Fattahi v Charles Grosvenor Ltd

A homeowner who owes a neighbour a non-delegable duty remains liable for breach even where building works are entrusted to a contractor. That does not prevent the homeowner from pursuing the contractor for an indemnity or contribution, subject to the contract between them. A contractual indemnity may exclude losses caused by the homeowner’s failure to comply with the statutory party-wall procedure, while leaving claims for independent negligent workmanship available. An appellant cannot advance a new causation case for the first time on appeal where the trial judge’s conclusion was open on the evidence. The appeal was dismissed.

The defendant appealed from a judgment of the County Court at Oxford concerning damage and nuisance arising from the construction of a second-floor extension to adjoining houses. The claimant succeeded in substantial parts of her claim. The defendant’s Part 20 claim against the contractor for an indemnity or contribution failed because he had not served the notice required by the Party Wall etc Act 1996 and had contractually accepted responsibility for the relevant consequences.

On appeal, the issues included whether the defendant could avoid liability because the contractor performed the works, whether clause 7 of the contract provided an indemnity, and whether the trial judge had adequately addressed causation.

1. Non-delegable duty. A party owing a non-delegable duty cannot escape liability to the person owed the duty by purporting to delegate it to another. The works may nevertheless be entrusted to a contractor. Depending on the contract, the party owing the duty may pursue the contractor for an indemnity or contribution.
2. Effect of the contractual allocation. The trial judge’s reference to the defendant’s non-delegable duty was erroneous to the extent that it treated that duty as determinative of the Part 20 claim. The decisive point was that clause 7 made obtaining the relevant party-wall notice and consent the defendant’s responsibility. Losses attributable to his failure to comply with the statutory procedure were therefore not recoverable from the contractor under the contractual arrangement.
3. Causation. Clause 7 would not necessarily protect the contractor against damage caused by negligent workmanship which would probably have generated a claim regardless of compliance with the statutory procedure. The defendant, however, had not presented that causation case at trial. The judge’s conclusion that compliance with the statutory procedure would probably have enabled the parties to reach a reasonable accommodation, avoiding the claim, was consistent with the evidence and had to stand.
4. Adequacy of reasons and new arguments. If a party considers a judgment inadequately reasoned, the proper course is to seek further reasons in accordance with the guidance in [2002] 1 W.L.R. 2409. An appellant cannot complain that a different case might have succeeded where that case was not advanced below.
5. The appeal was dismissed.

1. County Court at Oxford: The claimant succeeded in substantial parts of her trespass and nuisance claim. The defendant’s Part 20 claim for an indemnity or contribution from the contractor failed.
2. High Court (Queen’s Bench Division): The appeal was dismissed. The trial judge’s conclusion on causation was upheld, although the reasoning concerning the relevance of the non-delegable duty to the Part 20 claim was corrected.