Farrer (Practising As Farrer Huxley Associates) & Anor v Wiles

Where professional negligence causes necessary remedial works to be deferred, damages may reflect the reasonable cost of carrying out those works at the later date, subject to credit for the cost that would have been incurred earlier. A finding that negligent works did not worsen pre-existing defects does not prevent recovery for the cost of remedying those defects where the negligence caused the remedial works to be postponed. The court may rely on an agreed schedule of costs, provided its findings establish which works would have been undertaken earlier and which remain necessary.

Susan Wiles engaged Noel Farrer, practising through Farrer Huxley Associates, to design refurbishment works converting an old property into a dwelling and holiday let. Farrer admitted that he should have advised her to obtain structural engineering advice and should have paid proper attention to the building’s structure.

At trial, His Honour Judge O’Brien found that the property had pre-existing structural defects and that Wiles would have remedied them before undertaking the refurbishment if properly advised. He rejected the allegation that the refurbishment works had worsened those defects. Relying on an agreed schedule of loss, he awarded damages including the cost of remedial works and consequential losses.

The appeal challenged only the award for correcting defects. The appellants argued that the judge had compensated Wiles for damage which she had not suffered. The central issue was whether the judge had applied the correct measure of loss.

1. Appeal dismissed. The judge had made no error in awarding the agreed costs of the remedial works.
2. The admitted breach caused Wiles to undertake refurbishment without first obtaining structural advice and, consequently, to defer necessary structural works. The fact that the refurbishment did not worsen the pre-existing defects did not eliminate the loss caused by that delay.
3. The judge had found that the relevant structural defects existed in 2002, that competent engineering advice would have identified the need for remedial works before refurbishment, and that Wiles would have accepted that advice. Those findings established the causal link between the breach and the deferred expenditure.
4. The appropriate assessment required comparison between the cost of the necessary preliminary works in 2002 and the cost of the remedial works still required in 2012, with recovery of the excess where applicable. The agreed schedule supplied the necessary quantum evidence. The judge properly allowed or disallowed individual items according to his findings, including rejecting work that had not been proved necessary in 2002 and reducing professional fees to reflect the work allowed.
5. The appellants’ argument rested on a fallacy. The expert had been wrong about the cause of the defects but had correctly identified their nature and had provided a sound estimate of the 2012 cost of curing them. Any possible understatement of the 2002 cost had not been argued below or on appeal and could not justify a new appellate case.

• Court of Appeal (Civil Division): Appeal from the Norwich County Court dismissed. The award of damages made by His Honour Judge O’Brien on 12 November 2012 was upheld.