Devoran Joinery Company Ltd v Perkins

LORD JUSTICE MANCE: This is an appeal against a judgement given by HHJ Cowell on 2nd May 2003, after a trial lasting nearly four days. The claimant is a Cornish joinery manufacturer, bringing these proceedings against Mr Perkins for the balance of a bill in the sum of £11,370.56 inclusive of VAT for the supply of windows and doors for Mr Perkins' newly constructed house. In the event, the claimant also did the work of installation after original contractors proved unwilling to install at least some of the bay windows. The issues for trial related to Mr Perkins' counterclaim for numerous alleged defects, which, he submitted, affected all the glazing and some of the doors, and meant that the two upstairs and downstairs bay windows in particular required replacement at costs greatly exceeding the claimant's claim.

The judge did not accept this contention and awarded on the counterclaim a total of only £6,100 made up of £4,500 for glazing defects, £1,450 for bay window defects, and £150 in respect of front door defects. The sum of £4,500 was expressed by the judge in his judgment to be inclusive of VAT, as were, I think, by inference the other two sums. The order as drawn expressly mentions that the claims figures awarded were inclusive of VAT, but is silent as to whether the counterclaim figures were or were not. The respondent's skeleton, dated 24th July 2003, concedes that VAT should be added to the counterclaim figures, but asserts, as does Mr Brunner in submissions, that:

Turning to the other grounds, the first ground stated is that the judge omitted to consider a number of defects in the goods. I can clear three of these out of the way quite quickly since they were not pursued before us. The first complaint is that the window casements were too small for the frames. This complaint relates to the two opening casements in the large bay window upstairs in the bedroom. The respondent's expert, Mr Keyworth (an architect but experienced in respect of joinery) mentioned the gap between the casement and the jam in the left opening casement looking outwards in this upper window, shown also in photographs 12, 19 and 20, and allowed £200 for it in a total figure of £1,450 for defects in bay windows. The appellant's expert, Mr Bussey, a chartered surveyor, also mentioned that there was an inadequate overlap, only 1 mm, of the casement and the jam of the right upper window, but gave no costings at all. Mr Keyworth was not cross-examined about the suggested defect in the right upper window, and was not asked further about it in his oral evidence.

The judge cannot be criticised for not dealing with it. It is said that the judge did not cover even the left upper casement. He did not expressly mention it. However, since he allowed the whole of Mr Keyworth's figure of £1,450 for first floor window problems, his judgement necessarily covered it, and included Mr Keyworth's £200, which was the only definite figure he had before him. That seems to me, therefore, the end of this item.

Second and third, there are the items of oxidisation of lead strips of the windows and water ingress through the utility room door. Mr Bussey touched on these subjects in his report, but when it came to cross-examination, said that he understood that they were not part of a claim. Mr Perkins did not correct this statement and there was, therefore, no cross-examination. Mr Bussey also seemed to accept that the oxidisation could be dealt with by superficial application of an oil. Be that as it may, the judge cannot, in my view, be blamed for not addressing these suggested defects in the light of the exchange between Mr Bussey and Mr Perkins.

A fourth defect is much more problematic. It concerns again the large upper bay bedroom window, and allegedly defective joints in or around the frames with consequent drafts. Mr Bussey's report said this, at paragraph 2.13:

There is perhaps some inconsistency between Mr Bussey's reference to his surprise at the defective fabrication and his statement that the adequacy of the draught proofing could not be investigated without removing the windows. However, looking at it overall, it seems clear that he was making a complaint of, on its face, a substantial nature. Mr Keyworth's report, however, did not identify any such defect. Further, it was not suggested to him in cross-examination that he had admitted a critical point which alone necessitated the huge expense of removal of the whole of the windows. On the other hand, Mr Bussey's report was then adopted as his evidence, and he was not challenged about either paragraphs 2.13 or 5.1(g). Further, there was a photograph before the judge which showed taping not merely of the opening casement, but also of the sides of frames and of cracks in the internal window shelf, which clearly represents taping about which Mr Bussey was talking: see particularly photograph 13. Regrettably, we do not have any transcripts of submissions made to the judge at any point in this or any other area of the case. However, it is not suggested by Mr Brunner, or in any way by the respondents, that the appellant at any stage withdrew the complaint relating to the draughts. The judge did not, however, deal with it at all. The explanation seems to be that the judge thought that he was largely, if not almost entirely, concerned to assess damages for admitted breaches. Apparently, so Mr Brunner told us, counsel for the respondent (who was not Mr Brunner below) told the judge at the outset of the trial that the defects that were mentioned in Mr Keyworth's report were admitted. So it was these that the judge addressed. He said, for example, at page 46D to E:

The judge went on to identify what he described as four heads of issue, or admitted liability, in respect of which the issue was simply damages. They were, firstly, defective fabrication of the front and return section of the window, that is the upper bay window primarily, so that the corners did not match up. Secondly, glazing, referring to draughts along the top of the casements, which is a separate problem, to which I will return. Thirdly, the late delivery and time of installation of window boards. And fourthly, the front door. Finally, he addressed a suggested defect consisting of a cracked window sill. That was in issue since Mr Keyworth did not accept that there had been any such crack because it had not been shown to him, and the judge, in fact, rejected the appellant's case in respect of the cracked window sill. That was, therefore, an alleged breach -- it seems the only one -- which was not admitted and with which the judge dealt.

The position is, in summary, unsatisfactory to say the least. But it seems to me, on the face of it, and on the face of the information which is before us, that the judge did here fail to address an aspect of complaint relating to general draughtiness, which was before him in evidence, and had not been abandoned and which needed attention. If there was general draughtiness such as Mr Bussey described in paragraph 2.13, it was, on the face of it, a serious matter calling for attention in one way or another.

I come next to the judge's treatment of the admitted defects in the sill, and the joints between the front and side sections of the master bedroom window. Mr Bussey said this in his report, at paragraph 5.1(a) to (e) and (h):

The judge is criticised by the appellants under this head for accepting repairs which were impractical and/or inappropriate. This criticism is also sought to be used as a basis for upsetting the judge's preference for Mr Keyworth over the appellant's expert, Mr Bussey. A suggestion in the grounds of appeal that the judge's solution would not comply with the building regulations is not pursued.

The window sections were made up in Cornwall and transported to site in Hertfordshire, where they were eventually fitted by the respondents. The evidence was that the intended contractors, and also another contractor who had been approached, had refused to fit them because defects in fabrication had been observed, presumably when those contractors had made some attempt to marry up the front and side sections on the ground before fitting. As it was, therefore, they were fitted by the respondents, with the front section being fitted first, and the return sections thereafter. Both the left and right corners were, as Mr Bussey states, defectively fabricated, and were defective as installed.

The reports and photographs relate primarily to the left corner joint, looking at the window from the outside, although one of them, photograph 14, relates to the right corner joint. In short, taking the photographs of the left corner, the front sill can be seen to have been fitted slightly higher than the return sill, and the two mitres of the two sills did not abut at the right-angled corner where they should have met. There was, in other words, a gap of air between the two mitred cuts of the sills. The sills were also different heights, so that the heavy planing mentioned by Mr Bussey was necessary before their surfaces could meet on any sort of level. That is at least the case on the left corner looking from outside. After such planing, the sills at that corner were, of course, less thick from top to bottom than at their middles. Each sill consisted of one solid piece, extending from inside the bedroom, underneath the window frames, to outside. The window frames effectively rested on top. The photographs show that the gap at the mitre extends along the whole of the mitre, in other words, through the whole thickness of the sills, so as to create a hole in the corner inside the bedroom, which is the hole also noted on each corner by Mr Bussey in his point (d), and which was covered up during installation by a bead.

Reverting to the construction as seen from outside, a corner post, or mullion, was fitted above the mitre joint at the back of the sills, filling the square which was formed by the ends of the vertical window frames: see photographs 5 to 9 for the position before the fitting of the corner post, and photographs 10 to 11 for the position after its fitting.

Although Mr Bussey speaks in his point (d) of the hole formed by the gap in the mitres measuring about 8 mm wide and, as seen by him, about 50 mm high, he was, of course, referring to the view of the hole from the inside above the level of the window shelf. Since the sills extended below the level of the window shelf, the hole no doubt continued invisibly below the level of the window shelf at about the same width. Above the sills, the joint between the frame had the much smaller gap of about 2 mm, to which Mr Bussey referred.

The bead was fitted by the respondents after they attended on site on 16th August 2000. The photographs show that it was later, at least in part, removed or broken off, and photographs then taken: see photographs 14 to 18 and 36, 37 and 37a.

Mr Bussey maintained that the only remedy for the defects in this upper bay window was its total replacement: see his paragraphs 6.1 to 6.3. Originally, he maintained that the same applied to a second bay window in the dining room downstairs, which he estimated would cost £4,060 to replace. However, when examining Mr Bussey, the appellant abandoned this suggestion and elicited the evidence that £200 would cover these downstairs window defects. That might have been regarded as a somewhat remarkable volte-face, but the judge did not identify it as such, still less prefer Mr Keyworth on that ground, so that we do not have the benefit of the judge's view on it. Mr Bussey's costing for the upstairs window repairs, which he continued to maintain could only be effected by complete replacement, was as follows:

Mr Keyworth, in his report, suggested and allowed, in contrast, for repairs. He described them as consisting of removal of the outer sills and their refitting, together with cutting away of the corner posts, followed by filling the internal gap in the sills at the joint, and covering it with a bead or mould, as well as fitting new corner posts and sills, and modifying the existing grooves in the bottom rail of the window frames to ensure a good match when those sills were fitted and aligned. The implication of this work, which he costed at £1,250, was that the sills were constructed in two parts, that the outer sills could be removed and replaced, and that the replacement sills would be mitred as to match perfectly with each other without leaving any gap at the corner, and could there be screwed or glued together. The internal hole, which would be exposed by removal of the corner post, could be filled and then covered with mastic from inside and covered with the corner post when a new post was replaced from outside.

In chief, however, Mr Keyworth referred simply to removing the corner posts and inserting a sliver of wood outside with silicone mastic as a filler, and then covering the inside joint with a bead. He said, in relation to a bead, that that would anyway be necessary, even if there had been no gap at all, because there would inevitably be some movement at this point over time. In cross-examination it was put to him that the sills were not in two pieces, as he evidently thought, but in one piece. He then admitted that he had observed this, the day before, from the plans, so that that part of his proposal could not work. But he said that this made no real difference "in [his] opinion, not in great detail".

Mr Anderson, for the appellant, submits that this course of events undermines Mr Keyworth's evidence and credibility, particularly since Mr Keyworth did not mention it in chief. In fact he did not mention the removal of the sills in chief at all, and when it was put to him that the sills were made in one piece he accepted this and made clear that their removal was not, in his view, integral to the feasibility of his plan. However, he should clearly have corrected his witness statement before that point in time, indeed, before he went into the box, or at latest in chief. And he should have pointed out also that his figure of £1,450 included work which could not be done, namely the removal of the supply of new sills. Further, he should have addressed the question of how he would on this basis deal with the outside gap between the sill mitres and whether this gap could be filled. No one asked him; perhaps this is not too surprising, when Mr Perkins was conducting his own case in person, and it was only in the witness box that Mr Keyworth accepted that he had spotted the mistake the day before.

The other point made by Mr Anderson is that Mr Keyworth's proposal assumed that the corner posts could be removed. The judge said this on that aspect, page 69A to D:

The appellant suggests that the judge was mistaken in this passage in that he had himself raised this very point with Mr Keyworth. Reference is made to the transcript at tab 11, page 166D, where there is the following passage:

It is clear from those passages, and also from Mr Keyworth's report appendix one and the useful glossary of technical terms that we have been given, in my view, that Mr Keyworth was here talking not about the corner post but about the joint behind it between the two ends of the two window frames, one of which had a rebate or return fitting into a right angle in the other. So it seems to me that the judge was strictly right to say that the possibility that the corner posts was also glued in place was not put to Mr Keyworth, although in the light of Mr Bilky's evidence about how the adjoining window frames were fixed, namely by gluing, it must have been a strong possibility that the corner post would also have been glued in position. In any event, it seems to have come clear through Mr Leaver's evidence by the end of the trial that the corner post, and indeed all joints in these windows, had been glued rather than screwed. In those circumstances, the judge dealt with the matter in the passage which I have already cited. Despite that passage, however, he went on to conclude and assume that a repair could be done as follows:

The trouble about this passage in the judge's judgment is that the judge was not, in fact, adopting or approving any evidence or recommendation which Mr Keyworth had made. Mr Keyworth had simply not addressed the actual problem, which is what to do if you cannot remove either the sill or the corner post, and whether you could undertake a satisfactory repair in respect of the obvious gap between the two mitred ends of the sill without taking those steps. The judge was, in reality, developing his own theory. For my part, I have some sympathy with a view that the judge's theory may have been based on a sound instinct that a relatively small gap of this nature in the two corners would be unlikely to require replacement of the whole window. As is shown by the case of Ruxley Electronics and Construction Limited v Forsyth [1996] A.C. 344, there are limits to the extent to which a householder can claim damages to achieve perfection, when the cost is out of proportion to the loss or injury if nothing is done; or to put the matter the other way around, is out of proportion to any benefit to be obtained by doing the repairs. But that aspect too was not investigated. There appears to have been no express reference to Ruxley or to the principle for which it stands in the court below, and no detailed consideration of any problems that would arise from any repair that could be affected in situ. All that we have is Mr Bussey's view in his report, and apparently un-cross-examined, that repair in situ would not be practicable. Amongst other things, he said that it would involve the liberal use of mastic and that the insertion of mastic would be difficult and that "the longevity of the repair would be doubtful." This statement was of potentially increased significance once one accepts that it was impossible to remove the sills and corner posts in order properly to expose the full length of the mitred joint, as Mr Keyworth wished.

It is said that it was incumbent on Mr Perkins to investigate such matters further. But in relation to Mr Keyworth, it seems to me that Mr Perkins did put points which left his evidence unsatisfactory and requiring elucidation, and that this was all the more so once it became clear later in the trial that the corner post was glued. The judge could have insisted on Mr Keyworth being recalled for further questioning. Instead the judge adopted his evidence when its apparent basis had been removed. The judge accepted the adequacy of the repair which Mr Keyworth suggested, when it did not deal with the external gap at all, or with the problem of achieving a durable long-term repair, and the judge assumed that Mr Keyworth would have been happy with a repair that involved neither removal of the sills nor removal of the corner post.

In my opinion, the judge, on the material before him at least, was wrong in taking this course without at least recalling Mr Keyworth and hearing how he dealt with the problems which his evidence posed, and whether a satisfactory repair could be, in his view, achieved in their light in situ.

A more general point made by the appellants is that the judge gave no real reasons for preferring Mr Keyworth to Mr Bussey as an expert, and should not have done so. I have already read the judge's reasons for preferring Mr Keyworth to Mr Bussey. I pointed out that the judge did not mention the possible problems about ways in which both sides' experts' evidence developed. But the judge's reasoning regarding Mr Keyworth is, in my view, certainly unsatisfactory in some respects. He was not "very much a joiner ... on these matters", at least in the sense of figures at stake, if that is what the judge was referring to. He may well have been very expert as to methods of construction of joinery, which is the point which bears on the possibility of repairs to the corners. But, as I have already observed, he was not properly questioned in the light of all the facts and on that area.

As regards costs, Mr Keyworth was an architect, who said this about his experience in his statement:

Mr Bussey, on the other hand was a quantity surveyor with 17 years' experience, who one might have thought would have been more knowledgeable about times and costs than an architect, however knowledgeable about wood. The judge did not, however, address that point.

With some reluctance, in the circumstances that I have outlined, I have come to the conclusion that there are substantial criticisms that can therefore be validly directed to a) the judge's reasoning regarding Mr Keyworth's expertise, particularly on costing, b) the judge's approach in the light of Mr Keyworth's evidence to the problem of dealing with the upper bay window corners, and c) the absence of any reference in the judgment to the general problem of draughtiness in the upper bay window. In the light of those points, I do not consider that the judgment can stand in relation to the upper bay window, and with even greater reluctance, I find myself driven to a conclusion that there should be a retrial on the question of what course is appropriate in relation to that window, in particular, whether it is repair, either in situ or after removal, or replacement in whole, or as regards all parts other than the casements. This question includes any issue which may arise as to whether any such course would involve a cost out of proportion to any loss to be avoided or benefit to be obtained thereby.

I turn lastly to the question of the cost of glazing repairs, on which I have already touched incidentally in considering Mr Keyworth's expertise. It is said that the judge was wrong to prefer Mr Keyworth's estimates of costs to Mr Bussey's. In the light of what I have already said and read regarding Mr Keyworth's evidence, and his qualifications or lack of them to speak to costs, there seems to be obvious force in this criticism. The real issue concerns the judge's figure of £4,500 for a lack of sealing between the top of the glazing panels in the window casements and the frames into which they fitted. The judge accepted the expert joint view that the casements containing the panels needed removing, taking apart and sealing with mastic, and new oak beads. He had a rival cost, given only in the witness box, by one of the respondent's subcontractors, Mr Mitchell. Mr Mitchell then indicated a general belief that it would cost about £3,000 to do the work. However, when asked in reply whether he would be prepared to offer to undertake it for that sum, he indicated that he would be unwilling because of the problems that he would fear, or so the judge clearly, and in my view rightly, interpreted his reluctance to answer the question. Mr Keyworth gave a figure of £3,850 based on the rate of £10 an hour and £1.50 for each of the hundred or so casements. He accepted that the London/Herts rate could be higher, although the firm he had approached was based in Herts, and he accepted that he had not allowed for any tower or scaffolding. Mr Bussey's calculated estimate was £9,547.50 plus VAT and further sums for tyres and sundries. He had also obtained a quote from a Mr Furssedonn of £9,479.60 for all windows save the two bays. He had further obtained a quote from High Grade Construction, although he did not actually produce this, which he explained was for some £9,600 plus scaffolding costs, which he put at up to £2,000, breakage costs put at up to £1,250, and staining and decorating put at up to £500 plus VAT, and yet another quote for over £11,000. The judge said this, at page 70H to 71E:

The judge thus simply dismissed Mr Bussey's costed figure and failed to mention any of the quotations which Mr Bussey had produced or referred to, which offered Mr Bussey considerable support. He relied on Mr Keyworth's expertise in timing and costing, when Mr Keyworth himself had very much down-played his expertise on those subjects, and his evidence regarding costing was dependent upon one conversation with an unidentified third party joiner.

In my opinion, the judge was clearly wrong to prefer Mr Keyworth in this area of the case. I have considered whether this conclusion means that we should order a retrial, or can and should simply substitute our own figure. One problem is that it remains unclear whether the defects which I have discussed in previous paragraphs will prove, on retrial, to require or justify removal and replacement of the upper bay window. If they do, then clearly any figures for work and for a tower and sundries are likely to be correspondingly reduced. However, in the circumstances, I think that the right course is to vary the sum ordered by the judge, so that a sum is ordered which covers all the glazing costs, except the upper bay window, and leaves the position in relation to the glazing in that window to be dealt with at the retrial, as may appear appropriate then.

I would assess the costs of all the glazing work, including the upper bay window, at around £12,000, and would ask counsel to make further submissions on the question of how much of this should be attributable to the upper bay window. It may be that it can be done on a proportionate basis, having regard to the fact that the upper bay window has 8 casements compared to a total of about 100 casements throughout the building. However, clearly this is one of the windows that requires a tower and sundries, so it may be that one needs to allow a slightly greater proportion in respect of it.

The upshot is that this appeal succeeds. The judge's order in respect of the counterclaim should, on any view, have been supplemented by the words "plus VAT". The judge's decision to award only £1,450 in respect of the upper bay window should be set aside. The item of £200 for a new casement can stand, as can the item of £100 for making good internal corner joints to the dining room bay. The other items, which all depend on what course is appropriate in respect of the upper bay window must be simply set aside, and that issue should be remitted for retrial before a different judge, who will decide what course is appropriate in respect of that upper bay window. The judge's order of £4,500 in respect of the glazing defects at the top of some 100 casements throughout the house will be set aside and, as I am at present minded to think, can, subject to counsel's submissions, be replaced by an order for payment of an appropriate sum in respect of all such glazing defects, except those in the upper bay window. The position in relation to the upper bay window glazing defect, apart from the new casement which I have already covered, can be stood over then and dealt with at the retrial, when it can be determined in the light of the evidence as to the course appropriate in respect that window, and such other evidence as may then be available. It seems to me, however, that in so far as work is required in situ, the evidence given to date will determine the cost of the glazing work in respect of the upper bay window. The problem is, as I have indicated, that it is not clear that repairs in situ will be appropriate if repairs are done after removal of the window, or if the window is entirely replaced. Then, as I have said, the cost for repairing the glazing defect in the casements, if and assuming that they are reused, is likely to be quite different from the cost of repairing them in situ, which would involve work on scaffold and the like.