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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Lea Valley Developments Ltd v Derbyshire  EWHC 1353 (TCC) (16 June 2017)
Cite as:  4 WLR 120,  EWHC 1353 (TCC),  WLR(D) 414,  2 P &CR DG21
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| LEA VALLEY DEVELOPMENTS LIMITED
|- and -
|THOMAS WILLIAM DERBYSHIRE
Mr Justin Mort QC (instructed by Child & Child) for the Defendant
Hearing date: 22nd May 2017
Crown Copyright ©
Mr A Williamson QC:
"Make good all structural or decorative damage to the Adjoining Owners property occasioned by the works… If so required by the Adjoining Owner, make payment in lieu of carrying out the works to make the damage good, such sums to be determined by the Agreed Surveyor".
i) The effect of paragraph 4 (D) of the Award;
ii) The position apart from that paragraph.
Paragraph 4 (D) of the Award;
i) This paragraph effectively determines the central issue in the defendant's favour;
ii) The Award was intra vires;
iii) The claimant has approbated the Award by proceeding with the works and cannot now reprobate the Award.
i) Section 2 makes express provision for making good damage occasioned by the work;
ii) There is no such provision in section 6;
iii) Section 10(10) of the Act provides that the surveyor "shall settle by award any matter (a) which is connected with any work to which this Act relates, and (b) which is in dispute between the building owner and the adjoining owner" (my emphasis). But the parties were not, when the Award was made, 'in dispute' about a right of making good, a matter not contemplated by section 6 at all;
iv) Section 10(12) provides that "An award may determine (a) the right to execute any work;(b) the time and manner of executing any work; and (c) any other matter arising out of or incidental to the dispute including the costs of making the award". However, an obligation to make good neither arises out of, nor is incidental to, a dispute under section 6.
"a further consequence of the fact that irregularities make an award voidable and not void are that a party who affirms an award whether expressly or by conduct, after it has been published, cannot later seek to avoid it on the grounds of irregularity".
"In the light of these authorities it seems that the phrase "you may not approbate or reprobate," or the Latin "quod approbo non reprobo," as used in England is no more than a picturesque synonym for the ancient equitable doctrine of election, originally derived from the civil law…I will not attempt to summarize all the rules which are applicable to election in equity; but it is desirable for my present purpose to state some general propositions which are not I believe in doubt. In the first place, the doctrine…seems to have been confined in England as in Scotland to cases arising under wills, and deeds and other instruments inter vivos. In the second place the doctrine is founded on the intention, explicit or presumed, of the testator in the case of a will and of the author or donor in the case of instruments, namely, the intention that a man shall not claim under the will or instrument and also claim adversely to it…In the third place the doctrine proceeds upon the principle not of forfeiture but of compensation. The beneficiary electing against an instrument is required to do no more than to compensate the disappointed beneficiaries. The balance of the property coming to him under the instrument he may keep for himself. In the fourth place no person is taken to have made an election until he has had an opportunity of ascertaining his rights, and is aware of their nature and extent. Election in other words, being an equitable doctrine, is a question of intention based on knowledge.
My Lords, I am quite unable to see how this doctrine can be made to apply to the rights of a litigant to appeal either from a judgment or from an award of a county court judge made under the Workmen's Compensation Act, 1925".
The compensation position apart from paragraph 4 (D) of the Award
"The building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act".
"These two basic principles are, first, that whenever damages are to be awarded against a tortfeasor or against a man who has broken a contract, then those damages shall be such as will, so far as money can, put the plaintiff in the same position as he would have been had the tort or breach of contract not occurred. But secondly, the damages to be awarded are to be reasonable, reasonable that is as between the plaintiff on the one hand and the defendant on the other".
" The proper measure of compensation should be calculated in accordance with section 7(2) of the Party Wall etc. Act 1996, taking into account:
(a) all the relevant circumstances;
(b) the need, so far as money can, to put the defendant in the same position as it would have been had the damage to its property not occurred;
(c) the requirement that the compensation to be awarded should be reasonable, as between the parties;
(d) the principle that where remedial expenditure is out of all proportion to the benefit to be obtained, the appropriate measure of damages is not the cost of reinstatement but the diminution in the value of the work occasioned by the breach;
(e) the factors, so far as relevant, set out in McGregor on Damages (19th Ed.) at paragraphs 37-003 to 37-013."
(1) The essential contention which the claimant sought to advance in these proceedings was that the appropriate measure of damages was not the cost of reinstatement but the relevant diminution in value. However, it is quite clear that one cannot reach any such conclusion;
(2) The issue of damages is, by its nature, fact sensitive. Not all the facts are yet available and the court has no agreed set of facts upon the basis of which to proceed in what are, after all, Part 8 proceedings;
(3) Seeking to enumerate all the relevant factors in the abstract is likely to be unhelpful and confusing. The cases show that a wide range of factors may be relevant and that these may lead to different conclusions depending upon the facts.