Recent Court Guidance on Defective Construction

Vainker v Marbank and Others (2024) is essential reading for anyone considering claiming against contractors and professionals under the Defective Premises Act 1972, the Building Safety Act 2022, and for defects claims in general.

The Technology and Construction Court (TCC) has provided important guidance on claims under the Defective Premises Act 1972 (DPA), for defective construction. In light of the increased interest in claims under the DPA, following the extended limitation period introduced by the Building Safety Act 2022 (BSA), this judgment provides useful insight into how the courts will likely consider the DPA in construction disputes.

It was fairly inevitable that the retrospective extension of time to 30 years for bringing claims under the DPA, introduced by the Building Safety Act 2022, would lead to increased consideration of this useful piece of legislation. Until then, with some noted exceptions, the DPA had received relatively little attention, no doubt because, in most cases, it presented a more difficult route for recourse  as would a claim in contract or tort. It is now much easier to use and there are some real benefits for those of us who seek to remedy poor building work.

The court will consider design briefs and requirements;  recoverable damages will  include the costs incurred in making the dwelling fit for habitation in the way it should have been, had the services been supplied in a professional manner

The claim

This particular claim arose following the poor construction of a residential property known as The Croft in Strawberry Hill, Twickenham. The claimants engaged the first defendant, Marbank Construction Ltd, to build the new-build house. The third defendant, SCD Architects Ltd, was the architect for the project. 

The residential owners brought a claim against the contractor and the architect (SCD). The claims against SCD in contract and tort were out of time (past the contractual Limitation period for making claims) and they now had the benefit of pursuing recourse under the DPA. Whilst the Judge eventually dismissed allegations linked to the brickwork and structure (neither of which rendered the dwelling unfit for habitation) they found for the Claimants in relation to SCD’s inspection obligations relating to the glass balustrade.

Assessing DPA liability

Section 1 of the DPA provides that a person undertaking work in connection with the provision of a dwelling owes a duty to ensure that the works undertaken are carried out in a skilful/professional manner, with appropriate materials, so that the dwelling is ‘fit for habitation’ once complete.

The court stated that, in considering whether the house was, at the time of completion, ‘fit for habitation’:

• It is relevant to take into account that it was intended to be not only a new build, but a modern house in design
• It is unlikely that a defect that is only aesthetic or inconvenient would render a dwelling unfit for habitation
• There may however be a breach of the duty in respect of a defect which means that the condition of the dwelling is likely to deteriorate over time and render it unfit for habitation when it does so. In that case, the dwelling can be said to be unfit for habitation at the time of completion
• It is appropriate to consider the aggregate effect of defects when determining whether the dwelling is unfit for habitation. However, defects which are minor or aesthetic on their own should not be considered
• It is also not a valid defence in a Defective Premises Act case for the defendant to claim to have followed established practice at the time. What needs to be shown to the court is that the dwelling was not fit for habitation as a result of the work that was done

Applying this guidance to the claim, the court concluded that only certain proven defects rendered the house unfit for habitation. One such defect was the glass balustrades within the house, which posed a considerable health and safety risk.  In terms of remedial works for this defect, the defendants argued that all that was needed was the installation of handrails, rejecting the claim that wholesale replacement of the balustrades was necessary and proportionate. 

The court disagreed with the counterargument. In the context of the claim against SCD, it stated that, in DPA claims, damages will not be limited to the minimum necessary to put the dwelling back into a habitable condition. Instead, the court will consider design briefs and requirements;  recoverable damages will  include the costs incurred in making the dwelling fit for habitation in the way it should have been, had the services been supplied in a professional manner. This eventually meant the claimants recovered the costs of replacing the glass balustrades. 

Distress and Inconvenience

In assessing claims for distress and inconvenience, the Court sets out that:

• The highest amount of damages should be a maximum of £3,000 per annum (though this was subject to inflation when first determined (in a case reported in 2015)
• The Claimant’s occupancy is not relevant
• The Claimant is ‘a person of reasonable robustness’
• The court, while taking a ‘broad brush approach’, must consider the impact of the distinct defects over time.

Here, the court awarded a sum, but less than the maximum.

DPA claims and net contribution clauses

SCD had the benefit of a net contribution clause within its appointment with the claimants and sought to rely upon this clause to restrict its liability for the DPA claim against it.  Net contribution clauses are very common in professional appointments and intended to allow SCD to avoid being joint and severally liable with Marbank for 100% of any damages for which they were both liable. Instead, SCD would only be liable for the extent of its responsibility for the defect. Based on the above, SCD argued it should only be 20% liable for the replacement of the glass balustrades (as its breach was limited to not identifying that Marbank’s works were defective).

The court disagreed once more. Section 6(3) of the DPA provides that any term of an agreement which purports to exclude or restrict liability under the DPA shall be void. The net contribution clause was a clear attempt to do this and, therefore, it was of no effect and assistance to SCD in defence of the DPA claim. 

Final Certificate/Final Statement

The Court held that it is necessary to consider the sums that would have been due had a further interim certificate or Final Certificate/Final Statement been issued where it is absent, which is particularly important because a Certificate of Making Good Defects had never been issued.

General note

This decision is a useful reminder that it is not possible through contract to limit or exclude liability under the DPA.

It also provides guidance on how the courts will assess the ‘unfit for habitation’ test, as well as indicating that damages for DPA claims will have reference back to what would have happened had the DPA duty not been breached (and not just the minimum required to make the dwelling fit for habitation).  

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