Cometson & Anor v Merthyr Tydfil County Borough Council

A party who undertakes to arrange building works is not necessarily liable as a main contractor for every defect in the contractor’s work. The contractual obligation may instead be to arrange the works with reasonable skill and care and within a reasonable time.

The standard of reasonable repair is fact-sensitive. It takes account of the age, character and locality of the property and does not require perfect or pristine condition. A defect does not, by itself, establish breach of an obligation to arrange works. The appropriate remedy may be limited remedial work rather than wholesale reconstruction. Where reasonable remedial access is refused, consequential loss attributable to the outstanding work may fail for lack of mitigation.

The claimants, freehold owners of a property comprising shops, a flat and basement accommodation, claimed damages from the defendant local authority for alleged breaches of a contract concerning a group repair scheme. The authority had arranged for a builder to carry out works to the property. Following an earlier preliminary-issue judgment, the contractual obligation was characterised as an obligation to arrange the works with reasonable skill and care and within a reasonable time.

At trial, the claimants alleged numerous defects and claimed the cost of extensive remedial works and consequential loss of rent. The authority counterclaimed its contribution under the agreement and sought an indemnity from the builder. The issues included the scope of the authority’s contractual duty, the meaning of reasonable repair, the appropriate remedial works, mitigation, and the builder’s liability to the authority.

1. Nature of the authority’s obligation. The authority was not acting as the claimants’ agent and had not assumed the obligations of a main contractor. Its contractual obligation was to arrange implementation of the group repair scheme, including entering into an appropriate building contract and organising the works, with reasonable skill and care and within a reasonable time. It did not guarantee that its arrangements would reveal or prevent every defect.
2. Reasonable repair. The phrase was to be assessed by reference to the age, character and locality of the property. It did not require the property to be perfect or pristine. The statutory context of the Housing Grants, Construction and Regeneration Act 1996 was relevant to construction of the contractual phrase, although the Act did not apply directly to these works.
3. Defects. Most allegations were rejected. The authority was responsible for arranging limited remedial works, including replacement of defective floor shims and noggins, local external-render repairs, secure fixing of the shop front, replacement of the timber render stop and door packing, window restrictors and adjustments, and repair of the damaged rear door. Wholesale replacement of the basement tanking, basement render, ground floor or external render was not required.
4. The offer to carry out certain window and render-head works was reasonable. The claimants’ refusal to provide access meant that loss associated with those works resulted from their failure to mitigate, rather than from breach by the authority. The claim for loss of rent was otherwise unsupported by causation evidence and failed.
5. The authority was entitled to its contractual contribution, subject to set-off against the claimants’ damages. The builder was liable to indemnify the authority for the relevant defects, except for the galvanised render beads, for which a deduction had already been made. The builder’s liability for the remaining snagging items was to be assessed by reference to its own cost of returning to remedy them, applying Pearce & High Ltd v Baxter (1999) 66 ConLR 110.

First-instance judgment. The judgment itself records an earlier preliminary-issue judgment in the same litigation, [2012] EWHC 3446 (Ch), which characterised the authority’s contractual obligations.