National Trust Thames and Chilterns Region v Mates (t/a Ccw Mates Stone Restoration) & Ors

The claimants sue as the owners of Cliveden.

The first defendant is the only defendant to be served in this action and he has been referred to throughout as “the defendant” or Mr. Mates. Mr. Mates is a specialist stone restorer who has been engaged on works at Cliveden Mansion since 1982 and now has the use of a cottage and a works yard on the estate.

The Mansion was once open to the general public. Then it was used by Stanford University. Then it was converted to a hotel. At the time of the works the subject of this action it was a hotel.

In 1999, the roof of a section of the hotel began to leak causing internal damage. That section is called the East Curved Link. It appears that the waterproof membrane in the roof had failed. The claimants in this action allege that Mr. Mates is responsible for the failure of that roof because of his part in the renovation of the roof in 1995.

The second and third defendants to this action (who have not been served) also played a part in the renovation of the roof. The second defendant (Ajap) supplied and installed the waterproofing membrane. The third defendant, (Grace) were the manufacturers and ultimate suppliers of the materials to form the waterproof membrane.

Although Grace have not been served in this action, for some reason separate proceedings were issued against them on 31 October, 2002 (the present proceedings having been issued on 7 February, 2002). In the latter proceedings, Grace are sued for negligence and negligent misstatement arising out of advice given and the supply of the materials for the membrane.

The causes alleged for the failure of the roof are various, including defective workmanship on the part of Ajap, product failure, and inadequate specification. There is also an issue as to whether the product used was in fact one of the products manufactured by Grace.

It is not alleged that anything done or omitted personally by Mr. Mates or any of his direct employees contributed to the defect in the roof. It is alleged that he is liable as main contractor, or in some other way, for the acts of others, particularly Ajap. Others for whom Mr. Mates is alleged to have been responsible are the scaffolders, Riteway Scaffolding Limited (Riteway), and a firm employed to remove paving slabs from the roof, Wells Cathedral Stonemasons.

The works in 1999 involved erecting and fixing scaffolding, lifting the paving slabs from the roof, removing the old defective asphalt membrane, laying a new membrane, and replacing the paving slabs. All of that was done by others than Mr. Mates apart from the removal of the old asphalt membrane. The scaffolding had to be fixed to the stone rendering of the exterior wall on which Mr. Mates and his employees were working. The scaffolding was used by Mr. Mates for work on the stone rendering and on a stone balustrade. Mr. Mates was retained to do some initial temporary work and to do some minor work in the repairs. The initial work carried out by Mr.Mates himself involved temporary waterproofing measures (polythene sheets etc.), general attendance on the scaffolding contractors appointed to erect the temporary roof structure, and providing access to others to enable further investigations to be carried out. So far as the repair works were concerned he was retained to remove and cart away the existing asphalt from the roof and to expose, clean and repaint the underlying girders within the existing deck structure and to carry out minor repairs to the screed. He was also instructed to make good the rendering to the stone work, and to reinstate and restore the missing or damaged balustrade and to re-point the upper staircase stone treads and rising. Apart from those tasks, Mr.Mates did not carry out any of the repair and replacement works to the roof structure or its waterproof covering.

After hearing argument from counsel, in November, 2002 I ordered that before a trial of the technical issues with experts, there should be a trial of preliminary issues to resolve questions as to the responsibility of Mr. Mates.

The preliminary issues ordered to be tried are:

By Amended Particulars of Claim dated 14 February, 2003, the claimants allege that “at a meeting in or about July, 1995 between the first defendant and Mr. Harrap” of the claimants’ architects (Julian Harrap Associates) “the first defendant agreed with the claimant (by its architects JHA) to act as the main contractor for the purposes of the works.” By their pleading, the claimants stated that they did not know whether a written main contract agreement was ever executed. The claimants did not know the precise date of the meeting nor did they know exactly where it took place but they believed it probably took place at the hotel. The claimants were unable to say what words were spoken at the meeting as to the terms of the appointment of Mr. Mates. The Amended Particulars of Claim states, “The claimant is unable to say whether it was expressly stated at the meeting that the terms of the first defendant’s appointment would be in the IFC 84 form of contract”.

The prime case of the claimants is that at that alleged meeting in July, 1995, Mr. Mates was appointed main contractor for the works under IFC 84 terms. The point of the reference to IFC 84 is that it expressly makes the main contractor responsible for the completion of the works in a good and workmanlike manner (subject to some exceptions) even where a sub-contractor has been nominated.

The claimants say that even if there was no written agreement in IFC 84 terms, and even if that form was not mentioned at the meting in July, that form of contract was agreed by implication by reason of the terms of two letters of 26 January and 6 February, 1995 and by reason of a course of dealing. The course of dealing is said to be by reference to a Schedule of 6 projects annexed to the Amended Particulars of claim and by reference to numerous documents to which I shall have to refer.

Alternatively, the claimants say that Mr. Mates was appointed main contractor without the inclusion of IFC 84 terms and leave it to the court to say what the terms of that contract were.

The pleading of the Amended Particulars of Claim is extremely vague. That is not a criticism of Mr. Collett. The pleadings reflect the vagueness of the claimants’ case. Miss Davies, counsel for Mr. Mates was at pains to remind me of a succession of applications attacking the claimants’ pleadings resulting in orders for further information, an unless order, the striking out of two sets of further information and the making of an unless order that unless the claimants comply with a previous order by giving the further information previously ordered or by putting forward a proposed amended Particulars of Claim the claim be struck out. That resulted in the present Amended Particulars of Claim being put forward in draft. Miss Davies was still not satisfied with that draft, but she agreed to a consent order in the following terms:

Mr. Mates keeps a site diary which he has disclosed for the purpose of this action. The entries in that diary are rough jottings. Among the entries for Friday 7 July, 1995, is “J. Harrap on site” Underneath that are the names C. Wilson and S. Scammell. C. Wilson is Miss Caroline Wilson, an architect in Mr. Harrap’s firm and the Project Architect for the works to the roof of the East Curved Link. S. Scammell is Mr. Stephen Scammell of Sawyer and Fisher and he was the project Quantity Surveyor on the same project and on many other projects at Cliveden. Both Miss Wilson and Mr. Scammell now say, without objection from Miss Davies, that they were present at a meeting with Mr. Mates about the East Curved Link roof and they say, on the basis of Mr. Mates’ diary that it was probably on 7 July, 1995. That evidence is a departure from the Amended Particulars of Claim in which it is said at paragraph 9 that the agreement was reached at a meeting between Mr. Harrap and Mr. Mates.

The case of Mr. Mates is best summarised in the opening paragraphs of Miss Davies’ closing submissions:

Mr. Mates did have some dealings with the specialists. Mr. Mates strongly denies that he was ever a main contractor. Whatever he did, he did because he was told to do it by the claimants or their architects. When the architects decided to accept the tender of Ajap, Miss Wilson spoke to Mr. Mates on the telephone and told him that agreement had been reached that Ajap were to carry out the work as soon as possible. Miss Wilson asked Mr. Mates to contact Ajap and let them know that they are to carry out the work in accordance with the manufacturer’s specification for a revised sum of £4,850 plus VAT and to find out when they could start. There was considerable urgency because the roof was off in winter. On the same day, 10 December, 1995 Mr. Mates wrote to Ajap by fax: “I have been instructed to place the order for the work to be carried out in accordance with the manufacturer’s specification for the sum that was agreed with C Wilson Architect”. There was no mention there of any sub-contract.

The following day, 11 December, 1995, Miss Wilson issued an Architect’s Instruction to Mr. Mates in which she first listed 8 items of work that Mr. Mates was to do himself. Then at item 9 she wrote “Accept the quotation dated 30.11.95 from Ajap…” and at item 12, “Instruct specialist sub-contractor to apply bituthene membrane to whole surface and dress up vertical sides…” If Mr. Mates had by then agreed to act as main contractor on terms that the claimants had the right to nominate sub-contractors, one can see that that Instruction could be read as a nomination of a sub-contractor. But for reasons to which I shall refer later, I find that Mr. Mates had not so agreed. Miss Davies submits, and I agree, that Mr. Mates was acting as the agent for the claimants and he was no more entering into a contract with Ajap than the architects would have been if they had issued an order direct to Ajap. Mr. Mates received invoices from Ajap, as with many other specialists working at Cliveden, and he paid them. His book-keeper collated the invoices, to which a percentage was added for Mr. Mates’ trouble and billed the Trust who then paid him a single cheque monthly. Miss Davies submits that this was an unusual arrangement, one–off in nature, done for the convenience of the claimants.

Mr. Mates first came into contact with the claimants as a result of working for Hedges Stone Cleaners Limited as a self-employed stonemason. In about 1985, Hedges started work at Cliveden and Mr. Mates worked there for him. Initially, Hedges were sub-contractors to Dove Brothers. But the claimants terminated the relationship with Dove Brothers and Hedges entered into some relationship (the terms of which Mr. Mates was unaware) direct with the claimants. There were many other specialists on site who had been sub-contractors to Dove Brothers. In 1989, Hedges decided to stop doing that work at Cliveden and Mr. Mates took over the work in a direct though ill-defined relationship with the claimants. He was willing to undertake many tasks other than stone masonry and he was given the use of a cottage and his own work yard on the estate.

The only evidence of the terms on which that relationship began came from Mr. Mates in his second witness statement. He said that there was a lunch meeting at the Pheasant Public House on about 8 December, 1989 at which were present Messrs. Hedges, Harrap and Scammell. It was an informal meeting at which no notes were taken. Mr. Mates says that they did not discuss what form of contract would govern the works to be carried out in any detail but the gist of what was said by Mr. Harrap was that the remaining stone restoration works were to be carried out as small works packages as and when funding became available and works would be in the nature of minor works contracts. There was certainly no question at any time that he would replace Dove Brothers as main contractor to the many specialists on the estate. Such a suggestion would have been ridiculous. At the time, his organisation consisted of himself, a partner, and a bookkeeper. Later he took on a handful of employees as workmen. He never had the sort of organisation that one would expect of a main contractor.

Having started as a stonemason willing to exercise his skills as and when required, Mr. Mates made himself useful to the claimants in ways outside his specialist skills. He became a general handyman and through his residence in the cottage a point of contact. He provided access for other contractors. He dealt with complaints from the Hotel about works and the noise. He cleared gutters, assisted with a boiler flue, and made emergency repairs. At a time when there were no funds for stone works, he agreed to do some painting works and to do some works in connection with the provision of a new chemical gas store. He also carried out works as a nominated stone restoration sub-contractor to a company named Ellmers that had a contract to restore the clock tower.

Although he occasionally did work elsewhere, Mr. Mates was devoted to Cliveden. Miss Wilson wrote in 1992:

“Charlie has devoted many years of his life to Cliveden and has expressed a commitment to continue working into the 21^st century (as long as he is able). He is a small contractor set up specifically to work for the Trust, and his whole livelihood is dependent on Cliveden. He is a craftsman of rare skill and dependability who is practically irreplaceable . . .”

An internal memorandum of the claimants dated 22 Nov 1991 reveals that at that time the claimants were unclear about the terms on which Mr. Mates was working. There is no evidence that they ever clarified the position for themselves. It would have been easy for them to have negotiated a written contract with Mr. Mates, but they did not do so.

An internal memorandum between senior executives of the claimants made plain that in March 1995, the claimants were unsure that as a result of working for the claimants exclusively for many years he might be regarded as an employee and therefore not to be required to take out public liability insurance because he would be covered by the claimants public liability insurance. The conclusion was that because the claimants did not want to expose themselves to a claim for redundancy pay, they should “make all efforts to demonstrate an ‘at arms length’ relationship” and to that end insist that he take out adequate public liability insurance. This was at a time when the concern about the need for work on the East Curved Link had already been under way for about 6 months.

At the trial, there was some investigation of Mr. Mates’ insurance situation. There was some lack of clarity, but there was no evidence that he ever had insurance other than for public liability and for the acts of himself and his direct employees. The claimants were concerned at the trial to establish that he had insurance to cover liability for the acts of sub-contractors but they failed to do so.

It was typical of the relationship of Mr. Mates with those at Cliveden that he was the first person to whom the Hotel reported water under the carpet in the corridor in the East Curved Link in October, 1994. Mr. Mates went there and noticed damp on the ceiling and he then reported the matter to Miss Wilson. In October and December, 1994 Mr. Mates and his employees laid polythene sheets on the roof as a temporary measure to keep the water out. That was on the direct instructions of Mr. Harrap. In October, 1994 the claimants on the advice of Mr. Harrap decided that the asphalt membrane needed to be renewed but it could not be done in the winter, and from time to time Mr. Mates was instructed to clear away water and snow from the roof and to relay the polythene sheets after high winds.

At the end of March, 1995 Mr. Mates was instructed to lay boards on the lawn for scaffolding for the East Curved Link. But in early April that work was stopped, possibly because the hotel did not want scaffolding up during high season. The boards were taken up. At that stage, Mr. Mates knew what was required of him when the scaffolding was erected, and it was envisaged that the asphalt membrane would be replaced by another asphalt membrane by someone other than Mr. Mates. What was required of him did not include responsibility for the whole of the works on the roof but only that he should do certain ancillary tasks.

There were some further investigations in October, 1995 for which Mr. Mates provided access with a ladder. Finally the scaffolding was erected in November, Wells Cathedral Stonemasons lifted the stones from the roof and Mr. Mates on instructions from Miss Wilson cleared away the old asphalt and exposed and painted the underlying iron girders and did some minor repairs to the screed. At this stage, Miss Wilson, with the advice of engineers, decided that the roof was too flexible for asphalt and that some more flexible membrane was required. With the roof open to the elements and bad weather coming on and the hotel wanting the work to be finished before their Christmas season, there was considerable urgency about finding a suitable membrane and someone suitable to fix it. Mr. Harrap’s firm went to Grace, Grace allegedly (though this may be in dispute in the action against Grace) recommended Ajap to lay their product and Mr. Harrap’s firm obtained quotations from Ajap and others. Miss Wilson decided to accept Ajap’s quotation using a product to be supplied by Grace and the work was done.

All of the decisions about the works to be done, both the original scheme and the revised scheme were taken by Miss Wilson or Mr. Harrap. Mr. Mates told me, and I accept, that he did not have the expertise to form any view on those matters and he did not supervise the work of Ajap.

Mr. Mates could only have had responsibility for the work of Ajap if he had agreed to do the whole of the work on the roof on terms that the employer, the claimants, had the right to nominate sub-contractors to do part of it. That would have been the case if he had agreed (a) to do the whole of the work to the roof and (b) to do that work on IFC 84 terms.

No written IFC 84 agreement has been produced and no one from the claimants has claimed to have seen one and I accept the evidence of Mr. Mates that he never signed any main contract agreement either for this or any other project at Cliveden.

I therefore turn to consider the alleged oral agreement in July, 1995.

It is odd that this agreement should be alleged to have been made after the abortive start to the works in April, 1995 and before the change in method adopted in November, 1995. It is also odd that until the issue of these proceedings the claimants never alleged that Mr. Mates was liable under the terms of IFC 84.

It is quite remarkable that if such an important agreement were made by Mr. Mates with the senior partner of a firm of architects that no letter was sent by those architects confirming the agreement. One would also expect such a letter to enclose a form of agreement for Mr. Mates to sign.

I turn to consider the evidence about the alleged meeting in July, 1995.

Mr. Mates said that he had no recollection of any meeting whether in July, 1995 or otherwise with Mr. Harrap at which the terms of his appointment were discussed. If there had been a meeting, he would have recorded it in his diary. The record in his diary for 7 July was simply that Mr. Harrap was on site. When Mr. Harrap came to the site, he would usually come to see Mr. Mates and Mr. Harrap would record his presence in his diary. That evidence is supported by other entries in the diary.

Mr. Harrap said that he had no notes of any meeting nor any diary entry. However, he said in his written evidence,

“It had been intended to carry out the roof works in the spring of 1995 but this was inconvenient for the hotel. It was determined therefore to carry out the works in October and as part of the build-up to that I recall attending a pre-contract meeting in July 1995 with Mr. Mates, Caroline Wilson and myself. I either did not take any notes of that meeting or they are now lost but I note that Mr. Mates records in his diary my attendance on site on 7th July 1995. This accords with my recollection of a pre-contract meeting at about that date.

It was usual for Julian Harrap Associates and Sawyer Fisher to hold a pre-contract meeting with the main contractor for any works, on this occasion Mr. Mates. The purpose of the meeting was to discuss the scope of the works, and Mr. Mates was given the opportunity to comment on the amount of responsibility he was willing and able to take on. In the case of the roof works I recall that he confirmed that he was happy to act on the 'usual' terms; that is, main contractor under IFC 84 terms (see later). I recall a contract; that is, the Clock Tower reconstruction, where Mr. Mates was initially very keen to take on the role of main contractor, but the Trust and its professional advisers did not consider that he had the necessary experience/expertise. It was very useful to have him on site to assist Ellmers, the contractor ultimately appointed, and accordingly they paid him a daily rate to carry out 'site agent' type duties”.

I say at once that I do not accept that there was any meeting to discuss “the scope of the works”. I accept the evidence of Mr. Mates that the entry in his diary was simply to record that Mr. Harrap, Miss Wilson and Mr. Scammell were on site. The claimants’ pleading, after many efforts alleges only that there was a meeting between Mr. Harrap and Mr. Mates. Now it is alleged that there was a meeting between Mr. Mates and three professionals, but Mr. Harrap in his written evidence mentioned only two, himself and Miss Wilson. Not one of the four people now alleged to have been at that meeting has any note of a meeting. Not one of the three professionals wrote a letter to Mr. Mates confirming either the scope of the works that he was undertaking or the terms on which he was alleged to be undertaking considerable responsibility.

The witness statement of Mr.Scammell dealt with the alleged meeting in July, 1995 as Mr. Collett said “rather more shortly”:

“I have a recollection of a meeting in July, 1995 to discuss the roof works. Again my notes of that meeting have been destroyed or are missing and I am unable to refresh my memory as to the terms of that discussion.”

Mr. Scammell’s evidence adds nothing whatever to the evidence about the alleged meeting in July, 1995. However, he did say:

“I am adamant that all the parties including Mr. Mates intended that his works, over a number of years and including the roof works would be carried out by him as main contractor. [He then referred to a document]. I am in no doubt that Mr. Mates was aware that he was carrying out these and other works as Main Contractor under IFC 84.”

The trouble about that bald assertion is that there were many works undertaken by Mr. Mates in which no one else was involved and where he could not possibly have been a main contractor. Moreover, in all the history of previous conduct that has been examined, not one single main contract in any terms was signed by Mr. Mates. Moreover, what Mr. Scammell does not say is that he recalls Mr. Mates agreeing to act as main roofing contractor for the whole roofing project.

Although the pleading does not allege that Miss Wilson was at that alleged meeting, in her evidence she said that she was. What she said about it in her written evidence was:

Although this was, according to the claimants, the meeting at which the contract with Mr. Mates was made, the Project Architect, who was not alleged in the pleadings to have been present, now says that she was present but cannot recall the terms of the discussion at the meeting. Like the others alleged to have been present at the alleged meeting, she can produce no note of the alleged meeting and never wrote any letter confirming what was agreed nor did she produce any form of contract for signature. Moreover, the Project Architect does not say that a contract was made at that meeting, she says that it was a pre-contract meeting. She does not put forward any recollection of what was said. She merely avers what would have been said.

The claimants’ latest pleading alleges that the meeting took place “at the hotel”. But in response to my question during the opening of counsel for the claimants, I was told that it was not suggested that the meeting took place in the lobby of the hotel or in a room of the hotel. Mr. Collett said that the meeting probably took place in the site office of Mr. Mates. There is no evidence as to where this alleged meeting took place.

The oral evidence of Mr. Harrap, Miss Wilson, and Mr. Scammell added very little to their written evidence.

This is a most extraordinary case in which no written agreement was signed and no one can remember any oral agreement being made, but the claimants invite me to look at various documents and infer that an agreement was made between parties who have been called to give evidence and who cannot recall that agreement.

The first question to be answered is not the general question, “What were the terms of Mr. Mates’ appointment?” but the particular question contained within that general question, “What was the scope of the works to which he was appointed?” An examination of usual terms and previous course of conduct do not help to answer the first question. If there were some evidence, even conflicting evidence, as to the scope of the works supporting a view that Mr. Mates agreed to undertake the whole of the works for the roofing of the East Curved Link, then one might look to other previous dealings to consider the balance of probabilities as to which of two conflicting cases should be preferred as to the scope of the works and if the claimants’ case is preferred what terms (if not express) should be implied. But I have never before been asked to infer the making of a contract on specific terms from previous dealings and surrounding documents when none of the individuals concerned who have been called to give evidence and who are alleged to have been present at the making of the contract can remember when, where, or in what words the contract was made. There is also doubt about who was present when the alleged contract was made.

That, as Miss Davies submits to me, is the end of the case. The claimants have not proved any agreement on the part of Mr. Mates that he agreed to do the whole of the works in the repair of the roof of the East Curved Link. The question what were the terms on which he should do those works therefore does not arise. There is no evidence of any requests to do all the work on that roof. I infer that he was asked to do only those limited items of work that he did do.

I am asked to go further and infer that Mr. Mates was asked to act as main contractor and agreed to act as main contractor because he has charged 12% on the sums claimed by, for example, Ajap. Mr. Mates’ explanation is that he charged 12% for the administrative services that he rendered. That is an unusual explanation but I accept it in the most unusual circumstances of this case and in the absence of any credible evidence that he did agree to act as main contractor for the whole work.

Mr. Mates certainly did render substantial administrative services. He lived on site in the cottage provided, he was almost always working at Cliveden and he was at everyone’s beck and call. He was the recipient of complaints from the hotel, he provided access to other contractors and he saved the claimants a great deal of trouble in book-keeping by paying the invoices of other contractors and claiming reimbursement from the claimants. It was not at all unreasonable for Mr. Mates to charge 12% for his trouble without being a main contractor.

Paragraphs 5 and 6 of the Amended Particulars of Claim refer to two letters of 26 January, and 6 February, 1995 addressed to Riteway and Wells Cathedral Stonemasons. The letters were copied to Mr. Mates and to Sawyer & Fisher. Those letters, written by Miss Wilson, show that in January and February, 1995, the architects intended that the scaffolding and the work to be done by Wells Cathedral Stonemasons should be undertaken by Mr. Mates as main contractor on IFC 84 terms. There is no similar letter pleaded or produced regarding Ajap because the work of Ajap had not even been thought of until November of that year. However, there is no similar letter pleaded or produced regarding relaying of an asphalt membrane. The two letters do show an intention on the part of the architects on behalf of the claimants that Mr. Mates should be appointed main contractor on IFC 84 terms in respect of some part of the works to the roof (but not the replacement membrane). Copies of the letters were sent to Mr. Mates, so he knew of that intention, but that is far from evidence that 6 months later, in July, 1995 Mr. Mates was given and accepted an appointment in those terms.

If Mr. Mates had agreed to do the whole of the roofing works on the East Curved Link as main contractor, it might have been relevant to consider the previous course of dealing to determine what were the terms on which he agreed as main contractor. But he did not so agree and therefore the previous course of dealing is irrelevant. In any event, the six projects listed in the appendix to the Particulars of Claim are for the most part small projects in which no one other than Mr. Mates was involved. I have been shown many documents including some Valuations and Interim Payment Certificates on IFC 84 Forms. In the circumstances, I do not propose to refer to those documents in detail. I only comment that in general in many instances it is clear that those forms were used in inappropriate circumstances, and in one or two instances, Miss Wilson admitted that the use of the form was inappropriate.

I should mention one other set of documents from which it was said I should infer that Mr. Mates was a main contractor. In September, 1995, Miss Wilson wrote to Mark Lyall of the claimants to tell him of the claimants’ responsibility under the Construction (Design and Management) Act (CDM) to appoint a Planning Supervisor for the works at Cliveden. Mr. Bernard Collins, the claimants’ Clerk of the Works was appointed to that post. He sent a questionnaire to Mr. Mates complying with the CDM. It seems likely that he also sent the answers to the questionnaire. On 4 October, 1995, Mr. Mates returned answers, but as he says, they are not in his style and he thinks that someone else provided them. One of the answers refers to sub-contractors, but not to Ajap, who had not yet come on the scene. The same answer refers to Mr. Mates carrying liability insurance to the value of £5million. He explained that that was liability insurance for himself and his own directly employed men. I do not accept that it can be inferred from this document that a main contract was made in July, 1995.

There has been some suggestion, not pleaded, but raised during the trial, that even if Mr. Mates was not a main contractor he was by implication responsible for the defaults of other independent contractors involved in the work. I see no basis for that submission.

I find that :