August EWJ 24 - Flipbook - Page 26
there was sufficient written instruction generally in
relation to that variation. Where Marbank could not
adduce any evidence of a written instruction, then
there was no basis for a claim under the contract.
Key points within the court’s judgement
The judgement in this case is long and is fact
dependant. However, a number of key points were
considered which are of more general interest to those
dealing with defects claims under the DPA, taking the
above aspects into consideration. For example:
Key takeaways
1. The DPA may provide claimants with an option to
pursue claims for defective workmanship and/or professional negligence against contractors or consultants
which are otherwise out of time for contractual or tortious claims, in relation to dwellings where it can be
shown that the consequential defects rendered the
dwelling unfit for habitation at the time of completion.
l The defects must render the property unfit for
habitation – In circumstances where contractual and
tortious claims against SCd were time-barred, parts of
the claim against SCd under the DPA also failed where
the failures did not render the house unfit for habitation at the time of completion. Also, the fact that the
brickwork was not aesthetically pleasing did not amount
to a breach of the DPA, but using incorrect glass for
balustrades without a handrail did breach the DPA, as
it rendered the house unsafe/unfit for habitation.
2. The correct measure of damages may not simply
be the cost of making the dwelling fit for habitation,
but will depend on other factors.
3. Net contribution clauses cannot be relied upon to
limit liability under the DPA.
l The measure of damages – SCd was found liable for
failing to notice the issues with the staircase balustrade
installed by Marbank. This rendered the house unfit
for habitation because it posed a health and safety risk.
Further the court rejected the suggestions that replacing the balustrades was disproportionate because
installing a handrail would alleviate the health and
safety issue and render the house fit for habitation and
held that "the recoverable damage should…be the cost
of making the dwelling fit for habitation in the way it
would have been had the services been supplied in a
professional manner". This took into account the
modern design of the house.
4. The contractor was unable to claim for variations
under the JCT Standard Building Contract 2011
where it was unable to adduce any evidence of a
written instruction.
In summary, claimants should make claims for defects
in a timely manner, but options may be available if earlier limitation dates are missed under the DPA for
dwellings which are unfit for habitation at the time of
completion.
Authors
Claire Perry - Managing Associate
+44 (0)1483 406442
l Net contribution – SCd relied upon a net contribu-
tion clause in the RIBA contract terms and argued
that its responsibility for using the incorrect glass
should be no more than 20%. However, the court
noted that DPA Section 6(3) states that: "Any term of
an agreement which purports to exclude or restrict, or
has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability
arising by virtue of any such provision, shall be void."
(emphasis added). Therefore, SCd was unable to rely
on this clause in relation to its liability under the DPA.
Jessica Gregson - Trainee Solicitor
+44 (0)1483 406421
l Failure to mitigate – the court rejected the defen-
dants’ criticism of the claimant that once Mrs Vainker
was offered remedial solutions (in however general
terms) she was either obliged to accept one of those specific solutions or the burden passed to her to ascertain
whether they were appropriate. The court found that
the fact that Mrs Vainker wanted "the full picture"
before making a decision was not a failure to mitigate.
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The court also commented more generally on the way
that the case was pleaded and noted that enabling SCd
to identify what or was not part of the pleaded case was
not an academic exercise. With allegations of professional negligence, SCd was entitled to know what the
alleged breaches were and respond to those specific
breaches, rather than attempt to hit a moving target.
the cause and prevention of flooding.
The judgement further dealt with Marbank’s
counterclaim for alleged underpayment for the works,
which involved consideration of the final certificate
regime under the JCT contract and the basis on which
Markbank could claim for variations that were not formally confirmed in a contract administrator’s instructions. Here the court held that in each instance where
there was no formal contract administrator’s instruction, consideration needed to be given as to whether
EXPERT WITNESS JOURNAL
Richard Allitt
John Hilson
BSc FICE CEng CEnv
BSc MICE MCIWEM CEng
Richard Allitt Associates Ltd
Tel: 01444 401840 or Email: info@raaltd.co.uk
www.raaltd.co.uk
24
AUGUST 2024
