 2009 with a fully tanked basement and the value of the house at the same date if the original slabs had been properly detailed and constructed and if proper localised repairs to the existing damp proofing had been carried out.[316]In the light of the evidence to which I have already referred about the likely extent of the existing damp proofing to the lower ground floor of No 63 in 2005/06 and the fact that the walls appeared to be dry, I consider that if the localised repairs mentioned by the damp proof specialist instructed by Mr Wright had been properly carried out, the damp proofing to the lower ground floor would probably have remained reasonably effective for some 10 years. On this assumption, and having regard to the sum charged by Aquarend, I assess the difference in value at £25,000. The Wests must therefore give credit for that amount.[317]I have also found that if Mr Finlay had taken heed of the warnings by Mr Elphick in October 2006, he would have advised the Wests to instruct Mr Elphick to visit the site and check the M&E installation. I consider that this would not have involved just one visit, because it would have been necessary for Mr Elphick to return to the site from time to time to ensure that the work was being carried out properly. I consider that this would probably have involved six visits, which at £450 a time amounts to £2,700. That sum, which the Wests did not in fact incur, must also be set against the claim.[318]In addition, it was contended by IFA that the Wests should give credit for any sums that were due to Armour at the end of the contract or, more precisely, by the time that Armour left the site. I reject this argument for two reasons. First, I am not satisfied that in fact any money was due to Armour by the end of June 2007. There were numerous defects and items of incomplete work and the Wests would have been entitled to withhold a sum well in excess of the retention. Second, I accept the submission on behalf of the Wests that, if there was any money owing to Armour (including the retention), they were entitled to apply it to matters for which Armour alone was responsible, such as the defects in the floor slabs.[319]I now turn to the three schedules of loss. As a general observation I should say that in those cases where there is uncertainty about the as built condition, it seems to me that the responsibility for the lack of that information rests primarily with IFA. Accordingly, I have generally - but not always - resolved any doubts about the as built condition in favour of the Wests. Particular items in issue - the QS1 items[320]Items 4/5, 8, 21 and 22 have been agreed. The total amount claimed, and which is therefore recoverable, is £5,475.87.[321]I have already dealt with the Pedini kitchen units (Item 11).[322]Aquarend (Item 2). I consider that the sum paid to Aquarend is recoverable, subject to the deduction of £5,000 that I have found would have been set aside as a provisional sum for localised damp proofing repairs and for credit being given for £25,000 being the amount that I have found to be the enhancement in value of the property as a result of the tanking carried out by way of remedial work.[323]The Ardern Hodges floor (Item 6). In two rooms, one of which was the master bedroom, the Wests had decided to have new tongue and groove hardwood veneer flooring. The Wests say, and I accept, that some of these had to be lifted in order to carry out the M&E remedial work. Because the joints had been glued there was no alternative but to remake fresh tongues and grooves, which would involve reducing the width of the individual floorboards by, I suspect, a little under 10 mm. I consider that it would not be reasonable for the Wests to insist on an entirely new floor in order to preserve the appearance of the floor as originally laid: see Ruxley v Forsyth [1996] AC 344. I would be surprised if the Wests would not have chosen the original flooring just because the boards had been slightly narrower. I consider that it would not be reasonable or proportionate to award the Wests the costs of a new floor if, as I understand the position to be, the original flooring could in principle have been reused with no detriment beyond the narrowing of the floorboards that I have mentioned. However, I consider it likely that there would have been some damage caused during the removal of the floor, and I would allow a further £500 for this, making the sum recoverable £5,450 plus VAT.[324]John Cullen (Item 7). I consider that this item is recoverable in the sum claimed of £311.08 for the reasons given by Mr Topp in Appendix A to the second M&E experts’ joint statement.[325]The Banham alarm (Item 9). I find that this was effectively a like for like replacement for the reasons given in paragraph 168 of the Wests’ closing submissions. The sum claimed of £1,695.60 is therefore recoverable.[326]The reconnection of the TV aerial (Item 10). The original aerial was not connected and so this was incomplete work for which only Armour would have been liable. I therefore reject this item.[327]The warped doors (Item 12). In her report dated 24 August 2012 Ms Tooth said that she had inspected the entrance doors to all rooms at all levels and had noted that generally they had “warped significantly to the extent that they require replacement” (paragraph 2.13.6). In Mr West’s second witness statement he referred to the warping of the doors as having been evident in May 2009, and Saunders Boston were then asked to give an opinion. I assume that this is the time of the inspection referred to by Ms Tooth. No doors were replaced at that time. However, the evidence of Mr Fleming was that he went to No 63 to inspect the doors that were said to be warped and saw 6 doors that showed signs of warping as a result of exposure to damp. So far as I am aware this is the only recent evidence in relation to this item which suggests that the warping to some of the doors that was seen in May 2009 had resolved itself with time, and so I find that IFA is liable for the cost of replacing or repairing (if they can be repaired, which I doubt) the 6 doors to which Mr Fleming referred. I should mention that Mr Fleming did say that he saw two other doors which were deformed, but it was his view, which I accept, that this was not the result of exposure to damp. The cost of repairing these doors will have to be agreed: I am not in a position to assess it.[328]Drain survey (Item 13). I find that the cost of this is recoverable for the reasons given in paragraph 182 of the Wests’ closing submissions. I therefore allow the £287.88 claimed.[329]Sums paid to ESAPS (Item 14). For the reasons that I have already given in relation to matters concerning building control, I find that these sums are recoverable. The sum claimed appears to be £176.25, which I therefore allow.[330]The fees of Saunders Boston (Item 15). I consider that the challenge to Ms Tooth’s fees in respect of the remedial works is misconceived because those fees were waived as a result of a commercial agreement between the Wests and Saunders Boston. Otherwise, I consider that the Wests are entitled to recover the sum claimed in respect of Saunders Boston’s fees, subject to a reduction of 7.5% to reflect the fact that an element of Saunders Boston’s time, however carefully recorded as being attributable to the remedial works, was in truth likely to have been attributable to the variations and additions required by the Wests during the remedial work.[331]The fees of Colin Topp (Item 16). Since I have found that the whole of the M&E installation had to be stripped out and replaced, I allow these fees in full, namely in the sum of £14,547.54.[332]The fees of Simper Bibbey (Item 17). I allow £1,500 of the sum claimed to reflect the fact that some of the work, which was the subject of this particular investigation, was in relation to the slabs for which IFA is not liable.[333]Sums paid to AND (Item 18). For the reasons given at paragraph 196 of the Wests closing submissions, it seems to me that the sum claimed of £625.69 is recoverable.[334]Sums paid to PD Consulting (Item 19). These arose out of the defects in the slabs for which I have found that IFA is not liable. I therefore reject this head of claim.[335]Sums paid to TASC (Item 20). For the reasons that I have already given these sums would not have been incurred in any event, therefore the agreed sum of £1,732.07 is recoverable.[336]Alternative accommodation (Item 23).(1) According to IFA’s closing submissions, a monthly rate of £6,371.49 has been agreed. If that is not the case, then I see no reason why the Wests should not recover the sums set out at paragraph 209 of their closing submissions, plus Council Tax at the agreed rate of £87.32 per month, subject only to the period.(2) I have already found that the period for which a claim can be maintained is no longer than 16½ months (the revised claim of 18 months, less 6 weeks). I appreciate that Mr Fleming-Jones gave evidence to the effect that he did not consider that any of the variations or additions wanted by the Wests would have added to the contract period at the time when he gave the relevant instruction. I accept that that is what he thought at the time. But however well-intentioned Mr Fleming-Jones may have been to avoid giving any instruction that he thought might prolong the contract period, I agree with Mr Coplin that it is more likely than not that the very significant amount of additional work ordered by the Wests would have added some time to the contract period. On the present state of the evidence I am not in a position to determine with any degree of accuracy the extent of that prolongation, but I consider that I will do rough justice to the parties if I assess it at about 10%. Accordingly, I find that the period for which the Wests are entitled to recover the cost of alternative accommodation and associated time related costs is 15 months.[337]Utilities (Item 24). I consider that these are properly to be regarded as a time related cost. I note that the agreed rate is £110 .81 per month. Particular items in issue - the QS2 items (SRS/Noble House works)[338]Items 1a & 1b. These are agreed as being recoverable.[339]Item 2. It follows from my findings in relation to the appropriate remedial scheme that the sum claimed for this item is recoverable in full. In relation to the cost of render that would have been incurred in any event, that is covered by the provisional sum of £5,000, for which I have already found the Wests must give credit.[340]Item 2a. This concerns the discount for the removal of the plaster. In the light of Mr Finlay’s evidence (Day 5/91) that most of the lower ground floor walls were replastered, I accept Mr Simper’s deduction of £500.[341]Items 3a - 4.26. These are agreed as being recoverable.[342]Item 5 (Rows 39-45, 47, 50-52). These are in relation to piecemeal stripping out. On my findings as to what would have probably happened, fairly little stripping out would have been done. What would have been done is taken into account in the provisional sum of £5,000.[343]Item 5 (Rows 46, 48 and 49). These are agreed as being recoverable.[344]Item 5 (Rows 53 and 54). These items concern the excavations below the patio in order to inspect the conservatory slab. I have already held that these sums are recoverable.[345]Item 5 (Row 55 and 56). Item 55 has been agreed. Item 56 relates to opening up for investigation in the kitchen/dining area. In the light of my findings on liability it is recoverable in full.[346]Item 5 (Row 57). This is all removal of the skirting in the master bedroom. In the light of my conclusions in relation to the M&E installation, it is recoverable in full[347]Item 7. This is for the removal of the washing machine. It is accepted that it is recoverable in full.[348]Items 8, 9 and 12 (Rows 62, 63 and 66). Items 8 and 9 relate to the defective floor slabs and are not recoverable. Item 12 relates to the tanking work and is recoverable.[349]Item 13 (Row 67). This appears to duplicate Row 56. In the absence of any evidence to the contrary, I disallow it. Particular items in issue - the QS3 items (REassure works)[350]Rows 84, 85, 86, 87, 88, 89, 90, 92 and 94 (lower ground floor). In the light of my findings on liability, I consider that the sums as assessed by Mr Simper for these items are recoverable. However, some of these items (e.g. Row 90) duplicate items in schedule QS2 (e.g. Items 53 and 54): plainly the same sums cannot be recovered twice over, so any duplication must be removed. In relation to Rows 86 and 94 I accept the reasons given in the Wests’ responses in the schedule. For the avoidance of doubt, I do not allow the sum claimed for Item 1.12 in Row 96.[351]Rows 104 and 109 (first floor). Row 104 refers to the lack of guarding on the first floor terrace, which is a head of claim that I have already rejected. In the light of my findings in relation to the M&E defects, I consider that the sum claimed in relation to Row 109 is recoverable in full.[352]Rows 121 - 124 (Mechanical services). These items are disputed only as to allocation between tanking and M&E. On my findings this does not arise, so, subject to one point, these sums are recoverable in full. In relation to Row 122 (“Liaise with Client”), I propose to disallow about one third of the sum claimed, say £3,500, because I consider that this liaison would have involved both remedial and non-remedial work. I therefore award the sum claimed for these items less £3,500.[353]Row 125 (Gas services). This item concerns the replacement of the boilers, pumps, valves, controls, and heating pipework and mechanical extract and heat recovery systems. I consider that all of these elements are recoverable in principle, save for the mechanical ventilation to the lower ground floor and wall of the ventilation sets. Mr Simper and Mr Huntley disagree about the sum which should be attributed to the former. Doing the best I can, I assess it at £2,500. In relation to the ventilation sets, there is no evidence as to where these were and I suspect that some were in bathrooms that had previously been left as shells. I therefore deduct the cost of 4 ventilation sets, namely £2,000. These two figures must be deducted from the sum claimed of £39,565.69.[354]Rows 129 and 130 (underfloor heating). I have already found that IFA was at fault for failing to take steps to ensure that design calculations for the M&E systems were submitted to SEA. However, in principle I accept Mr Huntley’s point about the greater extent of the underfloor heating installed in the lower ground floor. But I understood from Mr Simper’s evidence (Day 8/70-71) that he and Mr Huntley had agreed this item subject to liability. Thus the sum recoverable is the agreed figure of £8,062.85.[355]Row 131 (supply of new radiators and towel rails). In the light of Mr Topp’s evidence (Day 6/30-31), which I accept, I allow this sum in full.[356]Row 132 (installation of sanitary pipework and connection of sanitary fittings). The sum claimed for this item appears to be agreed (save for the allocation, which does not arise on my findings), apart from the costs of the sanitary fittings in two shower rooms. In the absence of any figures identified in REassure’s application, I deduct £1,500 for these. Subject to this deduction, I allow the rest of the sum claimed.[357]Row 133 (final testing and commissioning of the mechanical services). As for Row 132, so I allow this item in full.[358]Rows 136-145, 147-150 (various the electrical works). As for Row 132, so again I allow these items in full, save that for the same reason as given for Row 122, I deduct £425 from Row 137.[359]Row 146 (new intruder alarm system). I have already dealt with this item elsewhere and have allowed the cost of the alarm. For the reasons given in the discussion on Day 3/127-128, I consider that this item should be disallowed because it reflects the builders work in relation to the installation of the wiring for the alarm (which was not done before because the previous installation was a wireless system).[360]Row 151. I allow this item for as fitted drawings. Rows 152-153. As for Rows 147-150.[362]Row 156. The walnut capping is an enhancement, but this has been taken into account in Mr Simper’s figure, which is the amount recoverable.[363]Row 157. I allow this item in full: it is a consequence of the M&E works.[364]Row 158. The cost of the hardboard appears to be agreed, so I allow this item.[365]Row 160. In the light of the evidence of Mr Fleming-Jones (Day 4/62), which I accept, I consider that it was reasonable to redecorate the house. I therefore allow the sum as assessed by Mr Simper of £26,808.80.[366]Row 178. I regard this insulation as betterment. Although it may have been something insisted upon by the building control officer, it is in my view an enhancement that is new and different and the Wests have the benefit of it (even if they do not appreciate it). Accordingly IFA is not liable for this item.[367]Row 179. Subject to there being no duplication with Row 90, I allow this item.[368]Rows 184-6 and 190. These are admitted and so I allow these items in full.[369]Row 189. The photographs suggest that a substantial proportion of the notches in the joists were already present before the Wests bought the house. This is a cost that would probably have been incurred in any event; alternatively, I regard it as betterment. Either way, I reject this head of claim. Row 194. As for Row 178, so I disallow this item.[371]Row 197. This is admitted and is therefore recoverable.[372]Rows 199, 200, 204, 224, 226 and 227. I consider that these ceiling repairs either arose out of the remedial works or as a result of defects in the original installation. I consider that the sums claimed are recoverable. However, I do not regard the consequences of the leak (Item 226) as something for which IFA is responsible. I therefore disallow that item, but allow the others.[373]Row 203. I regard this as part of the tanking works and therefore it is recoverable.[374]Row 207. I consider that the sum claimed for the door entry system is recoverable for the reasons given by Mr Topp in the experts’ joint statement.[375]Row 209. This relates to Row 90 and is recoverable for the same reason.[376]Row 211. I accept that this was necessary work consequent upon the tanking. I therefore allow it in full.[377]Row 213. I do not accept that it was necessary to replace every radiator: it was clear from the evidence of Mr Topp that some were much worse than others. I therefore disallow £2,133 (50%) of this item.[378]Row 225. I have no satisfactory explanation as to what this is. Since I have found that the cost of some of the new ventilation plant is not recoverable, I disallow this item also because I am not satisfied that IFA is liable for it.[379]Row 227. I consider that the sum claimed of £309.35 in respect of the ceiling below the master bedroom is recoverable for the reasons given at paragraph 34.37 of Mr Simper’s report.[380]Row 229. I consider that the sum claimed of £539.50 in respect of the master bedroom skirtings is recoverable for the reasons given at paragraph 341 of the Wests’ closing submissions.[381]Row 234. This item has not been proved in full: it is not explained why a new sink was required. I allow £250 only for this item.[382]Rows 235 and 236. I allow these items for the reasons given by Mr West in his second witness statement.[383]Rows 237 and 241. I reject the claim for £308.24. I am unable to see how this was caused by any breach of duty by IFA.[384]Row 252. I am not persuaded that the need to fit this telephone was a consequence of any breach of duty by IFA. I therefore disallow this item.[385]Row 258. I am not persuaded that all of these light fittings were downlighters that were unsuitable. I have already allowed recovery in respect of some light fittings, but I am not persuaded that the Wests are entitled to recover in relation to this item also. Therefore this loss has not been proved.[386]Row 297. I consider that OHP should be added to the amounts that I have awarded under QS3 at the rate of 8.43%.[387]Row 298. I accept that the preliminaries in REassure’s contract are fairly high (although not as high as claimed by Mr Huntley). There is no evidence that the level of preliminaries would have been any different if there had not been additional work, and I am not prepared to assume it, so as a matter of probability I consider that they would have been the same. Accordingly, I allow the preliminaries in the sums assessed by Mr Simper. Interest[388]I broadly accept the evidence of Mr West, which was not challenged, that the cost of his borrowing to fund the remedial works represented a rate of interest of approximately 8%. I reject IFA’s submission that an appropriate rate of interest would be 3%. That would not begin to compensate the Wests for the cost of their borrowing and being kept out of their money.[389]In the unusual circumstances of this case I will award interest on actual expenditure at 7% over base. Interest is to run from the date when items of expenditure were incurred. For ease of calculation I will direct that expenditure is to be allocated to the relevant quarter of each year (in other words, £x spent between 1 January and 31 March) and then interest is to run from the midpoint of that quarter on £x. Damages for inconvenience, distress and discomfort[390]It is well established that the innocent party to a breach of contract who has been subjected to inconvenience, distress and discomfort by, for example, having to move out of his or her home whilst remedial works are carried out, is entitled to a modest award of general damages: see AXA Insurance UK plc v Cunningham Lindsay UK [2007] EWCA 3023 (TCC), per Akenhead J at 274-275. He said that in 2007 general damages for inconvenience and distress would not usually exceed £2,500 per person per year. That figure would probably be a little higher now.[391]I am quite satisfied that the Wests are entitled to general damages for inconvenience, distress and discomfort, but the court must be astute to ensure that it is not awarding damages for the stress and the vexation of litigation.[392]In this case the period involved is a little under two years: from about July 2007, just after the damp first appeared, to June 2009 after the Wests had moved back in to No 63. I consider that Mrs West was more affected by the dislocation, particularly as the mother of small children, although I note that the incident to which she refers in her witness statement when she went to see her GP suffering from exhaustion was in early June 2007. That was not as a result of any breach of contract by IFA complained of in this action, because the problems had not by then come to light: it is much more likely that it was the consequence of living in a house in which builders were still working - which is always a stressful experience. It must have been aggravated by the earlier incident involving her son Jacob in May 2007, when he passed out as a result of inhaling the toxic fumes from the recently varnished floors.[393]I consider that the appropriate award for general damages in the case of Mrs West is £7,000. For Mr West I consider that the appropriate figure is £5,000. So far as their elder son Jacob is concerned, I consider that he would be much less affected although he would be influenced by the distress experienced by his mother. In his case, I award the sum of £2,000. These sums will all carry simple interest at the rate of 2% from 1 June 2008. Any remaining items in issue[394]There are many items that have been agreed, both as to liability and amount. If I have not referred to all of them in this judgment, that is an oversight. It is not because I intended to disallow them. They should be added to the sums that I have found to be recoverable.[395]In the light of my findings in relation to the amounts claimed in the three schedules, I propose to leave the parties to agree the actual sum which the Wests are entitled to recover. In particular, I expect the parties to resolve any cases of potential duplication between the schedules and to agree a figure for the warped doors.[396]If agreement cannot be reached, then the parties must prepare and serve an appropriate schedule identifying the items still in dispute and stating briefly what each party’s case is in respect of each item. I will then give directions as to how the matters remaining in issue are to be determined.[397]I will hear counsel in relation to costs and any other matters arising out of this judgment.

Cited in 2 later judgments