England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		Dated 16 May, 2002

 


The judgment of His Honour Judge Peter Bowsher Q.C. is as follows:

INTRODUCTION

1. This action concerns the damp proofing of a basement extension of a house in north London.
2. The claimant is a professional pianist who lives at a substantial and well appointed house at 34, Oman Road in north London.
3. At his home he has a Steinway Grand piano, model C. That piano used to be on the first floor. He wanted to move it to an extension to his house described as a semi-basement. That is, a room that was below ground level but which had a window looking up a bank to the sky. I have visited the house and the room. It is a very pleasant house. The claimant has lived there since 1986.
4. As a dedicated professional, the claimant wishes to practise for many hours of the day when he is not abroad working.
5. In 1994, the claimant decided to have the basement extension built. He went to Tom Luke, a builder who had done other work for him. He also engaged architects who have not featured in this action. He engaged Mr. David Bennett, a structural engineer, to advise about damp proofing. Three walls of the extension would be in contact with ground that was known to carry water in wet weather and damp proofing was plainly going to be a problem. The level of the water table is apparently still not known to anyone.
6. In the original scheme, the extension was to be protected from water by "tanking" with bituthene. That is, the extension was to be surrounded on three sides and underneath with a "tank" to keep water out. The fourth side is an open side leading into the remainder of the house. Before the building had finished, it was clear that the tanking had failed. The tanking was installed in May, 1997 and as soon as June 1997 it was clear that the tanking had failed. Tom Luke was prepared to try to do the tanking again, but was not prepared to guarantee that it would not fail again.
7. So Mr. Bennett proposed a totally different system. Instead of trying to keep the water out, he suggested a solution that comprises a structure within a structure so designed that water is allowed in through the outside walls and the floor slab and directed to a drain so that it is taken away without damage to the inner structure of the building. The outer structure in this case was concrete.
8. The expert witnesses for each party regard this as a perfectly satisfactory system, provided it is properly installed.
9. The defendants were approached and on 11 June 1997 they gave a written quotation to supply such a system.
10. When the defendants came to the site, they saw a reinforced concrete slab and concrete walls all covered with defective bituthene. They did not ask for the bituthene to be removed, though they did themselves remove some parts of it. There were some "rucks" in the parts of the bituthene that remained. They were advised that it would not be possible to cut channels in the slab because to do so would involve cutting the steel reinforcement. They did not measure the fall or the level of the slab, but they asked Tom Luke to cut a drainage hole in one corner of the slab. They also asked that Tom Luke should construct a drain from that outlet to a manhole outside leading to a drain to take the water away.
11. The system supplied is known as the Delta MS Cavity Drain System. The system is as defined in BS 8102, Code of Practice for the Protection of Structures against Water. Within concrete walls and a concrete slab, the system uses large sheets of an impervious plastic material with "dimples" at short intervals. They look like large egg trays. For the purposes of this case, the sheets come in two sizes. MS 8 has dimples 8 mm high. MS 20 has dimples 20 mm high. MS 20 would be suitable for ordinary domestic hens' eggs. MS 8 would be suitable for quails' eggs. MS 8 was to be laid down the sides of the basement and then covered with blockwork. MS 20 was to be laid on the floor slab with the dimples downwards so that water could run between the dimples. Resting on the MS 20 would be screed, battens (with insulating material in between the battens), and then oak floor boards. The insulating material may have been thermal insulating material or it may have been acoustic: the claimant had the basement designed with acoustic properties in mind. It was not insulation against water or damp. The experts agreed that if hydrostatic pressure builds up in the cavity, the membrane is not expected to hold back that water under pressure and there will be leaks through laps and joints. It is therefore important that water coming in should be allowed to flow freely to the outlet. The experts also agreed that there was no defect in the materials used.
12. Problems with damp occurred after the installation of that system. There has been some question whether those problems arose in January, 1998 or only later, in July, 1998. In January, 1998, some floor boards lifted near the steps into the main house, that is as far away from the outside walls as one can get. On balance, I agree with the expert witness called for the defendants that that problem was mainly due to a leak from a flexible pipe under the floor attached to a radiator. I do not find that the floor in that area was wholly dry apart from that leak but I do find that without a leak from that pipe the floor-boards would not have risen in that position at that time. The evidence of the defendant's expert on this point is confirmed by other evidence from the claimant's expert, though in evidence the claimant's expert was inclined to disagree with the expert for the defendants on this point. Much later, on 27 August, 1999, when the floor slab was exposed for inspection, the claimant's expert noted that while there was a substantial quantity of standing water on some parts of the floor slab "the area around the steps was damp but free of standing water". He illustrated that with a sketch made in his contemporaneous note. A copy of that sketch was put in evidence as Exhibit C1.
13. In July, 1998, the work was partially exposed by Tom Luke and the outlet gulley was found to be blocked. The blockage was removed. A new external manhole was constructed by Tom Luke. The membrane that had been lifted was repaired by the defendants and the system was tested by hosing water in and it was found that the water was flowing freely into the outlet.
14. Damp problems persisted and on 16 December, 1998 there was a further test. The system was partially opened up and water hosed in. The water built up behind the gulley. A blockage was removed by inserting a broom handle into the cavity under the membrane near the gulley.
15. Damp problems persisted and there were further tests on 24 May and 1 July, 1999.
16. As I have already mentioned, on 27 August, 1999, after the Delta sheeting had been removed from the floor, the claimant's expert inspected. He saw standing water stretching from the window side of the room round to the outlet. There was a peninsula around the steps leading into the house that was damp but free of standing water. The depth of the standing water varied from about 25 mm near the window to 30 mm at the outlet with 15 mm in between. There was a general layer of "calcium type material" which was to a greater depth where water was standing. The "calcium type material" was to a maximum depth of 8-10 mm. The outlet appeared to have become blocked, also by "calcium type material". After it had been unblocked with a stick water flowed into the manhole and the level of standing water reduced to 10 mm in some places and 15 mm in others.
17. The entire system was then removed and a third system was installed under the direction of James Mayhew. The claimant claims the cost of the installation of that other system and certain other costs and damages. The third system is working well.

ALLEGED DEFECT

18. Counsel for the defendants complained that the claimant's case is simply, "You sold me a system that was supposed to work; it does not work; therefore you are liable." Counsel for the defendants says that is not enough. It may not be enough, but it is a good start. Of course, the claimant has to show a breach of contract. But it does not follow that he has to prove the mechanism of failure. If I buy a washing machine that does not work, I do not have to hire an expert to find out why it does not work to get my money back plus any damages caused by its malfunction.
19. Expert evidence was given for the claimant by Mr. Ray James, an architect. He was impeded by his lack of knowledge of this particular system though he has considerable experience of damp-proofing generally particularly in buildings in London near the river Thames. Mr. P. N. Hewitt gave evidence for the defendants. He has considerable knowledge of this system and of damp-proofing generally, but he is impeded because he did not visit the site until after the remedial work in the form of the third installation had been done.
20. Counsel for the defendants put to Mr. James that the system might have failed for some reasons for which the defendants were not responsible.
21. If the drain that was to take away water from the system had failed and backed up, the system would fail without fault of the defendants. That is correct, but it is not suggested that it ever happened.
22. If the outflow was inadequate, it was suggested, that also was something for which the defendants were not responsible. That I do not accept. They did not make the outflow but they asked for it to be made, and if it was not sufficient, they should have said so. In fact, no complaint has been made about the outflow. Mr. Luke said that the defendant's men checked the gully and said it was OK. Mr. Donaldson for the defendant said that was untrue. I do not see how he can say that since he was not there. He did not attend at site at all during installation of his company's system. I accept that the defendant's men on site did approve the outlet. If I am wrong on that, at least they did not object to the outlet and they should have done so if it did not suit the system they were installing.
23. Before the defendant's system was replaced by the third system, no one said that the defect could be cured by a better drain or a better outflow or by anything else outside the system itself. Clearly what was wrong was within the system. The system could not be made to work after repeated testing. That was why the defendants' system was replaced by a third system. I find it amazing that having failed repeatedly to get their system to work in a situation where another contractor has been successful, the defendants still repudiate liability.
24. In fact, the claimants, by Mr. James, have demonstrated where the defendants went wrong. They laid their system on a slab that was not sufficiently laid to falls and was not sufficiently level.
25. As Mr.Hewitt said, because of all the new concrete around and possibly because of other reasons, the water coming in contained a good deal of lime and no doubt other material. If a good flow were maintained, all of that material would be washed through the outflow. But, said Mr. James, if the flow was slow, when the material reached the outflow or rested at the edge of "ponds" on the slab, it would oxygenate and form hard deposits not soluble by water. As a result of those deposits forming, said Mr. James, it is likely that at times the water ran "at full bore" through the system. It is agreed between the experts that the system is only designed to run with water flowing only on the lower surface of the system. The system is not designed so that laps and corner joints should withstand water under pressure. Any interruption in the free flow of water to the outflow is likely to cause damp to go into the building.
26. A sample of material taken from the outlet was sent for analysis in a laboratory. The laboratory report stated that the material was totally soluble in concentrated nitric acid but only 4.76% dissolved in boiling water. The report concludes, "I am not sure of its source but it appears to be some concretion of material, possibly from the cavity, being deposited as water evaporates at the mouth of the pipe". The point made by Mr. James is that if the water had been flowing freely it would not have stood long enough to evaporate or for the material carried by it to oxidise. I do not understand Mr. Hewitt to dissent from that proposition.
27. The only real point of difference between the experts was as to the reason why the water was not flowing freely. Mr. James said the reason was that the slab was not laid adequately to falls and did not have a smooth surface so that there was "puddling". A contrary theory has been put forward that some builder's rubble may have got into the outlet and caused a build up of deposits. It has to be said that no one has seen any builder's rubble there or anywhere else and no one has attempted to show why thereshould have been builder's rubble at the outlet on not only the first but also the second and third blockages of the defendant's system save that Mr. Hewitt has a theory that debris and mortar became caught up behind the membrane on the wall and under the "tail" of the membrane on the floor when the wall was being reinstated by the builder. Mr. Hewitt said, "This debris would have been hidden behind and under the membrane and only have come out over a period of time as ingressing water slowly flushed it out onto the floor". There is no evidence that that did happen, but if it did, what is the effect on the issue of whether the defendants are liable to the claimant? If builder's rubble was likely to interfere with the proper operation of the system, the defendants should have ensured that it could not wash under the tail of the membrane or should have ensured that it was not there at all. Moreover, if Mr. Hewitt's theory is correct, it only amounts to an identification of the material that solidified at the outlet. It is not inconsistent with the evidence of Mr. James that the material, whatever it was, would not have solidified if the defendants had so laid the floor as to ensure that there was a free flow of water. Mr. Hewitt agrees that the efficiency of the system depends on a free flow of water.
28. The literature of the supplier of the equipment of the MS Delta Cavity Drain states in two places:

"Before commencing laying operations ensure that the substrate has falls to the drainage outlets or is laid to a +/– 5 mm tolerance to prevent ponding in depression."

29. That literature also states:

"Delta MS8 and Delta MS20 are to be generally loose laid with the dimples facing the substrate in a continuous form and trimmed to suit columns and other obstructions. The sheets are to be overlapped 75 mm longitudinally at the flat selvedge and bonded together with Bitutape double-sided self-adhesive strip. End laps are formed by overlapping 200 mm interlocking the dimples and sealing between the sheets with Bitutape."

30. The defendant's work was done under the direction, though not under the personal supervision, of Mr. Donaldson, a director of the company who gave evidence. After inspecting the premises, Mr. Donaldson wrote to Mr. Bennett a letter dated 11 June, 1997. In that letter he noted that there was some standing water and he recommended the Delta MS system. He wrote,

"Under normal circumstances a drainage membrane should have channels in the floor allowing the water to run through to a gully which should be lower than the internal floor area. However, we understand that due to the structural nature of the slab that forming of the channel cannot be achieved.

We must therefore consider the option of a high stud drainage membrane such as the Delta MS 20. This has a stud height of 20 mm and will easily cope with any ingress or build up within the floor area and will prevent any further "lift".

…

We would confirm that the system, when in place, is reliant on you providing a gully which will be sufficient to remove the build up of ground water.

If the system is installed as per our specification we should be pleased to provide you with a 30 year guarantee on both materials and workmanship."

31. With that letter was sent an estimate for £1,953.00 plus VAT, later slightly reduced. The estimate stated "30 year guarantee on materials and workmanship." On 28 January, 1998, Mr. Donaldson wrote to Mr. Bennett, "Please accept this letter as our intention to repair/rectify any part of the installation which fails due to failure of the material or its application". The experts are agreed that there was no failure of the material. For reasons that I shall explain, I find that there were failures in the application of the material. Failures in application were of two types:

(a) Failure in the overall approach to application adopted by Mr. Donaldson;

(b) Failures in detailed workmanship.

32. When Mr. Donaldson had inspected the property, he advised a drainage membrane with channels in the floor allowing water to run through to an outlet gully. The passage I have quoted from his letter shows that he realised that "Under normal circumstances" channels should be cut in the floor. When it appeared that it was not practical to cut channels in the floor because of the steel reinforcement, he decided to go ahead without cutting channels and without any alternative strategy.
33. Mr. Donaldson ignored the literature of the suppliers of the system;

"Before commencing laying operations ensure that the substrate has falls to the drainage outlets or is laid to a +/– 5 mm tolerance to prevent ponding in depression."

He did not ensure that the substrate had falls to the drainage outlets. That was particularly important since the evidence of Mr. James was that on a floor of this size it would have been more than one could expect that a builder could lay the slab even to a tolerance of +/– 12 mm. If the alternative of +/– 5 mm was unlikely to be achieved (and it had not even been specified to the builder) it was all the more important that the required falls should be provided.

34. On his inspection, Mr. Donaldson saw what he called standing water but denied that there was ponding. In his letter of 11 June, 1997, he mentioned the standing water on the slab but he did not mention the lack of falls to the claimant or Mr. Bennett. He could have improved the falls to the outlet and removed the unevennesses allowing standing water by adding a further layer to the screed. There was no cost restriction preventing him from doing so, but he did not even suggest it. He did not make any test or measurement of the slab nor of the depth of the standing water beyond observing it in relation to his shoes. He did not even have to make measurements for himself. The claimant had an engineer, Mr. Bennett, and Mr. Donaldson could have asked the claimant to instruct Mr. Bennett to measure the falls and the evenness of the slab. The specification given to Mr. Luke was that the concrete slab should be level within a tolerance of +/– 12 mm. Mr. Luke said in evidence that in practice, because of its large size, it was probably only level within a tolerance of +/– 20 mm "as there was no need for greater accuracy since a 75 mm screed was to be applied as the finished surface". Mr. James also said that he would be very surprised if the slab had been laid to the specification of +/– 12 mm as it was very difficult to achieve.
35. Moreover, instead of making overlapping joints in the material used, the defendants used butt joints. That is, the material was joined end to end. No reason was put forward for taking that course. The method of workmanship chosen was bound to increase the likelihood of leaks through the joints. Mr. Hanning who was in charge of the installation of the system said that he phoned someone in the office and he was told that Mr. Donaldson said that it was OK to butt joint. Mr. Hanning thought that he needed authority to do it presumably because it was unusual. But no reason has been given for the request for leave for butt jointing being made or granted. The only reason for butt jointing that I can imagine would be to reduce the cost of materials used. It reduced the damp-proofing property of the system. Mr. Hanning could not give any reason for it. However, this should be considered in the light of the agreement of the experts that if hydrostatic pressure builds up leaks through joints and laps are probable. That agreement was explained by Mr. Hewitt. He said that you could not expect perfect workmanship and therefore it was probable that there would be imperfect workmanship on the joints and laps that would let in water under pressure. It is obvious that if there were no laps but only butt joints there would be a greater probability of leaks under lower pressure because it would be even more difficult to produce perfect workmanship. I should add that the witnesses were not limiting themselves to the sort of hydrostatic pressure that one sees when one turns on a household tap. I pointed out to Mr. Hewitt that the water in the carafe on the Bench was exerting hydrostatic pressure on the sides and base of the carafe and he said that pressure of that nature was included in his reference to hydrostatic pressure.
36. Mr. Harming said that he did not check the falls on the slab. He said that he did not ensure that the outlet was adequate and then he said that he checked the outlet and made no adverse comment. It is quite clear that whether the outlet was checked or not, no adverse comment was made. If the defendants were not satisfied with the outlet, they should have said so.
37. Mr. Hanning had no explanation for laying the membrane over a nail that was found. The nail almost certainly caused a leak in the membrane though it cannot be blamed for anything like the whole of the problem.
38. Mr. Hanning said that he swept under the tail of the membrane with a paint brush or with an "ordinary" brush. Whatever he used, he seemed to have realised that it was necessary to remove material from under the tail. The theory, and it is no more than a theory, that the blockage of the outlet was due to builders' rubble comes back to the responsibility of the defendants to take reasonable steps to ensure that the site was fit to receive i their system. In his letter of 11 June, 1997, Mr. Donaldson warned that care should be taken to ensure that the "tail" of the MS20 does not get damaged or covered in dirt/mortar/debris. The defendants were aware of the risk and Mr. Hanning cleaned the "tail". If he was not satisfied with the condition of the "tail" after he had cleaned it, he should have refused to go ahead until work had been done to make him satisfied.
39. Mr. James said that.when he inspected the floor he saw puddles that were in some cases 10 mm deep and in other cases 15 mm deep, but that was after the blockage in the outlet had been cleared. Mr. Lord for the defendants in cross-examination put forward an ingenious argument, illustrated by drawings of his own, that since the requirement of the manufacturers was for a floor of level of +/– 5 mm such a variation with a 20 mm dimple still left 5 mm clearance. To that argument the answer of Mr. James was convincing. He said that the recommended level of floor was to be taken with the recommendation of slope or alternatively channels cut in the floor. If the slope had been adequate the variations in level might have been inconsequential. In this case, the floor slab was not to the right slope, and it was not sufficiently level. In any event, counsel's drawings took no account of the evidence that before the blockage was unblocked, the ponding varied from 15/25/30 mm. Mr. Donaldson said in his written evidence that he advised channels in the floor allowing water to run through to a gully. That was not possible because of the reinforcement in the slab but no alternative was advised. He could have advised that an additional slope be added to the slab by the addition of further concrete but he did not, though there was no reason why that should not have been done. I accept the evidence of Mr. James that because of the inadequate slope and the presence of puddling there were times when with heavy rainfall water went through the system as he put it "at full bore" and hydrostatic pressure caused water to go through the system in a manner that the system was not designed to resist. In simple layman's terms, if the slope of the floor slab had been corrected, the water would have flowed more quickly, there would have been no build-up of material in the outflow and there would have been no pressure of water on top of the system to come into the house.

THE CONTRACT

40. By the Amended Particulars of Claim the Claimant relies both on the 30 year guarantee on materials and workmanship to which I have referred and on an implied term that the defendant would use reasonable skill and care and on a duty under the Defective Premises Act 1972 to ensure that the work was done in a workmanlike or professional manner so that the property should be fit for habitation.
41. By the Amended Defence, the defendants said that the guarantee was limited to its own workmanship and did not extend to the materials. The experts are agreed that there was no fault in the materials so this point is immaterial. There were other alleged limitations on the guarantee particularly as to the amount of potential liability which were said to arise under the defendants' standard terms. In his closing speech, counsel relied only on paragraphs 4, 6, and 7 of the Defence.
42. Paragraph 4 of the Defence relies on the letter of 11 June, 1997. Paragraph 4 has 3 sub-paragraphs. The first refers to the warning about protecting the "tail". The second relies on a warning that the system is reliant on the provision of a gully. The third point made is that the 30 year guarantee is limited by the words "If the system is installed as per our specification". I have dealt with all of those points.
43. Paragraph 6 of the Defence relies on a clause of the Standard Conditions that the guarantee was not to apply to any failure of the damp proof course or tanking resulting from flooding. Here what was installed was neither a damp proof course nor tanking nor was there any flooding. That term clearly does not apply.
44. Paragraph 7 of the Defence relied on a term to the effect that the defendants were not liable under the guarantee following flooding or burst pipes (neither of which applies) or where the claimant failed to execute any structural works recommended by the defendants to eliminate the incursion of damp or water or failed to keep the premises to a high standard of maintenance or the water drainage or guttering systems serving the same. The only structural works recommended by the defendants were the provision of an outlet and a gully. Both were provided and there is no criticism of either. The only other recommendation was in relation to the "tail" and I have dealt with that. There is no criticism of the standard of maintenance.
45. Other points on the guarantee were not pursued in closing speeches and I shall not deal with them here. In any event, the claimant can make his claim under the implied term or under the statutory term. Both terms are admitted in the Amended Defence.
46. Counsel for the defendants cited Fairchild v. Glenhaven Funeral Services and others [2002] 1 WLR 1052 (now under appeal to the House of Lords). It was submitted that because the system might have failed for reasons that were not the fault of the defendants, the defendants should not be found liable. I am afraid I do not read that decision of the Court of Appeal as supporting that proposition. The submission is rather reminiscent of the somewhat desperate pleas made to juries in criminal cases in the Crown Court. Many things might have happened, but the probability is that the failure was due to the fault of the defendants. Counsel submitted that the drain might have been blocked and a new manhole was built. But there is no evidence that the drain was ever blocked, and after a new manhole was built the system still failed. The exit became blocked and it might have become blocked due to builders' debris, but there is no evidence that builders' debris had anything to do with it. It is much more likely that the cause of the exit becoming blocked was due to the defendants providing inadequate falls to the floor slab and failing to deal with depressions in it.
47. I therefore find that the defendants are liable to the claimant.

QUANTUM

48. The largest items of claim are the building costs and the architect's cost for the construction of a system to replace the defective system installed by the defendants. The building costs are claimed in the sum of £15,784.88 and the architect's costs are claimed in the sum of £4,506.75.
49. Counsel for the defendants submits that, if found liable, the defendants are only liable for wasted costs. In other words, the claimants should get back the money they paid for a system that did not work but should not receive damages for what he described as a "Rolls Royce" replacement system. In other words, instead of about £19,000 they should be awarded only about £2,000 under these heads. Counsel accepts that the claimant is also entitled to the costs of incidental matters such as redecoration. But so far as architect's fees are concerned, he submits that the claimant is entitled to the architect's fees for getting out of the situation but not the fees for devising a solution. By the Amended Defence, the defendants did put the claimant to proof that the rectification costs were reasonable but did not raise any positive case that they were unreasonable.
50. It is necessary to go back to first principles.
51. In Livingstone v. Rawyards Coal Company (1880) 5 App Cas 25 at 39, Lord Blackburn said:

" ...where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation".

52. In Perry v. Sidney Phillips and Son [1982] 1 WLR 1297 at page 1301, Lord Denning M.R. said:

"Where there is a contract to build a wall or a house, or to do repairs to it, then if the contractor does not do the work or does it badly, the employer is entitled by way of damages, to recover the reasonable cost of doing such work as is reasonable to make good the breach."

Here the claimant wanted his new basement to be free from water and damp. It would be useless unless it was dry. He was supplied with and paid for two systems that did not work, the tanking and the system provided by the defendants. So he consulted an architect, Mr. Mathew, for advice on a third system that would work. There is no suggestion that Mr. Mathew is incompetent or would give unreasonable advice. There can be no doubt that lifting the floor and replacing two failed systems with a third would be much more expensive than putting in one system that worked in the first place. To speak of a Rolls Royce system is not appropriate. The claimant was not going to swank about his damp-proofing system. All he wanted was a system that worked so that he could forget about its existence. To achieve that end he acted on competent professional advice and I find that the cost involved was, in Lord Denning's words, "the reasonable cost of doing such work as is reasonable to make good the breach." The claimant has received no benefit from the third system that he would not have received from the second system if the defendants had performed their promises.

I should add that the remedial work was considered by the experts at their meeting on 2 April, 2001. The minute of that meeting included the following:

"It was noted that remedial work had been carried out to resolve the problem of water ingress, to the specification and under the direction of James Mathew BA (Hons) B Arch RIBA. To date this work has proved effective.

Ray James agreed to provide details of this work on request."

No criticism has been made of the competence, work or advice of Mr Mathew nor of the contractors who put in the third system nor of the charges that they made. The amount of the cost of the work done has been proved by production of an invoice.

53. I therefore find that the claimant is entitled to be recompensed for the building costs and the architect's costs that he has incurred.
54. Counsel for the defendants accepts the claimed decorating costs and the costs of floor repairs in the sums of £1,496.00 and £395.00. Objection is taken to the cost of the Building Notice, but that was necessary for the works and should be allowed in the sum of £329.59. The costs of independent testing also should be allowed in full (though counsel submits that that is a 'hybrid' matter) in the sum of £1,621.50:
55. The total of all of those items is £24,133.72 which I allow.
56. There are then 3 items of damage claimed under the heading of "Other foreseeable costs". The first item is "Storage and restoration of piano" £540.51. There are invoices supporting this claim and I find it proved.
57. The next item is "Rental of alternative practice room - £19,000". That is a substantial sum and it is more controversial. The claimant's mother-in-law lives in South America but she has a flat near the claimant's home that she uses on her visits to this country. She agreed with the claimant that he could use her flat as a practice room. The claimant says, and I believe, that he orally agreed to pay rent for that flat while he occupied it. The fact that he has not paid any rent so far does not mean that it was not a real agreement.
58. The objections taken to this large item of claim are:

(a) There is inadequate proof of any agreement to pay;

(b) The piano should not have been put in other premises but should have been put back on the first floor of the claimant's home;

(c) The period in respect of which the claim is made is too long.

59. I have dealt with (a). As to (b), the claimant says that when the piano had been in the first floor room, it had been against a wall. After removal to the basement, a bookshelf had been built against that wall and the claimant was not willing to risk putting a heavy piano in the middle of the first floor. Moreover, to put the piano back into the first floor would have involved hiring a mobile crane and closing the street. For what he thought would be a relatively short period, it was better to go to his mother-in-law's flat. I accept that evidence as entirely reasonable.
60. As it turned out, the period of interruption for the reparation works was far longer than expected, due to the fault of the defendants. As soon as damp problems appeared in July, 1998, the claimant complained to the defendants. They did nothing and Mr. Donaldson made himself unavailable. On 27 January, 1999, the claimant wrote to Mr. Donaldson complaining of the failure to respond to requests to rectify the defect in the membrane discovered "in July last year". In the same letter the claimant gave details of the damage and inconvenience that he was suffering in his professional life and threatened to instruct solicitors. Mr. Donaldson ignored that letter. The copy disclosed by the defendants has written on it a note from Mr. Donaldson's secretary, "John. Can't find file have you replied to this letter. I found it on your desk". That note was dated 31 March, 1999, 2 months after the date of the letter. There followed further delay and prevarication. Lengthy investigations were required to find out the nature of the problem. It does not lie in the mouth of the defendants to complain of the length of time taken to put right their breach of contract. It was vital for the claimant to have somewhere to go nearby to practise in peace and to store his scores and other reference works. The cost of renting property in that area is high and no one has suggested that the sum agreed is excessive for the area. I find that the defendants are liable in the sum claimed.
61. As to the item "Storage and cleaning of other items - £3,378.34" the only objection taken is that the material was in store for too long. I have already dealt with that point.
62. The total of all the items that I have mentioned so far is £47,052.57 and I allow the total of that sum as payable by the defendants.
63. I turn to the last head of claim for general damages for inconvenience distress and annoyance and travel time to and from the practice room. There is no doubt that the claimant has suffered inconvenience distress and annoyance. Counsel for the defendants submits that this was not a contract to give peace of mind and therefore it was not a contract that carries that sort of damages. Counsel for the claimant responds that the defendants knew the use to which the room was to be put and knew the sort of damage that would result from failure to do the work properly.
64. As to the claim for general damages I return to the decision of the Court of Appeal in Watts and Watts v. Morrow (1991) 54 BLR 86 in which the Court of Appeal overturned one decision of mine and criticised another, Syrett v. Carr & Neave (1991) 54 BLR 121 as well as a decision of Scott Baker J. in Hipkins v. Cotton [1989] 2 EGLR 157. Those decisions were not referred to in argument before me and indeed the argument on this point was very brief and only made in response to a request by me. This is, in relation to the costs involved, a small claim and I do not wish to say anything that may encourage either party to embark on a course that may further clarify the jurisprudence on this topic. I only say that the claimant has mitigated his damage suffered in terms of physical damage and inconvenience by the arrangement he made with his mother-in-law and I do not think that he should receive any further sum by way of damages in that regard.
65. That deals with all items of the claim. There is also a Counterclaim that has not been referred to during the trial. The Counterclaim is for investigative work into the cause of the water ingress and some repair work. It follows from my reasoning so far that any such work was useless to the claimant and that the defendants should not be paid for it.

CONCLUSION

66. I therefore give judgment for the claimant on the claim for £47,052.57 and I dismiss the counterclaim.
67. I invite argument as to costs and any other relief.