Secker v Fairhill Property Services Ltd & Ors [2017] EWHC 69 (QB) (27 January 2017)

Neutral Citation Number: [2017] EWHC 69 (QB) Case No: HQ15P01497 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Royal Courts of Justice Rolls House 7 Rolls Building Fetter Lane London EC4A 1NL 27/01/2017 B e f o r e : THE HON. MR JUSTICE STUART-SMITH ____________________ Between: Christine Secker Claimant - and - (1) Fairhill Property Services Ltd (2) Simon Goulding (3) Sharon Goulding (4) Paul Prude Defendants ____________________ Christopher Wilson-Smith QC and Harry Trusted (instructed by Moore Blatch Resolve LLP ) for the Claimant Julian Matthews (instructed by Kennedys Law LLP ) for the 2nd and 3rd Defendants 1st and 4th Defendants not represented Hearing dates: 29-30 November, 1 December 2016 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mr Justice Stuart-Smith: Introduction On 26 July 2012 the Claimant, Mrs Secker, had been gardening at home and wanted to dispose of some weeds that she was carrying. She tripped over the leading edge of a paving stone in her garden and fell forwards. She fell against a fence and gate that were close to the paving stone, with catastrophic consequences. She is now paralysed in all four of her limbs and permanently wheelchair-bound. Mrs Secker brought these proceedings against four defendants. Mr and Mrs Goulding are husband and wife and carried on business in partnership. Mrs Goulding did book work and, on occasions, interior design. Mr Goulding is a builder who also buys and sells properties. He was responsible for the building of Mrs Secker's home, which she bought as a new build property with the intention that it should provide a home for her, her daughter Harriet and her young grandson Phoenix. The fourth Defendant, Mr Prude, laid the paving around the house but has taken no active part in the present trial. The first Defendant is a limited company associated with the Gouldings but does not require further mention. By previous order of the court, this has been a trial of the issue of liability only. The Claim Form did not indicate the nature of the cause of action upon which the Claimant relied. The original Particulars of Claim alleged breach of an implied term of the contract by which the Defendants sold the property to Mrs Secker. At a very late stage, the Claimant applied to amend the Particulars of Claim to allege two additional causes of action. The application was heard by HHJ Cotter QC on 17 November 2016, twelve days before the fixed date for the trial of liability. He permitted the Claimant to amend to plead an additional claim in contract, the allegation being that the Defendants had breached the terms of a contract that was collateral to the main contract. He refused an application to add a claim in tort. Although Mr Trusted, who attended the application before HHJ Cotter QC on behalf of the Claimant was able to provide some assistance, the details of the submissions that were made to the Judge and any reasons he gave for refusing permission to bring the claim in tort are not before the Court. On the basis of the information provided by Mr Trusted and on general principles, it appears that the reasons for refusing to allow the Claimant to amend to bring a claim in tort included that such a claim would expand the factual basis of the enquiry that would be necessary at trial. HHJ Cotter QC's decision was not and is not the subject of an application for permission to appeal. As a result, when this trial started, the claim was framed in contract and, as Leading Counsel for the Claimant confirmed, there was no claim in tort. On that basis the main issues to be decided were usefully characterised by the Claimant broadly as follows: i) Leaving aside the effect of any exclusion clause, were there implied terms of the contract by which the claimant bought her home from the defendants relating to quality of workmanship and design? ii) If such terms would otherwise be implied, are they excluded by Clause 8 of the contract? This would involve consideration of whether Clause 8 is unfair so that the Defendants may not rely upon them by virtue of the Unfair Contract Terms Act 1977. iii) Was there a collateral contract whose terms were that the Second Defendant would attend to snagging items identified post-completion in consideration for the Claimant entering into the contract to purchase the Property? iv) If there were implied terms of the contract and/or a collateral contract as alleged by the claimant, were the Defendants in breach of contract because of the failure to attend to defective paving after completion and, if so, did that failure cause the Claimant's accident so as to give rise to a right to recover damages for the injuries she has suffered? The main witnesses for the Claimant were Mrs Secker and her daughter Harriet. They were good witnesses who were transparently honest, truthful and fair in the way they gave their evidence. They were supported by Mrs Secker's daughter, Mrs Charlotte King; her brother, Mr Anthony Payne; and by Mr Coles, the window cleaner who periodically cleaned windows at the property. Each of them gave useful, fair and truthful evidence on the first day of trial. On the second morning of the trial, the Claimant applied to re-amend the Particulars of Claim to include a claim pursuant to the Defective Premises Act 1972. I rejected that application in a separate ruling, which I do not repeat here. Mr Goulding then gave evidence. He is a general builder and was giving evidence about matters that happened many years ago and which by their nature may have been of less intense importance to him than they were to Mrs Secker, who was taking the major step of buying a house. Mr Goulding was also transparently honest, not least in giving the court a clear picture of the relative informality of his dealings with Mr Prude, his sub-contractor, of which more later. It is clear from all of the evidence that he got on well with the Seckers: this is not a case that is plagued by personal animosity between the parties, though it is of extreme importance to all concerned. I formed the impression that he was always prepared to assist the Court in his evidence. The fact that I do not feel able to accept all of his evidence is not in any way a personal criticism of him. At the commencement of closing submissions, Leading Counsel for the Claimant abandoned the original claim in contract that had alleged the existence of an implied term of the contract of sale. Issues (i) and (ii) as outlined above therefore fell away, leaving only issues (iii) and (iv). In other words, by the time of closing submissions, the only claim being pursued was the claim allowed by amendment on 17 November 2016. In the end, the areas of factual dispute were within a limited compass, though some issues have to be resolved that are important for the resolution of the claim. I therefore turn to the facts. The Factual Background Building the House The house is at 5a Holdenhurst Avenue, in Bournemouth. It was designed for Mr Goulding by architects whose brief was to design a house that would pass through the planning process with a minimum of fuss. Planning permission was duly obtained in April 2009: it required that the house be built in accordance with the Building Regulations. Mr Goulding put together a team of subcontractors who built the house. He carried out some of the finishing works, such as fitting the kitchen and doing some of the decoration, himself. It is not necessary to outline the NHBC scheme in any detail. It is sufficient to record that a builder who operates under the NHBC scheme is obliged by his membership of the scheme to meet certain standards and, as necessary, to carry out snagging works and to remedy defects whether or not he has a separate contractual obligation to the house-owner to do so. Viewed from the front, the house has a free-standing garage to the right. There is an area of driveway to the garage, which was laid with herring-bone patterned blockwork. There are also paved areas to the front, along the right hand side of the house (between the house and the garage), and to the left hand side of the house (between the house and the boundary fence). The paths down the sides lead to the garden at the back, and there is an entrance to the house from each path. The entrance on the right hand side is into the kitchen and is level with the pathway: this is the entrance that Mrs Secker routinely used. On the left hand side, the entrance was into the hallway and involved a step up from the level of the pathway. The ground was essentially level, with a fall of just under 40mm over a distance of nearly 8 metres from the front to the back of the house. The external paving which is the subject of the action was laid by Mr Prude. Mr Goulding gave evidence that he told Mr Prude what he wanted. More controversially, Mr Goulding gave evidence that he remembers discussing the leading edge at the garden end with Mr Prude and deciding that it should be left with a lip or raise. On all of Mr Goulding's evidence I find that his discussions with Mr Prude were quite informal. He certainly did not commit any "design" of the pathway to paper and did not take any measurements of ground level. While it is possible that he and Mr Prude had a conversation which recognised that the garden was at a slightly lower level, I am not satisfied that any detailed thought was given or discussion held in advance about what, if any, solution should be adopted where the path along the left hand side of the house reached the garden. Mr Prude laid the paths down the sides using 450mm square, 35mm thick paving slabs. There is evidence, which I accept, that he carried out some groundworks with a mini digger and laid the slabs on a bedding layer composed of sand and cement. He did not grout or fill between slabs and did not install restraining pieces at the outer edge of the path to hold slabs in place. The effect of this was that the only things keeping the slabs in place were their weight and any adhesion or friction between the slabs and the bedding layer. The experts are agreed, and I find, that the relevant British Standard was BS7533 Part 4; and that the path as laid did not comply with the requirements of the British Standard because it did not include a separate sub-base layer below the laying course, did not have any joint filling material between the paving slabs and was laid without edge restraints to prevent lateral movement of slabs. It was, in those respects at least, a shoddy job. Mr Goulding had kept an eye on what Mr Prude was doing while they were both at the house. When Mr Prude left he did not either require him to make good the shoddy aspects of his workmanship or remedy them himself. He frankly accepted in evidence that he didn't really think about the lack of jointing at all; and I find that he did not think about the lack of edge restraints either. Mr Prude's shoddy workmanship meant that a number of slabs either were or became unstable so that they would rock, or moved laterally with time, or both. But the immediate cause of Mrs Secker's accident was the leading edge at the garden end, to which I now return. The consequence of the levels to which Mr Prude laid the pathway on the left hand side of the house was that there would be exposed leading edges at both ends unless measures were taken to prevent their existence. At the pavement end, the exposed leading edge was eliminated by laying the last two lines of slabs at a slight incline down towards the pavement and then creating a chamfer with concrete or similar filling material. Mr Goulding said that this was done to prevent there being a trip, which I accept. His reason for wanting to prevent the trip was that it gave rise to a risk of tripping and injury. At the garden end, however, no such measures were taken. What happened at the garden end was that, after Mr Prude had laid the slabs, Mr Goulding himself created the garden by placing soil and then laying turf on top of it. As he explained (and I accept), when carrying out a basic gardening exercise such as he did, there is always the possibility that the soils will compact and their top surface sink with time. He carried out the work so that, by the time that it came to be measured in 2013, the soil a short distance away from the leading edge was approximately 100mm below the level of the top surface of the last slabs and the soil adjacent to the leading edge was 65-75 mm below the level of their top surface. The visibility (or otherwise) of the exposed leading edge would depend not merely on the relative level of the top of the soils and the slabs but on the presence of grass at heights that would vary with time. Whether or not there had been a discussion between Mr Goulding and Mr Prude about how the differential levels of the main pathway and the garden should be dealt with, two things are clear. First, it would have been feasible and not technically difficult to lay the path so that it ended at the intended garden level. This could have been done by installing slabs at a perceptible slope as was done at the pavement end, or by reversing the modest upwards slope that in fact occurred over the eight slab lengths from by the entrance to the hallway to the garden end of the pathway. Second, even with the path as it was laid by Mr Prude, it would have been feasible for Mr Goulding to have bulked up the soil that he laid so that the turf ended up at or very close to the level of the slabs, making due allowance for compaction and modest sinkage. Neither of these solutions was adopted, and so the leading edge was left exposed. The evidence does not enable me to make a certain finding about what depth of the leading edge was exposed when Mr Goulding finished his turfing but, on the basis of his evidence about the likelihood of compaction and sinkage, it is likely to have been rather less than the 65-75 mm that was present some two years later. Mr Goulding's evidence was that the level at which he left the turf was a deliberate decision and that he did not lay the turf so that it was flush with the top surface of the slabs because it might sink and leave a smaller lip. I am not satisfied that this was evidence based on recollection rather than reconstruction, for three main reasons. First, he (or, rather, Mr Prude) had eliminated a lip of similar proportions at the pavement end because of the risk of injury it presented. Second, given the scale of the difference it would make and the likelihood of grass concealing the lip in whole or in part, it is not obvious that a smaller lip would be more dangerous than the leading edge that was in fact left by Mr Goulding. And, third, this was a fairly routine and unmemorable operation for a general builder. I do not accept his evidence on this point. For reasons that will appear, it does not matter whether leaving the exposed leading edge as he did was the result of thinking about the differences in level and coming to a considered decision, or merely getting on with the job without giving any real thought to the risks inherent in different solutions. The end result was the same: Mr Goulding left an exposed edge which gave rise to a real and, in my judgment, unacceptable risk of tripping. The features which made the risk real and unacceptable were (a) the depth of the exposed edge, (b) the likelihood that it would be at least partially concealed by grass, and (c) the fact that it was placed in a domestic garden where people of all ages would relax, work and play in circumstances where it was inherently likely that they would at least sometimes, and entirely reasonably, not be applying their mind to the presence of the lip. I shall refer to the lip from here on as the trip. It was not in any real sense a step in the normal meaning of the word. Reference was made to the maximum acceptable rise of a "step" as if that demonstrated that a change in levels of less than the maximum should always be treated as an acceptable "step". I disagree with that approach because it does not address the question whether the configuration of the change in levels gives rise to unacceptable danger, which this one did. The date on which Mr Goulding did his turfing work in the garden cannot be determined but was probably before exchange of contracts. Buying the House In late 2010 Mrs Secker wanted to move to the Bournemouth area and to find a home for herself, Harriet and Phoenix. Harriet Secker was wanting to set up a business in the area and the arrangement would enable Mrs Secker to help Harriet with child-care and to spend more time with her young grandson. Mrs Secker first saw the house in about September 2010, by which time it was not finished. When she visited, the herring-bone blockwork to the drive was not in place and access down the right hand side of the house was on planks. She did not look down the left hand side of the house. She visited the house again on dates which have not been established and met Mr Goulding there a number of times before she exchanged contracts. She made an offer to purchase the house for £296,000 at about the end of October 2010, which was accepted and recorded by the Estate Agents on 3 November 2010. She paid a non-refundable deposit of £5,000 for the property to be withdrawn from the market on or before 10 November 2010. On 15 November 2010 the vendors' solicitors wrote to Mrs Secker's solicitors: "It will be assumed that all necessary searches inspections surveys enquiries and the expert advice and guidance which a prudent buyer would consider necessary will be obtained by your client(s) or on their behalf We are not prepared to answer any questions regarding the physical state and condition of the property or its services which are not appropriate enquiries under the Law Society's National Conveyancing Protocol. Instead, reliance should be placed upon the buyers own inspection and the advice of suitably qualified experts" Two days later, on 17 November 2010, Mrs Secker's solicitors wrote to her: "You will appreciate that I do not inspect the property personally so it is very important that you re-inspect the property (if possible) in light of the information now being supplied. Please also ensure that the information is correct so far as you are aware." On 3 December 2010 a surveyor appointed by Mrs Secker's lender inspected the property and prepared a valuation for mortgage purposes. The report and valuation were stated to be for the lender. Mrs Secker did not see it. At about the same time Bournemouth Council's Building Control Department certified that the property was complete and that, so far as it was able to ascertain, the requirements of the Building Regulations were satisfied. Its opinion on the satisfying of the Building Regulations is of limited value, but the certificate is useful evidence of the general state of completion of the property. When asked whether she knew she could have got a survey done for herself, Mrs Secker said that she was not aware that she could have done, but added that she had a very amicable working relationship with Mr Goulding and would not have found it necessary to do so. That was just one of a number of occasions where she gave evidence of her amicable working relationship with Mr Goulding, often adding that she liked and trusted him or had faith in him. Her evidence about her relationship with Mr Goulding and her faith in him was supported by similar evidence from Harriet Secker and was undoubtedly true. Mr Goulding in turn made clear that he liked the Seckers. On 23 December 2010 Mrs Secker's solicitors reported on title. In the course of doing so they wrote: "You are buying the Property in its actual state and condition. You must be satisfied about this from your own inspection of the Property and from your surveyor's report. If you expect the sellers to remedy (or pay for the remedy of) any defects, this will have to be agreed with them before contracts are exchanged and special conditions added to the contract. Your lender has asked us to point out to you that the valuation undertaken by their surveyor may not reveal defects in the Property." On 7 January 2011 Mrs Secker told her solicitor that "all of the additional works and alterations had been carried out to the property to her satisfaction." She was not referring to the state of the pathway down the left hand side of the house. Her evidence was that, before moving in, she gained access by the right hand side and that, although she had been back to the house to look at it, she was not sure she had seen the left hand side. This may have been because she did not look there (as the path did not come within the category of additional works or alterations) or because of the adverse weather conditions that winter. Whatever the reasons, I find on the evidence that Mr Secker was not aware of the exposed leading edge at the garden end or the general state of the pathway as laid before exchange or completion. Contracts were exchanged on 10 January 2011 with completion on 14 January 2011. Clause 8 of the contract of sale stated: " Exclusion 8. The Buyer hereby admits that he has inspected the Property and he enters into this Contract solely as a result of such inspection and upon the basis of the terms of this Contract and that in making this Contract no statement made by the Seller or his agent has induced him to enter into this Contract except written statements if any made by the Seller in replies to Sellers Property Information Forms (if any) or the Seller's Conveyancer in replies to enquiries raised by the Buyer's Conveyancer." At some stage before entering into the contract of sale, Mrs Secker and Mr Goulding had a conversation about snagging and defects that is the basis of the alleged collateral contract. The date of the conversation is not known. It was not referred to in the original Particulars of Claim or the original Defence. Mrs Secker's evidence in her witness statement, which was signed in August 2016, was as follows: "I met with Simon Goulding a number of times at the property before I exchanged contracts. I had expected there to be some snags, as Mr Goulding had advised me that it was normal for there to be some snags in the case of new build properties and he had told me that he would come back to rectify any snags after I had moved in. We agreed this before contracts were exchanged. I did not however expect there to be the significant defects in the property that transpired." Harriet Secker's witness statement said: "I had been told by [Mr Goulding] before my Mum exchanged contracts, that we should expect some snags, which is normal in the case of new build properties, and he had advised me before exchange of contracts that he would rectify any snags as and when they arose after we had moved in. However, I had not expected the significant defects which transpired to be present." It is not alleged that a conversation with Harriet Secker gave rise to a collateral contract between Mr Goulding and Mrs Secker. By the time of trial the alleged collateral contract had been pleaded. Mrs Secker gave evidence in cross-examination as follows: Q Now the property you knew that the property was to come with (and we've seen it referred to in your solicitor's correspondence) an NHBC Guarantee? A Yes Yes I understood that. … Q The main thing was that you knew it was under a guarantee, the property was guaranteed for 10 years - the quality of the work was that had been done. Is that right? A Mr Goulding he commented on it. … Q But you certainly understood that the guarantee was there and it was for your benefit. A I did. Q And you had a discussion with Mr Goulding about it because he told you there will be a guarantee on the property? A Yes Yes Q And did he explain to you that essentially because it was an NHBC Builder that meant he was obliged to put things right? A Yes he did. That's exactly what he said. Q So when we look at paragraph 8 of your witness statement … . In that paragraph you say you met with Mr Goulding another time before you exchanged and you say he was explaining that it was normal for there to be some snags he said he would rectify it - you don't mention NHBC guarantee there. Was that in the context of what we've just been discussing because he said he was bound to come back because under your guarantee I will come back to repair things? A Yes oh yes definitely. He said that there are bound to be a few snags … and that they will be put right. Q And you told us that he also made reference to NHBC but that was effectively your guarantee that it will be done? A Yes Q In terms of the guarantee what did you understand the purpose of that guarantee was? A My understanding was that before contracts were exchanged the builder, in this case Mr Goulding … would give reassurance of any problems would be put right after we had moved in. Q And what I am suggesting to you is what he was [saying] that because he was an NHBC builder that that meant he would have to put things right: if he didn't the NHBC guarantee was there to cover. Is that correct? A To cover. Yes. There was no re-examination on the point. Harriet Secker confirmed in cross-examination that she had no memory of "the NHBC conversation" between her mother and Mr Goulding, though she thought it likely that there had been one. There was no re-examination. Mr Goulding's witness statement was made in 2013, long before the allegation of a collateral contract was pleaded. It did not deal expressly with whether or not there was a conversation before exchange of contracts about responsibility for defects. In cross-examination he was asked very briefly about whether there had been a conversation in the following passage: Q. Because you have had a conversation with Christine Secker to the effect that if there are any problems after she moved into the house you would come and sort them out A. Correct. Q. Having given her that assurance she later [bought] the property? A. We had this conversation before she purchased the property – Yes. After Moving In After moving in, some defects became apparent. They were of varying degrees of importance. There were a number of meetings between Mrs Secker and Mrs Goulding during which she drew defects to his attention. She compiled a snagging list to which she referred in Mr Goulding's presence, showing it to him but not giving him it or a copy. She kept it on the mantelpiece but at some stage it went missing. When it did, she and Harriet compiled another list, which has survived. The replacement list was compiled in the late spring or early summer of 2011 and was kept in the same place as the original snagging list. There was some evidence about whether it was compiled in one go or whether items were added to it with time. The replacement list does not have the appearance of having been compiled over time, though limited weight can be placed on this as the original was not before the court. Having heard both Mrs Secker and Harriet give evidence about it, I consider it probable that the original list was compiled as and when defects became apparent but that the replacement list was at least largely compiled in one go to be a list of things that were then outstanding. The exact process by which it was compiled does not matter. What matters is that I accept the evidence that items appeared on the list if they were items that were ongoing or required attention. In general terms the evidence of the Seckers was that, when a defect was raised with him, Mr Goulding would be helpful and agreed to deal with it. On occasions he would take time before he got round to dealing with the defect after notification, but the Seckers trusted him to carry out the work sooner or later which, by and large he did. I have no doubt that during 2011 the Seckers and Mr Goudling were on good terms, Mr Goulding was offering to be helpful and the Seckers were forgiving when there was delay, which reflected their acceptance that he was a busy general builder with other things to attend to. I have no doubt that their trust in him was a direct result of his being civil to them and co-operative in his responses to the matters that they raised. Their trust acted to Mr Goulding's advantage on the occasions when, for whatever reasons, he was slow in carrying out remedial works. The second item on the replacement list was "Paving slabs – uneven, crooked, dangerous." I accept that as a very short note of the features that were of prime concern to the Seckers when the replacement list was compiled. There is a severe danger of over-interpreting the short contents of the list. I note simply that the word "uneven" could have been a reference to the unevenness of the exposed leading edge at the garden end but is not obviously or necessarily so. Given the degree of agreement about the pre-contractual conversation, the main factual dispute on the evidence is about whether the Seckers ever mentioned the state of the paving on the left hand side of the house to Mr Goulding. Mrs Secker's evidence was that she did on at least two occasions: once when she had taken him out to look at the entirety of the path in the late spring or early summer of 2011, and also when she mentioned the path to the left hand side of the house on an occasion when Mr Goulding came and lifted, adjusted and replaced two slabs on the right hand side during the summer of 2011. In her witness statement she said that she could not recall if she specifically showed him the trip at the garden edge but that she believed she would have done as she was upset that there was a step there at all, which she considered to be dangerous. In her oral evidence she went further and said that she had a specific recollection of pointing out that the slabs should have been level with the grass. She then clarified that she did not remember pointing out the specific slab over which she later tripped but did remember saying that the path should be level with the grass. Her evidence was that Mr Goulding said he would sort it out, though he didn't say how he was going to do it. Harriet Secker sent a number of texts to Mr Goulding in the second half of 2011. They raised a number of snagging issues but did not refer to the pathway. Her first text about the pathway (which I accept was sent) was on 18 May 2012 when she texted: "Hi simon. Hope you're well. Mum just asked me to find out if you could call round to organise the work that Paul carried out in the garden rectified. The slabs are very dangerous and loose and as you know the footings in the front garden need to be removed in order that our grass can grow" Although he normally replied to Harriet Secker's texts, Mr Goulding had not done so by the time of the accident on 26 July 2012. Harriet Secker said that she remembered her mother showing Mr Goulding the state of the left hand path on one of his visits. It was also her evidence that she called him about the path on 9 September and 21 October 2011. She had a specific reason for remembering the second call because, she said, she and her mother had become so frustrated with the lack of progress that they had asked their gardener, Mr Wilkins, for a price to carry out the works. After that, although Mr Goulding had said he would come he did not do so, and then winter set in. Her explanation for the text being in May 2012 was that, after the winter, they had still been expecting Mr Goulding to come, were increasingly frustrated by his failure to do so and had got to the stage of thinking of suing him. Support from this evidence came from Mrs Secker's brother, who remembered the problem dragging on until he urged them to do something. Both Mrs Secker and Harriet Secker gave clear evidence that they thought the state of the paving was dangerous. In that evidence they were supported by the photographs which show numerous slabs that had become uneven and significantly out of place with time; and by the terms of the replacement snagging list; and by the evidence of Mr Coles, the window cleaner, though his direct evidence was limited to the pathway on the right hand side as there were no windows for him to clean on the left hand side and he did not go there. I accept the Seckers' evidence that they thought the paving was dangerous. Mr Goulding said that he had visited the property on 3 or 4 occasions in relation to snagging and that some of his subcontractors also returned to deal with odd issues. He gave oral evidence that he had no recollection of lifting two slabs on the right hand side of the house or of any discussion about the state of the paving on the left hand side. This evidence was at odds with his witness statement which said that he had a "vague recollection" of the pathway being mentioned on one of the occasions on which he visited but that he had not been specifically asked to do any work "and nothing was agreed". He made the point that it was in his interests to ensure that customers are satisfied as complaints to the NHBC could cause him to be down-graded, which would have adverse financial implications. On this issue I generally prefer the evidence of the Seckers. First, the snagging list and the evidence of Mr Secker's brother supports the conclusion that they thought the pathway was dangerous. Second, the pathway was in a dangerous condition by the late spring or early summer of 2011. Third, the evidence that the Seckers did not use the pathway along the left hand side because it was dangerous is supported by the evidence of Mr Coles, whose independent assessment of the pathway on the right hand side (which was not in a materially different condition as a result of being constructed in the same shoddy way) was that it was dangerous with loose and raised edges and was generally uneven. Fourth, the inclusion of the pathway on the snagging list and the fact that they thought and recorded that it was dangerous makes it likely that they would have complained in 2011. Fifth, the fact that the pathway was on the snagging list, which Mrs Secker used as an aide memoire when talking to Mr Goulding, supports a finding that she mentioned it to Mr Goulding. Sixth, the fact that Mr Goulding had even a vague recollection of the pathway being mentioned supports the Seckers' evidence because there was no call to mention the pathway unless they thought it was defective. On the evidence at trial, which I have briefly outlined above, I find that Mrs Secker mentioned the pathway and complained that it was defective and dangerous on at least two occasions in 2011. Also that Harriet had two conversations with Mr Goulding about the state of the pathway in 2011. I find that Mr Goulding said he would sort it out and that the Seckers trusted him to do so. The fact that they trusted him to come back and do the work was the prime reason why nothing happened. I accept that in 2012, partly because of encouragement from Mr Secker's brother, they came close to suing Mr Goulding; it may also have been his encouragement that prompted Harriet to send her text. Mrs Secker did not make a complaint to the NHBC because neither she nor Harriet knew that the garden was covered by the NHBC guarantee. Mrs Secker assumed that it was not and neither read the documentation nor made enquiries to discover whether her assumption was right. I am not satisfied that Mrs Secker either pointed out the trip at the garden end or referred expressly to those slabs which presented the trip. However, I am satisfied and find that she considered the trip to be dangerous and that she mentioned in general terms that the path should be level with the grass. Her complaints were made in 2011 and were backed up by the two calls from Harriet. I find that Mr Goulding said he would sort it out but did so in general terms referring to the paving as a whole and without specific reference to the trip. From then on the Seckers expected and trusted him to sort out the path, though their patience was almost exhausted by the time of the accident. The Accident The accident was as simple and foreseeable as it was catastrophic for Mrs Secker. While carrying out a simple everyday task in her garden, she wanted to put some weeds in a wheelie bin. She walked towards the bin, tripped on the trip, and fell forwards. After the accident Harriet Secker went to look and saw that the slab nearer the house at the garden end was out of place. She was not able to tell whether it had been in that position before the accident or had got to it as a consequence of her mother catching her foot on it. The evidence does not permit a firm finding on this point. What is certain is that Mrs Secker had caught her foot on the trip, which is what caused her to fall. The Claim Based on Collateral Contract The Claim advanced from 17 November 2016 was in the following terms: "[T]here was a collateral contract between the Claimant and the Second and Third Defendants whose terms and breaches were as follows. PARTICULARS OF COLLATERAL CONTRACT CLAIM (i) The Second and Third Defendants entered into a collateral contract with the Claimant, whereby in consideration for her agreement to buy the Property as above, the Second Defendant agreed that he would ensure that following completion, he would deal with and correct defects (or 'snags') which the Claimant identified after she had moved into the Property. (ii) Following completion, as set out above, the Claimant did tell the Second Defendant about certain defects and asked him to correct them. Some of the defects identified were corrected in accordance with the terms of the collateral contract. (iii) However, in breach of the collateral contract, the Second Defendant did not rectify other defects as the Claimant complained of as above. It is immediately to be noted that the collateral contract as pleaded at (i) above is not supported in such terms by Mrs Secker's evidence. There is no technical reason why there could not be a collateral contract in the terms pleaded. The alleged collateral contract was neither itself a contract for the sale of an interest in land nor part of a composite transaction for the sale of an interest in land; nor was the sale of the property to Mrs Secker made conditional upon the fulfilment of the obligations imposed by the alleged collateral contract: see North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715 at [43]-[54]. The question is therefore whether the requirements for the existence of a collateral contract have been satisfied. The Defendants make the point that all of the formal negotiations between the parties as conducted through the medium of solicitors emphasised that, under the main contract, Mrs Secker was buying the property as was: see [24] to [29]. That is factually correct, but it only goes to emphasise why a person buying a new build property might want extra-contractual comfort that snagging defects would be dealt with by the builder. It would have been a compelling argument against the existence of the implied term of the main contract that the Claimant originally pleaded, and appreciation of its potency may have informed the decision to abandon that basis of claim; but it is far less potent in relation to the allegation that there was a collateral contract. The prerequisites for a collateral contract include the basic requirements for the existence of any contract. As is implicitly recognised by the form of the pleading that I have set out, there must be both offer and acceptance backed by good consideration; there must be an intention that the offer and acceptance should give rise to binding contractual relations; and there must be reasonable certainty of terms. It would be unrealistic to expect lawyerly precision in the context of what was a relatively informal conversation between Mrs Secker and Mr Goulding, but there must be sufficient clarity to enable the parties' respective obligations to be identified. Taking Mrs Secker's evidence at face value, it does not support the existence of a collateral contract based upon an assurance that defects would be remedied either generally or in the terms pleaded. Her evidence establishes, and I accept, that she was concerned about the possibility of snagging defects and wanted to know what would happen if there were any. So far so good. But her evidence is that Mr Goulding did not say anything which can properly be interpreted as meaning that if she entered into the main contract he would undertake a direct contractual obligation to her to remedy defects. Instead, as set out at [33] above, he told her that he already had an obligation under the NHBC scheme to remedy defects, which was true. At its highest, it was on the basis of that information (namely that he had an obligation under the NHBC scheme) that she was content to go ahead. She readily accepted that he had explained to her that it was because he was a member of the NHBC scheme that he was obliged to put things right: it was the NHBC scheme that was her guarantee that snagging works would be done. On her evidence she neither sought nor obtained a separate undertaking to assume an obligation or liability directly to her in addition to his obligations as a builder involved in the NHBC scheme if she bought the house. Her reliance upon the existence of the NHBC Scheme is shown both by the terms of the conversation with Mr Goulding and also by the steps taken by her solicitors to ensure that it was in force and that the property was properly identified. In that context her solicitors' express advice that, if she expected the vendors to remedy or pay for remedying any defects, special conditions would have to be added to the contract is material (though not determinative). That was not done. It was not done because Mrs Secker relied upon the existence of the NHBC guarantee, which she understood to be what obliged Mr Goulding to carry out snagging works. Nor can any weight be placed upon the short passage in the cross-examination of Mr Goulding, which I have set out at [36] above. The mere fact that Mrs Secker bought the house after a conversation to the effect that if there were any problems after she moved in he would come and sort them out does not evidence or establish that she agreed to purchase the house in consideration for his assurance; nor does it evidence or establish that in consideration for her agreeing to buy the house he agreed as a separate contractual obligation to her to ensure that he would deal with and correct defects or snags which she identified after moving in. There is, in my judgment, no evidence upon the basis of which I could properly find the existence of a collateral contract as pleaded or any collateral contract that would be of assistance to Mrs Secker in bringing her claim. In the light of my conclusion that there was no collateral contract, the claim as now advanced must fail. It is therefore not necessary to express conclusions on the various other obstacles that the Defendants sought to place in the way of Mrs Secker's case on liability. It is sufficient to say that, on the facts that I have found to the effect that Mrs Secker and Harriet informed Mr Goulding of the defective and dangerous state of the pathway and his statement to them that he would sort it out, it was (in the context of the very good and trusting working relationship that had developed between them) reasonable for Mr Secker to have waited for him to do as he said. It is clear from Harriet's reaction to the price quoted by their gardener that the cost of getting someone else to remedy the pathway would have been a substantial one for them. In those circumstances, they are not to be criticised for living with (but avoiding as far as possible) the pathway until, as they hoped and had every right to believe, Mr Goulding came and fixed it. Had he attended to carry out the works as he said he would, I find that he would have dealt with the trip which Mrs Secker (rightly) saw as dangerous and which he had left despite having eliminated the one at the other end. I do not accept that, if an appropriate contract and breach had been established, the Defendants would have been aided by either Murphy v Brentwood [1991] 1 AC 398 or Lambert v Lewis [1982] AC 225. However, as I have not heard full argument on the points and they are not necessary for my decision, I say no more about them. Conclusion It follows that the claim, pleaded as it is in contract, must fail. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII