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

A contractor is not liable for defective work or materials supplied by an independent contractor merely because the contractor provided administrative assistance or paid that contractor’s invoices. Liability depends on the contractual scope of the retainer. The claimant must first prove that the contractor agreed to undertake the whole relevant work and, where liability is based on nominated subcontracting, that the contractual terms made the contractor responsible for the nominated subcontractor. A court should determine the scope of the alleged agreement before considering standard terms, previous dealings or implied terms. Prior documents showing an intention to appoint a main contractor do not establish that a later contract was made on those terms.

The claimant, owner of Cliveden, brought proceedings concerning the failure of a waterproof membrane installed during repairs to the East Curved Link roof. The first defendant was a specialist stone restorer who had undertaken limited works and administrative tasks at the estate. The second defendant supplied and installed the membrane, while the third defendant manufactured and supplied the materials.

The court ordered preliminary issues concerning the terms of the first defendant’s retainer, whether he had retained the second defendant as subcontractor, and whether he was liable for defective workmanship or materials supplied by the other defendants. The central issue was whether the first defendant had been appointed as main contractor for the whole roof works on terms imposing responsibility for the other contractors.

1. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, including reserved interlocutory costs, assessed on the standard basis. Permission to appeal was refused.
2. The claimant failed to prove that the first defendant had agreed to undertake the whole of the East Curved Link roof works. The evidence established only that he had been instructed to perform limited tasks, including removing asphalt, attending to underlying girders and carrying out minor repairs.
3. Responsibility for the second defendant’s work could arise only if the first defendant had agreed both to undertake the whole roof works and to do so on terms under which the claimant could nominate subcontractors. No written agreement existed, and the alleged oral agreement was not proved.
4. The court was not prepared to infer a contract on specific terms solely from previous dealings and surrounding documents where the alleged participants could not recall when, where or in what words the agreement was made. The claimant’s earlier letters showed an intention that the first defendant should act as main contractor for some elements of the works, but they did not prove a later agreement covering the membrane works.
5. The first defendant acted as the claimant’s agent in dealing with the second defendant. His receipt and payment of invoices, followed by reimbursement with an additional percentage for administrative services, did not establish a subcontracting relationship or main-contractor liability.
6. There was no independent basis for imposing responsibility on the first defendant for the defaults of other independent contractors. He was therefore not liable for defective workmanship or materials supplied by either the second or third defendant.

First-instance decision on preliminary issues. Permission to appeal was refused.