Homeowners’ claim against building contractor succeeds – represented by Wards Solicitors

Wards Solicitors' James Murray represented homeowners, Mr and Mrs Hurden, in the recently published case of Melhuish & Saunders Ltd v Hurden and another [2012] EWHC 3119 (TCC). This long and complicated case presented a number of interesting points for consideration that should be borne in mind for people involved in or contemplating a claim against a building contractor.

HHJ Havelock-Allan QC considered a contractor's claim for outstanding fees and the home owners' substantial counterclaim for remedial works. The judgment looks at a number of factors, including the appropriate remedial scheme, the home owners' alleged failure to mitigate their loss, whether a claim should be made under a NHBC policy and the recovery of damages for distress and inconvenience.

Although the judgment did not actually change the law through setting a new precedent, it did provide a clear reminder of some of the key areas a court will consider, when reviewing a building dispute at this level. For example, the court decided:

• Not to accept the remedial scheme advanced by the homeowners, but to proceed with the builder's more modest approach. In reaching this conclusion, the court awarded damages to reflect the cost of the cure. It rejected the builder's argument that it should apply the loss of amenity principles in Ruxley Electronics and Construction Ltd v Forsyth [1995] UKHL 8.
• It was inappropriate to allow the builder to return to site to carry out the remedial works, as the homeowners had no confidence in its ability, given the number of defects already present in their home. The court acknowledged this was a factor in the cost of the remedial scheme it ordered.
• The homeowners had not failed to mitigate their loss by not claiming on the NHBC Buildmark policy, which the builder had provided for their home. The NHBC had advised the homeowners that the matter would not be considered further until the court proceedings had ended.
• The homeowners were entitled to recover damages for distress and inconvenience. Each party's damages were assessed separately, to reflect the illness caused to Mr Hurden.

For more information on construction disputes you can talk to James Murray.