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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Dhamija & Anor v Sunningdale Joineries Ltd & Ors [2010] EWHC 2396 (TCC) (12 October 2010) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2010/2396.html Cite as: [2010] EWHC 2396 (TCC), [2011] PNLR 9, [2010] CILL 2937 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) DINESH DHAMIJA (2) TANI DHAMIJA |
Claimants |
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- and - |
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(1) SUNNINGDALE JOINERIES LIMITED (2) LEWANDOWSKI WILLCOX LIMITED (3) MCBAINS COOPER CONSULTING LIMITED |
Defendants |
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Mr Jonathan Lewis (instructed by Quercus Law) for the Claimants
Hearing date: 10 September 2010
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Crown Copyright ©
Mr Justice Coulson:
A INTRODUCTION
B THE LAW
B.1 The Authorities
"…it was his practice, as a matter of routine, on site visits if he observed any defective work to issue a written order to the contractor in relation to it, and a copy of the order would go to the quantity surveyor so that he, the quantity surveyor, should know not to include it in his next certificate, unless the defect had by then been remedied. By this simple method, he said that the quantity surveyor would be kept informed of all defective work of which the architect had taken note. Without such a system, he said that the architect would have to get in touch with the quantity surveyor in some other way, to pass on the information."
"…with varying emphasis, that such a certificate was more of an approximation of the value of the work as it progressed, assessed by the quantity surveyor without any detailed inspection of the work, the object being simply to provide a reasonable progress payment for the contractor based upon a comparatively cursory examination of the site."
The judge also referred to the specific evidence of the defendant's expert quantity surveyor, Mr Palmer, who agreed that:
"…if the architect did not tell the quantity surveyor about defects, the quantity surveyor would not be expected to make allowance for them. He himself had not known of a quantity surveyor having advance information from the architect in the manner suggested by Mr Clark. It was simply for the quantity surveyor to see what work had been done and, if he had no evidence to the contrary, he was to assume that the work had been done properly. He also added that where the work was clearly wrong then, of course, it had to be excluded" (my emphasis).
"…that responsibility for the detection and, if necessary the exclusion from the certificate of defective work was that of the architect as opposed to the quantity surveyor, whose concern was as to quantity and not quality. Mr Simpson stated that the informal communication system with his quantity surveyors had always worked satisfactorily and, in his view, and in Mr Collick's view any attempt to make a detailed or precise valuation at interim stage would have been impracticable."
"…since everyone agreed that the quality of the work was always the responsibility of the architect and never that of the quantity surveyor and since work properly executed is the work for which a progress payment is being recommended, I think that the architect is in duty bound to notify the quantity surveyor in advance of any work which he, the architect, classifies as not properly executed, so as to give the quantity surveyor the opportunity of excluding it…
But so long as the contractual basis of the certificate is the valuation of work properly excecuted, the architect, in my judgment, should first satisfy himself as to the acceptable quality of the work, before requiring his employer by way of certificate to make payment for it, and in particular should keep the quantity surveyor continually informed of any defective or improperly executed work which he has observed."
B.2 The Textbooks
"…it is submitted that an independent assessment of the work carried out must be made by the quantity surveyor each month, in order to arrive at a proper valuation. It is clear, however, that whilst the quantity surveyor must check the quantities of work carried out, he is not obliged to investigate whether or not that work is defective. As HHJ Stabb QC made plain in Sutcliffe it is for the architect to ensure that the work that is being assessed by the quantity surveyor for the purposes of valuation has been properly carried out."
"Clearly, however, in assessing amounts to be certified, an architect and any quantity surveyor engaged for the purpose must take care to ensure the claims for payment are reasonable and justified by the work done at the time, in quality and amount respectively…Where a quantity surveyor is also engaged by the employer, the architect should keep him continually informed of any defective or improperly executed work observed so as to give him the opportunity of excluding it from interim valuation."
"So if he notices defective work while visiting for purposes of making his valuations, for example, he should bring what he has seen to the architect's attention in case the latter has missed it. Bearing in mind the high degree of skill professed by quantity surveyors in the detail of construction methods, there would seem to be no reason why they should not also be joined as defendants by an owner where, for example, the defects were so glaring that they should have been seen by him in the course of valuation inspections as well as by the architect."
The footnote to this paragraph refers to the judgment in Sutcliffe. However, as we have seen, there is no part of Judge Stabb's judgment which could be described as authority for the proposition set out in Hudson. It is closer to, but still critically different from, Judge Stabb's summary of the defendant's evidence in that case, in particular the passage in bold set out in paragraph 7 above. Judge Stabb did not say that he accepted that evidence, and his judgment (with its emphasis on the architect's responsibility for keeping the quantity surveyor informed about defects) makes clear that he did not. The passage in Hudson would therefore appear to be unsupported by authority, contrary to Sutcliffe, and contrary to the professional negligence textbooks. For these reasons, I am afraid that I consider it to be wholly unreliable.
C THE EVIDENCE
i) Valuation 1, a typed sheet, which he says is typical of the valuations which were produced during the currency of the contract. This document identifies a gross valuation for the works "excluding any work or material notified to us by the Contract Administrator in writing as not being in accordance with the Contract". Further down the valuation, at note iii, the valuation expressly states:
"It is assumed that the Contract Administrator satisfies himself that there is no work or material that is not in accordance with the Contract".
ii) In relation to valuation 14, Mr Crook exhibits a file note in which he reported to the architect a conversation that he had had with Mrs Dhamija as to various parts of the work which she did not regard as acceptable. In the note, he expressly sought the architect's advice as to what to do in respect of the valuation for these particular items of allegedly defective work. The architect responded by indicating which items required a deduction, and which did not. The beginnings of the dispute between the Dhamijas and the architect are already apparent.
iii) As the works were nearing completion, the architects attended the property and provided lists of defects or work not properly executed. These lists were then sent by the architects to the quantity surveyors, McBains, to be taken into account in the valuation of the works.
D ANALYSIS
D1 The Basic Contractual Position
D2 The Implication of a Term as to Quality of Work
D3 What Actually Happened?
D4 Other Considerations
D5 The Solution
Note 1 I cannot give this passage undue weight, given that I am the author of it. [Back]