Mallas v Persimmon Homes Ltd & Anor [2025] EWHC 2581 (TCC) (09 October 2025)

Neutral Citation Number: [2025] EWHC 2581 (TCC) Case No: HT-2021-000348 IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS TECHNOLOGY AND CONSTRUCTION COURT (KBD) The Rolls Building Fetter Lane London EC4A 1NL Date: 09 October 2025 Before : MR ALAN BATES (sitting as a Deputy Judge of the High Court) - - - - - - - - - - - - - - - - - - - - - Between : MR IOANNIS MALLAS Claimant - and – PERSIMMON HOMES LIMITED Defendant - and – SIMPSON ASSOCIATES CONSULTING ENGINEERS LLP Third Party - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr Andrew Skelly (instructed by Edwin Coe LLP ) for the Claimant Mr Robert Stokell (instructed by Clyde & Co LLP ) for the Defendant The Third Party did not participate in the trial. Hearing dates: 7, 8, 12, 13, 14, 19 May 2025 Judgment released: 9 October 2025 - - - - - - - - - - - - - - - - - - - - - Judgment Deputy Judge Alan Bates: Introduction, factual background and summary This case is about a family home, a smart two-storey, double-fronted, four-bedroom detached house with a front porch, detached garage and various external features ("the Property"). Those features include a macadam path which is a right of way, and a dwarf retaining masonry wall at the end of the garden. The address of the Property is 6 Westcroft Close, Earley, Reading, Berkshire. It is one of 89 dwellings within a residential estate called Sibley Park which was developed by the Defendant, a well-known housing developer, in the 2010s on land formerly occupied by the University of Reading. During the development, the Property was referred to as 'Plot 13'. The Claimant bought the Property from the Defendant by way of a contract (the "Contract") into which the parties entered in September 2015. At that time, the Property was newly built. The Property was to be the home for the Claimant and his family. The purchase price was £649,495, an amount which was funded partly by way of part-exchange of the home from which the family would be moving, which was also in the Reading area. The house comprised within the Property is a timber-framed building with masonry walls. The timber frame is part of the loadbearing elements of the superstructure. The masonry walls are not part of the loadbearing structure. The house was constructed by building trench strip foundations and then transporting a prefabricated timber frame to the site and placing it onto the foundations. The superstructure of the house was then completed by building the masonry walls, floors and other features onto the timber frame. The superstructure comprises loadbearing and non-loadbearing timber stud walls, with loadbearing timber stud perimeter cavity walls (inner leaf) supporting factory-made trusses of timber and gang nail plate joints lifted in whole sections into place on site. The floor of the upper storey is of timber joists spanning between loadbearing timber stud walls. The outer cavity leaf to the perimeter walls is of facing brickwork at low level and then concrete blocks above, to which a self-coloured render has been applied to finish each building elevation. Very soon after the purchase transaction completed, the Claimant became concerned about the amount of cracking in the plaster and other materials forming part of the fabric of the house. In any new house, some cracks and gaps (such as gaps between walls and skirting boards) are to be expected as plaster and other materials dry out and the house 'settles'. Such cracks and gaps are typically made good by the developer by carrying out minor repairs and redecoration between 6 and 12 months after completion of the building works. Unfortunately, in the case of the Property, however, it has become clear that the cracks and gaps are more extensive than, and have developed over a period longer than, the kinds of cracks, etc., that are likely to be attributable to settlement alone. It is common ground that the house has been (and might still be being) affected by differential movement. That differential movement is likely to account for the extent of cracking and gaps, and of doors binding, within the house. Such differential movement is occurring because the house has been built on foundations that are inappropriate having regard to the ground conditions. The trench strip foundations are themselves being affected by movement in the ground around or beneath them. Those foundations are therefore not serving to isolate the superstructure of the house from being affected by such movement. The reason why the trench strip foundations are inappropriate is essentially that they are too shallow, having regard to features of the ground conditions giving rise to a risk of ground heave. The soil type is essentially a layer of topsoil, over a layer of sand, gravel and other river terrace deposits, all resting atop London clay. Prior to the development project, the land contained a significant building (a halls of residence) surrounded by extensive wooded areas including many oak, ash and other trees. Historical Google Earth satellite imagery shows that some of those trees were removed by the University before the site was acquired by the Defendant. The available evidence shows that some of the trees that were removed prior to the site being acquired by the Defendant were within the zone of influence of the Property. As large trees draw water down to their roots, the removal of such trees can lead to changes in the hydrological characteristics of the soil between the surface level and the depth of the roots. Clay soils are particularly prone to consequential desiccation and shrinkage, given their relative impermeability to moisture transfer. This can lead to ground heave. Given those features of the site of the Property, the appropriate foundations would have been piled foundations, with the piles being secured at a depth below the level of potential movement. In other words, the foundations should have included piles extending down to below the level of the roots of the removed trees. The claim was issued on 14 September 2021. By his claim, the Claimant seeks inter alia damages in respect of the costs of curing, and of remedying damage caused by, various alleged defects in the Property. The claim seeks such damages on the basis of various causes of action, including breach of express and implied terms of the Contract, negligence, misrepresentation, and under the Defective Premises Act 1977 (the "DPA 1977"). The Defendant subsequently brought into the proceedings the Third Party ("Simpson"), the structural engineers it had appointed to design the foundations for the residential properties (including the Property) developed at the Sibley Park site. The evidence I have seen suggests that Simpson designed the foundations to account for the proximity of trees retained on the site, but not for trees that had previously been removed. The Defendant contended, inter alia , that Simpson was at fault for designing the Property's foundations without taking into consideration the removal of trees within the Property's zone of influence. In response, Simpson contended, inter alia , that it had relied on a ground investigation report that had been produced by another contractor commissioned by the Defendant, and that an updated report from that contractor had not been passed on to Simpson. I do not, however, need to determine any issues between the Defendant and Simpson. That is because, prior to the trial before me, those parties reached a confidential settlement with one another, and Simpson has subsequently played no part in the proceedings. Accordingly, the issues for me to determine are limited to those between the Claimant and the Defendant. At least by the conclusion of the trial before me, those issues had narrowed considerably. For example, the Claimant was no longer seeking a finding that his entry into the contract for the purchase of the Property had been induced by misrepresentations, or that the Defendant has breached certain alleged implied (rather than express) terms of the Contract, or that the Defendant was negligent. It was common ground between the parties that: (a) by reason of the Property lacking the appropriate foundations, the Defendant has breached clause 1 of its contract with the Claimant and is liable in damages; and (b) the appropriate measure of damages is 'cost of cure', plus an additional amount to compensate the Claimant for stress and inconvenience and for certain expenses (such as the cost of renting alternative accommodation whilst the remediation works are being carried out). The main disputed issue for me to determine is as to the scope and extent of the works required for effecting the 'cure', i.e. the remediation works required for providing the Claimant with substantively that which he was entitled, under the Contract, to expect. What he paid for was a property that inter alia complies with relevant building standards, is supported by appropriate foundations, and is fit for purpose. There is broad agreement between the parties as to any appropriate remediation scheme for the house in terms of the substructure : it is common ground that any scheme must involve the building of a new loadbearing piled substructure. The Defendant proposes that this be done by underpinning the house with a raft supported by deep piles. This approach would leave the existing trench strip foundations in place, but those foundations would be rendered redundant, no longer being part of the loadbearing structure. But the parties differ as to whether the superstructure of the house should be preserved: i) The Claimant's primary case is that the superstructure should be demolished and a new house built on new foundations. The Claimant also puts forward, as its alternative option, that the superstructure be demolished save for retaining and reusing the structural timber frame. Under that alternative option, the new superstructure would be constructed by positioning the retained timber frame over the new foundations and then building a new superstructure (including new masonry walls, floors, interior fittings, etc.) onto that frame using new materials. ii) The Defendant, in contrast, argues that there is no need to demolish the existing superstructure, which can be left in place during and after completion of underpinning works consisting in the building of a piled raft. The carrying out of those works would require removal of the existing suspended ground level floor. After the underpinning works have been completed, the superstructure would then be made good and repaired by the installation of a new floor at ground level, filling in cracks and gaps throughout the house, and redecorating. As the Defendant observes, underpinning is the usual approach for remediating buildings that have been built on inadequate foundations and/or have been affected by ground heave. The Claimant has presented essentially three reasons in support of his position that demolition of the superstructure is required: i) His first reason is that the degree of movement that has already occurred in the house may have been such as to damage the timber frame or other structural elements of the superstructure (the " Latent Incurred Damage Reason "). He relies on expert evidence from his structural engineering expert that such damage may have occurred; however, the Claimant has not provided any direct evidence that it has done. Such damage, if it occurred, could have been directly evidenced only by carrying out opening-up works, which would cause damage to the fabric of the house, as well as inconvenience to the Claimant and his family (they are living in the house). The Claimant contends that the risk that such damage has occurred is such that a demolition approach is necessary for ensuring that the Claimant receives, at the conclusion of the remedial works, that which he was contractually entitled to expect, namely a house unaffected by significant defects. ii) The Claimant's second reason is that the Defendant has not been able to provide 'as built' drawings and other detailed information about the construction of the house and which the Claimant's structural engineering expert says ought to be available (the " Information Deficit Reason "). The Claimant says that, given the absence of such drawings and information, he cannot have adequate confidence that what was built, in terms of the superstructure, was appropriate. He also asserts that such information would be needed for: (a) assisting, and ensuring the safety of, workers carrying out remedial or other works in the house; and (b) being satisfied that, following the completion of the remediation scheme, the house would be stable and sound. iii) The Claimant's third reason is that the construction of the house is of generally poor quality, and that the house may therefore be subject to latent deficiencies due to errors or omissions made during construction (the " Construction Quality / Defects Reason "). He relies, in support of his assertion of poor quality construction, on indicators that the house may lack certain fire safety features that should be present, such as cavity barriers in the roof. I have considerable sympathy for the Claimant. He invested in a newly built property in the expectation that this would free him from the burden of having to deal with significant property maintenance issues. The Property is one of his principal assets and was intended to be a place of peace and rest for him and his family. The discovery that the Property was beset by ground heave problems has no doubt caused him a great deal of stress and worry. He has, at times, faced difficulties in obtaining relevant reports and other documentation from the Defendant, which has contributed to his loss of trust in the Defendant and his refusal to countenance allowing the Defendant to design and implement a remediation works project. It is, in a sense, understandable that he perceives the construction of a new superstructure, in addition to new foundations, under the supervision of a structural engineer commissioned by him, as the route for enabling him to 'get what he paid for' as he sees it, i.e. a new house that he feels confident is free from latent defects and can, in future, be sold without needing to disclose a complex history to prospective purchasers. In my judgment, however, it would be legally wrong for me to award the Claimant damages based on the cost of demolishing the superstructure and effectively building a new house. It is, in the circumstances of this case, incumbent on the Claimant to prove, on the balance of probabilities, that demolition and rebuilding of the superstructure is required for remedying defects in, or other breaches of contract relating to, the existing superstructure. In my assessment, he has not done so. In that regard: i) The visible cracks and gaps that have appeared in the superstructure are likely to be attributable to differential movement that is occurring only because the substructure was not appropriately specified. The inappropriateness of the substructure for the ground conditions is admitted by the Defendant and the differential movement problem would be cured by the underpinning works involving construction of a piled raft. Subject to the differential movement ceasing, the existing cracks and gaps would be essentially cosmetic issues addressable by minor repairs, and could not reasonably justify demolition and replacement of the superstructure. ii) Even if and insofar as it is theoretically possible that the differential movement that has occurred might have caused damage to the timber frame or other structural elements of the superstructure of the house, there is no evidence that such damage has occurred. The Claimant's structural engineering expert could have established whether there was any such damage by carrying out opening-up works. But such works have not been carried out, even though there is no evidence that this was prevented by cost or to avoid serious disruption to the ability of the Claimant and his family to continue living in the house. In circumstances where a claimant controls access to a premises and has been practically able to carry out exploratory investigations for establishing whether a particular kind or extent of alleged damage has occurred, it will generally be reasonable to expect him to prove such damage. Where he has not done so, it is unlikely to be fair to assess the compensatory damages due to him on the basis that such damage might have occurred. iii) I am not persuaded that any lack of 'as built' drawings or other information about what has been built either constitutes a breach of contract by the Defendant or fails to comply with any regulatory requirement. If and insofar as any contractors carrying out remedial works to, or within, the existing superstructure have any concerns that what has been built may differ from the drawings provided by the Defendant, then this can be addressed by carrying out opening-up works to see what has been built. There is no evidence that, without being provided with drawings or information going beyond what is available for the Property, remediation contractors would be unable or unwilling to carry out a remediation scheme not involving demolition of the house. In these circumstances, to demolish the superstructure because of a concern about such 'gaps' in the information available about what has been built would be disproportionate and unreasonable. iv) There is no basis for the assertions by the Claimant and his structural engineering expert that the construction of the superstructure is of generally poor quality or that the superstructure is likely to be subject to significant latent defects or deficiencies. The only significant deficiency that has been proved relates to the substructure, i.e. the inadequate foundations. Moreover, even if and insofar as any issues with the superstructure are identified whilst repairs are being made to it, such issues (such as an absence of required cavity barriers in the roof) are likely to be addressable by discrete repairs. Accordingly, the risk that the house is affected by such issues does not justify demolishing and replacing the superstructure: that would be an extreme and disproportionate approach for mitigating the perceived risk. I also need to determine certain other disagreements between the parties as to the precise scope of an appropriate remedial scheme, albeit those disagreements are relatively minor in financial value terms. Those disagreements are as to: i) whether underpinning works are required for supporting the detached garage (I have found that such works are required); and ii) whether the garden path and dwarf retaining wall should be rebuilt onto piled foundations (I have found that such works would be disproportionate and that the path and the retaining wall can be adequately remediated by effecting minor repairs). After determining the scope of the appropriate remediation scheme to use as the basis for awarding damages, I determine certain issues relating to the quantification of the costs of that scheme. Finally, I determine issues as to the quantum of damages which do not relate to the costs of remediation works but are for compensating the Claimant for inconvenience and for the costs of temporary alternative accommodation. The law Clause 1 of the Contract By Clause 1 of the Contract, the Defendant " warrants that it has built or will build the Home on the Property in a good and workmanlike manner in accordance with the terms of the relevant planning permission and building regulation consent to the standard of the New Home Warranty Provider ". The Defendant has admitted that it breached Clause 1 by reason of the house being built on foundations that were inappropriate for the ground conditions. The Defendant has not admitted any other breaches of Clause 1. I note, however, that other defects alleged by the Claimant - such as, for example, a failure to install fire safety features - would, if proved, be likely also to constitute a breach of the warranty given in Clause 1. DPA 1977 As noted above, the Claimant is no longer seeking findings that the Defendant is liable for breach of implied terms, or for negligence or misrepresentation. Accordingly, it is not necessary for me to consider the law relating to those causes of action. The Claimant's decision not to pursue those causes of action was pragmatic and welcome, given that the remedies being sought by the Claimant are remedies available to it for breach of the express term in Clause 1 of the Contract. There was, accordingly, no substantive benefit to the Claimant in securing findings with respect to the other causes of action. In my view, the same observation regarding lack of substantive benefit applies with respect to the claim under the DPA 1977. It is not apparent to me how any of the alleged defects in the Property could amount to breaches of s.1 DPA 1977 if they did not breach Clause 1 of the Contract. The duty under s.1 DPA 1977 is in similar terms to Clause 1 and requires that the developer, in constructing a property, ensure that the works are done in a workmanlike and/or professional manner with proper materials and so that, as regards that work, the property when completed is for human habitation. As the Claimant's Opening Note for the trial stated, " There is no distinction between the approach to damages under the Contract or [the DPA 1977]. " For a dwelling to be fit for human habitation, it must, on completion, be capable of occupation for a reasonable time without risk to the occupants' health or safety, and without undue inconvenience or discomfort to them: Vainker and another v Marbank Construction Ltd and others [2024] EWHC 667 (TCC) . The Claimant contends that its claim under the DPA 1977 is not time-barred, given the insertion into the Limitation Act 1980 of s.4B by s.135 of the Building Safety Act 2022, which retroactively increased the limitation period to 30 years. The Defendant now acknowledges this as a correct statement of the current state of the law, having regard to BDW Trading Ltd v URS Corporation Ltd [2024] KB 827 (which, since the time of the hearing before me, has been upheld by the Supreme Court: [2025] UKSC 21 , [2025] 2 WLR 1095 ). The Defendant contends, however, that the matters complained of by the Claimant do not disclose a breach of the DPA 1977, since the house, when completed, was fit for human habitation, as illustrated by the fact that the Claimant and his family have now been living there for over 9 years. I disagree, given that the porch appears to have its own shallow foundations, is unsafe and would collapse without the current supports propping it up. The fact that such collapse did not occur, and was not likely to occur, within a short time after completion of construction works does not negate the fact that the state of the porch was one of ongoing risk to safety due to inadequate construction from the outset. Given that risk to safety, the house was not fit for human habitation, within the meaning of that concept in s.1. This suffices, in my view, to constitute a breach of s.1. I would not, however, have found the house to be unfit for human habitation by reason of the inadequate trench strip foundations of the house itself. The degree of movement in the house, whilst it has given rise to some cracking, etc., was not such as to give rise to a risk to safety of its occupants, or to render their occupation of the house unduly inconvenient or uncomfortable. Measure of loss, and proving losses I adopt the following statement from the Claimant's Opening Note as to what the Claimant was entitled, under the Contract, to receive in exchange for the purchase price he paid: "[The Claimant] was entitled to receive a Property which was properly designed and constructed, with a certain future in the sense that it was not so uncertain that it still needed to be monitored and investigated many years after completion; which had a normal appearance and performance, not with cracks and other defects; which had a normal value to ordinary residential purchasers; which was safe and convenient to occupy without external peculiarities and which was ready to occupy without inconvenience, distress and loss of amenity. The respective experts have agreed that the house should have a design life of 60 years ...." It is, however, for the Claimant to plead and to prove each of the heads of loss and damage for which he seeks recompense. The fact that there are defects in, or has been damage to, the superstructure of the house does not necessarily mean that the appropriate remedy for the Claimant's expectation loss is an award of damages sufficient to enable him to build a new house. Further, he cannot realistically expect the Court either: (a) to award him more than he has claimed in his Particulars of Claim; or (b) to accept his assertions as to the likely amounts of financial losses in circumstances where he has not provided supporting documentary evidence that he could reasonably be expected to have provided. The Defendant's Skeleton Argument included the following statement of the legal principles to be applied for determining the quantum of damages to be awarded to the Claimant for the breach (or breaches) of the Contract and/or the DPA 1977: "In respect of an award of damages for defective premises: (1) In an action against a contractor for defective work, the appropriate measure of loss is generally taken to be the cost of reinstatement/repair, because that is the foreseeable consequence of the defective work. (2) The cost of reinstatement/repair will not be used as the measure of loss if such cost is disproportionate to the end to be attained. (3) A claimant who carries out either the repair or reinstatement of his property must act reasonably. (4) The court is unlikely to adopt demolition and rebuilding as the correct measure unless two conditions are satisfied: first, the cost of demolition and rebuilding is less than the cost of remediation, and secondly, that remedying the defects represents a reasonable course of action, so that " the amount awarded is objectively fair as between the claimants and the defendants " [ Hudson , [7-006]]. (5) If there are two equally efficacious alternative remedial schemes, and one is cheaper than the other, then prima facie the claimant is obliged to put in hand the cheaper of the two schemes. (6) As regards betterment, if a claimant chooses to rebuild to a higher standard than is strictly necessary, it can recover the cost of the works less a credit for betterment." I adopt that statement of the applicable legal principles. It was not contested by the Claimant's Counsel. Further, it is supported by the authorities cited by the Defendant, including Axa Insurance v Cunningham Lindsey [2007] EWHC 3023 (TCC) , [256]-[266]; and McGlinn v Waltham Contractors [2007] EWHC 149 (TCC) , [787]-[794]. As stated in the latter of those cases by Coulson J (as he then was) at [814]: "It is, on any view an extreme course: to knock down a newly completed building because it is said to be defective, particularly where the majority of the defects can fairly be described as aesthetic matters only. ... If such a course of action is to be justified at all, it will ordinarily be because the building is dangerous or structurally unsound." The Claimant's case as to the appropriate remedial scheme was pithily summarised as follows in his Counsel's Opening Note: "For the multitude of reasons explained by Mr Dust, (including the lack of construction information), the appropriate remedial scheme will be demolition and reconstruction; this is the only certain way for [the Claimant] to receive what he contracted for - what he would have received had [the Defendant] not breached the Contract and/or had it complied with s.1, DPA [1977]. Damages should reflect this." In my judgment, that summary reveals a fundamental error in the Claimant's approach. The Court, when determining the appropriate remediation scheme, is not applying a test of identifying which scheme affords a " certain way " for the Claimant to receive what he contracted for. The Claimant, as is common ground, did not receive what he contracted for, and the Court's task is to assess the amount of compensation that is, in consequence, due to him. The Court carries out that task in accordance with the principles summarised above at paras 29-30. The compensation amount will not include the costs of a remediation scheme involving demolition and rebuilding unless it is satisfied that this is a reasonable course of action. Such a scheme is unlikely to be reasonable if there is another remediation scheme available which would be substantially less costly and which it would be reasonable to adopt. In my judgment, it is unlikely to be reasonable to demolish a house simply because there is some degree of risk that it may be subject to some defect or damage that has not yet been discovered. Likewise, it is unlikely to be reasonable to award damages based on the costs of demolition and rebuilding, simply because there is a risk of 'known unknowns' of that kind. That is especially so in circumstances where any concerns about the possible presence of relevant defects or damage could have been explored by opening-up works which the Claimant has declined to carry out. Evidence Witnesses of fact I mean no disrespect to any of the factual witnesses by noting, as I do, that I found their evidence to be of limited assistance in relation to the issues I need to decide. In that regard: i) Much of their evidence related to the Claimant's allegation that his entry into the Contract was induced by misrepresentation. In support of that allegation, he contended that, by the time of his entry into the Contract, the Defendant was already aware that: (a) a spring had been observed in the direction of the Property; (b) serious cracks had appeared in a neighbouring property (No.5 Westcroft Close), leading to ground investigations being instituted; and (c) there was a large crack in the Property and upstairs interior doors were not shutting and had had to be taken off on two occasions. As noted above, however, by the end of the trial, the Claimant was no longer inviting me to determine the misrepresentation allegation. ii) Mr Daniel Castle, the Defendant's Managing Director for the Thames Valley region, did not join the Defendant until March 2021. He was therefore unable to give evidence from his own knowledge regarding the construction of the Property (which took place in 2013-15) or the circumstances in which it was sold to the Claimant. He appeared to have no knowledge of significant historical matters pertaining to the Defendant: for example, he did not know of the report produced by Stephanie Barwise KC in 2019 which identified significant quality issues relating to homes built by the Defendant and which received significant media coverage at that time. iii) For the purposes of determining the issues I need to determine, I need to consider what remediation works are required and, in particular, whether the appropriate remediation scheme is one involving the demolition and replacement of the superstructure. I also need to consider issues as to the costs of carrying out the appropriate scheme. These are technical issues in relation to which I have been assisted by expert evidence, but on which I have, unsurprisingly, found the evidence of the witnesses of fact relatively uninformative. For the sake of completeness, however, I make clear that I accept the evidence of all the witnesses of fact as being generally truthful as to all matters of fact within their own knowledge. The Claimant clearly felt a strong sense of injustice at the way he perceived himself to have been treated by the Defendant and, when giving his oral evidence, he was keen to reinforce his narrative that the Property was in a generally poor condition. The oral evidence of his adult daughter, Zoi Malla, was relatively straightforward: in my assessment, she was simply trying her best to give honest, accurate answers to the questions put to her. Geotechnical and structural engineering experts The expert evidence filed by the Claimant in respect of both geotechnical and structural engineering issues was from Mr Andrew Dust. In my assessment, Mr Dust was keen to present and support the Claimant's narrative as to the issues affecting the Property. This was perhaps to be expected, given that Mr Dust had been assisting the Claimant in relation to the Property for many years. The Claimant's views as to the appropriate remediation scheme are likely to have been based largely on Mr Dust's advice. There were, however, certain aspects of Mr Dust's evidence which I found unconvincing. For example, when being challenged in cross-examination about the accuracy of his measurements of the width of cracks he found at the house, he was asked why he did not measure them with a crack gauge. His response was essentially that there were so many cracks that he did not have time to measure them all and relied on his experience to make visual estimates: Q. We see from photograph 4 that Mr. Redmond took a photograph holding a measure against the crack so that the viewer can see the width, did he not? A. At that point, yes. Q. You did not do that on any of your photographs, did you? A. No. Q. Why not? Q. We see from photograph 4 that Mr. Redmond took a photograph holding a measure against the crack so that the viewer can see the width, did he not? A. At that point, yes. Q. You did not do that on any of your photographs, did you? A. No. Q. Why not? Mr Dust's explanation as to why he did not use crack gauges to measure the cracks was, in my view, unconvincing. Even if the cracks were too numerous for him to have measured all of them, he could have measured those he considered to be the widest or the most concerning. I therefore treat his estimates of the widths of cracks with caution. A further aspect was Mr Dust's use of publicly available environmental data regarding a risk of surface water flooding as a basis for his opinions as to the risk that the presence of groundwater could be an issue affecting the ground under or around the Property. In addition, Mr Dust could sometimes respond to questions in a way that appeared slightly 'tetchy' and did not directly answer the question. An example was when he was asked about a previous disciplinary finding against him. When the substance of that finding (essentially, that he had acted unprofessionally with the intention of increasing his own fees) was put to him and he was asked if that is what the disciplinary board found, his response was, " If that's what it says. " Notwithstanding those points, I regard Mr Dust's evidence as being generally reliable. It is, however, important to take care to identify precisely what he is - and, equally, what he is not - saying in his reports. By way of example, he accepted, under cross-examination, that his statement in his initial report that " [p]arts of the Property are unsafe, ... these include : The front entrance porch, and the ... Public Footpath" (emphasis supplied) referred only to those specific elements of the Property, and he had not identified any elements of the house itself which were unsafe. His evidence going to why, in his view, an appropriate remediation scheme would be one involving demolition and replacement of the superstructure was essentially that there were 'known unknowns' regarding the condition of the superstructure, rather than that the timber frame or other elements of the superstructure were defective or damaged in ways that could not adequately be remedied by repairs. The Defendant's geotechnical expert was Ms Erica Wilcox. She gave clear and straightforward answers to the questions put to her, and I accept her evidence as reliable. This is not, however, a case that substantially turns on geotechnical evidence, given that all of the candidate remediation schemes being proposed by the parties would involve the building of piled foundations. The Defendant's structural engineering expert was Mr John Redmond. I found his written reports and oral evidence to be straightforward and fair, and I have therefore placed considerable reliance on his evidence. Quantity surveying ("QS") experts The Claimant's QS expert was Mr David Daly, and the Defendant's was Mr David Somerset. In my assessment, both of those experts provided professional, balanced and helpful reports and oral evidence. To the extent there were differences between them on certain quantification points, the evidence of each of them has assisted me in understanding and resolving those matters by deciding whose view on that point was the more appropriate. Adverse inferences The Claimant's Counsel, as part of his oral submissions during the trial, invited me to draw inferences adverse to the Defendant from the Defendant's alleged slowness to disclose documents to the Claimant, and/or the Defendant's lack of records relating to the Property and/or failure to provide such records. I decline to draw any such inferences. In my view, the Claimant has not established that the Defendant has failed to make or keep 'as built' drawings or other records which should have been made and retained. Moreover, it is difficult to see any realistic basis for drawing from any alleged lack of records, or slowness to provide disclosure of relevant documentation, an inference as to the likelihood of latent defects within the superstructure of the house, where the presence of such defects has not been evidenced by the Claimant. The three remedial schemes proposed by the parties By the start of the trial, the parties had identified the following three candidate remedial schemes: i) Scheme 1: This scheme represents the Claimant's primary case. It would involve the full demolition and rebuilding of the house and the garage, as well as of the footpath and the dwarf retaining wall. Scheme 1 is effectively a full rebuild of the Property. That rebuild would be to a significantly higher specification than the existing Property, since Scheme 1 envisages that the garage, footpath and retaining wall would all be rebuilt on piled foundations. (Further, the Claimant has costed Scheme 1 on the basis that it would have loadbearing masonry walls, which would, as the Defendant contends, constitute betterment.) ii) Scheme 2: This scheme represents the Claimant's alternative case. Although the Claimant has described this scheme as being for " Underpinning and Repair ", it would involve the full demolition and rebuild of the house, save that the structural timber frame would be retained and reused. There are two options under Scheme 2, namely (i) with, and (ii) without, underpinning of the garage. iii) Scheme 3: This is the scheme proposed by the Defendant. The superstructure of the house would be retained, and both it and the porch would be supported by a new substructure by way of a piled raft which would oversail the existing trench foundations. The suspended floor of the ground level would be removed in order to facilitate the necessary underpinning works. Following the completion of those works, a new ground floor would be installed, and repairs would be made to the cracks, gaps, binding doors, etc., in the interior and on the exterior of the superstructure. The cracks in the footpath and retaining wall would be filled in or otherwise repaired. The Defendant's Skeleton Argument provided the following helpful description (taken from the Defendant's response to Further Information provided by the Claimant as to its proposed scheme) of what would be involved in carrying out Scheme 3: "The work for [Scheme 3] would oversail the existing trench foundations and would all be carried out by working within the existing external walls, which would remain in place. The external walls would be re-supported on a new steel bar reinforced concrete slab with fingers cut into the external wall line around the perimeter such that the new slab can be cast, and would resupport the external walls in the long term, i.e. the external walls would be 'pinned up' such that they are supported on the new reinforced concrete piled raft. Any connection with the existing mass concrete foundations would be removed by carefully breaking out the original concrete walling blocks beneath the piled raft slab by an amount sufficient to ensure that there are no long-term effects due to clay 'heave' or swelling. A gap of circa 75-100mm is all that is likely to be needed. These works could very easily be carried out in sequence, working around the building externally. Thus, the existing substructure and mass concrete foundations would remain in place for at least as long as the life of the building. The line of the load bearing walls at ground floor can then be reinstated, supported on the new piled raft slab, and the temporary support removed." For determining which of the three schemes is the appropriate one (whether in its original form or subject to certain variations), I have first considered what is the most appropriate remedial approach for the house, before then considering the appropriate remedial approach for other elements of the Property, namely the garage, footpath and retaining wall. The appropriate remedial approach for the house In order to inform my assessment of the appropriate remedial approach for the house, I have considered the available evidence as to the condition of the house superstructure. The extent of cracks, gaps, doors binding, etc., within, or on the exterior of, the house itself (i.e. the house, not including the porch) I have viewed the various video footage and photographs put into evidence by the Claimant which shows the visible condition of the house, including the presence of visible cracks and gaps, and the fact that certain doors are binding or will not close. This video footage has, however, been of little assistance to me for determining which remediation scheme is the appropriate one. It is common ground that these visible defects/damage in the house have been caused by an unacceptable degree of differential movement. But such differential movement would cease after any of the three proposed schemes was implemented. I have not seen, within the video footage or photographs, any gaps, cracks, etc., which did not appear to be capable of local repair by an appropriately skilled person. I do not have the technical knowledge to be able to myself assess whether the degree or extent of cracking, etc., shown in the video footage and photographs is so great that I can infer that there is likely also to have been significant damage to the timber frame or other non-visible structural elements of the house superstructure. There has been a degree of disagreement between the parties' respective structural engineering experts, Mr Dust and Mr Redmond, as to whether the cracks can all properly be described as "Category 2" (or "slight") by reference to BRE Digest 251. But the extent of this disagreement, so far as it relates to the house itself, is quite limited, given the way that Mr Dust's initial report itself describes the cracking, etc., visible at the Property: "[6.2.2] In general, the extent of construction distortion, damage and fracturing to the buildings and external works including construction damage and fractures is slight or moderate damage. However, there is serious and/or severe damage affecting the main entrance front porch and the associated front porch masonry piers . ... [6.2.3] Parts of the Property are unsafe, and without works to make safe, are defects that in my opinion render the Property as not fit for human habitation, these include: The front entrance porch, and the ... Public Footpath . ..." (Emphasis added.) As Mr Dust accepted when being cross-examined, he has not identified any serious and/or severe damage to the house itself (i.e. excluding the porch). There was a difference between Mr Dust and Mr Redmond in terms of their estimates or measurements of the width of the most significant cracks visible within the house. The measurements were those of Mr Redmond, who had used crack gauges which he had photographed. Mr Dust, in contrast, relied on his own subjective estimates made whilst viewing the cracks (see para 37 above). His reliance on such visual estimates was, in my view, suboptimal and inappropriate, given the ease with which he could have made accurate measurements using crack gauges. Whilst the number of cracks may have made it disproportionate for him to measure all of them, he should have made proper measurements of the widths of the cracks he considered to be the most significant or concerning. Given his failure to do so, where there is a difference between the evidence of Mr Dust and Mr Redmond as to the widths of the largest cracks visible in the house, I have preferred Mr Redmond's evidence. The precise categorisation or widths of cracks, gaps, etc., are (like the photographs and video footage showing such cracks, etc.) anyway of little real assistance to me in terms of showing whether structural elements of the superstructure are likely to have been damaged such as to render Scheme 3 an inadequate solution. Even Mr Dust does not give evidence that the size or other features of the cracks, etc., within the house is such that non-visible elements of the superstructure are likely to have been damaged to an extent that would make it necessary to replace the superstructure, rather than effecting local repairs. Mr Dust also placed reliance on data obtained by a Murphy Geospatial scan as indicating that there might be a high degree of distortion within the house (though he accepted that further investigation would be needed before one could conclude that such distortion had occurred). I found Mr Dust's evidence regarding his analysis of that data, and the conclusions he drew from that data, unpersuasive. In support of his assertion that the data suggested that the house might be tilting forwards, Mr Dust placed reliance on a single point (point 178) which was coloured red on the scan and which related to a specific location on a ceiling. As was apparent from the green coloured dots surrounding that single point, the ceiling height at that single point was anomalous and could be attributable to some highly localised feature at that specific place in the ceiling. Mr Dust relied on point 178 even though Murphy excluded points 178 and 179 from their report because (as Mr Dust admitted) they did not consider those points to be representative. Tellingly, when Mr Dust was challenged as to why he had nevertheless placed reliance on those points, his response was: " From my point of view it demonstrates what I was seeking to identify - the potential maximum displacement. " The scan was, in any event, measuring ceilings (which may not directly reflect the level of the structure) and was a 'snapshot view' of the house at a particular point in time, rather than detecting the rate (if any) to which the house distorted over a period. As Mr Dust accepted under cross-examination, a building could be built with ceilings of different heights for various reasons. The scan data had also to be considered bearing in mind that the readings taken by the scan are subject to a margin of inaccuracy. In my assessment, the Murphy scan data, seen as a whole, could not realistically be interpreted as providing any support for concern that the house might be tilting forwards. The scan data does not show that the house has experienced a degree of distortion such that significant damage to the timber frame or other structural elements of the house would be expected, rendering Scheme 3 an inadequate remediation approach. Nor did I find such structural movement to be persuasively evidenced by Mr Dust's measurements of door frames and other timber features which he said he had taken using a hand spirit level. There may be various reasons why a door frame or other timber feature has not been installed in such a way that it is completely level or has subsequently moved (e.g. moisture-related expansion). Accordingly, measuring such timber features with a spirit level is of limited value as an indicator of whether, or to what extent, loadbearing structural elements of a building have been damaged as a result of structural movement. The porch The house benefits from a porch, which comprises a small canopy roof attached to the house, supported by two wooden posts on top of brick piers. The porch is in a considerably worse state, in terms of cracking and instability, relative to the house. Temporary supports, in the form of acrow props, have had to be installed to avoid the porch posing a safety risk. But these facts provide no real insight into the extent to which the superstructure of the house requires replacement, given that (as is common ground) it is likely that the porch does not stand on the house's foundations. Any appropriate remedial scheme will need to involve works for reinstating the porch upon piled foundations. All three Schemes would provide for this. Under Scheme 3, for example, the porch pillars would be supported on the new piled raft, either by extension from inside the house or perhaps by one or two piles installed outside. Accordingly, the poor condition of the porch does not assist the Claimant in showing that Scheme 1 or 2, rather than Scheme 3, is required for properly remediating the Property. The suspended floor on the ground level The suspended floor of the ground level of the house is designed to be thermally efficient. It is made up of precast concrete beams onto which was installed an expanded polystyrene system ("EPS") block floor, with fibre reinforced concrete screed and chipboard on top. I accept the Defendant's evidence that the design of the floor is a standard and approved method, and one that is regularly used by the Defendant and other developers. It does not pose an unacceptable risk of fire, given that the EPS is below a layer of concrete. In any event, whichever of the three remediation schemes is adopted, the floor would need to be removed. Under Scheme 3, removal of the floor would be required in order to facilitate the construction and installation of the piled raft. If, following the completion of the underpinning works, the Claimant wished to construct the replacement floor using a different method (e.g. without using EPS), then he could do so. Accordingly, the Claimant's criticisms of the method of construction of the floor are irrelevant for supporting his case that Scheme 3 would be inadequate for remediating the Property. Lateral restraint / Tying action I do not accept that there is evidence properly indicating that required lateral restraint ties that should form part of the superstructure are missing. The fact that such ties are not shown on a drawing produced by Space4 is, as Mr Redmond pointed out in his evidence, not a cause of concern. Space4 was a subcontractor providing a particular product and had no reason to be concerned with the lateral ties. In any event, as Mr Dust accepted, under Scheme 3, the walls will be tied to the rafts. Further, I see no reason why it would not also be possible, as part of the works comprised in Scheme 3, to: (a) make any required investigations for ensuring that the floors and walls are all appropriately secured to the timber frame structure; and, informed by the findings of those investigations, (b) carry out any required corrective repairs. Accordingly, as with the issue regarding the suspended ground floor (discussed above), the issues raised by the Claimant regarding lateral restraints and tying action are of no real assistance to him in showing that Scheme 3 would not be sufficient to properly remediate the Property. Damage to the structural timber frame or other structural elements of the superstructure The Claimant has not provided any direct evidence of damage having been incurred to the structural timber frame or other structural elements of the superstructure. Mr Dust accepted that he had not pointed to any direct evidence of such damage: Q. ... You have not identified in your report any specific structural connections which have in fact been adversely affected and damaged by structural and ground and foundation movement, have you? A. No, I do not believe I have. If the Claimant had wished to demonstrate the existence of any such damage, then he could have instructed Mr Dust to carry out minor 'opening-up' works so as to identify the presence and extent of any such damage. But this has not been done, despite Mr Dust having visited the Property on 14 different occasions. Mr Dust, when cross-examined about this, did not provide any reasons why such investigations could not have been carried out: Q. If there had been one particular part, for example, of the timber frame that you thought might be damaged or distorted, you could have opened up the wall in order to find out whether there was in fact any damage or distortion, could you not? A. Subject to obviously taking instructions, yes, with instructions, yes, absolutely. Q. You have not carried out any such exploratory or opening up works, have you? A. No. Q. In your report, you do not identify any specific part of the timber frame superstructure components, panels, first floor kit, connections and fitting which is in fact damaged or distorted, do you? A. Well, to be clear on what you have just said there, sorry, what part of the structure ---- Q. In your report you do not identify any specific part of the timber frame superstructure components, panels, first floor kit, connections and fitting which is in fact damaged or distorted? A. No. In the circumstances, I will proceed on the basis that there is no such damage which could not be adequately remedied by local repairs. Cavity barriers/ fire prevention The Claimant's case that the house lacks, or may lack, intended fire prevention features has essentially three bases: i) The first is that the report produced by Stephanie Barwise KC in 2019 identified that cavity barriers had not been correctly installed in a significant proportion of the new homes built by or for the Defendant. ii) The second is that the Defendant wrote to the Claimant on 31 July 2020 indicating that cavity barriers at roof level had not been correctly installed in some houses and seeking to arrange to inspect the Property so as to determine whether the Claimant's house was one of those affected. (The Claimant has not taken up the invitation to arrange an inspection. Mr Castle's oral evidence was that, of the 68 houses at Sibley Park that were inspected, cavity barriers were found not to have been correctly installed in six of them.) iii) The third is Mr Dust's evidence that he has seen light coming through the roof, which he believed was indicative of the required cavity barrier not being in place. (I note that Mr Redmond disagreed that Mr Dust was right to infer that a barrier was absent. Mr Redmond's evidence was that, " Depending on how the architect has set the ventilation up to the roof void, you do get a natural air gap around some roof parameters ", and that, as the roof had been " designed as a cold roof, ... you would want to vent that void ".) In my view, none of these matters is of any significance to my assessment as to which of the three remediation schemes is the appropriate one. Unless and until there is a proper inspection of the roof of the house for ascertaining whether the required cavity barrier is in place, it is not known whether there is any relevant 'defect' in the house. The Claimant did he invite the Defendant to make such an inspection in response to the letter of 31 July 2020, and nor has such an inspection been made by Mr Dust. In any event, even if the required cavity barrier is not in place (as it should be), it is likely that this could be swiftly remedied by carrying out the necessary corrective works. It is neither necessary nor proportionate to address the risk that fire prevention measures may not be in place, by demolishing and replacing the superstructure. The electrical installation The only evidence suggesting that there might be problems with the electrical installation in the house is the Claimant's evidence that bulbs tend to stop working, and thus need replacing, after around four months. There is no evidence that the RCD is regularly 'tripping' or that there are any other indicators of electrical issues at the Property. Against this background, the conclusion I reach is that there is no evidence that the electrical installation at the Property is faulty or incomplete. If there were safety issues relating to the electrical installation, then it is likely that the RCD would 'trip'. In any event, if the Claimant wished to show the presence of any issues relating to the safety or efficacy of the electrics at the Property, then he could and should have commissioned an electrician to survey and test the electrics. Given the absence of findings of any such survey indicating electrical issues at the Property, I find, on the balance of probabilities, that there is no significant fault or other problem with the electrical installation at the Property. Drainage - foul water and surface water The written and oral evidence of the Claimant's witnesses as to whether, and to what extent, toilets in the house cannot be, and/or are not being, used has not been entirely consistent. In any event, even if one or more of the toilets in the house does not flush waste material away effectively, it does not necessarily follow that there is a fault with the foul water drainage system which has been caused by deficient construction of, and/or differential movement in, the Property. The source of the problem could, for example, be the presence in the foul water system of a blockage caused by an object that has been flushed down a toilet or sink. The foul water drains CCTV survey carried out by Clearview did not find any significant construction-related or other flaw in the drainage system. Clearview found the inspected foul drain pipes to be in " an acceptable structural condition (below grade 3) ", and that best practice suggested maintenance was needed. So there is no evidence that the foul drainage requires repair or replacement. The Claimant has not provided any evidence that the surface water draining system has been surveyed. In my view, if and insofar as the Claimant wished to establish the presence of any significant fault with the construction or serviceability of either the foul water or the surface water drainage systems at the Property, the Claimant should have commissioned an appropriate survey and filed a survey report supporting the Claimant's relevant allegation. Although the drainage arrangements at the Property do not fully accord with the designs, this does not show that there is a defect in the drainage or that any remediation of the drainage is required. In that regard, I accept the Defendant's evidence that it is not uncommon for drains to be built in a way that constitutes a variation to the plans (such variations often being necessary or convenient in view of site-specific issues encountered during the construction). Thames Water has adopted the public drains within the Sibley Park site, presumably after carrying out the usual due diligence checks. The Claimant is not responsible for any works required to the public drains. Given the absence of findings of any such survey indicating drainage issues at the Property, I find, on the balance of probabilities, that there is no significant fault or other problem with the drainage systems at the Property. The Information Deficit Reason The Defendant has provided hundreds of pages of drawings and other information relating to the design and construction of the Property. I accept the Defendant's evidence that: (a) those pages include drawings relating to how the Property was to be constructed; (b) it is reasonable to believe that the Property was built substantially in accordance with those drawings; and (c) there is no legal or regulatory requirement for a developer to create or provide 'as built' drawings showing precisely what has been built. Notably, although Mr Dust asserts that the provision of 'as built' drawings and other post-construction information as to precisely what has been built should be contained in a 'health and safety file' for each relevant property, he has not referred to any legislation or regulatory conditions imposing these requirements. Accordingly, there is no basis for me to conclude that the Defendant's apparent inability to provide 'as built' drawings and other information as to precisely what was built constitutes a breach of Clause 1 of the Contract and/or section 1 of the DPA 1977. Further, there is no evidence that, without being provided with drawings or information going beyond what is available for the Property, remediation contractors would be unable or unwilling to carry out Scheme 3. If and insofar as there are any concerns, arising in the context of the remedial works, regarding potential differences between the 'as built' existing superstructure and the drawings provided by the Defendant, then these can be adequately addressed by carrying out opening-up works to see what has been built. Mr Dust effectively accepted this in his oral evidence: Q. It is not unusual for an engineer to need to assess a structure without having access to as built drawings, is it? A. That is not unusual, no. Q. Even if there are as built drawings, it is not unusual for them to be inaccurate in some way? A. No, that is not unusual. Q. So it will frequently be necessary to investigate or open up the structure in order to see whether there are any issues below the surface? A. Yes, absolutely. The Construction Quality / Defects Reason There is, in my judgment, no evidence that the construction of the Property is of generally poor quality or that there are likely to be latent defects present in it. Assessment of whether Scheme 1 or 2, rather than Scheme 3, is required in respect of the house In view of the factual findings I have made, there is no realistic basis for the Claimant's contention that Scheme 1 or 2 must be adopted, rather than Scheme 3, for remediating the house. The detached garage Whilst there is some evidence of minor cracks in the detached garage, this is not sufficient to indicate that the garage has suffered significant differential movement. As a smaller structure than the house, it is intrinsically less likely to suffer significant differential movement. Nevertheless, in my view, it would be wrong in principle to refuse to award the Claimant the costs of underpinning the garage. Ms Wilcox effectively acknowledged in her oral evidence that the garage should have been built on piled foundations: Q. Extrapolating linearly from the NHBC charts and tables is not an adequate design, but taking it as an indication only, the foundations on the line of the northwest wall would need to have been over 3m deep. At this depth, piled foundations would present a safer and more efficient option. That applies to the garage as well, does it not? It is in the same location. You started the paragraph by talking about the footprint of the northwest wall and the adjacent garage foundation? A. Yes. At the time of design, the garage would probably be treated the same as the building adjacent. The Claimant is, in principle, entitled to damages based on his losses relative to his contract-based expectation that he would receive a garage with foundations that were adequate to comply with Clause 1 of the Contract. In my view, such a garage would be one with the same foundations as should have been provided for the house, i.e. piled foundations extending to a depth not subject to ground heave. Further, underpinning of the garage is reasonable and appropriate in view of the existence of continuing risk of ground heave causing damage to the garage, notwithstanding that there is, at present, little evidence of the garage being damaged by differential movement. That is so for two reasons. First, the evidence before me does not show conclusively that ground heave within the zone of influence of the Property has ceased. Secondly, there is a risk that trees planted in the 'ecozone', pursuant to the Planning Obligation Agreement, might cause disturbance to the ground in a way that would affect the garage if it is left on its present inadequate foundations. This was acknowledged by Ms Wilcox: Q. In your supplemental report you say there would be no need to underpin the garage if the planting in the eco zone can be controlled. When you refer to the eco zone, is this ---- A. It is that conservation, yes. Q. You recognise, do you, that there is a need, the new woodland planting is necessitated as a result of what we just looked at? A. Yes. Q. If the planting in that margin cannot be controlled, do I read your conclusion correctly that it does not need to be underpinned if ---- A. If there is a large tree or trees that are going to grow to mature species in the eco zone in the Redhatch Copse, then potentially there is an issue with the foundations to the garage. I have accepted that. Scheme 3, as specified by the Defendant, does not include underpinning of the garage. Although I find Scheme 3 to be the appropriate remediation scheme to be used as the basis for assessing the damages due to the Claimant, that scheme must be modified to include the costs of underpinning the garage. The footpath I have viewed photographs of the footpath. It is a narrow macadam path navigating around the side of the Property. As a public right of way, it is used by people other than the Claimant, his family and their visitors; but there is no evidence that it is in heavy use. The footpath now has a significant longitudinal crack in it which could potentially cause someone to trip. In my assessment, it would be obviously disproportionate to construct piled foundations for the footpath, as the Claimant says is needed. I accept the evidence of Mr Redmond that piled foundations would be provided for a path/roadway only if it was nationally significant infrastructure. The appropriate approach for remediating the footpath at the Property would be to carry out local repairs (such as by filling in the crack) when necessary. The dwarf retaining wall I have viewed photographs of the dwarf retaining wall. Although it is technically a retaining wall: (a) it is short, consisting of around 8 rows of bricks; and (b) the only thing it 'retains' is the garden, which is at a higher level that the ground on the other side of the wall. As with the footpath, it would, in my view, be disproportionate to demolish the wall and rebuild it. A reasonable person would not choose to go to the expense of constructing piled foundations for the wall. In my view, the appropriate approach to the damage incurred by the retaining wall, including the large vertical crack, would be to carry out a local repair. Property remediation - Quantification issues Given that I have identified Scheme 3 as the appropriate remediation scheme, subject to its being varied to include the underpinning of the garage, I have focused on the QS experts' costings for that scheme. There is a considerable degree of agreement between Mr Daly and Mr Somerset as to many elements of the costings for that scheme, though there are also some points of difference that are non-trivial in financial terms. SPONS A difference of approach between the QS experts was the extent to which they relied on published guideline rates, such as those set out in Spon's Architects' and Builders' Price Book ("SPONS"). Mr Somerset generally defaulted to applying the SPONS rates wherever available, whilst Mr Daly was more ready to apply higher rates where he regarded such rates as being consistent with his own assessments of prevailing market rates actually being charged for work of the relevant kind. Mr Daly's approach was, in my view, justifiable in principle, but his execution of that approach was subject to shortcomings: i) It was right in principle because a QS expert should apply his or her own knowledge and experience when estimating costs, taking a 'real world' view. Further, the SPONS rates could only be a starting point, or an inexact reference point, for establishing costs for Scheme 3, given that those rates relate to new build projects with a value range of £3m-£5m. As Mr Daly pointed out, actual rates relating to Scheme 3 (a remediation project relating to a single dwelling and having a value of under £500,000) might be materially higher, given the absence of scale economies relative to a higher value project for building multiple new dwellings. A QS expert can reasonably be expected to adjust (whether upwards or downwards) the SPONS rates, or to depart entirely from those rates, having regard to the extent to which the 'real world' rate for the relevant works is likely to be higher or lower than the published rates. The expert should be able to offer cogent explanations, ideally supported by comparator rates or other supporting evidence, to justify the adjustments or departure he or she has made. ii) His execution of his approach was subject to shortcomings because he relied on actual rates he claimed were being charged in the context of actual projects of which he was aware, but he has not demonstrated that those projects were relevantly comparable to the works required as part of Scheme 3. There is little utility in using supposed 'comparators' unless the expert provides sufficient information about the projects he is relying on as such, to demonstrate that they are indeed relevantly comparable. At least some of the 'comparables' he has drawn upon were clearly 'high end' projects in terms of the specification of the works. An example was painting works which involved applying four layers of Farrow & Ball paint, even though there is no evidence that the paint in the Claimant's house is Farrow & Ball paint (rather than a 'mid-market' brand of paint). Another example was his use of rates set out in a quotation for piling works involving contiguous piles (which are more labour-intensive than the CFA piles for which Mr Daly was pricing) being installed in a confined space with restricted access. Given this background, the approach I have taken has been to prefer Mr Somerset's estimates where they are based on applying SPONS rates. In doing so, I acknowledge that the rates that the Claimant will pay might be higher, as a result of his being less able to access economies of scale, as compared with a project with a value of £3m-£5m. However, I have seen no evidence, beyond Mr Daly's views, that such scale economies are the key determinant of how SPONS rates should be adjusted for lower value projects. Further, I am conscious that cost estimation is not an exact science, and that the rates that the Claimant ultimately has to pay will be determined by a range of factors and circumstances. In my view, the appropriate way to take account of the risk that the Claimant may, in practice, have to pay materially higher rates is to provide a reasonably generous percentage allowance for contingencies on the total project costs. Whether the costings for the piles should include provision for pile casings or sleeves Mr Daly's cost estimate for Scheme 3 includes provision for the cost of pile casings or sleeves. Pile casings or sleeves may be required in certain ground conditions, such as where groundwater is an issue. In my judgment, no justification has been shown for providing for pile casings or sleeves. Although Mr Dust speculated that there might be groundwater in the vicinity of the Property, his basis for this was a GECA Flood Risk map. It was, in my view, inappropriate for him to present the GECA Flood Risk map as indicating a potential presence of groundwater. As he accepted under cross-examination (but had not made clear in his report), the map appeared on a page which made it clear that what was being indicated was the yearly chance of surface water flooding, i.e. a type of flooding that occurs when rainfall exceeds the immediate capacity of the drainage system. The same GECA Flood Risk website states that flooding from groundwater is unlikely in this area. Apart from Mr Dust's inappropriate presentation of the GECA Flood Risk map, there is, in my judgment, nothing to indicate that groundwater is likely to be present in the vicinity of the Property. Although Mr Dust also referred to groundwater being found in trial pits, he accepted that this was not the case for the two trial pits closest to the Property (TP04 and TP06). Continuous Flight Auger ("CFA") piles v. bored reinforced piles A significant contributor to Mr Daly's cost estimate for Scheme 3 being higher than Mr Somerset's estimate is that Mr Daly has priced for CFA piles. A CFA pile is a relatively elaborate type of bored pile and is more expensive than a standard bored pile. It may be the more appropriate kind of pile in certain ground conditions. Mr Somerset has priced for standard bored reinforced piles. He explained in his oral evidence that these standard piles could be inserted into the ground using a small piling rig which could be transported to the Property on a trailer. He also explained that the specialist piling contractor may be able to bring a small batching plant to the site so as to mix concrete on site. In my judgment, Mr Daly was not justified in pricing for CFA piles, rather than standard bored reinforced piles. The Claimant's Scott Schedule did not specify CFA piles. Mr Dust had not specified that CFA piles were needed. Nor could Mr Daly point to any geotechnical or engineering evidence that standard bored reinforced piles would not be adequate. Reinstatement works - (1) Drainage and (2) Grass / planting I agree with Mr Somerset that it is inappropriate to include costs relating to drainage, as Mr Daly has done. As already set out above, the Claimant has not established that there is any significant defect in, or damage to, either the foul water drainage system or the surface water drainage system, which is attributable to defective construction or ground heave. As the house will be left in place, the underpinning works should be capable of being done without damaging the drainage systems. In relation to grass/planting, the nature of Scheme 3 is such that it is unlikely to cause very significant damage to grass/planting. I accept, however, that some damage to the garden is likely to be caused by the bringing of machinery and workmen onto the Property. I will therefore allow £1,200, adding that figure to Mr Somerset's estimate for the costs of reinstatement works. Main contractor's OHP Mr Somerset has estimated the main contractor's overhead and profit based on 10% on the value of the works. He notes that the 10% figure was agreed between the experts for the purposes of costing Schemes 1 and 2. Mr Daly, in contrast, has estimated the main contractor's OHP for Scheme 3 based on 15% on the value of the works. I accept that the smaller scale of Scheme 3, relative to Scheme 1 and 2, may mean that the main contractor would seek a slightly higher OHP. I will therefore allow 13%, as representing a point between the two QS experts' respective estimates. Allowances for contingency and inflation Both Mr Daly and Mr Somerset have allowed a contingency percentage of 5%. The resulting figure is higher on Mr Daly's calculations, given that Mr Daly's estimate of the costs of Scheme 3, prior to application of the contingency percentage, is higher than Mr Somerset's estimate. Mr Daly has added an additional provision for inflation, doing so on the basis that the works are unlikely to commence until after April 2026. Mr Somerset has not made equivalent provision; an approach he has taken because his instructions were to cost the schemes as at May 2025. In my view, it is reasonable to anticipate that the costs of Scheme 3 will turn out to be materially higher than the amount estimated by Mr Somerset. The precise reasons why the costs will be higher are presently unknown. It is common ground that ground investigation (by way of bore holes, etc.) and other preliminary activities will need to be carried out before Scheme 3 is implemented, so as to inform the precise specification of the remedial project. I do not accept that the existence of such 'known unknowns' justifies taking a 'maximalist' approach to quantifying costs, such as by estimating costs based on assumptions that CFA piles, pile casings, etc., will be required. I do, however, think it appropriate to take account of the potential for increased costs in another way, namely by allowing a relatively generous allowance for contingencies. The allowance I will make is 15% (rather than 5%). This single percentage allowance makes, in my judgment, fair and reasonable provision for a range of factors that may increase costs, including: (i) the 'known unknowns' existing because ground conditions require further investigation; (ii) the risk that latent defects or damage to the superstructure may be revealed during the works, for which repairs are needed; (iii) the risk that SPONS rates may understate the market rates that can actually be accessed in the context of this remediation project; (iv) damage to wardrobes, furniture, etc., whilst they are being removed from the house and stored during the works; and (v) inflation occurring prior to the time when the works are undertaken. Professional fees and surveys Mr Daly has provided significantly higher estimates of the costs of professional fees and surveys. That is especially so in relation to professional fees, for which Mr Daly has estimated £49,537, whereas Mr Somerset has estimated £20,000. In my assessment, Mr Daly's estimates appear to be driven largely by Mr Dust's projected fees and are unjustified. Scheme 3 is a reasonably straightforward underpinning project involving the construction of a piled raft, and the subsequent making good, local repairs and redecoration. There will need to be some preliminary investigation of the ground conditions, and some advice obtained from a structural engineer for appropriately specifying the works (such as the type and depth of piles to be used). There ought not, however, to be a need for extensive input from Mr Dust. Taking a broad brush view, based on the estimates made by the QS experts and the reasons given for them, I will allow a total of £32,000 to cover professional fees and surveys. The cost of underpinning the garage Scheme 3, as specified by the Defendant, does not include any provision for underpinning the garage. As I have found such underpinning to be appropriate, it is necessary to make a consequential adjustment to the QS experts' cost projections. The Defendant's Counsel suggested, in his closing submissions, that one way of doing this would be for me to assess the costs of underpinning the garage by taking the difference between the costs of the two options proposed under Scheme 2, given that the difference between those options was whether the garage would be underpinned. He suggested that, if this was the approach I took, I should rely on Mr Somerset's cost estimates for Scheme 2, given that Mr Daly's estimates included excessive sums or betterment, such as an electric garage door (the existing garage door is operated manually). I agree that this is a reasonable approach. The difference between Mr Somerset's cost estimates for the two options under Scheme 2 is £33,000 (exc. VAT), which includes the provisions made by Mr Somerset for all elements, including main contractor's preliminaries, OHP and construction contingency. Given that I have allowed a higher rate of contingency and have made minor upwards adjustments to other aspects of Mr Somerset's estimates, I will allow £35,000 (exc. VAT) for the additional costs of Scheme 3 which will be driven by my decision that the garage should be underpinned. Additional losses claimed in the Claimant's "Non-Defect Schedule of Loss" The Claimant's Non-Defect Schedule of Loss lists 10 categories of loss and claims a total of £106,324.76. The Defendant has populated that Non-Defect Schedule with its comments. The Defendant, by its comments, resists the Non-Defect claim, save for the following two categories: i) Costs of alternative accommodation during the remedial works. For this category of loss, the Defendant has offered £27,700 against the Claimant's claim for £42,800. In my judgment, it would not be appropriate for me to award the Claimant a higher amount than the Defendant has offered in respect of this category, given that the Claimant has provided little in the way of evidence for justifying a higher amount. The Claimant has assumed that the works will require that he and his family live elsewhere for " a minimum of 12 months ", but the basis on which he has arrived at that assumption is unclear. Further, the Claimant has simply asserted, in his witness evidence, that he has estimated a rental price of £3,000 per month by looking at Rightmove, but he has not exhibited examples of relevant properties, as would have been appropriate. ii) Aggravated damages to compensate the Claimant for the anxiety he has suffered. The Claimant has claimed £10,000 for this category of loss and the Defendant has offered £10,000. In my judgment, it would not be appropriate for me to award the Claimant a higher amount than he has claimed in his Non-Damage Schedule. The Defendant has rejected the other 8 categories of loss listed in the Non-Damage Schedule. In my judgment, the Defendant was entitled to reject those categories, for the reasons it has set out in its comments on that Schedule. My conclusions in respect of those 8 categories are as follows: i) Costs relating to Mr Dust: Costs of Mr Dust's assistance for scoping and investigating defects and damage in the Property, and the likely causes, should form part of the Claimant's litigation costs. Costs of Mr Dust's structural engineering services in relation to the specification and execution of a remedial scheme will be costs of the remediation project and thus part of the project costs estimated by the QS experts. Accordingly, there is no proper basis for claiming any of Mr Dust's fees as a category of "non-damage" loss. ii) Costs of the Murphy Geospatial report: Again, these costs are properly litigation costs. The Murphy Geospatial report was obtained for the purposes of, and has been deployed in, the present proceedings. iii) Thomas Sanderson blinds: Even if and insofar as blinds have to be removed for the purposes of carrying out Scheme 3, the blinds can be retained for subsequent re-installation. The Claimant has not evidenced that it would be impossible to remove, store and re-install the blinds. iv) Sharps wardrobe: Even if and insofar as wardrobes have to be removed for the purposes of carrying out Scheme 3, the wardrobes can be disassembled and retained for subsequent re-installation. The Claimant has not evidenced that it would be impossible to remove, store and re-install the wardrobes. Insofar as there is a risk of the wardrobes being damaged whilst they are being disassembled, stored, or re-installed, this risk can be provided for as part of the contingency percentage. v) Water softener: Even if the water softener has to be removed for the purposes of carrying out Scheme 3, it can be retained for subsequent re-installation. The Claimant has not evidenced that it would be impossible to remove, store and re-install the water softener. In his oral evidence, he agreed that the water softener could be reused. vi) Payments to Shaun Howard to carry out works to the Property: Mr Howard attended the Property shortly after the Claimant moved into it and performed various 'handyman'-type tasks, such as installing shelves, and preparing the garden for a patio. I see no basis for assuming that all the works he did will be rendered useless by Scheme 3. Insofar as the Scheme 3 works damage elements such as the patio, the cost of reinstating or repairing those elements should form part of the remediation project costs estimated by the QS experts. Moreover, the Claimant and his family have, for the past 9 years, been enjoying the benefits of the facilities, repairs, etc., that were carried out by Mr Howard. vii) Cost of a New Build Warranty: The Claimant has not provided evidence showing that he would be able to purchase a New Build Warranty or the associated cost. Given that Scheme 3 does not involve a rebuild of the house, it seems unlikely that a New Build Warranty would be available. The quality of the remediation works will be guaranteed by the contractor(s) carrying out those works. viii) Stigma diminution in value: The Claimant has not specified, in the Schedule, a figure for this category of loss, but states that " Expert evidence will address this ". The expert evidence that has been filed by the Claimant does not, however, provide any quantification of the alleged diminution in value, whether in a scenario where Scheme 3 is the remediation scheme, or in any other scenario. As the Claimant has not particularised and evidenced its claim for loss under this category, there is no proper basis for me to award damages in respect of it. For completeness, I note that the Claimant has not provided any evidence as to whether, or to what extent, the costs to him, or a subsequent purchaser, of insuring the Property, following its remediation by Scheme 3, would be higher as compared with the costs of incurring a similar house that did not have its history. Conclusion For the reasons I have set out in this judgment, the Defendant has breached Clause 1 of the Contract and its duty under s.1(1) DPA 1977 and is liable to the Claimant in damages. I set out in the table below my provisional quantification of the damages award, as calculated by reference to the findings and conclusions set out in my judgment. The quantification is provisional because I will make a final order awarding damages only after affording an opportunity to correct any calculation errors or omissions I may have made. I hope that the parties will be able to agree the appropriate damages award amount between themselves. DESCRIPTION AMOUNT (£) 'DEFECTS LOSSES' Stage 1 - Strip out works 6,793 Stage 2 - Underpinning works 72,772 Stage 3 - Reinstatement works 86,689 Sub-total 166,254 Main contractor's preliminaries - 20% 33,251 Main contractor's OHP - 13% 21,613 Cumulative sub-total 221,118 Contingency - 15% 33,168 Professional fees and surveys 32,000 Addition for underpinning the garage 35,000 Total estimated project costs (exc. VAT) 321,286 VAT to client - 20% 64,257 Total estimated project costs (inc. VAT) 385,543 'NON-DEFECTS LOSSES' Alternative accommodation 27,700 Aggravated damages 10,000 GRAND TOTAL 423,243 This is not a case in which costs are likely simply to 'follow the event'. The procedural history of this litigation is complex. Further, the costs of the litigation are likely to represent a high proportion of the value of the dispute, at least if that value is taken to be the difference between the parties' positions on the eve of trial, in financial terms. It is regrettable that these proceedings were not compromised prior to the costs of the trial being incurred. I will direct that a hearing be listed at which the terms of the final order awarding damages will be finalised and at which I will hear submissions on consequential matters, including costs. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII