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The Technology & Construction Court in London
A homeowner has finally won her long-running legal battle against her Polish builders and her structural engineer.
Perdita Martell sought damages for works carried out to her west London property in 2014. The co-defendants were Grzegorz Roszkowski and Slawomir Walczak (who trade together as GS Building Services) and Martin Gustyn & Associates Ltd.
Ms Martell appointed GS Building Services (GSB) to refurbish and extend the ground floor and convert and extend her basement to form living accommodation. This necessitated underpinning and excavation.
Martin Gustyn & Associates (MGA), who had recommended GSB to Ms Martell, was appointed as structural engineer. However, MGA was retained without engagement terms, meaning that the scope was unclear.
MGA and GSB denied liability. GSB counterclaimed for loss of profit due to Ms Martell’s alleged repudiation.
MGA kept Ms Martell updated as to progress. It transpired the basement suffered from water ingress due to the type of concrete used out of kilter with the specification, not reaching the required compressive strength. Ms Martell claimed GSB’s divergence from the specification and MGA’s inadequate monitoring caused her to suffer nearly £400k worth of loss, including financing costs for the remedial works.
The Technology & Construction Court considered whether GSB breached the Building Contract by using site mixed concrete instead of the specified ready mixed concrete (unless agreed otherwise with MGA along with a testing regime), adequacy of the waterproofing system and whether Ms Martell had the right to terminate.
The Court held on the facts it was GSB who abandoned site. That was because GSB didn’t attain MGA’s written approval to switch the type of concrete installed, causing Ms Martell loss. The waterproofing design was also held to be inadequate, and Ms Martell had the right to halt GSB’s works so she was able to investigate the cause of the water ingress. MGA were held in breach of their duty to advise Miss Martell that its designs were not complete and that she should have sought assistance from a suitably competent person to design the waterproofing system before work began.
Ms Martell was awarded damages including additional party wall services, the cost of the remedial works and acoustic insulation as well as her financing costs, in circumstances in which borrowing at normal domestic mortgage rates from a mainstream lender was not open to Ms Martell.
This case demonstrates, above all, the significance of setting out one’s scope by way of a contract. This may seem an obvious point from the outset but here there was no contractual evidence for MGA to rebut Ms Martell’s case that MGA’s role was akin to that of a project manager, or at least that MGA was responsible for monitoring work on site to ensure compliance with the drawings and specifications and advising her of any issues as they arose.
MGA’s attempt to limit its scope to addressing specific queries as Ms Martell requested may have made more sense bearing in mind the absence of any formal contract (MGA considering a contract only to be necessary for more extensive scope of works) but it was the absence that ultimately stung the engineer.
Further, the case demonstrates that a contractor’s duty will be assessed by the specification it signs up to deliver. While the mixing of the concrete became the focal point, it was interesting to see GSB’s lack of knowledge about the content of a ground condition report did not save them, with the Court deciding GSB knew of its existence and therefore ought to have requested it. GSB’s design and construction of the waterproofing system could therefore held to be not carried out with reasonable skill and care.
Finally, particularly for the lawyers among us, an unusual quirk was that one of the key documents in the bundle remained in Polish and had not been translated. During trial, a Google translation of it was made available instead of striking out the evidence, conveying the more pragmatic approach the Courts continue to adopt.
About the authors: Alex Delin is a partner and Alison Lockwood is a legal assistant in the Construction & Engineering Department of Irwin Mitchell
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