COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COUNTY COURT
(HIS HONOUR JUDGE MOORE)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE CHADWICK
and
MR JUSTICE CRESSWELL
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BOYNTON & ANR |
Appellant |
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- and - |
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WILLERS |
Respondent |
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Mr Jonathan Klein (instructed by Messrs Keeble Hawson) for the respondent
Hearing date : 12 June 2003
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Crown Copyright ©
Lord Justice Potter:
"It is common ground that each item of the Works, and its price, falls into 1 of 2 distinct categories:
- Quoted Works, with a fixed price of £53, 460 under a Quotation dated 20 July 1991 … or
- Additional Works, the price of which is set out in an Advisory Note dated 26 March 2001 …
The Claimant's principal claim is for £20, 086.05, being the net balance … of:
(a) the Quoted Works + the Additional Works, less
(b) the Defendants' interim payments + an agreed credit, plus
(c) VAT on the balance of (a) minus (b).
The defendants deny they are liable in respect of the above, and have a principal counterclaim for £45, 726.49 for remedial work (either executed or pending – "the Remedial Work") by other contractors, which they claim is necessary following the claimant's failure to carry out various of the Works properly …
The issues between the parties are:
1. Does the Quoted Works price include VAT?
2. Did the Claimant carry out all of the Works in a proper manner (see Bundles C and D throughout, but especially the experts' agreed Schedule of Issues at Bundle D, pages 96-110)?
3. If not, what Remedial Work was/is necessary … ?
4. If so, what sums may the Defendants recover … ?
5. Was there an agreement between the parties as to the time for completion of the Works … ?
6. If so, did the Claimant breach it, and what (if any) damages may the Defendants recover in this regard?"
The Bay Windows
"1. Construct as per drawings the three new sections to existing building to receive new roof.
[Items 2 and 3 related to the roofing works and are therefore not quoted.]
4. Supply and fit meadowstone heads and sills to all windows, complete with copings to roof … £1,880.00
5. Supply and fit John Carr windows as per drawing … £2830.00
6. Supply and fit D/Glazing to above windows … £2,100.00."
"At the date of the Quotation the defendants told me that, although they wanted bays, they could not make up their minds on their appearance. I therefore omitted bays from the Quotation with the intention of picking them up later. In the event however, I did not actually do so. The defendants therefore received their bay windows for nothing."
"I think the defendants will win on the stone, that is both on the bay windows and the extension."
"The front window bays was not an item ever costed by the Claimant, either in his estimate or his bill for extras. He overlooked it. I find that the quality of the work done does not justify an addition to the contract price as an extra, and the work done should be rejected.
The Defendants thus have a free hand as to the works and, in fact, they chose to have the bays redone. The damages for breach of contract comprise of the extra cost of getting things redone and carrying out other works like redecorating. The full cost and the details of the specification are shown in Bundle C, page 110, and in the photographs at pages C87 and 88. They chose a much higher specification, and it cost £4671 + VAT in '94 – not a lot higher, I find, in terms of prices from 1992/93 but on Mr Robinson's evidence, over £1,100 due to higher specification.
Doing the best I can to assess the value of the extra work required in repeating the same job when everything else is completed, I assess damages for Item 9 at £500 + VAT, which includes Mr Robinson's estimate of £100 for the internal decoration."
"MR SMITH: Your Honour has indicated that … the claimant did not put a price in for that [i.e. the bay windows].
JUDGE MOORE: He did not put the price in for it. It was not therefore included in the pricing. It is rejected because of the quality of the work. So it stands as an item that he cannot actually claim for.
MR SMITH: Your Honour, it is whether your Honour finds as a fact it was part of the original contract works that he should have included in the price given at Item 1.
…
JUDGE MOORE: … if you want me to find on that, I certainly will find on that. To avoid any doubt, the finding on that will be, and I will express it if you want me to after lunch, … it was not on the original contract, because at the time when they were discussing the original contract they had not decided the final … "
"And, indeed, you see that going through the items on the original specification, the bay windows just are not referred to."
"The item concerning the bay windows arose thus: the matter was in the counterclaim, and it was quite soon part of the agreed evidence in the case, that the bay windows had never in fact been incorporated in any of the invoices from the claimant, that is to say they were not part of the estimate in 1991. Notwithstanding that there were other references to "design of windows", "construction of bay windows" particularly was not part of the estimate.
When it came to extras which were itemised, again there were references to all sorts of other building work, but not specifically to the bay windows. The experts agree that the bay windows had in fact neither been estimated for nor charged for.
On the evidence which I found, the bay windows were in fact defective, and had they been charged, they would have been rejected [as] in breach of contract. Because they were in fact not charged, the defendants have never been under any obligation to pay for those, in other words, they are not a contractual item, and the defendants can therefore do what they want with the bay windows, which they did.
Nevertheless, because the work was carried out defectively, there is a charging item to the defendants, because they have to pay, or they would have had to have paid to put the state of the building in exactly the same state as it was before the original bay windows were removed by the claimant. It is that extra cost (the cost of doing the job again once everything else has been dealt with) that is the item of damages, and that is the item which I have assessed which is set out in the judgment and the schedule."
Inconvenience
"The pleading reasonably encompasses the consequences of the claimant's breach of contract which necessitated a lot of inconvenience, general upset, dirt and dust whilst works carried on for several years, on and off, longer than was anticipated …
It is clear to me that the defendants, for all their attempts to slide out of their obligations – like the VAT and the new garage wall – were the victims of some substandard work, and this will have caused material inconvenience. I reject their Counsel's submission, made without quoting authority, that the damages should be in the region of £5,000. But, equally, I reject the claimant's counsel's submission that the defendants have brought this all on themselves. I assess general damages for material inconvenience in the sum of £500."
" … damages are in my view recoverable for physical inconveniences and discomfort caused by the breach and mental suffering directly related to that inconvenience and discomfort. If those effects are foreseeably suffered during a period when defects are repaired I am prepared to accept that they sound in damages even though the cost of the repairs is not recoverable as such. But I also agree that awards should be restrained."
" … quite satisfied that there were distinct and important parts of her evidence which just cannot be relied upon."
Costs
Lord Justice Chadwick:
Mr Justice Cresswell: