Margaret Tomlinson wanted an extension for her terraced home. Okay, said the builder, that will be £19,500, please. It was downhill all the way after that, ending up in a trial that lasted six-and-a-half days…
As my old Auntie Nell would say: “There ought to be a law against it.” Here we have the building of a tiddler of a kitchen and bathroom extension that ended up in a dispute between the building owner and the builder. And, blow me down, there was a six-and-a-half day trial. Even the judge became a tad fed up.
Margaret Tomlinson lives one end of a row of cottages in Easingwold, North Yorkshire.
Mr Wilson is a local builder. His price for the 8 × 6ft house extension was £19,500. It was payable in six stages. The fifth stage was completion of the roof. The work started.
Now then, it is important that builder and client get on. The idea is to bear with each other. But these two didn’t.
The builder’s suspicions showed up as he neared roof tile completion. He seemingly saw fit to remind the client that once the tiles were all fixed in a week’s time, he would expect his fifth cheque. She remarked that he “obviously must be broke” because he was “always looking for money”. Letters reinforced the doubts and the doubtful. Ms Tomlinson now consulted a chartered surveyor. The builder suspended work “until the matter of payment is resolved”.
The surveyor said: “The works were exhibiting a number of defects.” He was conducting a detailed survey, so required the builder to temporarily suspend work. Three weeks later, things went legal. Seemingly the surveyor found that the raft foundation was not quite tickety-boo. The solicitor’s letter was very straight. The building would have to be demolished and rebuilt. It would cost £26,000 and more besides. The letters did, however, suggest that the builder might wish to do all this remedial work himself. Not a penny more would be paid.
Unsurprisingly, a solicitor’s letter winged its way back on behalf of the builder. It said: “Please give us chapter and verse about the defects.” The builder wanted the expert report within five days. If none arrived he would present a wrap-up account. No report came. True, there was dialogue. But soon enough Ms Tomlinson had the building knocked over.
“Repudiatory breach by Mr Wilson,” shouted Ms Tomlinson. “Not so,” said Mr Wilson. “Repudiatory breach by Ms Tomlinson,” shouted Mr Wilson. Put another way, which party, by word or conduct, had demonstrated an intention not to proceed with the contract? Then ask, looking at the other party, did that party accept that conduct as a breach discharging them from further performance?
Now then, if Ms Tomlinson was guilty of such a serious breach, was the builder entitled to the value of the work he has performed so far, less defective work, plus loss of profit on the work he was deprived of. On the other hand, if the builder is guilty, the story is different. He would still be entitled to the value of his good work but would be liable for the additional cost of Ms Tomlinson engaging another builder to complete the works.
Expert witnesses quarrelled about the work needed in the slab foundation. One said it would come to £630. The other expert appeared to be flummoxed as to why the building had to be demolished. The lawyers quarrelled, too, about which party repudiated the contract. It was Ms Tomlinson who came off worse. Her demand that the builder demolish and rebuild was a significant departure from what she was entitled to under the original contract. Once the builder said no to that, the contract came to an end by her fault.
So the builder gets paid for the good work and only good work, and gets his loss of profit on the work he would have done.
Ms Tomlinson gets it in the neck for the extra costs of the adventure.
As for the costs of the court action, I expect them to be massively more than the sums in dispute. The judgment doesn’t say if Ms Tomlinson has to pay the builder’s legal costs but it would be no surprise.
It’s all down to entrenched attitudes. There ought to be a law against it. And there would be if consumers had a statutory right to adjudicate. But they haven’t. Parliament deprives the Ms Tomlinsons of this world of a cheap and effective solution to their problems. Time for a rethink, methinks.
Tony Bingham is a barrister and arbitrator