Building dispute : claimant must act reasonably

A claimant in a building dispute, claiming damages for either repair or reinstatement of his property, had to act reasonably in carrying out remedial works.  Where defects were aesthetic rather than structural, damages would be available only for repair rather than for demolition and rebuilding.

Mr Peter Coulson, QC, so held in the Queen’s Bench Division on the claim of Ian McGlinn against the defendants, Waltham Contractors Ltd, Huw Thomas Associates, DJ Hartingan and Associates Ltd and Wilson Large and Partners, for the cost of the demolition and rebuilding of Masion d’Or, a property which he had commissioned to be built in St Aubin, Jersey.

Before the property was completed, Mr McGlinn had given instructions that it should be demolished on the basis that it had been badly designed and built.  His alternative case was put by reference to the estimated costs of repairing the individual elements which were said to be defective.

Mr Adrian Williamson, QC and Mr Jonathan Selby for Mr McGlinn; Mr Andrew Bartlett, QC and Mr Gavin Hamilton for Thomas Associates; Mr John Whitting for Hartingan; Mr Colin Reese, QC and Mr Andrew Warnock for Wilson Large; Waltham Contractors did not appear and was not represented.

HIS LORDSHIP said that Huw Thomas Associates were appointed as architects by Mr McGlinn to design and inspect a high quality finished building.  However, that obligation did not extend to the production of a perfect building.

It could sometimes be the case that an employer with a claim for bad workmanship against a contractor made the same claim automatically against the inspecting officer on the assumption that, if there was a defect, then the inspector must have been negligent or in breach of contract for missing the defect during construction.

That was a misconceived approach.  The architect did not guarantee that his inspection would reveal or prevent all defective work.  It was not appropriate to judge an architect’s performance by the result achieved.

In the circumstances, Huw Thomas Associates had provided inspections at infrequent intervals and their inspection programme had been too rigid.  Furthermore they had failed to generate records of what they saw and said during their inspections.

As far as causation and quantum were concerned, a claimant who carried out either the repair or reinstatement of his property had to act reasonably: see Board of Governors of the Hospitals for Sick Children v McLaughlin and Harvey plc ([1987] Con LR 25), the Great Ormond Streetcase.

Where the claimant had acted on the advice of an expert, on the face of it he was entitled to the cost of the work carried out pursuant to that advice: the Great Ormond Streetprinciple.

The question in issue was whether Mr McGlinn had acted reasonably in demolishing Maison d’Or and was entitled to the cost of demolition and rebuilding or whether he was entitled to the lesser sum of the cost of repair.

His Lordship said that the Great Ormond Streetcase could be distinguished on the grounds that:

(a)            Mr McGlinn’s complaints concerning Maison d’Or had been aesthetic, unconnected with the structural soundness of the house itself; the defects in the Great Ormond Street case had been structural.

(b)            Mr McGlinn had himself favoured demolition and rebuilding and not repair, a particular view and approach of the employer which did not exist in the Great Ormond Streetcase.

(c)             Mr McGlinn’s case for demolition was established on the cumulative effect of a number of unconnected defects against different defendants.  Some of his items of claim had not succeeded, others were not the liability of the defendants in any event.  Since there was no evidence to indicate that specific items alone justified demolition, the effect was fundamentally to weaken the causative effect and evidential value of the expert advice given to Mr McGlinn to demolish.

(d)            Mr McGlinn had not commenced the rebuilding of Maison d’Or nor were there any drawings or plans to indicate that was imminent.  The rebuilding scheme was therefore notional.

In the circumstances, Mr McGlinn could not reply on the fact that he had taken expert advice.  He had not acted reasonably in demolishing Maison d’Or and was not entitled to the cost of demolition and rebuilding.  He was, however, entitled to the cost of repair work necessitated by the individual items for which Huw Thomas Associates and DJ Hartingan and Associates were liable.

Queen’s Bench Division

PublishedMarch 20, 2007-03-20

McGlinn v Waltham Contractors Ltd and Others (No 3)

Before Mr Peter Coulson, QC

JudgmentFebruary 21, 2007