Holding & Management (Solitaire) Ltd v Ideal Homes North West Ltd. & Ors, Court of Appeal - Technology and Construction Court, September 30, 2004, [2004] EWHC 2408 (TCC)

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Holding & Management (Solitaire) Ltd v Ideal Homes North West Ltd. & Ors, Court of Appeal - Technology and Construction Court, September 30, 2004, [2004] EWHC 2408 (TCC)

Case No: HT 03 278

Neutral Citation Number: [2004] EWHC 2408 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30 September 2004

Before :

HIS HONOUR JUDGE PETER COULSON Q.C.

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Between :

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Mr Darryl Royce (instructed by Graham Harvey) for the Claimant

Mr Andrew Nicol (instructed by Masons) for the Second, Fourth and Sixth Defendants

Hearing dates: 26th, 27th, 28th and 29th July 2004

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Judgment

His Honour Judge Peter Coulson Q.C:

INTRODUCTION

1. Pursuant to an action commenced on 11th August 2003, Holding & Management (Solitaire) Ltd., (hereafter referred to as ``HM''), who are the freehold owners of properties at Finland Street and Norway Gate in London, S.E.16 (``the properties'') claim damages against the Second, Fourth and Sixth Defendants arising out of problems with the rendering on the external elevations. It is agreed by the parties that the spalling of and damage to the rendering was caused by the use of Fletton bricks within the external walls themselves: Fletton bricks contain an abundance of soluble sulphates which, in the present case, disrupted the brickwork and caused the rendering to fail. Subject to arguments about liability causation and loss, the parties have helpfully agreed quantum in the figure of £881,892, this figure being derived from a number of competing figures said to represent the estimated cost of carrying out the necessary remedial works.

2. The claim against the Fifth Defendants has been compromised. Each of the three remaining Defendants in the action deny liability. They are the Second Defendants, Ideal Homes North West Ltd (``Ideal North West''), the original contractors who built the properties; the Fourth Defendants, Ideal Homes Southern Ltd. (``Ideal Southern''), who commissioned and carried out a remedial scheme in 1995-1996 which ultimately proved unsuccessful; and the Sixth Defendants, Persimmon Homes (South East) Ltd., (``Persimmon SE''), who became involved in the ongoing problems in 2002.

3. During the Trial, I produced a list of the Issues which appeared to arise between the parties. Counsel considered and agreed those Issues and have produced helpful Closing Submissions which are based upon them. Before I come, in my turn, to address those Issues in this Judgment, I should set out some of the factual background to the dispute and identify in detail the contractual regime relating to the construction of these properties.

BACKGROUND

4. The Original Contract

The properties were built between 1989 and 1991 by Ideal North West, pursuant to a Contract with the London Docklands Development Corporation (``LDDC''), the then freehold owners of the site. Accordingly, Ideal North West's primary contractual obligations arose under that Contract and were owed to LDDC. Unfortunately, no copy of that Contract has been found, and it is impossible to say what Ideal North West's contractual obligations were, either generally, or more particularly, regarding the use of Fletton bricks in external rendered walls. Therefore it is at least possible that, pursuant to their Contract with LDDC, Ideal North West were obliged to use those Fletton bricks in the rendered walls.

5. The NHBC Agreements

No copies of these Agreements were produced in Court. However the parties apparently agree See the court's letter to the parties' solicitors of 20.9.04 and the replies dated 22.9.04. that those who purchased leasehold interests in the individual properties (``the Lessees'') entered into agreements (presumably with Ideal North West) pursuant to which, in the...

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