[2005]JRC035
royal court
(Samedi Division)
29th March 2005
Before: |
M. C. St. J. Birt, Esq., Deputy Bailiff with Jurats Tibbo and Allo |
Between |
B G Buckley Limited |
Plaintiff |
|
|
|
|
|
|
And |
Chapman Hugo Limited |
Defendant |
Contract dispute, over employment as sub-contractor. Claim re payment for work carried out and to whom payment owed.
Advocate P. M. Livingstone for the Plaintiff
Advocate S. J. Young for the Defendant
judgment
deputy bailiff:
1. This case raises a short issue of fact. Was the plaintiff, which is a plumbing company, a sub-contractor of the defendant, a building contractor, in relation to plumbing work carried out at Alphington Lodge, St Saviour or was it employed directly by the owners of the property, Mr and Mrs Muren? The plaintiff alleges the former whereas the defendant contends for the latter.
2. We cannot avoid commenting upon how unfortunate it is that the matter has not been settled. The plaintiff's claim is for £12,000. Not only has this litigation had the unfortunate consequence of bringing to an end the personal friendship between the two principals, who are uncle and nephew, but the legal costs will no doubt have mushroomed out of all proportion to the sum at stake. The likely consequence is that, even assuming an order for standard costs in its favour, the winner is likely to be worse off than if the matter had been settled on a 50:50 basis at an early stage.
3. We propose to summarise first the broad factual background, most of which is not in dispute. We will then highlight some of the evidence relating to the disputed areas, refer to some of the key documents and then give our conclusions.
Factual background
4. Chapman Hugo is a building firm owned equally by Mr Hylton Hugo and Mr Adrian Chapman. Chapman Hugo has done a lot of work over the years with B G Buckley Limited, a plumbing company owned by Mr Buckley. We propose for convenience to refer to 'Mr Buckley' both when referring to him personally and when referring to his company. Mr Hugo is Mr Buckley's nephew. Not only did they work regularly together on projects but they also had a close personal relationship. The vast majority of work which they have undertaken together has been on a sub-contract basis i.e. Mr Buckley's contractual relationship has been with Chapman Hugo rather than with the ultimate client. However there have been a few occasions where Mr Buckley has contracted directly with the client and has not been a sub-contractor of Chapman Hugo as main contractor.
5. In 2001 Mr and Mr Muren were the owners of a property known as Alphington House, St Saviour. They decided to renovate the property, which was in poor condition. On 10th April 2001 Aquaheat (CI) Limited ("Aquaheat") submitted an estimate to the Murens for plumbing work involved in the project. The Murens obtained at least two quotations from main contractors. In the first place they obtained a quotation from Mr Paul Cowieson of PDB Carpenters & Builders Limited ("PDB"). According to his evidence he was asked to exclude various associated trades such as electrical and plumbing and this he did in his quotation of 2nd May.
6. The Murens also obtained a quotation from Chapman Hugo dated 9th May 2001, which was accepted. This quotation contained PC sums for matters such as electrical and plumbing work. The PC figure for plumbing was £15,000. Chapman Hugo began work on site in late May or early June.
7. According to Mr Hugo, after they had been on site for a short while, Mrs Muren asked him if he could recommend a plumber to provide a competitive quote to that which she had already obtained from Aquaheat. Mr Hugo recommended Mr Buckley because they had worked together so often before and Mr Hugo respected Mr Buckley's work as a plumber. Mr Buckley was approached by Mr Hugo. Although Mr Hugo cannot recall having been handed a copy of the Aquaheat quotation, it would appear that Mr Buckley had access to it. He produced a quotation dated 18th June in a total sum of £19,500. The quotation was addressed to Mr and Mrs Muren at Alphington House. However it is agreed that the quotation was handed to Mr Hugo and he in turn conveyed it to the Murens.
8. Mr Buckley's quotation was accepted and he started work not long thereafter. Chapman Hugo submitted a first valuation in July. Although there was some delay, this was paid. No plumbing work was included in this valuation as Mr Buckley had only just started work.
9. In August, Mr Buckley submitted a first valuation of £6,000 for the first fix of his plumbing work. This request for payment was addressed to Mr and Mrs Muren but was sent to Chapman Hugo. Chapman Hugo submitted a second valuation in the total sum of £45,706.89. Included in this figure under the heading 'nominated sub-contractors' was the sum of £6,000 in respect of 'plumbing'. Electrical work was listed in the same manner.
10. There would appear to have been a reminder from Mr Buckley dated 7th September in respect of the sum of £6,000. Again this was addressed to Mr and Mrs Muren but was sent to Chapman Hugo. Difficulties now began. The Murens did not pay the second valuation of Chapman Hugo. A dispute arose between them and Chapman Hugo. There were regular discussions between Mr Buckley and Mr Hugo about this. About this time Mr Buckley telephoned Mrs Muren about the outstanding £6,000. According to Mr Buckley he made this call at the suggestion of Mr Hugo in order to put additional pressure on the Murens; according to Mr Hugo, it was entirely Mr Buckley's decision. Whoever instigated the call, there appears to be a measure of agreement between Mr Buckley and Mrs Muren as to what happened during that conversation. She told him in no uncertain terms that she did not owe him anything and he must look to Chapman Hugo for his money. There was however a discussion as to the various stages at which he expected to be paid for his work and he agreed to write to her explaining this. There is a letter dated 25th September which sets this out. It may well have been linked with a letter of the same date from Chapman Hugo to Mr and Mrs Muren in which Chapman Hugo gave an estimate of the cost to completion and said that a copy of the plumbing quotation and breakdown of valuation would follow. Again the letter is addressed to Mr and Mrs Muren but was sent to Chapman Hugo. It is not clear whether it was ever sent on to Mr and Mrs Muren. Mr Buckley is adamant that no correspondence was ever sent by him to them as he did not know where they lived and was under the impression that they would not receive mail sent to Alphington House, which was an empty shell. In fact, there was a mail redirect service in operation.
11. Ultimately Mr Hugo made it clear to the Murens that, unless Chapman Hugo were paid by the following Friday, they would stop work. There was no such payment and accordingly everyone was pulled off site. Following this, Chapman Hugo submitted a third valuation in the sum of £80,246.71. Included in this figure under the heading 'nominated sub-contractors' was £12,000 in respect of plumbing. This is the amount currently in dispute.
12. On 15th October Mr Buckley wrote to Mr Hugo stating that he had been waiting for payment for the first valuation for well over a month. He realised that Mrs Muren had not paid Chapman Hugo and said that he would appreciate it if Mr Hugo would let Mrs Muren know that he was not prepared to wait any longer as he had been more than fair. He said that unless he was paid in the next three days he would have no choice but to take further action. He did not however explain what this might be.
13. On 23rd October Mr Buckley wrote again to Chapman Hugo about some outstanding invoices. One of these was the £6,000 in respect of Alphington. The letter sought payment by return of post as the accounts were overdue and went on to say that, in relation to the Alphington matter, Mr Buckley would be referring this to Cashback Limited (the debt collecting agency) unless payment was received the next day. In fact Mr Buckley appears not to have taken any action in this respect at that stage.
14. On 27th or 28th October (there appear to be two different versions of this letter) Mr Buckley wrote a letter addressed to Mr and Mrs Muren. The letter falls into two parts. The first part is in lighter type. It could in theory be intended for the Murens or for Chapman Hugo although the use of the phrase "along with yourselves" in the context of the advancement of building works, suggests that it was intended for Chapman Hugo. What is quite clear is that the second part of the letter, written in bold type, is written to and intended for Chapman Hugo. It refers to "problems surrounding the contract with your clients the Murens" and various other matters. The whole tenor of the letter is a complaint that the £12,000 has not been paid.
15. Various discussions then seem to have taken place between Chapman Hugo and the Murens with a view to trying to resolve matters but these were unsuccessful. Eventually Chapman Hugo instituted proceedings against Mr and Mrs Muren by Order of Justice dated 21st March 2002. This claimed the sum of £80.246.71. It follows that, included in this sum, was the £12,000 in respect of the plumbing work carried out by Mr Buckley.
16. On 12th July 2002 Mr Buckley prepared a letter to Cashback Limited ("the Cashback letter"). No signed version of the letter has been produced but it seems probable that the letter must have been sent to Cashback although they did not action it. It is an important document. In it, Mr Buckley gives a version of events which is consistent with that put forward by Chapman Hugo and inconsistent with his own; in other words he asserts that he entered a contract with Mr and Mrs Muren. We will revert to the Cashback letter in due course.
17. The litigation by Chapman Hugo against Mr and Mrs Muren took its course. There was correspondence from Advocate Taylor (who had been instructed by Chapman Hugo) about whether the 'sub-contractors' - as he called them - would give evidence. One of these was Mr Buckley. On 19th August 2004 Advocate Livingstone, who had been instructed by Mr Buckley wrote to Advocate Taylor indicating that, whilst Mr Buckley had refrained from pressing for payment because of the claim by Chapman Hugo against Mr and Mrs Muren, he was entitled to recover the monies from Chapman Hugo. The response from Advocate Taylor did not take issue with this assertion.
18. The proceedings against Mr and Mrs Muren were settled for the sum of £65,000 shortly before the action was due to be heard on 7th October 2003. As Mr Hugo said in evidence, they were aware that Mr and Mrs Muren appeared to be without funds and accordingly it seemed pointless to incur further legal fees in attempting to obtain judgment for the difference between £65,000 and the sum claimed. Mr and Mrs Muren did not pay the sum and were declared en desastre on 11th November 2003. They remain en desastre.
19. On 3rd November 2003 Mr Buckley wrote to Mr Hugo seeking information about the settlement agreement and enquiring when he might expect to be paid. There then appears to have been a telephone conversation between Mr Buckley and Mr Hugo following which, on 1st December 2003, Mr Buckley wrote again making it clear that he would be looking to Chapman Hugo to pay his £12,000. These proceedings were commenced on 27th April 2004.
The evidence
20. Mr Buckley said that about half of his work involved contracting directly with clients but, where he had worked with Chapman Hugo, it was almost invariably on a sub-contract basis although there had been a few occasions when he had contracted directly with the client. On this particular occasion Mr Hugo had approached him and said that he had been asked to obtain a competitive quote. Mr Hugo gave him a copy of the Aquaheat quotation. Mr Buckley was adamant ("100% sure") that he had priced his quotation off the plans which he had been given. He did not visit the site before quoting. His contract was with Chapman Hugo. He accepted that the quotation was addressed to Mr and Mrs Muren but this had simply been copied from the Aquaheat quotation, right down to the postcode. The quotation was intended for Chapman Hugo and was delivered to them. He had initially told Mr Hugo the amount of the quotation over the telephone and had then followed it up in writing. Although his quotation was in fact more than Aquaheat's it included a number of matters which had been omitted from their quotation.
21. Subsequently Mr Buckley was informed by Mr Hugo that the quotation was accepted and he began work in due course. He personally did not spend much time there as he was involved in other work. Most of the work was carried out by his senior employee Mr Richard Aubert and another employee. He had never spoken to Mrs Muren on site although he had seen her on site when he had been there.
22. When Mr Hugo had told him of the difficulties in obtaining payment of the second valuation, Mr Hugo had suggested to him that he should telephone Mrs Muren in order to put additional pressure on her. He obtained her number from Mr Hugo (it was his handwriting on the letter of 7th September 2001). She told him in no uncertain terms that it was nothing to do with her. She did enquire as to the stages at which he expected to be paid and he sent a letter dated 25th September explaining this. However, just as with all the other letters, it was in fact sent to Chapman Hugo. He did not know Mr and Mrs Muren's address and was not aware that there was any mail redirection service in operation in respect of Alphington House. His faxed itemisation report confirmed that faxes had been sent from him to Chapman Hugo on 21st August, 7th September and 25th September, which were the respective dates of his demands for his first valuation and the letter referred to above.
23. He said that the letter of 27th/28th October 2001, although addressed to Mr and Mrs Muren, was in fact a letter to Chapman Hugo emphasising the need for him to be paid. However he did not take any action at that stage. He realised that Chapman Hugo had not been paid and were doing their best to recover payment from the Murens, from which he would be paid. In view of his close relationship with Mr Hugo, he was prepared to wait.
24. He said that he had another telephone conversation with Mrs Muren at some stage. She had called him to see if he would be willing to return to site but this time working directly for her. He said that he would not because £12,000 was still outstanding.
25. He gave evidence as to how the Cashback letter came to be written in July 2002. He said that Mr Hugo came to his office and suggested that it would exert additional pressure on Mrs Muren if he were to send a letter along these lines. Mr Buckley said that the letter itself was a concoction. He had not contracted directly with the Murens and he had not met with them on site and shaken Mrs Muren's hand at the time of acceptance of his quotation. There had been no request by Mrs Muren that his bill should be included along with that of Chapman Hugo. He accepted that the letter was damaging to his case. He had always been aware of it. He conceded that it showed that he had been prepared to tell lies. It had been sent because Mr Hugo and he thought that it would increase the pressure on Mrs Muren. When the Court enquired why she would feel pressurised by receiving a letter which she would know was false, he replied that they thought she might be influenced by the fact that there were two firms ranged against her. He said that he had spoken to Cashback at some stage and told them that it was Chapman Hugo who owed him the money and not the Murens. Cashback had said that they could not act for him because Chapman Hugo were clients of theirs. It is not clear what happened to the Cashback letter but there was no evidence before us that Cashback had ever acted upon it by writing to Mr and Mrs Muren.
26. He emphasised that if his contract had been with Mr and Mrs Muren, he would certainly have obtained their address and would also have taken court proceedings against them. As it was he had never pursued them by way of court proceedings nor had he lodged any claim in the desastre, because his claim was against Chapman Hugo not the Murens. He accepted that the relationship between him and Mr Hugo had broken down and that this was not only because of what had happened in this case but also because he felt that Mr Hugo had poached his longstanding employee Mr Aubert. He conceded that the wording in the letter of 27th/28th October might suggest that he had a separate claim against the Murens but he said that this was simply a loose use of language. He was a plumber not a lawyer.
27. Mr William Clifford is a retired self-employed plumber who specialised in water treatment. He had known Mr Buckley and Mr Hugo for some time through work although he did not socialise with either of them. On an occasion which he put as being in January 2002, he was at Mr Buckley's office treating his water. He recalled Mr Hugo coming round to discuss the case of the Murens. He said that Mr Hugo asked Mr Buckley to write a letter requesting payment for the work he had carried out. Mr Clifford understood that this was going to be a letter to Mrs Muren. He was aware of the background because Mr Buckley had told him that he was a sub-contractor of Chapman Hugo. Mr Clifford said that he made it clear to Mr Buckley in Mr Hugo's presence that he regarded it as unethical for Mr Buckley to write a letter in these terms when the contract was in fact between Chapman Hugo and Mr Buckley.
28. Nicola Buckley is Mr Buckley's daughter. She works for him in his office and does his typing, prepares his invoices etc. She said that she typed out the original quotation of 18th June 2001. She had simply copied the details from the Aquaheat quotation of which she had a copy at the time. That was why the quotation was addressed to Mr and Mrs Muren at Alphington House. It was however sent to Chapman Hugo. Similarly the valuations of 21st August and 7th September together with the letter of 25th September were all addressed to Mr and Mrs Muren because that was the reference. However they were all faxed to Chapman Hugo and she referred to the itemised list of faxes which confirmed this. She had never sent anything to Mr and Mrs Muren direct, she had only corresponded with Chapman Hugo.
29. She was present when Mr Hugo had suggested to Mr Buckley that he should telephone Mrs Muren in order to put pressure on her although she could not recall exactly when this was. She had heard Mr Buckley's end of the telephone conversation when he had subsequently telephoned Mrs Muren. She said it was clear from what she had heard that Mrs Muren was saying that it was nothing to do with her.
30. As to the Cashback letter, she said that she was in the office when the conversation took place although she was working and not concentrating entirely on the conversation. The suggestion for the letter came from Mr Hugo as a means of putting pressure on Mr and Mrs Muren to pay. Both she and Mr Clifford had told Mr Buckley that it was unethical to act in this way. She had not typed out the Cashback letter; Mr Buckley had done that himself.
31. Mrs Muren gave evidence at some length. It is clear that she is very hostile towards Chapman Hugo. She said that she regarded their claim as being extortionate and inflated and felt that they had committed some sort of fraud in connection with the desastre although we did not permit her to elaborate on this as it was not relevant to this case. However on one point she was clear, namely that she had never met Mr Buckley nor had she entered into a contract with him direct as alleged or held a meeting at which she had shaken his hand. Her sole contract was with Chapman Hugo which included the plumbing work. She recalled being telephoned by Mr Buckley on one occasion and she had made it clear to him that his outstanding fee note was no business of hers; he should look to Chapman Hugo. Because there was no question of her having a contract with Mr Buckley, she said that there was also no question of her ever having said to Mr Hugo that he should include Mr Buckley's invoices with his own. She agreed that there may have been a second telephone conversation when she called Mr Buckley at a time when no work was taking place but she could not clearly recollect this.
32. The defence called Mr Hugo, Mr Chapman and four other witnesses.
33. Mr Hugo agreed that his firm had done much work with Mr Buckley. 90% of it would have been on a sub-contract basis but there had been one or two cases where Mr Buckley had contracted direct with the client. He said that his firm had been asked to quote by Mrs Muren. She had said that she did not wish various sub-contractors such as plumbing to be included because she did not wish Chapman Hugo to make money out of these trades. It was she who suggested a PC sum of £15,000 for the plumbing. The quotation included amounts where Mrs Muren was going to contract direct, simply so as to give an idea of the overall cost of the project.
34. When they began work on site there had been no plumber. Chapman Hugo had turned off the main water supply and installed a temporary supply. When he asked Mrs Muren for a decision as to who was going to be the plumber, she gave him the Aquaheat quote. Mr Hugo then recommended Mr Buckley. He subsequently approached Mr Buckley and told him the amount of the Aquaheat quotation although he did not show him a copy because it was not in Mr Hugo's possession at that time. He made it clear to Mr Buckley that he (Mr Buckley) would be dealing directly with the Murens; it had nothing to do with Chapman Hugo. He said that Mr Buckley subsequently came to the site in order to price the job; he met there with Mrs Muren and Mr Hugo. No plans were available at the time.
35. Two to three days later Mr Buckley telephoned Mr Hugo with his quotation. He then supplied it in writing. Mr Hugo delivered it to the Murens. There was then a further meeting on site with Mrs Muren, Mr Buckley and Mr Hugo; he thought Mr Muren might also have been there. Mr Buckley pointed out that his quotation, although more expensive than that of Aquaheat, contained certain works which had been omitted from Aquaheat's quotation. The quotation was accepted by Mrs Muren who shook hands with Mr Buckley at the meeting. Mrs Muren then asked if Mr Hugo would include Mr Buckley's valuations with his own. She said that this would be simpler. Mr Hugo now believed that the Murens never intended to pay Mr Buckley and by this means they were putting the obligation on Chapman Hugo's shoulders rather than their own.
36. He told us of the various difficulties in extracting payment from Mr and Mrs Muren. Eventually he pulled his men off site in September 2001. He agreed that his second and third valuations included the plumbing amounts due to Mr Buckley and showed him as a sub-contractor in just the same way as the electrician, who undoubtedly was a sub-contractor. This was because of the request by Mrs Muren that the plumbing bills be included as part of his own. He explained that, in the case of a genuine sub-contractor, there was a main contractor's discount (MCD) i.e. the amount quoted by the sub-contractor would be the amount billed to the client but when paying the sub-contractor, the main contractor would deduct the MCD (usually 2.5%). Thus the sub-contractor would actually receive 2.5% less than the face value of his invoice. Conversely, when there were other tradesmen on site who were instructed directly by the client, the main contractor would often charge a fee known as 'profit and attendance'. This was to cover the additional work caused by liaising with the independent tradesmen etc. In this case the various valuations presented to the Murens by Chapman Hugo charged 2.5% 'profit and attendance' on both the plumbing and electrical works i.e. no distinction was made between the electrical contractor and the plumber. In fact, said Mr Hugo, the profit and attendance, although correctly charged on the plumber's bill, should not have been charged on the electrical bill because the electrician was a sub-contractor; in his case the matter should have been dealt with by way of MCD. He accepted that Chapman Hugo had therefore mistakenly overcharged Mr and Mrs Muren to that extent.
37. He agreed that the second half of the letter of 27th/28th October 2001 from Mr Buckley was clearly intended for him even though addressed to Mr and Mrs Muren. As to the Cashback letter, Mr Buckley had told him that he was going to write to try and put additional pressure on Mrs Muren but he (Mr Hugo) had not suggested it, nor in fact did he see it until much later in 2003 when Advocate Taylor produced it to him. The letter was an accurate statement of what had in fact occurred; it was not a concoction. He did not think that Mr Clifford had been there when the letter was discussed although Nicola Buckley probably was. He did not recall anyone saying at the time that it would be 'unethical' to send the letter.
38. He said that on one occasion, when he was in his car at Mr Buckley's house, Mr Buckley had agreed that he would not be looking to Chapman Hugo for payment if Chapman Hugo did not recover any funds. He accepted that the Order of Justice which Chapman Hugo had issued against Mr and Mrs Muren included the sum of £12,000 which, on his evidence, was not due to Chapman Hugo but was due to Mr Buckley. This was because he had agreed with Mr Buckley that it should be included and they would share the legal costs and any recoveries pro rata. He had told Advocate Taylor that the £12,000 was owed to Mr Buckley not to Chapman Hugo. He had not consulted Mr Buckley when agreeing to settle the case for £65,000 rather than the full amount because Mr Buckley had given him 'carte blanche' in connection with the litigation.
39. Chapman Hugo had paid all those who were genuinely sub-contractors even though they themselves had not been paid. This had cost them some £25-30,000. When he received the Order of Justice from Mr Buckley he had telephoned him to ask why he was going back on what had been agreed. He said that Mr Buckley replied along the lines "You didn't think that that was going to last forever?"
40. He agreed that the letter of 19th August 2003 from Viberts (which he had seen) made it clear that Mr Buckley considered himself to be a sub-contractor but he felt that the expression 'sub-contractor' was a generic term and was used sometimes to cover trades other than the main contractor even in situations where those tradesmen were contracting direct with the client.
41. Mr Adrian Chapman is Mr Hugo's partner. He did not have much to do with this particular project which was run by Mr Hugo but he gave evidence on certain matters. He said that he saw Mrs Muren on site several times. He stated that, at her request, he obtained a quotation for some windows from a firm in England with whom he did business. However, once he had done so, Mrs Muren made it clear to him that she wished to deal direct with the English firm as she did not wish Chapman Hugo to profit in relation to other people's work. He also gave evidence of Advocate Taylor discovering the existence of the Cashback letter and bringing it out to him and Mr Hugo in some elation at a time when they were working on a project at Augres Farm. This had started in February 2004.
42. Mr Paul Cowieson gave evidence to confirm the matters set out in paragraph 5 concerning the quotation from PDB. Mr Stephen Regal, the managing director of Regal Construction (Jersey) Limited gave evidence about the contract his firm had carried out a few years earlier for Mr and Mrs Muren in respect of a different site. On that occasion Mr and Mrs Muren dealt directly with plumbers and other tradesmen. They were not employed as sub-contractors by Regals.
43. Mr Barry Le Beuvant is a partner in Arkitecture Limited. He was approached to prepare some plans of the main house at Alphington House when a problem arose in respect of the Building By-laws. He stated that these plans were drawn up between 25th and 28th June. There were no plans available before that and therefore Mr Buckley could not have priced his quotation of 18th June off any plans.
44. Finally Mr Joe Concalves gave evidence. He was and remains an employee of Chapman Hugo. He had worked at Alphington House. He recalled Mrs Muren well. She was an attractive woman who dressed in tight fitting clothes. Her visits to the site were the subject of great interest by the workmen who would take every opportunity to look when she arrived. That was why he recalled the matter. He remembered seeing her in conversation with Mr Buckley on one occasion on site. He thought the conversation had lasted for not less than 5 minutes.
Inconvenient documents
45. One of the difficulties in this case is that each side is faced with documents which are inconsistent with its case. Each has an explanation of such documents, which we have of course considered. We think it would be helpful briefly to list these documents.
46. The following documents appear to be inconsistent with Mr Buckley's case that he was a sub-contractor of Chapman Hugo:-
(i) The original estimate dated 18th June 2001 is addressed to Mr and Mrs Muren, not Chapman Hugo. Furthermore it starts by saying "Further to my recent visit to the above property ...." whereas Mr Buckley says he priced off the plans.
(ii) The demands for payment dated 21st August and 7th September 2000 were addressed to Mr and Mrs Muren as was the letter dated 25th September 2001 explaining the expected sequence of payments.
(iii) The letter of 27th/28th October 2001 was also addressed to Mr and Mrs Muren albeit it is clear that the second part was undoubtedly intended for Chapman Hugo. The request in that letter that Mrs Muren "...... confirm her commitment to B G Buckley Limited of being in debt which amounts to the sum of £12,000....." implies a direct relationship.
(iv) The Cashback letter is clearly inconsistent with Mr Buckley's claim to be a sub-contractor of Chapman Hugo.
47. On the other hand, the following documents are inconsistent with Chapman Hugo's stance that Mr Buckley's contract was direct with Mr and Mrs Muren:-
(i) The original quotation from Chapman Hugo included £15,000 as a PC sum for plumbing.
(ii) Valuation No.2 submitted by Chapman Hugo to Mr and Mrs Muren on 1st September in the sum of £45,340.92 included £6,000 in respect of plumbing. The sum was entered under the heading "Nominated sub-contractors" as was the electrical work. No distinction was drawn between these two trades.
(iii) Valuation No.3 was submitted in exactly the same format save that the sum for plumbing had risen by then to £12,000.
(iv) The document prepared by Chapman Hugo headed "Estimate to completion for works to be carried out by Chapman Hugo and nominated sub-contractors" contained the sum of £19,500 in respect of plumbing under the heading "Nominated sub-contractors as per quotations". Again electrical work was dealt with in an identical manner.
(v) The Order of Justice issued by Chapman Hugo against Mr and Mrs Muren included the sum of £12,000 in respect of plumbing and claimed this as a sum due to Chapman Hugo.
Conclusions
48. The case turns entirely on a finding of fact as to whether Mr Buckley has satisfied the Court on the balance of probabilities that he was employed as a sub-contractor by Chapman Hugo rather than as a direct contractor by Mr and Mrs Muren. The Court has not found this decision easy because of the state of the evidence and the conflicting documents.
49. Nevertheless the Court has come to the conclusion that Mr Buckley has proved his case. The Court's reasons are as follows:-
(i) Chapman Hugo sent demands for payment in valuations 2 and 3 which included the sums in respect of plumbing as owed to Chapman Hugo. No distinction was drawn between the electrical and plumbing bills and both were described as 'nominated sub-contractors'. It is conceded by Chapman Hugo that this was a correct description of the electrician.
(ii) Not only have Chapman Hugo claimed the sum for plumbing as being due to them in the valuations, they have also issued legal proceedings claiming that sum. The Order of Justice is clear in alleging that £80,246.71 (the amount of valuation 3) is owed to Chapman Hugo. This includes the sum of £12,000. That was a wholly incorrect assertion if Mr Buckley was in fact a direct contractor. The £12,000 would not be owed by Mr and Mrs Muren to Chapman Hugo, it would be owed to Mr Buckley. Chapman Hugo would have no right to sue for that sum unless Mr Buckley had formally assigned the benefit of that debt to Chapman Hugo. There is no suggestion of that having occurred.
(iii) Mr Hugo said in evidence that he informed Advocate Taylor that the £12,000 was owed to Mr Buckley and not to Chapman Hugo. It is true that Advocate Taylor floated this issue in a letter to Mr Buckley dated 4th February 2003 but that is far from an assertion of the position. Advocate Taylor has not been called as a witness but we would be surprised if an advocate of the Royal Court would have knowingly allowed his client to sue for monies which the client had told him were due not to the client but to someone else.
(iv) Advocate Livingstone wrote to Advocate Taylor on 19th August 2003 making it clear that Mr Buckley was a sub-contractor of Chapman Hugo and was entitled to recover his money from them. If, as he says, Mr Hugo had given specific instructions to Advocate Taylor that Mr Buckley was not a sub-contractor, one would have expected a firm response denying the allegation in the letter; but no such denial was forthcoming. Indeed Advocate Taylor himself referred to Mr Buckley as a sub-contractor in letters dated 5th June and 3rd October 2003.
(v) Chapman Hugo settled the claim against Mr and Mrs Muren for £65,000 inclusive of the amount claimed in respect of Mr Buckley's invoice. They did so without reference to Mr Buckley. Mr Hugo said that he had received 'carte blanche' from Mr Buckley to deal with this litigation on the basis that they would share the costs and recoveries pro-rata. We gained the clear impression from Mr Buckley's evidence and the documentary evidence that Mr Buckley is a man who takes a keen interest in his financial position. We do not see him as a man who would simply have handed over to another the conduct of the claim in respect of his £12,000. We conclude that Mr Hugo settled the claim without reference to Mr Buckley because he felt that he was dealing with money owed to Chapman Hugo alone.
(vi) Mr Hugo's explanation for the inclusion of the plumbing sums in the valuations was that he had been specifically requested by Mrs Muren to include the plumbing invoices as part of his own. Having considered the available evidence, we do not accept his evidence on this aspect. He also explained that the reason that the Order of Justice had included the plumbing sum was because he had agreed with Mr Buckley that they would share the legal costs and any recoveries pro-rata. Again, we are unable to accept his evidence on this point. Given that there was doubt at an early stage as to the willingness or ability of Mr and Mrs Muren to pay the sums claimed, we do not regard it as likely that Chapman Hugo would have become involved in chasing the £12,000. Why would they wish to have any involvement in such a matter? There was no benefit to them. Why not follow the normal course of leaving Mr Buckley to claim what was due to him with Chapman Hugo pursuing what was due to them? On this aspect we accept Mr Buckley's evidence that there was no such agreement between them. The £12,000 was included in the Order of Justice because, in the opinion of Chapman Hugo, that sum was part of the total owed to them.
(vii) The Court has of course carefully considered the fact that the quotation from Mr Buckley and a number of the follow-up letters and demands were addressed to Mr and Mrs Muren and not to Chapman Hugo. In relation to this aspect:-
(a) We accept Mr Buckley's evidence that the details of the addressee were simply copied from the Aquaheat quotation. Thereafter the same details were used as a reference on subsequent letters. His evidence in this respect was supported by his daughter.
(b) We also accept the evidence from Mr Buckley and his daughter that none of the letters apparently addressed to Mr and Mrs Muren were in fact sent to them. They were all sent to Chapman Hugo, usually by fax.
(c) Mr Buckley's evidence as to the lack of significance of the name of the addressee is strongly supported by an analysis of the letter of 27th/28th October. It is quite clear that the second part of the letter (in heavy type) is written to and intended for Chapman Hugo. We find that the first part was similarly intended, with its reference to advancing the building works "along with yourselves". Thus a letter undoubtedly intended for Chapman Hugo was in fact addressed to Mr and Mrs Muren.
Accordingly we accept Mr Buckley's explanation of the quotation and the subsequent documents addressed to Mr and Mrs Muren.
(viii) We note that there is a passage in the letter of 27th/28th October which could be said to support the suggestion that the contractual relationship of Mr Buckley was with Mr and Mrs Muren. This is where he says:-
"......... I would like you to make it quite clear to [Mrs Muren] and for her to put it in writing to confirm her commitment to B G Buckley Limited of being in debt which amounts to the sum of £12,000. This sum of money must be included along with your own valuation and would be extracted from the gross amounts of the sale of the house and duly forwarded immediately to your solicitor who in turn would forward me my payment in due course."
However, as can be seen from a number of the letters, Mr Buckley's use of language is not always felicitous and we accept his evidence that he did not intend by this wording to suggest that his contract was with Mr and Mrs Muren.
(ix) We have had the opportunity of seeing and hearing Mr Buckley give evidence. He was not an easy witness. He regularly went off at a tangent and it is clear that he feels very strongly about the matters in issue. He is angry with Mr Hugo and we think that this relates not only to the matters in dispute but also to the poaching (as he would see it) of Mr Buckley's longstanding employee, Mr Aubert. Nevertheless, we formed the view that he was essentially a truthful witness.
(x) We have of course considered the criticisms of his evidence made by Mr Young and two matters have given us particular pause for thought:-
(a) Mr Buckley was adamant that he had priced his quotation off some plans. During the hearing he said that they were at home and he produced them after the luncheon adjournment. However, in the absence of any evidence to the contrary, we accept Mr Le Beuvant's evidence that these plans were not prepared until about 27th June. Mr Buckley could not have quoted from them because they were not in existence at 18th June. He must therefore have gone on site to price the job. This was consistent with the introductory words of his quotation which state "Further to my recent visit to the above property ...." Mr Buckley sought to explain this language by saying that he often used such language as a standard form of wording even when he had priced off plans. However an inspection of some of the quotations in relation to other projects which were included in the bundle of papers suggests that he does refer to plans on some occasions, to visiting the site on others and occasionally to having inspected both the site and plans. This suggests that there is no single formula which he applies regardless of the facts. Nevertheless he clearly did receive the plans of Alphington House and this was almost certainly within days of their preparation and before he started work. It would therefore not be surprising if, having had the plans in his possession since the end of June or early July 2001, he now believed he had priced the job off the plans. Accordingly we find that he was mistaken and that he must have gone on site to price the job; we do not find that he has been untruthful. We do not find that this mistake on his part leads us to conclude that his contract was with Mr and Mrs Muren.
(b) The Cashback letter is clearly wholly inconsistent with Mr Buckley's evidence. He accepted that this was so and that he had deliberately sent a letter which he knew to be false. He said that it was done at Mr Hugo's request in order to put pressure on Mrs Muren, but he did not seek to minimise his responsibility for a concocted letter. We have found the evidence of Mr Clifford to be of considerable assistance in this respect. He may not have been correct on the date of the occasion which he witnessed but we have no hesitation in accepting him as a truthful and reliable witness who has no axe to grind in these matters. He said that he was present when the discussion took place between Mr Hugo and Mr Buckley and Mr Buckley agreed to write the letter in question. He does not say that he heard Mr Hugo put Mr Buckley up to it. What he does say is that, having heard what was proposed, he considered it to be unethical and said this to Mr Buckley in no uncertain terms whilst Mr Hugo was present. His reason for thinking it unethical was because he had previously been told by Mr Buckley that Mr Buckley was a sub-contractor of Chapman Hugo; he could not therefore be owed any money by Mr and Mrs Muren and it would be unethical to write to them suggesting that they did owe him money. Mr Clifford's evidence, which we accept, confirms that, prior to the Cashback letter, Mr Buckley genuinely considered himself to be a sub-contractor of Chapman Hugo (unless he had been deliberately lying to Mr Clifford, which seems very unlikely). It therefore lends support to Mr Buckley's evidence that the Cashback letter did not reflect what he believed but was, as he says, a concoction. Mr Clifford's evidence is of course also supported by Mr Buckley's daughter although, because of the family connection, we place less reliance on this.
For these reasons we do not find that the Cashback letter and the error about how he priced the quotation lead us to reject Mr Buckley's evidence on the main issue.
(xi) We have given careful consideration to the evidence of Mrs Muren. We have to say that we did not find her to be a satisfactory witness.
(a) It was clear from her evidence that she has very strong feelings of antipathy towards Chapman Hugo. She was evasive when questioned and her main pre-occupation seemed to be that she should say nothing which might damage her potential claim against Chapman Hugo in relation to the desastre. She sought to portray herself as having played a comparatively minor part with all major decisions being taken by her husband. This allowed her to plead ignorance of many matters. Our impression from the papers before us and the other evidence we heard was to the contrary, namely that she was a forceful character who was actively engaged in this project. She also sought to suggest that she had never received a large number of documents which were put to her. We thought this highly unlikely.
(b) Nevertheless on certain aspects she gave clear evidence. She said that she had never met Mr Buckley and he gave evidence to the same effect. She said that she had no contract with him. She agreed that he had telephoned her on one occasion but she had made it clear to him that she had no contract with him and he must look to Chapman Hugo for payment. This was consistent with Mr Buckley's evidence and also that of his daughter who overheard her father's end of the telephone conversation. She denied having specifically asked that the plumbing bill should be included as part of the Chapman Hugo valuations. Mr Hugo said in evidence that he thought that she had made this suggestion because, even then, she did not intend to pay and she wished to push the matter on to the shoulders of Chapman Hugo. We think this unlikely as we cannot see how it would help her. Whether she owed the plumbing fees directly to Mr Buckley or to Chapman Hugo would make no difference to her financial position. She would still owe the £12,000 to someone.
(c) We have of course considered whether her undoubted antipathy toward Chapman Hugo may have led her to give false evidence on the key matter in issue. It is hard to see what she would gain from giving false evidence on this particular topic other than that a victory for Mr Buckley would cost Chapman Hugo £12,000 and this might give her some satisfaction. On the other hand, her own financial interest would best be served by a finding in favour of Chapman Hugo. In the first place it would reduce the amount which they were entitled to claim against her by £12,000 and it would be too late for Mr Buckley to make a claim in the desastre for that sum. Accordingly she and her husband would be better off to the extent of £12,000. Secondly, the fact that Chapman Hugo had falsely included in their claim against her an amount which was not in truth owed to them might support her allegation that they had committed some sort of fraud in relation to the desastre. All in all, there would seem to be no real reason for her to falsely support Mr Buckley and her best interests might be thought to be served by supporting Chapman Hugo on this particular matter.
(d) We do not find that the evidence of Mr Concalves causes us to reject the evidence of Mr Buckley and Mrs Muren that they had never met, although they may have been on site at the same time. Although we accept that Mr Concalves and his colleagues may have perked up when Mrs Muren arrived on site, we think it highly unlikely that he would be able to recall with whom she spoke whilst on site when he had no part in that conversation and no particular reason to recall it.
(e) We accept that Mrs Muren dealt with some tradesmen direct but there were also undoubtedly some tradesmen who were sub-contractors of Chapman Hugo. We are therefore not assisted by this point.
(f) In summary, whilst being very cautious about Mrs Muren's evidence, we accept her evidence on the key question of with whom she and her husband contracted and whether she had met with Mr Buckley.
50. In summary having had the opportunity of seeing and hearing all the witnesses in this case, the Court accepts Mr Buckley's evidence that his contract was with Chapman Hugo and not Mr and Muren. Accordingly we give judgment in the sum of £12,000.
No Authorities