By Jamela Collins, Senior Underwriter
(Estimated reading time: 8 minutes 8 seconds)
Mr and Mrs Vainker v (1) Marbank Construction Ltd; (2) Mercer and Miller a firm; and (3) SCD Architects Ltd [2024] EWHC 667 (TCC).
This is an interesting case under the The Defective Premises Act 1972. (The DPA) that highlights the significance of the Scott Schedule and causes of action in tort and under the DPA. Jefford J handed down the judgment. The case against the Second Defendant settled shortly before the Trial.
This case arose following the construction of a residential property known as The Croft in Strawberry Hill, Twickenham. The house was constructed by the First Defendant. The Third Defendant were the Architects to the project.
The Claimants purchased land and the house that stood on the land in 1999. The former house was demolished in 2003. A standard form JCT Contract was entered into, and work commenced in 2013 with practical completion certified as achieved on 15 May 2014. The Claimants brought a claim due to a number of defects in the house as built.
1.Defective Premises Act
The judgment of Jefford J considered the factors under S1 Defective Premises Act 1972 regarding the test for whether the work is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.
The judgment by Jefford J highlights that a claim under the DPA can often proceed, even though a claim in contract or in tort is time barred. Jefford J also considers the meaning of habitation as stated below:
76. In deciding whether a dwelling is fit for habitation where there is more than one defect it is not right to consider each of the defects in isolation. It is appropriate to consider whether the dwelling as a whole was unfit for habitation: see Bole v Huntsbuild Ltd.
83. The application of these criteria will be very fact-specific in any particular case.”
So far as the present case is concerned, a number of aspects of this decision seem to be relevant:
- In considering whether the house was, at the time of completion, fit for habitation, it is relevant to take into account that it was intended to be not only a new build but a modern house in design. It is a fact sensitive question in respect of any particular defect whether the requirements Mrs Vainker had for the house have any relevance.
- It is unlikely that a defect that is only aesthetic or inconvenient would render a dwelling unfit for habitation.
- There may be a breach of the duty in respect of a defect which means that the condition of the dwelling is likely to deteriorate over time and render the dwelling unfit for habitation when it does so. In that case the dwelling can be said to be unfit for habitation at the time of completion.
- In considering whether a failure to carry out works in a workmanlike or professional manner renders a dwelling unfit for habitation at the date of completion, it is appropriate to consider the aggregate effect of defects. However, it must be the case that minor or aesthetic defects which do not contribute, and are not capable of contributing to, unfitness for habitation cannot be relevant in this consideration and damages cannot be recovered in respect of such a defect merely because other defects render the dwelling unfit for habitation.
2.Contribution Notice
The First Defendant sought at trial to bring a claim against SCD the architects.
Jefford J confirmed that “the rules are clear as to the basis on which a claim for contribution can be made against a co-defendant – that is, in accordance with Part 20.6. It seems to me relevant that that rule places a time limit on the bringing of a claim for contribution in existing proceedings as of right and, thereafter, requires the permission of the court. If a claim for contribution between co-defendants could simply be made by submissions at the conclusion of proceedings, the rule and the requirement for permission would serve no purpose. I am not persuaded that it would be right for me to deal with claims for contribution other than in accordance with the Civil Procedure Rules.” Therefore the application was invited to be made.
3. General Damages
This is a claim for general damages. The claimants claimed £1500 per annum in respect of Mr Vainker and £3,000 per annum in respect of Mrs Vainker. This is claimed over a period of 9½ years, a period which is longer than the period from practical completion to the date of trial and, therefore, appears to contemplate consideration of further remedial works.
In the recent decision of the Court of Appeal in West v Ian Finlay & Associates [2014] BLR 324, the court said that awards of this type should be modest and subject to a maximum of about £3,000 per annum (at current prices).
The Temple Perspective
I take from the above the following propositions:
- The top of the range (10 years ago) was £3,000 per annum.
- It is relevant whether or not the claimant occupies the property and/or has had to move out while remedial works are carried out.
- The claimant is to be treated as a person of reasonable robustness. A particular characteristic of the claimant may be material when, for example, the distress is caused by the presence of children in the defective property.
- It is relevant to consider both the impact of distinct defects and the period of time over which that defect cause distress and inconvenience.
Nonetheless, the court is entitled to take a broad-brush approach
The basis for the particular figures is the awards made by Edwards-Stuart J in Rendlesham Estates plc v Barr
Comparing the position with that in Rendlesham I do not accept the broad submission that the defects were worse; they were more extensive; but they did not all persist for a period of over 9 years. Balancing these factors out, it seems to me that an appropriate and modest award would be the sum of £2,000 per annum giving a total of £19,000 over the period claimed… and is the sum that I would award as general damages.
This case is a great example of working through the Scott Schedule and expert evidence, looking at causation as well as the issues highlighted above. It is definitely worth reviewing if you have a residential type of construction case.
If I can assist with any enquiry regarding a construction claim please send an email to jamela.collins@temple-legal.co.uk or if I can assist with any other commercial litigation case do also please get in touch.
Jamela Collins
Senior Underwriter
01483 514871
Jamela Collins
Jamela qualified as a Solicitor specialising in litigation. She has extensive experience specialising in commercial, construction, inheritance and insolvency claims. She has also worked at RSA as a Team Leader.
Jamela has joined the commercial team as a Senior Underwriter in 2023 and is very much looking forward to using her litigation and insurance experience to support Temple’s customers with market leading products and services.
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