Iggleden & Anr v Fairview New Homes (Shooters Hill) Ltd
This was a relatively small building defects dispute which came before HHJ Coulson QC. The Iggledens brought a new house from Fairview. Although clause 5 of the contract provided the house would be built in good and workmanlike manner, a number of defects appeared. Some were corrected, others were not. One issue related to the driveway which was said to be defective Two remedial schemes were proposed by the respective experts. The Judge said that if there are two such competing schemes then the court should bear in mind the approach of HHJ Hicks QC in the case of George Fischer v Multi-Design Consultants who said that:
"… the acceptance of either is, to some extent, dependent, first, on a judgment as to the ability of the designer, who devised suitable detailed treatment of all the potential trouble-spots and second, on an assessment of the guarantees and bonds offered … since Soladex would be so much the cheaper, and cannot be said to be the more detrimental to the appearance of the buildings … it must clearly be preferred unless the criticisms of its expected effectiveness are … made good on the balance of probabilities …"
Here, the Judge found that the schemes were not roughly equivalent from a technical point of view. Therefore the appropriate remedial scheme was the one which was technically the better. As it happened, this was also the cheapest.
Another issue for the Judge was whether the claimants had failed to mitigate their loss by refusing to allow the defendant to carry out remedial works. The Judge had to consider whether it was reasonable for the claimants to say that in the light of past events they did not want the defendant to come back to the property to undertake any work at all. The outstanding works were more than mere snagging. They arose out of the defendant's original failure to build the property properly. They were compounded by an unwillingness to do the full scale of remedial works which the Judge had determined were necessary. Thus, on all the evidence it was not unreasonable for the claimants to say that five and a half years on, they did not want the defendant to return to the property to undertake any further work.
However, the claimants had, in the view of the Judge, failed to mitigate their loss. There had been delays and the remedial works should have been carried out substantially earlier. In the Judge's view, the claimant's team should have realised by the summer of 2003, that because of their failure to reach agreement with the defendant over the scope of the remedial work, they would have to carry out the works themselves. The remedial works could and should have been completed by the end of 2003. This had an effect on the claim for general damages by the claimants. The Judge considered that the disruption suffered was the "middle" of the sort of disruption that home owners suffer in such circumstances. He awarded a typically modest sum in respect of this, calculated at £750 per person per year by way of general damages. But, the claimants were only entitled to general damages up until the period before the end of 2004, the period by which the remedial works should have been carried out.