England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(His Honour Judge Hedley)

		Royal Courts of Justice Strand London WC2 Tuesday, 24th July 2001

Tuesday, 24th July 2001

1. LADY JUSTICE HALE: I will ask Longmore LJ to give the first judgment.
2. LORD JUSTICE LONGMORE: This application for permission to appeal by Mr Cooke, who has argued the matter himself in person with great economy and great skill, arises from a building contract and in particular from a contract made by Mr Cooke, as surveyor, with his client, whom I will call "Mrs McManus".
3. Mr Cooke sued for his fees due under the contract and Mrs McManus cross-claimed in respect of various allegations of negligence, as she said, and/or breach of contract by Mr Cooke. There were 13 heads of negligence. Judge Hedley, who conducted the trial, carefully considered those and dismissed twelve of them. But, unfortunately for Mr Cooke, he did say there was something in the thirteenth item of cross-claim in as much as he held that there were some defects of which Mr Cooke ought to have notified the building contractors. Mr Cooke did itemise some defects and notified those to the contractors. He says that his expert says the costs of repairing those defects which he did notify was in the sum of about £900. According to Mr Cooke, Mrs McManus's expert, however, valued them at being over £5,000.
4. The defects which were not notified, and which the judge held ought to have been notified, were valued by the judge at a sum of £5,000, and on top of that he awarded £2,000 by way of interest. The result was that he awarded Mrs McManus £7,000 on her cross-claim and one third of her costs up to a date well before trial, namely 11th January 2001. But he awarded Mr Cooke £14,091 in respect of his claim, together with the costs of his claim and all the costs of the cross-claim after 12th January 2001. So Mr Cooke was the substantial victor. But he now says that Mrs McManus should not have recovered anything and he should have judgment in his favour on the cross-claim because Mrs McManus benefitted from the monies which she had retained pursuant to the building contract in the sum of £9,480. Her case about the sums which she retained was that she had retained them due to the need to make good the defects in fact notified by Mr Cooke to the builders but never actually made good.
5. The case was a complex one, and this point, not surprisingly, if one can say so with respect, was in fact overlooked by the learned judge when he came to deliver his judgment. It was pointed out to him by counsel then acting for Mr Cooke that the point had been overlooked and he thus dealt with it in an addendum to his judgment, which he gave on 20th April of this year. He sets out the arguments of the parties and he then says this:

"I confess to seeing force in both contentions. In the end I have concluded that Mrs McManus is right. In my judgment there will inevitably be a windfall one way or the other, for the contingency with which the court is now dealing is one that no-one would have contemplated at the time. I have found that the misfeasance of Mr Cooke has resulted in a quantifiable loss. I am not prepared to find on the evidence that that loss overlaps with the matters in respect of which contractual monies were not paid. Whatever may be the state of affairs between the employer" [that is Mrs McManus] "and the contractors, it does not in my judgment impinge on the relationship between these parties." [That is Mr Cooke and Mrs McManus]. "I reject the submission that is will lead to double recovery; Mr Cooke is simply being required to pay for a loss caused by him that is not otherwise specifically compensated."

6. Mr Cooke now seeks permission to appeal and wishes to argue that Judge Hedley was wrong on this point because, on the figures, the value of the notified defects was less than the £10,000 retained by Mrs McManus; and of course that would be so by a substantial margin if his expert's figure of the value of the notified defects was in fact correct.
7. The question for this court is whether there is a real prospect that Mr Cooke would succeed if permission to appeal were granted. I fear I have to come to the conclusion that there is no such real prospect here for two reasons.
8. Firstly, the position as between Mrs McManus and the contractors is, as Judge Hedley said, something with which Mr Cooke has nothing to do. It may be that Mrs McManus has benefited in the sense that the contractors could have sued her for the retention monies but cannot now do so because their claim is statute-barred. But the fact that Mrs McManus may (and I emphasise the word "may") have received a benefit to which in law she might not be entitled does not, in my judgment, mean that Mr Cooke could arguably profit from that benefit.
9. The second reason why the appeal would have to fail is that it could not proceed without an investigation being conducted as to what was the value of the defects which were notified and in respect of which Mrs McManus says that she was retaining the retention monies. That is not an exercise on which this court could embark. It is not an exercise on which, in reality, Judge Hedley was invited to embark, so for that reason, and also because of the uncertainty as to the financial position, it seems to me that any appeal would be doomed to failure and that the application will have to be refused.
10. LADY JUSTICE HALE: It is with considerable regret that I agree with the judgment just delivered. The defects and snags in respect of which the defendant retained money were those notified by the claimant at the time. The list is in the bundle, dated January 1992. The defects in respect of which the judge awarded £5,000 in damages, including some damages for inconvenience, were those not notified at the time and which should have been - see paragraph 43 of the judgment. I do sympathise with Mr Cooke, that the monies retained from the contractors were more than the defects in respect of which they were retained, but that was a matter for the contractors and it was up to them whether to take any action in respect of them.
11. The matters between the contractors and the defendant are quite separate from the matters between the claimant and the defendant; and in the face of the clear findings of fact by the judge that the damages he awarded were for different matters and the consequence of the claimant's breach of contract, I do not see how any appeal in this case would have a real prospect of success.
12. The claimant very sensibly does not seek to challenge the estimation of £5,000 arrived at by the learned judge. He recognises that the cost of doing so would be out of all proportion to the benefit that he might expect to achieve from it.
13. For these reasons, I agree with that this application should be refused.
Order: Application refused.