Boynton & Anor v Willers

A contractual quotation is construed in its commercial context. Where a substantial item is not described or priced, references to related work may leave an ambiguity that can be resolved by evidence of the parties’ common intention. A reasonable businesslike construction may exclude the item where its specification was unsettled and no price or provisional sum was included.

Damages for breach may include physical inconvenience and discomfort, and directly related mental suffering, including foreseeable disruption during repairs, but awards remain restrained. An appellate court should not reassess a modest award where the evidence is fragmentary or unreliable. A counterclaim may be set off against the claim without a pleaded set-off, and costs remain subject to the trial judge’s broad discretion.

The respondent builder claimed the balance due for building works carried out at the appellants’ home. The appellants counterclaimed for defective workmanship, remedial costs, and distress and inconvenience.

The Sheffield County Court found that VAT was payable in addition to the quoted price, awarded the appellants approximately £11,850 for remedial works and £500 for inconvenience, and entered judgment for the respondent for the net balance of £3,910, with interest and costs.

The appellants appealed on the contractual treatment of bay windows, the level of damages for inconvenience, and the set-off and costs orders. The central issues were whether the bay windows formed part of the quotation and whether the judge had erred in assessing damages or exercising his costs discretion.

Lord Justice Potter gave the judgment of the court. Lord Justice Chadwick and Mr Justice Cresswell agreed. The appeal was dismissed.

1. Bay windows. The quotation did not expressly refer to the construction of the bays, although it referred to supplying and fitting windows shown on drawings. The construction of substantial bay walls and roofs was a significant item. The references to windows, heads and sills did not resolve the resulting ambiguity. Evidence of the parties’ common intention was therefore admissible. The judge had accepted evidence that the bays were excluded because their final appearance had not been decided. Alternatively, the absence of any reference or provisional sum supported the reasonable and businesslike construction that the bays were excluded.
2. Inconvenience damages. Damages may be recovered for physical inconvenience and discomfort caused by breach, and for mental suffering directly related to that inconvenience. Foreseeable inconvenience during remedial works may be compensable, but awards should remain restrained: Watts v Morrow [1991] 1 WLR 1421. The evidence here was fragmented and unreliable, the principal claim concerning occupation of a caravan had failed, and the trial judge’s assessment of credibility was adverse. The Court of Appeal therefore lacked sufficient material to interfere, despite regarding the award as low. Ezekiel v McDade (CA) [1995] 47 EG 150 was not comparable because it involved prolonged homelessness and single-room accommodation.
3. Set-off and costs. It was open to the judge to set off the counterclaim against the claim despite the absence of a pleaded set-off: Hanak v Green [1958] 2 QB 9 and CPR 40.13(2). The substantial overlap between the claim and counterclaim justified treating the action as a whole for costs purposes. The judge retained a broad discretion under CPR 40.13(3) and 44.3(4) and (6), and was entitled to award the overall costs to the respondent in light of the issues and the defendants’ conduct.
4. Settlement offer. A non-Part 36 settlement letter could remain relevant to the general costs discretion under CPR 44.3(4)(c). Potter LJ expressed doubt about attaching weight to a party’s failure to respond to judicial encouragement to settle rather than to the opposing party’s overtures, but the point had not been argued and was not decided.

The defendants’ appeal was dismissed, with the appeal costs payable on the standard basis.

1. Court of Appeal (Civil Division) — dismissed the defendants’ appeal. [2003] EWCA Civ 904.
2. Sheffield County Court — entered judgment for the claimant builder for the net balance of £3,910, with interest and costs, after allowing the defendants’ counterclaim in part.