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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smales v Lea & Anor [2011] EWCA Civ 1325 (19 October 2011) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1325.html Cite as: [2011] EWCA Civ 1325, 140 Con LR 70, [2012] PNLR 8 |
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ON APPEAL FROM BROMLEY COUNTY COURT
HIS HONOUR JUDGE DAVID RICHARDSON
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE JACKSON
and
LORD JUSTICE GROSS
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Robert Smales |
Appellant |
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- and - |
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Martin Lea Alison Kemsley |
Respondents |
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Ms Sarah Haren ( instructed by Chancellors Lea Brewer Solicitors ) appeared on behalf of the Respondents.
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Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction
Part 2. The facts
Part 3. The present proceedings
Part 4. The appeal to the Court of Appeal
Part 5. Was the contract between the claimant and Mr Bartram an entire contract?
Part 6. Was the claimant entitled to sue for his fees before his negotiations with insurers had either concluded or broken down?
Part 1. Introduction
"An action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued."
Part 2. The Facts
"Yesterday at the request of Mr and Mrs Ansbro, I made an inspection of the cracking and structural damage which has occurred to the front bay window within their maisonette number 13A. Internally there are cracks and gaps in the wall and ceiling plaster and gaps at the side of the bay window frame, etc. Externally there are cracks and gaps around the bay window together with a substantial gap between the roof of the bay window and the adjoining wall where the bay has pulled away from the wall. Significant cracking has also occurred to the bay window at ground level …
I have prepared a report of the damage to the upper maisonette for submission to the insurers since the bay window as a whole will have to be dealt with. I shall be obliged if you will notify the insurers of your ground floor flat that subsidence damage has occurred to the bay.
To help you to make an insurance claim I shall be pleased to inspect your property and prepare the necessary report of the damage for submission to the insurers. Then, subject to your agreement, negotiate the extent of your claim, nature of the repair and rebuilding works, etc, prepare a specification for submission to builders for pricing. Appointment of the builder, supervision of builders, checking of the plans etc would be undertaken on your behalf. My fees and expenses would form part of your insurance claim "
"Insurers have confirmed that they have no objection to you continuing your involvement and they have accepted that an agreed proportion of the final rendered fees should fall to the CIS for financing."
"Finally I see that you are in contact with the solicitors for the executors. I will be confirming to them what I consider to be the reasonable level of your fee as stated above and that this sum is available under the policy."
Part 3. The Present Proceedings
Part 4. The appeal to the Court of Appeal
Part 5. Was the contract between the claimant and Mr Bartram an entire contract?
"Ten days after the ship Governor Parry, myself master, arrives at Liverpool, I promise to pay to Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues and does his duty as second mate in the said ship from hence to the port of Liverpool. Kingston, July 31st, 1793."
"And as it is entire, and as the defendant's promise depends on a condition precedent to be performed by the other party, the condition must be performed before the other party is entitled to receive anything under it."
"In determining this issue the first question is whether, on the true construction of the contract, entire performance was a condition precedent to payment. It was a lump sum contract, but that does not mean that entire performance was a condition precedent to payment.
When a contract provides for a specific sum to be paid on completion of specified work, the courts lean against a construction of the contract which would deprive the contractor of any payment at all simply because there are some defects or omissions. The promise to complete the work is, therefore, construed as a term of the contract, but not as a condition.
… It is, of course always open to the parties by express words to make entire performance a condition precedent "
Part 6. Was the claimant entitled to sue for his fees before his negotiations with insurers had either concluded or broken down?
"My fees and expenses will form part of your insurance claim."
Lord Justice Gross :
Lord Neuberger:
Order: Appeal dismissed