I think Mr and Mrs Stewart must listen to all the radio and television programmes broadcast on law. They certainly know how to write a really good complaint letter. But before I tell you their story, I should point out that the reason I'm drawing it to your attention is that the trouble that flared up on this job is just the same sort of trouble that flares up on the big 'uns. Here goes.
Mr and Mrs Stewart's home needed 12 windows, front door, replacement soffits, guttering and fascia. Tudor Rose Windows priced it all up at £6350. Not bad at all. The eventual court case and Court of Appeal case must have cost 10 times that. The deal was done, but then Tudor took five months to make the stuff and make a start. I bet that delay was unhealthy for tempers. Then, when the lads did turn up, the estimate of a week to do the work turned out to have been ambitious.
The Stewarts now did what upset folk frequently do in building disputes – they searched for duff work, defective materials and iffy widgets. That list is piled on top of all the delay. Blood is sniffed. The nasty phone calls follow; shouting, even tears, ensue. The Stewarts wrote their letter. They even recorded that they intended to engage a surveyor to inspect the work on completion; meanwhile, no money would be paid. And because no reply was received from the contractor, the customers said they assumed it had "abandoned the work". A reply by return insisted that that wasn't the case and a team of fitters would be sent the next week. The customer gave all that short shrift.
Fed-up contractor now sued fed-up customer. The issue was, which party brought the contract to an end and was it entitled to do so? The cause of the split at the time was the alleged late performance. The Stewarts also said that the defects were another good excuse (although not one relied on at the time) for refusing to let the contractor back. By the way, the law sometimes allows you to make use of a reason for booting the other party off a job even though it had not been thought of at the time. Be careful, though. The judge at the first trial decided that the failure of Tudor to finish the job in a week was unimportant. Moreover, he seems to say that the defects could have been put right during the time that the remaining work was being done.
Bad work found during a job cannot ordinarily bring the contract to an end unless the contractor doesn’t intend to, or cannot, put it right
So Mr and Mrs Stewart lost the argument about their right to keep Tudor off their premises. Their counterclaim for £14,000 was dismissed too.
Upset now with that judge, the Stewarts went to the Court of Appeal with three complaints. The first was that the judge was wrong to conclude that it was the Stewarts who, by refusing to let workmen in, brought the contract to an end. But a Court of Appeal will rarely interfere with a lower court's finding of fact. The fact was that it was the Stewarts who "evinced an intention to bring the contract to an end". The first point of appeal was dismissed. So too was the second.
The Stewarts said that the bad work was so significant that it was a good excuse to refuse the workmen the site. The Court of Appeal appears to have followed the test in Keating on Building Contracts, which says that bad work found during the course of doing the job cannot ordinarily bring the contract to an end unless the contractor doesn't intend to or cannot subsequently perform its obligations under the contract. That's quite a considerable hurdle to leap over. Tudor should have been allowed back.
The third point of appeal was allowed. The first judge gave no real thought to the value of the defects. So that item alone would have to go to another trial and a new judge. The Court of Appeal expressed great reluctance to send such a small remaining item to another trial. The message given to the two parties was to try to negotiate it or go to mediation, before coming back to court. It strikes me that a good QS adjudicator would decide that quantum matter in one hour flat. Although I daresay that the loser would then lose his or her temper with the QS adjudicator.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.