QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Oxford Row, Leeds |
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B e f o r e :
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QUARMBY ELECTRICAL LIMITED |
Claimant |
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- and - |
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JOHN TRANT t/a TRANT CONSTRUCTION |
Defendant |
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MR. ANTHONY EDWARDS (instructed by Keeble Hawson) for the Defendant
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Crown Copyright ©
17th March, 2005
MR. JUSTICE JACKSON:
Part 1 | introduction. |
Part 2 | the facts. |
Part 3 | the present proceedings. |
Part 4, | is Quarmby Electrical Limited entitled to be paid for some or all of the electrical work carried out? |
Part 5, | after taking into account variations, defects and delays, what sum is due to be paid in respect of the electrical work? |
Part 6, | the use of single joint experts in lower value construction cases. |
Part 7, | conclusion. |
Part 1. Introduction
(1) The conversion of an existing property, and the construction of a new property, to form six flats, plus communal areas, at 17 Irwin Approach, Halton, Leeds. I shall refer to this building project as "Irwin Approach".
(2) The construction of a new single storey office building at Sovereign Court, Sheffield. I shall refer to this building project as "Sovereign Court".
(3) The construction of an extension to a house at 24 Falklands Rise, Leeds. I shall refer to this building project as "Falklands Rise".
(4) The upgrading and cellularisation of offices in an existing building in Leeds for the benefit of a company called Dransfield Novelty Co. I shall refer to this building project as "Dransfield".
Part 2. The facts
Part 3. The present proceedings
(1) is Quarmby Electrical Ltd. entitled to be paid for some or all of the electrical work carried out?
(2) After taking into account any variations, defects and delays, what sum is due to be paid in respect of the electrical work?
Part 4. Is Quarmby Electrical Ltd. entitled to be paid for some or all of the electrical work carried out?
(1) Mr. Quarmby was actively engaged in closing down Quarmby and Son Ltd. and setting up Quarmby Electrical Ltd. It seems to me inherently probable that he would have telephoned Mr. Jaber in order to secure the proposed electrical work for the new company. It was clear to Mr. Quarmby that the old company could not undertake the work.
(2) It can be seen from the trial bundle that on each of the four sub-contracts Mr. Quarmby submitted fresh quotations to Trant on the notepaper of Quarmby Electrical Ltd. Before submitting fresh quotations in the name of a different company, it is highly likely that Mr. Quarmby would have telephoned Mr. Jaber to tell him what was going on.
(3) From Mr. Quarmby's viewpoint, the telephone conversation with Mr. Jaber was important. Mr. Quarmby was securing work for his new company. He is likely to remember the telephone conversation.
(4) From Mr. Jaber's viewpoint the telephone conversation was of less significance. It is hardly surprising that Mr. Jaber does not now recall the telephone conversation. It really did not matter to the defendant whether the electrical sub-contractor was Quarmby and Son Ltd. or Quarmby Electrical Ltd. Either way the same individual would be overseeing the work. Indeed, Mr. Trant said in cross-examination that he understood that the electrical sub-contractor was called "Quarmby". It is clear from Mr. Trant's evidence that he neither knew nor cared whether the company was Quarmby and Son Ltd. or Quarmby Electrical Ltd.
(5) The Official Receiver's office in Leeds has been vigilant in checking up on Mr. Quarmby's activities in relation to the old company and the new company - see, for example, the Deputy Official Receiver's letter to Mr. Quarmby dated 9th October 2003. The Official Receiver's office has been alerted to the issues in the current litigation. Nevertheless, there is no suggestion that Quarmby and Son Ltd. (in liquidation) should receive any payment for electrical work carried out on the four projects the subject of this case - see the letter from the Official Receiver's office to Mr. Quarmby dated 4th March 2004.
(6) All communications which Trant sent to the electrical sub-contractor after 14th April, 2003 were addressed to "Quarmby Electrical" or "Quarmby Electrical Ltd." Furthermore, the electrical sub-contractor was referred to in this way by Trant's employees on other documents - see, for example, Mr. Harrison's manuscript notes on the schedule of defects dated 30th July 2003.
"Irwin Approach, second week of April 2003; Sovereign Court, end April 2003; Falklands Rise, April 2003; Dransfield Novelty Co., end April, early May."
Part 5. After taking into account variations, defects and delays, what sum is due to be paid in respect of the electrical work?
Irwin Approach
(1) Omission of wiring to the aerial point of Flat 1. I assess the cost of remedying this at £80, which is in the middle of Mr. Gilfillan's range. The subsequent making good of plasterwork would cost £50. I should add that it has not been proved that Quarmby failed to install aerials. It may be that the aerials required boosting, but this was not included in the specification (page 262 of the bundle).
(2) Omission of wiring to one telephone point. The cost of remedying this is £40. The subsequent making good of plasterwork would cost £50.
(3) Poorly fitted spur in Flat 1 boiler cupboard. The cost of rectification is £40.
(4) Unspecified electrical defect in Flat 2, referred to in paragraph `L' on page 14 of Mr. Gilfillan's report, £27.
Contract sum | £15,600.00 |
Variations | £3,256.70 |
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Total | £18,856.70 |
Less damages for defects and delay | £787.00 |
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Final total | £18,069.70 |
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Sovereign Court
Contract sum | £32,150.00 |
Variations | £3,550.00 |
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Total | £35,700.00 |
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Falklands Rise
Dransfield
(1) I accept the evidence in paragraph 44 of Mr. Quarmby's witness statement that he was instructed to do what needed to be done in order to complete the job.
(2) I accept the oral evidence of Mr. Quarmby that the new lighting installation was so extensive and so located that it was not possible to reuse the old wiring.
(3) Mr. Gilfillan concludes on page 23 of his report that the old wiring was nearing the end of its useful life. Also it would have become rigid and difficult to work on. In the circumstances it was good practice, in Mr. Gilfillan's view, to replace all the wiring. Mr. Gilfillan confirmed these views when he was questioned about this in cross-examination.
Contract sum, on the basis of Option 2 | £7,871.00 |
Smoke detector | £125.00 |
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Total | £7,996.00 |
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Overall total | |
Irwin Approach | £18,069.70 |
Sovereign Court | £35,700.00 |
Falklands Rise | £1,650.00 |
Dransfield | £7,996.00 |
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Total | £63,415.70 |
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Part 6. The use of single joint experts in lower value construction cases
"If a single joint expert is called to give oral evidence at trial, it is submitted, although the rule and the practice direction do not make this clear, that both parties will have the opportunity to cross-examine him/her, but with a degree of restraint, given that the expert has been instructed by the parties."
It must be a matter for the discretion of the judge whether oral examination of a single joint expert is appropriate. In a case where the single joint expert is dealing with major issues, such oral examination might be appropriate and proportionate. In such a case it is the practice of other TCC judges to whom I have spoken, and indeed of myself, for the judge to call the expert, and then for both sides to cross-examine. However, where the report of the single joint expert comes down strongly on the side of one party, it may be appropriate to allow only the other party to cross-examine.
(1) The choice of single joint expert is important. He should be someone in whom both parties have confidence.
(2) If the case is one in which it might become appropriate for the single joint expert to give oral evidence and be cross-examined, it is desirable to alert the expert to this possibility when he is invited to accept instructions.
(3) Experience shows that quite often the instruction of a single joint expert leads to settlement of the whole litigation.
(4) The procedure for dealing with single joint experts should, so far as possible, be addressed at case management hearings in advance of trial. Also provision should be made for securing payment of the fees of single joint experts before they undertake work.
Part 7. Conclusion
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