Devoran Joinery Company Ltd v Perkins

A trial judge must address a material defect supported by evidence and not abandoned by the party alleging it. The judge cannot adopt an expert’s proposed repair after its factual basis has fallen away, or devise an untested solution without obtaining the necessary expert evidence.

Damages for defective building work may be limited where the cost of achieving perfection is disproportionate to the loss avoided or benefit obtained. Where deficient findings prevent the appellate court from deciding whether repair or replacement is appropriate, the affected issue may be remitted for retrial.

A joinery manufacturer claimed the unpaid balance for supplying and installing windows and doors in a newly constructed house. The customer counterclaimed for numerous defects, particularly defective glazing and serious problems affecting an upper bay window.

HHJ Cowell awarded £6,100 on the counterclaim but rejected the substantially greater replacement costs advanced by the customer. The customer appealed from the Central London County Court. The principal issues were whether the judge had failed to address evidence of general draughtiness, had accepted an inadequately supported repair solution, and had preferred an unreliable estimate of glazing costs.

1. Appeal allowed. The counterclaim award was to be supplemented by the words “plus VAT”. The awards concerning the upper bay window and glazing defects were set aside to the extent specified by the court, and the unresolved upper-window issues were remitted for retrial before a different judge.

2. Per Mance LJ, the trial judge failed to determine the allegation of general draughtiness in the upper bay window. That allegation was supported by the customer’s expert evidence, was potentially serious and had not been withdrawn. The judge appeared to have concentrated on admitted defects and overlooked material differences between the experts’ accounts: paras 6–9.

3. The proposed repair accepted below had lost its evidential foundation. The preferred expert had initially assumed that the outer sills and corner post could be removed, but the evidence indicated that the sill was a single piece and the corner post was glued. The expert had not addressed whether a durable repair could be achieved in situ in those circumstances. The judge therefore adopted a solution which the expert had not recommended on the established facts. He should at least have recalled the expert for further examination: paras 18–26.

4. The appropriate remedy for the upper bay window required reconsideration. The retrial was to determine whether the proper course was repair in situ, repair after removal, partial replacement or complete replacement. It was also to consider whether the cost of any proposed work would be disproportionate to the loss avoided or benefit obtained, consistently with Ruxley Electronics and Construction Limited v Forsyth [1996] A.C. 344: paras 24 and 30.

5. The judge was also clearly wrong to prefer the £3,850 estimate of an architect who disclaimed expertise in costing over the quantity surveyor’s costed estimate and supporting quotations. The £4,500 glazing award was set aside. The Court of Appeal provisionally assessed all glazing work at about £12,000, but required submissions to isolate the amount attributable to the upper bay window because that element depended on the outcome of the retrial: paras 28–35.

1. Court of Appeal (Civil Division): Allowed the appeal, directed that VAT be added to the counterclaim award, set aside material parts of the damages assessment, and remitted the upper bay window issues for retrial before a different judge: [2003] EWCA Civ 1241.

2. Central London County Court: HHJ Cowell awarded the manufacturer the unpaid balance and allowed £6,100 on the customer’s counterclaim, comprising £4,500 for glazing defects, £1,450 for bay-window defects and £150 for front-door defects.