Vainker v Marbank Construction Ltd & Ors [2024] EWHC 667 (TCC)
It was probably inevitable that the retrospective extension of time to 30 years for bringing claims under the Defective Premises Act 1972 (the "DPA"), introduced by the Building Safety Act 2022, would lead to increased scrutiny of the DPA. Until then, with some honourable exceptions, the DPA had received relatively little attention, no doubt because, in most cases, it presented a more difficult route to ascend up the same mountain as would a claim in contract or tort. All that has now changed.
As we await the December Supreme Court hearing in URS Corp v BDW, the TCC has served up an interesting hors d'oeuvre in the shape of a 154 page decision from Mrs Justice Jefford in the case of Vainker v Marbank Construction Ltd [2024] EWHC 667.
This was a case brought by residential owners against the contractors (Marbank) and the architects (SCd). The claims against SCd in contract and tort were out of time and so the only potential route for the Claimants against them was under the DPA. In respect of that claim, the Judge dismissed allegations linked to the brickwork and structure (neither of which rendered the dwelling unfit for habitation), but found for the Claimants in relation to SCd's inspection obligations relating to the glass balustrade.
There are a lot of interesting elements in the case. Most of the commentary to date has focused on two things.
Firstly, the finding that section 6(3) of the DPA, which renders void any terms purporting to exclude or restrict liability under the DPA, applied to the net contribution clause in the contract. This feels like common sense, but is a welcome clarification, especially as so few cases have addressed section 6(3).
Secondly, and I think more interesting, was the Court's approach to damages. The Judge decided that, once liability was established, the measure of damages was the cost to put the property into the condition it would have been in had the work been carried out in a workmanlike or professional manner, not the minimum work necessary to render the property fit for habitation. As a result, whilst a failure to comply with the aesthetics of the design would not of itself suffice to establish liability under the DPA, it was relevant when it came to quantifying the loss, because carrying out the work in a professional manner would include carrying it out in compliance with the design standards and intent.
There is more to be said about that second point (especially the Judge's suggestion that the modern design of the house was relevant to considering fitness for habitation), but I wanted to focus on a related issue that has not, as far as I am aware, received much comment following the case.
Is it a strict duty?
There has, in recent years, been a growing debate about whether the liability under the DPA is strict or not. The obligation under the DPA is, as we know, "...to see that the work he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed".
It is well established that this is a single composite duty i.e. it is not enough to show that either the dwelling is unfit for habitation or that the work was unworkmanlike or unprofessional; you need both elements. Although that position has been subject to criticism (see, for example, Ramsey J in Harrison v Shepherd Homes [2011] EWHC 1811) it remains good law.
However, some have gone further. The editors of Keating have long maintained that "It is thought that all persons coming within the section are under a strict duty to fulfil its requirements, and that it would not be a defence to show that the work was done with proper care" (11th ed. at [16-003]). As far as I am aware, that proposition has never been supported by case law, but it received significant support when the Government published its 'Redress Factsheet' in 2022, which provided information about the provisions of the Building Safety Bill. It explained that:
Liability under the Defective Premises Act is 'strict'. This means that no fault or negligence has to be shown in a claim.
If a building is not fit for habitation due to defective work, then a claim can be brought – there is no space within the Act to consider whether the defendant was at fault, and there is no burden on the claimant to prove that.
It is also not a valid defence in a Defective Premises Act case for the defendant to claim to have followed established practice at the time. What needs to be shown to the court is that the dwelling was not fit for habitation as a result of the work that was done.
All the factsheets, including the one containing this comment, were withdrawn on 25 July 2022, a few months after the passing of the Building Safety Act, on the basis that the guidance "was no longer current". There was no suggestion that this particular comment was wrong, but nor, as far as I am aware, was it replicated in the guidance on the Act which replaced it.
Interestingly, however, the Law Commission's report, upon which the DPA was based, took a different view. At paragraph 31, they commented as follows:
"Professional men will be under an obligation to do the work which they take on in a professional manner, that is with all due care and skill; they will be under no obligation to "use proper materials" in the building (unless as might rarely occur they supply materials); where they specify materials, their obligation will be to select with due skill and care; and they will be under the general obligation to provide methods and materials which, if followed, used and applied by the builder or sub-contractor, will result, together with the work which the professional man himself undertakes, in the fitness of the dwelling for habitation".
It does not seem that the point was argued in Vainker and as a result the Judge does not address the question head on. However, there are clearly indications that the decision was premised on the assumption that the liability was not strict. For example, when considering the merit of the inspection claim relating to the balustrade, the Judge at [282] does so by testing the evidence against whether SCd should have observed the problem exercising reasonable skill and care. Similarly, in dismissing a related claim that SCd also failed to spot a missing gasket, the Judge, at [292], assesses the allegation against "...what SCd could reasonably have been expected to observe on reasonable inspection". Both of those comments would be out of place if the test being applied was strict. Indeed, it seems that little if any distinction was made between questions of reasonable skill and care and the requirement to act in a professional manner. The position is not entirely clear because the same section refers to obligations in contract and a duty of care.
Perhaps the nearest we get to a statement of principle on the point is where the Judge addresses quantum. In explaining why the recoverable loss should not be limited to the minimum necessary to make the dwelling fit for habitation, the Judge at [339] comments that:
"Although the duty under section 1 is construed as a duty to achieve the outcome that the dwelling is fit for habitation, there is a constituent element of the duty which is to see that the work that is undertaken is done in a professional manner. Where the defendant has failed to see that the work is done in a professional manner and the result is that the dwelling is not fit for habitation, there is nothing in the statute to limit the damages recoverable in respect of the failure to see that the work is done in a professional manner to the minimum necessary to put the dwelling into a habitable condition. The damages should more naturally reflect the failure to see that the work was done in a professional manner".
As we all know, there are a raft of claims making their way through the Courts and in the foothills of pre-action disputes where the DPA is being relied on to do a lot of the heavy-lifting due to limitation problems. It would obviously be preferable for the underlying basis of such liability to be clearly understood in the market.
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