Iggleden & Anor v Fairview New Homes (Shooters Hill) Ltd

In a defective building work claim, the ordinary measure of loss is the reasonable cost of reinstatement or repair. Where competing remedial schemes are available, the court should assess their technical effectiveness, practicality and cost, and may prefer the cheaper scheme where it achieves the same result. The claimant need not accept remedial work by the original contractor where the defects are substantial and the contractor has no contractual right to return, particularly after a prolonged history of inadequate proposals and delay. However, unreasonable delay by the claimant in arranging repair or pursuing the claim may limit recoverable consequential losses. Remedial work should address the underlying defect rather than merely its symptom, but work is not recoverable for a condition shown to be within the applicable contractual tolerances.

The claim arose from the purchase of a newly built house under a contract requiring construction in a good and workmanlike manner. The claimants alleged defects affecting the driveway, garage, kitchen, first-floor and second-floor floors, and claimed the cost of remedial works, storage, alternative accommodation and general damages.

The defendant admitted or accepted many defects and made several proposals to undertake remedial work. The claimants rejected or did not accept those proposals, and the remedial works were not carried out. The court had to determine the appropriate remedial schemes, whether the claimants had failed to mitigate their loss, the effect of delay, and the resulting damages.

1. Remedial schemes. The usual measure for defective construction was the reasonable cost of repair. Where two technically proper schemes were available, the court applied the approach in George Fischer (Holdings) Ltd v Multi-Design Consultants Ltd, preferring the cheaper scheme where it could achieve the same remedial result. The defendant’s cheaper scheme was therefore selected for the driveway and garage.
2. Underlying defects. The kitchen island unit was a symptom of an out-of-tolerance floor in the area beneath it. The proper remedy was to level the kitchen floor, rather than merely adjust the unit. By contrast, the first-floor bathroom was within the applicable tolerance and no remedial work was justified.
3. Mitigation and remedial offers. The claimants were not unreasonable merely because they rejected the defendant’s earlier offers, which did not wholly match the necessary scope of work. Nor was it unreasonable, in the circumstances, to refuse the defendant’s later offer to return and carry out substantial remedial works, since the defendant had no contractual right to do so and the defects were more than ordinary snagging. The defendant’s declaration application was refused and damages for repair remained recoverable.
4. Delay. The claimants’ prolonged failure to formulate their own remedial proposals, carry out the work themselves, or bring the dispute to a conclusion was unreasonable. Remedial works should have been completed by the end of 2004. Storage charges and general damages were therefore limited to the period ending then.
5. The gross damages were £65,719.42. After credits totalling £5,984.33, judgment was entered for the claimants for £59,735.09. Costs were reserved for a later hearing.