The case concerned: Mr and Mrs Vainker v (1) Marbank Construction Ltd; (2) Mercer & Miller (a firm); and (3) SCD Architects Ltd [2024] EWHC 667 [TCC].
The guidance followed the recent decision in the “Vainker” case referred to above. The Claimants’ appointed Markbank Construction Ltd to construct a new-build residential property, known as The Croft at Walpole Gardens, Strawberry Hill, Twickenham (the House). The third defendant, SCD Architects Ltd designed the House. It is understood the Claimants’ reached a settlement with the second defendant before trial.
The Claimants alleged 64 items of defects “of greater and lesser seriousness” in the as-built House, with some relating to the brickwork, glass, Accoya, the green roof, rooflight, worktops and tiles and the MVHR system.
Guidance on “fit for habitation”
Section 1(1) of the DPA provides that a person taking on work for, or in connection with the provision of a dwelling, owes a duty to a person with an interest, that the work is done in a workmanlike or, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.
At paragraph 40 of her judgment, Mrs Justice Jefford set out a number of aspects that were relevant when deciding whether the House was at the time, fit for habitation:
(i) “In considering whether the House was, at the time of completion, fit for habitation, it is relevant to take into account that it was intended to be not only a new build but a modern house in design. It is a fact sensitive question in respect of any particular defect whether the requirements Mrs Vainker had for the House have any relevance.
(ii) It is unlikely that a defect that is only aesthetic or inconvenient would render a dwelling unfit for habitation.
(iii) There may be a breach of the duty in respect of a defect which means that the condition of the dwelling is likely to deteriorate over time and render the dwelling unfit for habitation when it does so. In that case the dwelling can be said to be unfit for habitation at the time of completion.
(iv) In considering whether a failure to carry out works in a workmanlike or professional manner renders a dwelling unfit for habitation at the date of completion, it is appropriate to consider the aggregate effect of defects. However, it must be the case that minor or aesthetic defects which do not contribute, and are not capable of contributing to, unfitness for habitation cannot be relevant in this consideration and damages cannot be recovered in respect of such a defect merely because other defects render the dwelling unfit for habitation”.
Net contribution clause
The architects had the benefit of a net contribution clause within its appointment, which it sought to rely on to avoid its liability pursuant to the DPA. The court rejected the architect’s arguments and reminded them of s.6(3) of the DPA, which states:
“Any term of an agreement which purports to exclude or restrict, or has the effect of excluding or restricting, the operation of any of the provisions of this Act, or any liability arising by virtue of any such provision, shall be void”.
s.6(3) of the DPA can defeat an attempt by a party (often a professional) to rely on a ‘net contribution clause’ in a standard form contract such as the RIBA terms.
Damages
With regards to the claim for damages, Jefford J noted that once there is a breach of the DPA, the damages awarded are not limited to the “minimum necessary” to put the dwelling in a habitable condition. Instead, “the damages should more naturally reflect the failure to see that the work was done in a professional manner” and “recoverable damages should, therefore, be the cost of making the dwelling fit for habitation in the way it would have been had the services been supplied in a professional manner.”
With regards to general damages for distress and inconvenience, Jefford J said “It is relevant whether or not the claimant occupies the property and/or has had to move out while remedial works are carried out… The claimant is to be treated as a person of reasonable robustness. A particular characteristic of the claimant may be material when, for example, the distress is caused by the presence of children in the defective property. It is relevant to consider both the impact of distinct defects and the period of time over which that defect cause distress and inconvenience. Nonetheless, the court is entitled to take a broad brush approach”.
Commentary
This case provides welcomed guidance on how the courts are likely to assess whether an applicable building is fit for habitation. The court makes it clear that defects that are considered aesthetic, inconvenient, or possibly minor are unlikely to render the dwelling unfit for habitation. Further, that those defects will not be considered in the aggregate claim for defects and will not be taken into account when calculating damages. The court reminds us that it is not possible to limit or exclude liability under the DPA through contract and it is likely to take a broad-brush approach when considering a claim for general damages for distress and inconvenience. Given that claims under the DPA are on the rise, this case is certainly a case to take note of when bringing, or handling, a claim that alleges unfit for habitation under the DPA.
This article forms part of our Breaking Ground series. For more information on the series, contact Andrea Lynch.
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