Struthers & Anr v Davies (t/a Alastair Davies Building) & Anr

[2022] EWHC 333 (TCC)

This was a claim for the costs incurred as a result of defective work, where the evidence of experts played a key role. The Judge preferred the evidence of the expert who had the benefit of visiting the property three times before and during the remedial works. This included witnessing the  uncovering of the foundations. The other expert’s views were largely derived from viewing site photographs The first expert was also prepared to comment on and consider the other expert’s views; “surprisingly,” the other was not prepared to discuss the views of their opposite number notwithstanding that the role of an independent expert assisting the Court clearly involved that task. This meant that the evidence was, at times, “positively unhelpful and throughout it was lacking in persuasive weight.” There were also doubts on their impartiality in the way, for example, an “unheralded and unsupported allegation” was made in oral evidence. Further, the other’s calculations as to the quantum of items claimed were less than transparent and derived either from price book items or in a significant number of cases from attempts to rely on figures discussed in without prejudice meetings. By contrast, the first expert’s figures were all clearly set out and supported by objectively supportable reasoning.

An issue arose over whether or not defects in the First Defendant’s work necessitated the demolition or rebuild of the extension. Had the Claimants, in relying on the opinion of their expert, had failed to act reasonably and/or mitigate their loss. The relevant principles here come from the 1987 Great Ormond Street case (19 Con LR 25) where Judge Newey QC said:

“The plaintiff who carries out either repair or reinstatement of his property must act reasonably. He can only recover as damages the costs which the defendant ought reasonably to have foreseen that he would incur and the defendant would not have foreseen unreasonable expenditure. Reasonable costs do not however mean that the minimum amount which with hindsight it could be held would have sufficed. When the nature of the repairs are such that the plaintiff can only make them with the assistance of expert advice the defendant should have foreseen that he would take such advice and be influenced by it.”

When it came to the question of costs, what mattered was whether or not the costs were in the overwhelming number of cases reasonable for similar remedial works. Here, they were. 

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