Case No: HT 00 465
 
IN THE HIGH COURT OF JUSTICE

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11th March 2002

B e f o r e :

HIS HONOUR JUDGE RICHARD HAVERY Q.C.
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	(1) DONALD LEE HOLDER
(2) SONIA HOLDER		
Claimants	
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	COUNTRYWIDE SURVEYORS LIMITED	Defendant	

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Mrs. Sonia Holder in person
Neil Moody (instructed by Kennedys for the Defendant)

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JUDGMENT

Judgment

1.		This is a claim on the part of the purchasers of a house for damages for negligence in the preparation of a structural survey of the house. The survey was commissioned of the defendant by the purchasers and carried out on behalf of the defendant by Mr. Brian Sentance ARICS. In reliance on the survey, the purchasers bought the house. Mr. Sentance has since died. The first claimant, Mr. Holder, spends much of his time in the United States of America and has not played an active part in these proceedings. At the hearing, the second claimant, Mrs. Holder, conducted her case in person, ably assisted, with my permission, by her brother, Mr. Peter Simic.

2.		In 1993 Mr. and Mrs. Holder were looking for a home in Surrey. They identified Bilberry Woods, Moorlands Close, Hindhead. They applied to the Bank of Scotland for a mortgage loan. The Bank of Scotland instructed the defendant to undertake a valuation of the property for mortgage purposes. The claimants instructed the defendant to undertake a structural survey at the same time. The valuation and survey were carried out on 3rd September 1993.		 

3.		Bilberry Woods is a house of unusual design. It was built probably about 1900 as two coach-houses. It was converted into two dwellings in the late 1970s. In about 1983 it was converted into one building for use by a company as its headquarters and as living accommodation for one of its directors. The house is on two floors. It faces south. It consists of what I shall call a west wing and an east wing, each lying on a north-south axis, joined by a central part, which has been called the link, lying on an east-west axis. The west wing projects southward of the central part. The east wing has an extension at ground floor level which projects northward of the central part. The entrance to the house is at the south side of the central part. A striking feature of the house is a small clock-tower on the centre of the roof of the west wing. The roof over the west wing has been called the left-hand roof; the roof over the east wing has been called the right-hand roof. In this judgment, I shall adopt that terminology.

4.		There were a number of structural defects in the left-hand roof. The principal defect was that it was not built in accordance with its design in that a flitch beam was not properly supported at one end. It rested on a non-load-bearing partition between the bathroom and the second bedroom. None of the defects in the left-hand roof were mentioned in the report. In his report, Mr. Sentance had said:

…..we carried out as detailed an inspection as possible of all those accessible parts of the building that could be seen from within the accessible roof space areas. Full inspection of roof spaces was not possible due to limited access.

The defendants admitted that if access to the left-hand roof had been available to Mr. Sentance, he should have noted in his report the non-standard nature of the construction of that roof and should have recommended that an inspection by a structural engineer be carried out. The defendants did not accept, however, that there was evidence of structural distress to the building.

5.		It is also alleged that there were structural defects in the right-hand roof. The rafters are said to be undersized and over-stressed: their cross-sectional dimensions are 125mm. by 50 mm.; it is said that they should be 200mm. by 50 mm.

6.		There was evidence of overstress to a beam supporting the central roof. The point was not pleaded and was raised for the first time in evidence at the hearing.

7.		The principal issues that I have to decide are these. First, whether the roof spaces  were reasonably accessible. In his final speech, Mr. Moody conceded, rightly, that the left-hand roof space had been reasonably accessible to Mr. Sentance. Second, if the right-hand roof space had been reasonably accessible, whether the report should have mentioned any structural defects in that roof. Third, whether any structural defects in the roofs were of such consequence that it was necessary to rectify them. Fourth, if so, what remedial scheme was appropriate. Fifth, what is the appropriate quantum of damages. There is a dispute about the major element of damages. Mrs. Holder submitted that the measure of damages is the current cost of repairs. Mr. Moody submitted that it is the difference, if any, between the value of the house as described in the report and the value that it would have had if it had been described without negligence. I shall call that difference the diminution in value. For reasons given below, I accept Mr. Moody’s submission. It is common ground that the value of the house as described in the report was £215,000. That was the figure at which Mr. Sentance had valued it for the Bank of Scotland as on completion of repairs estimated by him to cost £1000. The third issue was raised by the defendants. I shall consider it; but the real question is whether the structural defects in the roof affected the value of the house. Structural defects may render a house less attractive to some purchasers, and affect the value of the house, even if it be not strictly necessary to repair them. There are a number of other issues which I shall mention later in this judgment.		 

8.		The access to the whole roof space was through a hatch into the central roof space. The construction of the house afforded no extraordinary difficulty in gaining access to the left-hand roof space in that way. However, the presence of a water tank and pipes near the hatch constituted a serious impediment to access to the right-hand roof. Nevertheless, two of the expert witnesses in this case managed to crawl past the tank and into the right-hand roof, as did Mr. Simic, carrying camera and lamp. None of those gentlemen were of below average size. I accept that Mr. Sentance may reasonably have found himself unable to gain access to the right-hand roof space. In his notes, Mr. Sentance had noted poor access under the main heading “roof space”. Mr. Peter Arnell, FRICS, who gave expert evidence as a building surveyor on behalf of the defendant, speculated that at the material time personal effects in the roof might well have limited access to both sides. I am satisfied that if Mr. Sentance could not climb in to the roof space using the ladder already on the premises, he could have done so using a three-metre ladder, which is normal equipment for a surveyor undertaking a survey of the kind that he undertook. I am satisfied that a structural engineer could easily have been found who could have gained access to both the left-hand and the right-hand roof at the time that the survey was carried out. I am satisfied that Mr. Sentance could and should himself have gained access to the left-hand roof space. Mr. Sentance, if he considered himself unable to gain access to the right-hand roof space, ought to have advised that a structural engineer, or at any rate another surveyor, be instructed to inspect that roof space. That is so particularly since he said in his report that he found the property to be substantially free from major defects and that he could see no reason from a structural point of view why Mr. and Mrs. Holder should not proceed with the purchase of the house.

9.		The left-hand roof was seriously defective. It contained two flitch beams running south to north. Those flitch beams were designed to be identical. In particular, each was designed to have a steel member consisting of two steel plates of unequal length bolted together at their ends. In fact, the builders converting the building in about 1983 had used the two shorter plates to make the eastern flitch beam and the two longer plates to make the western flitch beam. Thus the eastern flitch beam was too short. It had no proper support at its northern end. That was the major defect. Mr. Dennis Townend C.Eng., M.I.Struct.E, a structural engineer called to give expert evidence on behalf of the claimants, said graphically:

The building will not fall down until it has exhausted all possible ways of standing up. It will spread the load all over the place.

The other principal defect in the left-hand roof is that a number of the rafters were notched. I am satisfied that they are thereby overstressed. Evidence of that overstress is the cracking of one rafter, which appeared in a video shown to the court by Mr. Simic. No-one else had noticed the crack. It is some 500 mm. long and varies in width up to about 7 mm. Mr. C. R. Paxton I.Eng., A.M.I.Struct.E, a structural engineer who gave expert evidence for the defendant, attributed the crack in part to a knot in the rafter.

10.		Mr. Paxton’s view was that there was no continuing movement of the building arising out of any structural defects and that in consequence no structural alterations or repairs were necessary. He nevertheless proposed a scheme of repair to remedy the lack of proper support for the flitch beam, in case that were thought necessary. In essence, his plan was to insert two massive beams across the west wing to support the eastern flitch beam. He also recommended strengthening of the flitch beam by inserting a new mild steel plate and a new timber. Three of the four ends of the two cross-beams were to be supported on stanchions to be installed in the outside walls of the wing and supported by padstones. The fourth end was to rest on a mass concrete padstone to be set in an internal wall. His scheme required the use of temporary scaffolding to support the beams while they were rolled, on rollers, horizontally lengthwise into position. The rolling would be done by manhandling, with the assistance of a crane. The scaffolding would have to be situated both outside the house and inside the house, in the latter case possibly on both floors of the wing. Acro-props would be used, resting on the first floor, to support the roof while the operation was carried out. If necessary, those acro-props would be supported by acro-props resting on the ground floor. Mr. Paxton’s scheme did not involve replacing the rafters.

11.		The cross-beams envisaged in Mr. Paxton’s scheme would intrude below the existing ceiling of the first floor bedroom in the west wing by up to five inches. Mrs. Holder objected to that both on aesthetic grounds and also on the ground that it would be obvious to a purchaser that repairs had been carried out. Mr. Simic said that the ceiling could not be lowered by that amount in order to hide the beams, having regard to the height of the windows and the way that they opened. The beams could, of course, be boxed in. We are not here considering Mrs. Holder’s personal preference, but the value of the house. Valuation in this case is not a precise science, and in my judgment boxed-in beams would have a negligible effect on the value.

12.		Mr. Townend considered that Mr. Paxton’s scheme, though technically feasible, was impractical. It could be done with great difficulty. Mr. Roy Ilott FRICS, who gave expert evidence as a building surveyor on behalf of the claimants, considered that Mr. Paxton had taken a very optimistic view of the work necessary on opening up. He thought it was a difficult operation to take the weight off the flitch beam while it was strengthened. He thought that insufficient attention had been given to the positions of the timbers and to the question whether the padstones would take the necessary load. He thought that it would be difficult to find contractors interested in tendering for such a problematic job.

13.		Mr. Paxton was confident that his scheme was practicable. He relied on his long experience as a structural engineer. As to the cost, his figures were based on his own costings of work of a similar nature, based on his experience of contractors’ tenders. Moreover, he now had his own building company. That company, Reed Construction, had been trading for three years and was a member of the Federation of Master Builders. He gave an example of works at a school carried out successfully by that company without disturbance to the work of the school. The works involved craning pre-cast concrete units weighing 4½ tons in order to add two new classrooms to the school. Access was particularly difficult. The first pre-cast unit had had to go tightly against an existing wall. Mr. Paxton had attempted to obtain tenders for his proposed works to the west wing of Mrs. Holder’s house from contractors, but had had to impose tight time constraints on the tendering process. It was for that reason, he believed, plus the fact that the offices of one of the contractors had been burnt down during the material period, that he received no tenders.

14.		I cannot say that if Mr. Paxton’s firm were to do the work, or if Mr. Paxton were to be engineer in charge of the work, it would not be feasible. But in my judgment there would be a serious risk that it would turn out to cost substantially more than the figure he estimated, which he said was in the region of £30,000 plus VAT and professional fees. He accepted in cross-examination that there would be a need to complete repairs to the roof, and it was probably by an oversight on his part that such work was not included in his scheme.

15.		In my judgment, a scheme like Mr. Paxton’s would be unlikely to be recommended by most structural engineers. Nor do I think it would be attractive to many potential purchasers of the property. Moreover, it does not address the overstress to the rafters. In my judgment, it is not a satisfactory method of repairing the roof.		

16.		There are numerous cracks in the building. BRE Digest 251 of August 1990 was in evidence. That document is entitled “Assessment of damage in low-rise buildings with particular reference to progressive foundation movement”. In Table 1 at p. 5 it divides damage into five categories. In category 2 it describes typical damage in these terms: cracks not necessarily visible externally; doors and windows may stick slightly. It gives the approximate crack width as up to 5 mm. A footnote states that crack width is one factor in assessing category of damage and should not be used on its own as direct measure of it. Nevertheless, in this case the categories have been applied to the cracks, to denote cracks up to 5 mm. wide as category 2 cracks. That, in my judgment, is a somewhat misleading usage. For example, category 3, which relates to more serious damage than category 2, is stated in the table as being capable of being associated with a number of cracks, each up to 3 mm. wide. Both parties’ experts were of the view that the cracking in this case was nothing to do with the ground. Other possible causes mentioned in the digest were material shrinkage and creep; corrosion or decay; differential thermal movements in dissimilar materials; poor detail design or workmanship. It was stated in the text that category 2 damage could result from a variety of causes which were frequently very difficult to identify. For domestic dwellings, category 2 damage did not normally justify remedial work other than the restoration of the appearance of the building.

17.		Mr. Paxton expressed the view that the cracking in the walls of the house was due to differential dimensional changes arising out of the differential effects on different materials of loading, changes in temperature and humidity, and chemical changes. He said that any structure was subject to dimensional changes on that account. I am satisfied that the cracking in the claimants’ house is far more widespread than is generally the case. Mr. Paxton distinguished Bilberry Woods from the generality of houses. The following is my note of evidence that he gave on the point:

This house is different from others because there were two very old structures originally, subject to alteration, refurbishment and reconstruction. Then add heat into a property that has not had heat in it. It is almost inevitable that you are going to get some cracking. Because of their extent and nature, the works completed in 1983 have given rise to the significant number of hairline cracks or cracks in category 2 that are visible, none of which in my view are related to ongoing structural movement. The cracks could be related to past structural movement in the initial six months following completion of the works as the house bedded down.

18.		Mr. Paxton accepted that he was only surmising that the old coach house had not had the benefit of any heating. When, in the course of cross-examination, Mr. Simic pointed out to him that there were chimneys in the building which evidently dated from the time when it was built, about 1900, Mr. Paxton accepted that there had been some form of heating since 1900, but not central heating, which had been added in 1983. The heating was most likely to have been hot coal or wood fires. He maintained that the incidence of central heating did increase the incidence of movement due to thermal changes. He accepted, however, that differential movement was also more likely from localized heating from fires than from central heating.

19.		Mr. Ilott considered that there was evidence that there was continuing movement in the building. He first visited the property in 1998. He said he had been back and seen further and additional cracking in the ceilings and various areas. He could not open one of the doors. Some of the UPVC windows were misting.

20.		Mrs. Holder said that new cracks had appeared near the old ones; also there were “an awful lot” of hairline cracks, giving rise to a crumbling effect. From the beginning she had had difficulty opening a door into a cupboard in the sitting room. She could no longer open it at all. Mr. Ilott said that he assumed that the doors would not have stuck when the building was occupied as prestigious premises by a company. I do not think that that assumption is correct. Mrs. Holder wrote in her witness statement that the cupboard was warped and “could not be opened or closed”. From the context, it is clear that she was referring to a period shortly after she moved into the house. Mr. Arnell found the right-hand door to the cupboard stiff to open. He was unable to explain that, but he could see no deflection of the structure above. Mr. Arnell accepted that he had been unable to get out of the utility room upstairs, in the link, because the door had jammed.

21.		It is undisputed, and there is clear evidence from the photographs, that existing cracks were previously filled. Mr. Townend regarded that as evidence that there had been plenty of continuing movement. He could not say whether it had occurred within the last year. He thought that the cracks in the east wing would continue to open, having regard to the state of the roof there. Mr. Arnell, whilst agreeing that cracks had in the past been repaired by filling, thought that the filler had shrunk and dropped out.
 
22.		A hardwood door frame in the doorway leading from the downstairs hall to the ante-room was cracked. Mr. Arnell and Mr. Paxton attributed that to poor quality timber. It must have had too high a moisture content when installed. Neither thought that the damage was the result of pressure from above, particularly since there was a gap above the frame. Mr. Arnell said that that was not consistent with pressure from above. Mr. Ilott said that it was consistent with downward pressure, but only by cantilever action. He did not indicate what might have acted as a cantilever. The gap by itself did not lead him to think that there was downward pressure. He considered that thermal movement was insufficient to account for the cracks in the door frame.

23.		I am satisfied that the damage to the house by way of tightness of doors was caused, and the damage to the house by way of cracking of plaster was caused in part, by structural movement arising from the structural defects in the construction of the roofs. I find the evidence that it was caused solely by thermal and other non-structural movement implausible. I am satisfied that the tightness of the doors to the cupboard in the drawing room is caused by lack of proper support for the eastern flitch-beam. The cause of the cracking of the hardwood door frame is uncertain, and it is not necessary to decide the cause. On the one hand, the house was described in the agent’s particulars as a well-appointed house, as it appears to be from the photographs. It is apparent that although the previous owner must have skimped the work to the roofs, it was concerned with appearances, and the hardwood doors appear to be of good quality. On the other hand, the gap above the door suggests the absence of downward pressure at that location. On the whole, it seems to me that that damage was caused by structural movement, given the widespread nature of such movement in the house. But I make no finding on that specific point.

24.		The relevance of the above considerations is to the question whether the works proposed by Mr. Townend or Mr. Paxton are necessary. However, the primary question is whether the structural defects affect the value of the house. I am not satisfied that there is continuing movement of the house. The works proposed may not strictly be necessary, but I am satisfied that almost anyone intending to live in the house would require works such as those proposed by Mr. Townend for the left-hand roof to be carried out. The full cost of that portion of the works must be reflected in an assessment of the diminution in value.
		
25.		As to the right-hand roof, Mr. Ilott said this in his supplementary report dated 16th July 2001, with reference to the east wing:

There were cracks visible at the junction of the central partition, which is parallel to the front and rear gable walls which contain windows, to the ceiling constructed to follow the roof slope and the walls. Cracks also exist of between 5-10 mm at the two gable wall junctions to the sloping ceiling and walls. The front and rear windows are not vertical because of the bowing of the gable walls and this is clearly visible because of the old roller blinds which do not hang parallel with the face of the wall, as would be the case if the walls were vertical. The size of the cracks, which are considered to have existed when the house was surveyed in 1993, are too great to be defined as shrinkage cracks.

Thus I did not inspect the roof void over the third bedroom because there was sufficient evidence visible within this room to indicate that the roofs and walls had, since I assume the room was decorated at the time of the alterations, parted company and the structural integrity of the junctions was destroyed. The bedroom is constructed partly within the roof profile and thus only by lifting floorboards and removing plaster from the walls and ceilings could the reason for the movement be categorically identified. I thus instructed Mr. Townend to include remedial works, based on a design analysis, to prevent what I assumed to be lateral movement of the outer rafter feet and a resultant loss of restraint to the gable walls, which with some downward pressure, had caused them to lean.

I consider that the defects and cracks which exist were there at the time Mr. Sentance carried out his inspection, and were of such a magnitude that Mr. Sentance should have recommended a further inspection or investigation.

In cross-examination, Mr. Ilott said that there had been movement of the walls under the right-hand roof since the cracks had last been filled and the room decorated. It was not clear whether such movement was continuing at present: he had not checked since 1998. There was no sign of serious movement requiring immediate action. He assumed that the damage had been caused by spread of the roof. The correct repair was to correct the whole structural integrity of the roof.

26.		Mr. Townend attributed the cracking at the internal/external wall junctions to excessive horizontal deflection of the feet of the rafters in the right-hand roof. He produced a calculation which showed that the “designed” deflection of the rafters was 40 mm under dead load and 14 mm under imposed load. The permissible wall deflections were respectively 10 mm and 7 mm. Thus the “designed” deflections were far greater than permissible. Moreover, the gable walls were not restrained at roof level. He also calculated that the rafters were overstressed by a factor of 2. Their cross-section was 125 mm by 50mm; it ought to be 200 mm by 50 mm.

27.		In cross-examination, Mr. Townend accepted that the majority of the movement seen under the right-hand roof would have occurred soon after the reconstruction of the roof. He accepted that if the roof, contrary to his opinion, was ninety years old the timber would have tolerated a greater bending stress than that for which he had allowed in his calculation. In that case, the overstress factor would be reduced from 2 to 1.4, but the deflection would be reduced only a little. He considered that the north gable wall had moved by 10 to 15 mm. The right-hand wall had also moved out. The gap having been repaired all the way round, one had to conclude that it had not been built like that. The right-hand roof would not collapse, but there was no factor of safety. He could not advise his client to ignore overstressed members. It was not absolutely essential to replace the roof.

28.		In a supplementary report dated 24th July 2001, Mr. Arnell expressed the opinion that the cracking was in part caused by differential movement of different materials and was in part structural in nature. As Mr. Sentance had specifically referred to the cracking at the junction of the internal partition, there was no doubt that such features existed at the time of his inspection. In view of the age of that part of the building and that there was no evidence to suggest ongoing movement, Mr. Arnell was of the view that the cracking now visible was probably present in the structure at the time of Mr. Sentance’s inspection. Whilst the plastered surface of the gable walls was not truly vertical, there was no evidence that there was ongoing movement or, probably, movement at the time of Mr. Sentance’s inspection. There were no visible gable straps in the roof space, but gable straps were not a requirement at the time of construction. Whilst the provision of gable straps might have restricted the movement that had resulted in the cracking between the ceiling and the end walls, he was nevertheless of the view that a certain amount of cracking in the plaster would still have occurred. He was therefore of the view that whilst some of the cracking could be described as structural in nature, the severity of such cracking would not lead him to seek further advice from a structural engineer other than to seek confirmation as to the most suitable method of addressing the cracks which had occurred internally. He had sought such advice from Mr. Paxton.

29.		The advice of Mr. Paxton was contained in a report of July 2001. He agreed that there was some internal visible evidence of lateral movement of the gable wall. The fracturing was old and was originally obscured by wallpaper and/or filling. There was no evidence to suggest that the wall was in any danger of collapse. If it were deemed necessary, galvanized mild steel ties could be added between the external wall and the roof structure. Such ties would not have been deemed necessary at the time of construction more than ninety years ago. He considered that the cracking was caused by a combination of drying shrinkage and structural movement, all of which was of a non-progressive nature. Since his first inspection of the property in 1997 there had, he considered, been no significant deterioration to the roof structure. It was his opinion that even if the defects had been visible in 1993 [sc., in spite of being papered over], they were not of a structural nature. Although not structurally significant, the defects now required long-term cosmetic repairs using expanded metal laths or galvanized steel straps to secure adjacent wall surfaces before re-plastering. The total cost in his opinion would not exceed £1000.

30.		Mr. Paxton and Mr. Townend disagreed as to the likely age of the right-hand roof. The former thought, from the appearance of the rafters, that it was about ninety years old. The latter, in giving evidence, originally thought that it had been rebuilt about twenty years ago. When a photograph of the roof was put to him in cross-examination, he accepted that it was probably pre-war; his memory had been faulty. He still thought that the roof did not look ninety years old. On this point, I prefer the evidence of Mr. Paxton. Mr. Paxton considered that the rafters would tolerate a greater bending stress than that posited by Mr. Townend, on the basis that they were ninety years old. Mr. Paxton’s figure would still lead to a slight overstress, though a factor of safety is included in the calculations.

31.		I make the following findings as to the right-hand roof. The rafters are overstressed. The cracking in the third bedroom between the walls and the ceiling was caused, at least in substantial part, by excessive movement of the rafters. There is no evidence of present movement of the walls. The roof will not collapse, but there is little, if any, factor of safety. It is not possible to say whether there will be further movement of the walls. In those circumstances, a case can be made for leaving things as they are and repairing the cracks in the manner suggested by Mr. Paxton. But in my judgment many potential purchasers of the property would, quite reasonably, prefer the reassurance of having the roof properly repaired in a manner such as that designed by Mr. Townend.

32.		The above findings as to movement of the house are based only on the evidence given at the hearing. I have since received a letter, dated 19th February 2002, from Mrs. Holder. In that letter she says that the gap at the ceiling level and the gable walls of the third bedroom [that in the east wing] has increased in size since the trial as a result of very windy weather. In the same corner on the ground floor the cement between the front window and the house has cracked completely, leaving a gap of about 1 cm. In addition, a skirting board has become loose. All those things have happened since the trial. If that information is correct, it supports, but does not affect, my above findings.

33.		A structural engineer acting without negligence in 1993 would have reported that the rafters were at least marginally overstressed, that they had moved extensively, that the wall deflections were excessive, and that there were no straps or ties joining the roof timbers to the external wall. Even if he took the view that it was not necessary to carry out works of repair, he would have appreciated that the contrary view was tenable and in any event would have reported on the condition of the roof. A surveyor examining the right-hand roof would probably not have carried out the relevant calculations but, having regard to the gap between the walls and the roof and also to the cracks in the third bedroom, would at least have advised that a structural engineer be instructed.

34.		Mr. Ilott obtained three quotations for works to his specification. The names of the tenderers were Deedscan, Calabasas Ltd. and Gregton Ltd. Their respective tenders were in the sums of £185,825, £238,661 and £173,658, in all cases plus VAT. I set out their figures, rounded by me, in the appendix to this judgment. I have divided their figures into three columns for each tenderer, for reasons that will appear. The first column comprises the figures for temporary roof, demolition, new roof structure and ceilings. There is no dispute that the items in column 1 are necessary for any repair of the roof carried out in accordance with Mr. Townend’s design. The second column comprises the figures for preliminaries, preparation, security, and contingencies. (For contingencies an allowance of £10,000 was required). The third column is for the remaining items, that is to say services, gutters, windows & doors (external), front lower roof, brickwork cleaning, paving, drainage, roof void, doors (internal), floors and carpets, walls (internal), decorations, electrical and heating. In the case of Deedscan, a single figure of £54,450 was quoted for demolition, new roof structure and gutters. That figure appears also to include the cost of increasing the slope of the front lower roof, though that is not explicitly stated. In apportioning that single figure between the first and third columns, I have taken out £1450 for gutters and £3000 for the front lower roof and transferred them to the third column. I chose the figure of £1450 because it is close to the corresponding figure (£1457) of Gregton, whose overall tender was close to that of Deedscan. The figure of £3000 is, however, significantly below that of Gregton. I have taken £3000 to reflect the fact that Calabasas, the highest tenderer, quoted a lower figure for this item. The totals of the three columns are these: for the first column, Deedscan, £70,182; Calabasas, £109,521; Gregton, £74,108; for the second column, £28,570, £26,044 and £18,600 respectively; for the third column, £87,073, £103,093 and £80,950 respectively. In using these quotations as a basis for arriving at the diminution in the value of the house, I shall use the average figures of the two lowest tenderers, Gregton and Deedscan.

35.		I am satisfied that any prospective purchaser aware of the structural defects to the roof would require the left-hand roof to be repaired in a manner substantially in accordance with Mr. Townend’s design. As to the right-hand roof, some purchasers might be willing to leave it alone, but the majority, as it seems to me, would wish it to be put into sound structural condition, again in a manner substantially in accordance with Mr. Townend’s design. Few purchasers, I think, would be bothered about the overstress to the beam in the central roof. There is no evidence how the costs of repairs to the three roofs should be apportioned. From the nature of the work, I assess the proportions as 55 per cent. to the left-hand roof, 35 per cent. to the right-hand roof and 10 per cent. to the central roof. That is little more than a guess, but I have to do my best. Whilst the burden of proof lies on Mrs. Holder, she could not reasonably be expected to produce more detailed evidence than she has. She has undoubtedly suffered substantial damage.

36.		I have to determine the effect of the cost of prospective repairs to the roof on the value of the house. I take the whole of the cost of repairing the left-hand roof, that is 55 per cent. of the cost of repairing the whole roof. The value of the house would undoubtedly be affected by the potential cost of repairs to the right-hand roof, notwithstanding that some potential purchasers would be willing to buy the house without effecting such repairs. The value of the house must be affected by its average attraction to purchasers generally. I take 70 per cent. of the expected cost of repairs of the right-hand roof, i.e. about 25 per cent. of the cost of repairs to the whole roof. I am not satisfied that the potential cost of repairs to the central roof would significantly affect the value of the house. Thus, as the contribution of the cost of repairs of the roof to the diminution in value of the house, I take 80 per cent. of that cost. 

37.		As to the amount of the cost of repairing the roof, I have to consider the individual items in Mr. Ilott’s specification, as entered in columns 3 of the appendix.

38.		In my judgment, the potential cost of altering the slope of the front roof is unlikely to have a significant effect on the value of the house. (It is said that its inclination to the horizontal was too small. It was indeed not as steep as good practice requires. I am in any case not satisfied that Mr. Sentance was negligent in failing to mention that in his report). However, I treated the whole of the cost of this item as part of the cost of the link roof in assessing the figure of 10 per cent. as the proportionate cost of the link roof in paragraph 34 above. Since I am deducting the whole of the cost of the link roof in assessing the diminution in value, the cost of altering the slope of the front roof should not additionally be deducted from column 3.

39.		Mr. Ilott’s specification required redecoration of the whole house. In his report, Mr. Sentance said “Internal decorations are partly worn, a scheme of redecoration to a purchaser’s own choice is considered necessary”. I thus exclude the expenses of redecoration from the assessment of the diminution in the value of the house.
 
40.		Mr. Sentance said in his report that the condition of the drainage had not been tested. He recommended that it be tested by a drainage engineer and any leaking or defective drains repaired. He could, however, and should have lifted two manhole covers. He may indeed have done so, to judge by his notes. If he had done so, he would have seen, and ought to have reported, that the benching in those two manholes needed repairing. Mr. Arnell and Mr. Ilott were agreed that one of the manholes could backfill.

41.		Mr. Ilott specified what he described as “pretty nearly reconstruction of the whole drainage system”. He accepted that he had not had the drainage system inspected, and that replacement of the complete drainage system might be unnecessary. I am not satisfied that complete replacement of the drainage system is necessary. Mr. Arnell estimated the cost of repairing one manhole at not more than £200. I am satisfied only that two manholes require repair, at a total cost of about £400. But this item does not fall under the heading of roof repairs.

42.		In his report, Mr. Sentance said that some windows were ill-fitting or inoperative and required repair or adjustment. Some misting was occurring to double-glazed panels, which would require future replacement. Mr. Ilott, in his specification, required replacement of all windows, including apparently patio french doors. The expression “windows and doors” in the tenders includes also repair and adjustment of reveals around the front entrance door. No mention was made of the last-mentioned item in Mr. Sentance’s report. The last item I take to be negligible in the context of the value of the house, and in my judgment no part of the item “windows and doors” falls to be included in an assessment of the diminution in value.

43.		I am not satisfied that the specified item of new gutters and downpipes for the entire building is necessary. In spite of having seen a video of one of the dormer roofs taken in pouring rain, which was shown to me with the object of demonstrating the necessity for a gutter, I am not satisfied that the dormer roofs require gutters.		 

44.		The item “roof void” in the specification refers to the provision of insulation above the first floor ceilings and of lagging to all pipes and tanks in the roof spaces. In my judgment, there was no breach of duty on the part of Mr. Sentance in omitting mention of those items in his report. The items are pure betterment and are irrelevant to the assessment of damages. The same applies to the items of brickwork cleaning and paving.

45.		Floors and carpets constitute a single item in Mr. Ilott’s specification. I accept the evidence of Mrs. Holder and of Mr. Ilott that there is considerable movement (i.e., past movement) of the upper-storey floorboards and excessive creaking. This item of the specification provides for rectification of those defects. Mr. Sentence said in his report that the floor surfaces were finished with carpets or other finishes, including hardboard, which restricted his inspection of the property. He could not guarantee that those areas were totally free from defects. Nevertheless, in my judgment there was no reason why he could not have reported the defects in question, and he ought to have done so.

 46.	Mr. Ilott’s specification is not clear as to carpets. Under the heading Preparation it is stated:
The contractor is to arrange for the carpets to be lifted from the ground and first floor levels and removed off site prior to work starting. On completion new carpets are to be laid on prepared floors…..

Under the heading Floors and Carpets the contractor is required to provide and lay to the first floor rooms, corridor and staircase “the following carpet:” [end of item]. Mr. Ilott explained in evidence that the new carpets would go where there had been carpets before. The heading Floors and Carpets included the supplying and laying of those carpets. Probably the old carpets when lifted and rolled would not go back satisfactorily. He always specified in that way if he thought it prudent and necessary, on the basis that it might be difficult to get additional funding later [if it proved necessary].

47.		My approach to the cost of new carpets is this. There is, in the eyes of a prospective purchaser of the property armed with a surveyor’s report as it should have been, a risk that new carpets will be required as a result of the proposed works. Thus their cost is in principle relevant to the assessment of the diminution in value. However, one point that has not been raised in evidence or argument, but is in my judgment relevant to the exercise I have to carry out, is this. I would expect many purchasers moving into a new house to instal new carpets in any event. Thus the value of the house as described in Mr. Sentance’s report will reflect, to some extent, purchasers’ expectations that they will incur expenses of re-carpeting. The diminution in value must be discounted to allow for that. An added difficulty here is that no separate figure is given for the carpets. The average figure for floors and carpets quoted by Deedscan and Gregton is £3800. I think it reasonable to evaluate this item at £3300 for the purpose of assessing the diminution in value.
	
48.		Mrs. Holder complained about failure on the part of Mr. Sentance to report properly on the electrical installation. Numerous light installations in the garden were rusty, falling apart and inoperative. The electric cable that led to a water pump for a fountain had no cover on the connection box. The pump itself was missing. Electric cables were chopped off and left without insulation or protection. Her attention was drawn to a hissing noise coming from the area of the fountain in wet weather. Her investigation revealed that there were sparks flying at the end of the cable. Mr. Arnell said that the metal light fittings outside were corroded. Mr. Sentence in his report said this on the subject:

Electrical wiring where visible appears to be a modern installation. Condition – not tested. If you wish to be fully satisfied as to the condition and safety of wiring you should seek a separate qualified electrician’s report.

Mr. Ilott considered that Mr. Sentance should have been more positive in explaining the urgency and seriousness of the defects and potential dangers of the electrical wiring.

49.		The defendant’s conditions of engagement said that the surveyor would not arrange to test the electricity….[sic]. A visual inspection would be made of surface wires, and a report given on apparent defects. The survey would cover the house and garage but, unless otherwise instructed, outbuildings would not be inspected, neither would leisure installations such as swimming pools, tennis courts and ancillary equipment. General comment only would be made on such matters as gardens, pavings and boundary structures.

50.		Given his limited obligation to advise on the electrical systems in the garden, in my judgment Mr. Sentence was not in breach of contract in reporting as he did in relation to the electrical wiring. 

51.		In Mr. Ilott’s specification, the item Electrical is not by any means entirely consequential upon the proposed works. Mr. Ilott gave evidence that the cost of electrical works consequential upon reconstruction of the roofs was £2000 plus professional fees and VAT. That is the figure that I take into account in assessing diminution in value in relation to this item. 

52.		As to the item Heating, Mr. Sentance stated in his report that he was unable to gain access to the central heating boiler. He noted that some radiators were rusting, and recommended that the advice of a specialist heating engineer be obtained to advise as to the need for servicing, repair and possibly partial renewal of the system. The item in Mr. Ilott’s specification is

Allow to drain down the heating system before work starts, refill, test and adjust on completion of the works.

In view of Mr. Sentance’s advice, in my judgment the small amount which this item represents is unlikely to have contributed to the diminution in value of the house. Accordingly, I do not include it in my assessment of diminution in value.

53.		In his report, Mr. Sentance said that the condition of the internal walls was fair, with some shrinkage cracking apparent at the junction between an internal partition and the external walls to the room above the dining room. There was scope for general redecoration of wall surfaces including making good to shrinkage cracking. It is true that Mrs. Holder must have been able to see the cracks herself when she viewed the house. The average cost of repairs quoted by Gregton and Deedscan is about £3000. In my judgment, Mr. Sentence negligently failed to warn the reader of his report that expenditure of anything like that magnitude (discounted to 1993 values) was required. I include this item in my assessment of diminution of value.

54.	 	The repairs to the internal doors specified by Mr. Ilott appear to be confined to the doors in the inner hall and the doors in the built-in cupboards in the lounge. Mr. Sentence reported that some making good was required to internal joinery and that some cupboard doors were ill-fitting or distorted. In my judgment, Mr. Sentence gave sufficient warning of this defect, and it follows that this item is not to be taken into account in the assessment of diminution in value.

55.		The item Services relates to the reading of meters and the preparation of a photographic schedule for the perimeter areas. The reason for that is not apparent, and the cost is trivial in relation to the diminution in value of the house. I ignore it.

56.		I reach the following conclusion as to the relevant cost of repairs to the roof. For Gregton, the total figure for column 1 is £74,108. Its total for column 3 is £80,950, and its total for both columns is £155,058. I have taken the figure of £12,632 as the relevant figure for column 3 (front lower roof £3816, floors/carpets £3300, internal walls £3516, electrical £2000). That makes a total of £86,740. In relation to columns 1 and 3, therefore, I have taken as the relevant cost a fraction equal to 86,740 divided by 155,058 of the total cost. Applying that fraction to the total, £18,600, of the general items in column 2 yields a figure of £10,405. In the absence of any other proposal, I have pro-rated the general expenses to the individual expenses in columns 1 and 3. In my judgment, that is a fair way of proceeding. Adding the figure of £10,405 to the figure of £86,740 gives a total of £97,145. The corresponding figures for Deedscan are: column 1, £70,182; column 3, £87,073; total, £157,255. Relevant cost in column 3, £10,741 (front lower roof £3000, floors/carpets £3300, walls £2441, electrical £2000); relevant total for columns 1 and 3, £80,923; Deedscan’s total of column 2, £28,570; pro-rated figure, £14,702; final total, £95,625. I take the average of those two lowest tenderers’ figures, adjusted as I have indicated, as £96,385.

57.		The figure of £96,385 has to be adjusted for the inflation in building costs that occurred between 1993 and 1999, when the quotations were obtained. The three quotations that I have mentioned were dated July and August 1999. Mr. Ilott asked Deedscan and Calabasas how much they would have tendered for the same work in 1993. Deedscan stated that after perusing their past records they considered that the tender would have been in the order of £165,000 allowing for the provisional sum of £10,000. That represents a reduction of about 11.8 per cent. Calabasas stated that they were not carrying out the relevant type of work in 1993. Using the BCIS tender price index, they calculated that the price would have been 28.47 per cent. lower. Mr. T. R. Lucocq, F.R.I.C.S., M.C.I.Arb., I.R.R.V., who gave expert valuation evidence on behalf of the claimants, favoured the use of the BCIS tender price index, and observed that Deedscan had not used any particular methodology. It is in fact not apparent whether Deedscan used any particular methodology. I assume that they used rates that their records showed that they had charged at the material time for the same kinds of work and materials. In fact, the notional tender figures that Deedscan and Calabasas arrived at by applying their different backdating methods differed by only about £5000, and the range of values of the property that Mr. Lucocq arrived at was £35,000. Thus, though the matter was not explored with him, he was probably not much concerned with the particular method of backdating the cost. Mr. Arnell backdated an estimate of £30,000 of March 2001 to £23,000 as of 1993, using the index table of Spon’s Architects’ and Builders’ Price Book. That table is not in evidence. Mr. Arnell did not mention any particular month in 1993. If one applies the same rate of inflation as is implicit in Mr. Arnell’s figures, assuming they apply to a period of eight years, for a period of six years from 1993 to 1999, one arrives at a reduction of approximately 18.1 per cent. Assuming that Deedscan made no mistakes, theirs is probably the best evidence of what would have been quoted for the same work at the same locality in 1993. That might not have been the lowest quotation. On the other hand, I do not think it right to dismiss altogether Mr. Lucocq’s preference. The figure I have derived from Mr. Arnell’s evidence is approximately midway between the two, though the inflation rate on which it is based covers an extra two years, when cost inflation might not have been at the same rate as it had been earlier. Nevertheless, on the totality of the relevant evidence it is, in my judgment, the best figure to adopt as the likely reduction in price to allow for the effects of inflation over the period in question. It follows that I reduce the figure of £96,385 to £78,940 to allow for the effect of cost inflation.	

58.		To the figure of £78,940 have to be added VAT at the rate prevailing in 1993, which was 17½ per cent., and professional fees. I take professional fees as 10 per cent., in accordance with the evidence of Mr. Arnell. That gives a total relevant cost of repair of the roof of about £102,030. Taking 80 per cent. of that as the contribution to diminution in value yields a figure of £81,600.

59.		There will be an element of betterment if the roofs are reconstructed, in that the dormer roofs will then be improved. There are two dormer roofs in the left-hand roof and two dormer roofs in the central roof. Given the way in which the valuers have approached the case, the value of the betterment depends on the cost of it. The cost of it does not separately appear, nor have any figures been suggested to me. The cost of the new roof structure as quoted by Gregton was £54,530. Deedscan included demolition in their figure for the new roof structure. The proportions of the quoted cost of demolition plus the quoted cost of the new roof structure represented by the quoted cost of demolition in the case of Calabasas and Gregton were closely similar, and averaged approximately 9.8 per cent. Applying that figure to Deedscan’s compendious figure, as adjusted by me, of £50,000 yields £4900 for demolition and £45,100 for the new roof structure. Thus for the two lowest tenderers the figures for the cost of the new roof structure are, or I take to be, £54,530 and £45,100. For the front lower roof Deedscan did not quote a separate figure; Calabasas quoted £2034, Gregton £3816. Bearing in mind those four figures, and having regard to Mr. Townend’s drawings, I estimate the direct cost of the dormer roofs in the west wing at £2500. The two dormer roofs in the link roof are not relevant to the diminution in value, since I have already fully discounted the cost of that roof.

60.		 The cost of the two dormer roofs in the west wing must be discounted in full. I apply to the direct cost of £2500 an uplift of 15 per cent. for overheads (as specified in columns 2 in the appendix). The figure of 15 per cent. is close to the average of the uplifts applicable to Gregton and Deedscan. That yields a figure of £2875. Adding VAT and professional fees and discounting for inflation gives a figure of £3043. Thus the relevant contribution of the cost of repairs of the roof to diminution in value must be reduced from £81,600 to say £78,600.

61.		In addition to the relevant proportion of the costs of repair to the roof, the cost of repair of the drains has to be taken into account in assessing the diminution in value. That increases the sum of £78,600 by £400 to £79,000.

62.		 If the figure of £79,000 were to be deducted from the value, £215,000, of the house as described in Mr. Sentance’s report, it would leave a figure of £136,000. I have to consider whether that is the true value of the house in 1993 if described without negligence. The two experts who gave evidence on this point disagreed. Mr. Lucocq considered that the property market in September 1993 was depressed. Funding institutions were placing difficulties in the way of faulted properties. That gave rise to difficulties in finding purchasers. In those circumstances, he thought that the diminution in value would have been greater than the cost of repairs. Mr. Arnell, on the other hand, said that it was his experience that the cost of repair was not necessarily followed by an equivalent reduction in the purchase price, and usually a compromise was agreed. The market was coming out of a recession. The trough was in 1992. In September 1993 the market was a little more confident. That was why he had assessed the value of the property as at 1993 as slightly more than the difference between £215,000 and his estimate of the cost of repairs, £23,000 plus VAT. Both Mr. Lucocq and Mr. Arnell were giving their evidence in the context of figures very different from those that I am applying. Mr. Arnell considered the relevant costs in 1993 to be £23,000 plus VAT; Mr. Lucocq was using a figure of £170,700. Nevertheless, their views on the point were expressed without qualification as to the amounts in question. On balance, I find the evidence of Mr. Lucocq the more convincing on this point. I find that the diminution in value was greater than the relevant cost of repairs. Given the difficulties in finding a purchaser, and the inconvenience of having to have the work done, the price might have been negotiated down to £120,000 or less. But bearing in mind the impossibility of making a precise assessment, and that the burden of proof lies on the claimants, in my judgment the proper sum to award by way of damages under this head is £87,500. That figure implies a value of £127,500 for the house if described without negligence. 

63.		In reaching the conclusion stated in the preceding paragraph, the only evidence I have relied on is that given on oath during the course of the hearing. In the course of her final speech Mrs. Holder mentioned for the first time that the claimants had paid £230,000 for the house. She had been told by the agent before she made the offer that the house had been on the market for £275,000 and the asking price had just come down to £230,000. The price paid is not directly relevant to the damages as I have found them. But what Mrs. Holder said may have some bearing on the assessment of the market and of the evidence of Mr. Lucocq and Mr. Arnell on that subject. The figure of £215,000 taken as the value of the house as described is, I think, taken from a valuation made by Mr. Sentance for the mortgage lenders, though not imparted at the time to the claimants. I do not find that the further information from Mrs. Holder casts any light on the question I have to decide, or causes me to change the conclusion mentioned in the preceding paragraph.

64.		It is conceded that an addition of 1 per cent. as overpaid stamp duty is recoverable on the diminution in value. That amounts to £875.

65.		Mrs. Holder submitted that the principal measure of damages was the current cost of repairs. It should not be backdated to 1993. For reasons given below, I reject that argument. It is clear on the authority of Watts v. Morrow [1991] 1 W.L.R. 1421, CA, that the measure of damages is the diminution in value. Ralph Gibson L.J. said at p. 1435, H:

It was rightly acknowledged for Mr. and Mrs. Watts that proof that the plaintiff, properly advised, would not have bought the property does not by itself cause the diminution in value rule to be inapplicable. It was contended, however, that it becomes inapplicable if it is also proved that it is reasonable for the plaintiff to retain the property and to do the repairs. I cannot accept that submission…..

Bingham L.J. agreed. At p. 1444 he pointed out that the rule was a prima facie rule, and that the crucial question was whether that prima facie rule was inapplicable to the facts of that case. He did not think it was.

66.		Mrs. Holder has made the point that unless she receives the cost of repairs as damages, she will not be able to afford to carry out the repairs. I have arrived at the figure of £96,385 as the relevant cost of repairs to the whole roof. It is in my judgment unnecessary to carry out repairs to the link roof. Thus 90 per cent. of that figure should be taken, say £86,750. The addition of VAT and professional fees to that figure yields £112,120. The dormer roofs are not the responsibility of the defendant. The cost of £2875 including overheads, increased to allow for professional fees and VAT, becomes about £3700. That must be deducted from £112,120, giving £108,420. Adding £400 for the drains gives a figure of £108,820, which would represent the damages for cost of repairs, calculated as of 1999, if the law so provided. The figure of £108,820 is to be compared with the figure I have awarded of £87,500. Mrs. Holder’s impecuniosity, which has not been explored in the evidence, is, I think, a feature that distinguishes the facts of this case from those of Watts v. Morrow. Mrs. Holder’s mortgage is apparently an interest-only mortgage, so that when the principal becomes due, in only a few years’ time says Mrs. Holder, the claimants will have either to sell the property or to seek to re-finance it in some way. Either way the property needs to be in a state of repair where it is readily saleable and/or mortgageable. I do not accept Mrs. Holder’s last point. If she were to sell the property in its present state, the relevant loss she would suffer on that account would be the diminution in value as of the date of sale, plus associated expenses. I deal below with the question of the time in relation to which the damages should be calculated. But I have in this case awarded a greater sum than the cost of repairs at the time that I hold to be the relevant time. It is, of course, true that Bilberry Woods is Mrs. Holder’s family home, and I expect that she wants to keep it. That is a perfectly reasonable wish. I do not need to decide whether, as a matter of law, a claimant’s impecuniosity can be a ground for distinguishing Watts v. Morrow. On the facts of this case, I do not think I ought to distinguish it. 

67.		Mrs. Holder said in her witness statement, and I accept, that the process of discovery of the defects in the roofs started in the spring of 1994 and continued until March 1995. Ralph Gibson L.J. did say (ib., p. 1437, H):

…..since that concept [sc., putting the plaintiff into the position in which he would have been if the contract had been properly performed] is not affected by the subsequent date of discovery of breach, the fact that…..the claimant did not discover the breach until two years after purchase seems to me to be irrelevant to the measure of damages as based upon the diminution in value. I would, however, reserve with reference to this point the question as to the date at which the diminution in value is to be calculated.

Thus the question arises whether the damages for diminution in value should be calculated as at 1995 rather than 1993. There can be no question of their being calculated as of now. If I were to award damages calculated as at 1995 it would seem that at least some part, if not the whole, of any interest on the award would be calculated from that later date. That reduces the practical effect of the distinction. Moreover, the argument was not directed to a calculation as at 1995; and the valuation evidence relates to 1993. In those circumstances, I shall take 1993 as the relevant date.

68.		In 1993, Mr. and Mrs. Holder had intended to buy another property. But a structural survey of that property carried out for them by the defendants showed that the property was structurally unsound. On that account, they decided not to buy the property. They were pleased with that survey, and accordingly chose the defendants to survey Bilberry Woods. In those circumstances, I am entirely satisfied that the claimants would not have bought Bilberry Woods if Mr. Sentance had not failed to report the structural defects in that property. It is indeed accepted by the defendant that the claimants relied upon Mr. Sentance’s report in deciding whether to purchase the house.	 

69.		It has, in my judgment rightly, not been suggested that the diminution in value measure does not apply where that is greater than the relevant cost of repairs.

70.		Damages are claimed for the potential cost of alternative accommodation while the repairs are carried out. Mr. Moody accepted that temporary accommodation would be required if remedial works were required to the roof. He did not argue that such costs were irrecoverable.

 71.	The question whether such damages are in principle recoverable was expressly reserved in Watts v. Morrow (ib., p. 1441,G). Given that the primary measure of damages is the diminution in value of the property, not the cost of repair, it appears illogical that the cost of renting alternative accommodation while the repairs are carried out should be recoverable. Judge John Hicks Q.C. in Bigg v. Howard Son and Gooch [1990] 1 E.G.L.R. 173 at p. 175 said

…..no separate award of damages for the cost of accommodation during repair is appropriate in cases of this kind, alternatively …..if such an award is ever appropriate it is not so when the likely need for and probable cost of vacating the premises during repair, as foreseeable by a purchaser buying at the relevant date with knowledge of the defects, has been taken into account in assessing what price he would have been prepared to pay.

The logic of that statement is unassailable. Nevertheless, the courts have awarded damages under this head in such cases. In Cross v. David Martin & Mortimer [1989] 1 E.G.L.R. 154, 159,D Phillips J. said

…..a plaintiff in the position of these plaintiffs is entitled to the incidental expenses of taking reasonable action to deal with defects, notwithstanding that their measure of damage is not based on the reasonable cost of taking such action. This is not perhaps entirely logical, but it is well established and seems to me not unreasonable.

Phillips J. allowed, as damages, the costs of alternative accommodation and of moving furniture.

72.		In cross-examination, Mr. Lucocq disagreed that the value of the house was likely to be reduced by less than the cost of repairs. One of his reasons was the cost of alternative accommodation, storage of carpets, etc. And at the end of the day, he said, you would not have a good house, you would have a repaired house. However, in my judgment many purchasers knowing of the defects, though they would have to stand out of their money during the period of repairs, would not require alternative accommodation since they would not leave their existing home until the repairs had been carried out. In my judgment, by far the most important consideration, and the principal reason why I accepted Mr. Lucocq’s view that the value of the house would be reduced by more than the cost of repairs, is the difficulty or impossibility at the material time for many potential purchasers to raise money to buy a defective property. Thus the figure I have arrived at as the diminution in value does not reflect a significant amount for the cost of alternative accommodation.	

73.		The contractors quoting to Mr. Ilott’s specification gave the following estimated time periods for the works: Deedscan, 20 weeks; Gregston, 16 weeks; Calabasas, 16 weeks. The works included the central roof, which I excluded from consideration in assessing the diminution in value. How much time would be saved if the central roof were not repaired does not appear. I assess the contract period at 13 weeks. In so doing, I make no deduction for the fact that I have taken only a proportion of the costs of repairing the right-hand roof. Mr. Lucocq said that one could probably not obtain a tenancy lasting for a period of less than six months. Mrs. Holder said that she had made enquiries about tenancies of houses in the Hindhead area, but had had difficulty in obtaining information. She exhibited an advertisement for a four-bedroom house in Worplesdon at £2400 per calendar month. She estimated a figure of £2500 a month to include council tax, contract costs, insurance, inventory costs and removal costs. I accept that those other costs should be recoverable together with the rent. She gave no breakdown of her calculations.

74.		Mr. Moody submitted that Mrs. Holder should not need so large a property as Bilberry Woods for a short period of time. That may be so, but if she goes into a smaller property, she will have lost the use of space in consequence.

75.		Given the paucity of reliable evidence as to the costs of alternative accommodation, I assess the damages for the costs of and associated with the securing of temporary accommodation at £5000. That represents a period of three months.

76.		As to general damages for distress and inconvenience, Mr. Moody submitted that the defects in the roof structure had not caused discomfort or inconvenience. The discomfort and inconvenience suffered in the past arose from (1) defects which were properly appraised (e.g. cracks and damp patches) and (2) the claimants’ failure to undertake any maintenance or redecoration. Mr. Moody omitted to mention the distress and inconvenience suffered by Mrs. Holder in having to clean the manholes. Subject to that rather large exception, I accept his submission. I should add, though it does not affect the damages, that Mrs. Holder failed to maintain or redecorate the property in order to preserve the evidence. The need to move out of the property will also involve relevant inconvenience, as Mr. Moody recognized. General damages have to be modest, and I award Mrs. Holder £2000 under this head. Mr. Holder has suffered no such damage.

77.		Mrs. Holder claims £600 as the cost of temporary covers and temporary and apparently permanent repairs to the dormer roofs. Mr. Sentance had reported that the dormer roofs needed attention. It was pursuant to that advice that she sought quotations from builders to carry out repairs to those roofs. One builder or surveyor who came to the house advised her not to have the roof work done under any circumstances without a structural engineer’s supervision and consultation. That advice, incidentally, was part of the process by which Mrs. Holder came to realize that there were structural defects in the house. Mr. Moody submitted that this expense was not recoverable since Mr. Sentance had given proper advice about the dormer roofs, as I accept he had. Mr. Moody did not question the amount. 

78.		Mrs. Holder’s records are incomplete. In support of this claim, she exhibited the following documents. First, an invoice dated 3rd March 1994 from K. A. Buckland “Cover all flat roofs with PVC sheets until work can be carried out” £120. Second, a statement dated 1st August 1995 from the same contractor “To cover flat roofs, with new sheets until further work can be carried out” £70. Third, a receipt from the same contractor dated 8th September 1995 for £170 “for the temporary repair/recover of the two flat roofs above the windows front and back”. Fourth, a statement dated 17th August 1996 from the same contractor “Repair: remove sheet and fix timbers to flat roof. Re-fix sheet over scoping timbers for a better water flow” £70. Finally fifth, a receipt from the same contractor dated 24th August 1996 for £170 “for recovering the front dormer windows roof with felt”.

79.		I accept Mr. Moody’s submission that the cost of the permanent re-covering of the dormer roofs is not damage flowing from any breach of duty on the part of Mr. Sentance. But in my judgment, any extra cost arising from delay attributable to the structural state of the house is loss consequential upon such a breach of duty and is accordingly recoverable as damages. I am not satisfied that the third document does not include work mentioned in the second. The fourth and fifth documents appear to be entirely attributable to permanent re-covering, save for the item “remove sheet” which must be small in amount. On a balance of probabilities, I find that the first two documents relate to temporary covering of the roofs and that the relevant amounts were paid. I find that £190 is due under this head.

80.		There is a further claim for £170 charged by a plumber whom Mrs. Holder called in to cure what she thought was a leak in the plumbing. It was eventually found to be a leak from a dormer roof. That incident occurred shortly after Mrs. Holder and her family had moved into the house. She discovered evidence of the leak when, upon opening the boiler room, she found staining indicating, to her, prolonged and multiple water leaks. She justly complained that Mr. Sentance had not gone into the boiler room. When he carried out his survey the boiler room was locked. Mr. Sentance declined Mrs. Holder’s offer to get the key. I accept that Mr. Sentance was negligent in not going into the boiler room and in not discovering the leak. But it is trite law that in giving his report he did not warrant the condition of the house. He did impliedly warrant that his report was such as could be made by a surveyor without negligence. But there is no evidence that this breach caused damage. There is no evidence that if the house had been properly described in all other respects, the claimants would not have bought the house in the absence of this breach, or that the value of the house was affected by the leak. Thus I reject this item of claim.

81.		In his report, Mr. Sentance said that the main roof cladding required substantial overhaul and repair including replacing slipped, missing or broken roof tiles. In relation to that matter, in my judgment he acted without negligence. Removal and replacement of the tiles was a necessary part of Mr. Ilott’s specification for repairs to the roof. It was put to Mr. Ilott that the inclusion of new tiles in his specification went beyond matters not properly reported on. Mr. Ilott’s answer, which I accept, was that it would be more expensive to use old tiles. His specification did involve the re-use of any sound tiles. Any betterment involved in Mr. Ilott’s scheme in this respect is marginal, and I neglect it.

82.		Mr. Sentance also pointed out in his report that the leadwork to the clock tower was worn and might require renewal. Mr. Ilott’s specification provides for new leadwork. No point has been taken, rightly in my judgment, that the leadwork constitutes significant betterment.

83.		Mrs. Holder complained about moss or lichen on the tiles, which she contended were caused by water overflowing the front of the dormer roofs. I have already indicated my finding that Mr. Sentance was not negligent in this respect. Moreover, he did say in his report that there was much moss growth on tiles.

84.		Mr. Sentance’s report did not mention the fact that a rolled steel joist over the patio doors at the south end of the west wing was painted only in primer and thus susceptible to rust. Mr. Arnell accepted that it would have been reasonable to mention that the steelwork was vulnerable to rust. I am not satisfied that the stiffness of the doors was a result of that susceptibility of the joist. Nor am I satisfied that the omission has any significant effect on the diminution in value of the house. It is unnecessary for me to decide whether the omission amounts to negligence on the part of Mr. Sentance. 

85.		Mrs. Holder asked for the courts’ guidance whether she could claim for mortgage interest moneys wasted on a property worth less than the amount of the loan. I treat that courteous question as a claim. In my judgment, the answer is clearly no. The diminution in value measure covers the loss; the interest would have been paid anyway.

86.		Mrs. Holder said that the claimants had been unable to take advantage of the many opportunities to re-mortgage the property at a more favourable rate of interest than they had been paying, since they were not able to complete a declaration to the effect that the property was in good condition and that there were no proceedings pending. In my judgment, given the diminution in value principle, that could give rise to a claim for no greater amount than the excess of the actual mortgage interest over what it would have been if the loan had been for the value of the house given a report made without negligence. Interest on the award should cover this point, at any rate to some extent. And the factual basis of the claim, with figures, has not been made out.
 
87.		There will be judgment for the claimants for damages in the sum of £95,565 plus interest. If the parties fail to agree the amount of interest I shall hear them on that subject. 

88.	The sum of £95,565 is made up as follows:
	Diminution in value of house		  £87,500
	Stamp duty wasted			         875
	Alternative accommodation		      5,000
	General damages			      2,000
	Temporary covering for dormer roofs	        190.

APPENDIX

	Deedscan	Calabasas	Gregton	
	(1)	(2)	(3)	(1)	(2)	(3)	(1)	(2)	(3)	
Preliminaries		14230			11040			6250		
Preparation		3840			4500			2100		
Security		500			504			250		
Temporary roof	15262			27243			11900			
Services			100			84		120		
Demolition	*4900			7332			5842			
New roof structure 	*45100			66834			†54530			
Gutters			*1450			1822			1457	
Windows/doors			37300			34696			23567	
Front lower roof			*3000			2034			3816	
Brickwork cleaning			1400			540			1382	
Paving			650			576			300	
Drainage			995			19869			†13567	
Internal										
Roof void			1838			1830			1150	
Ceilings	4920			8112			1836			
Doors			696			1164			405	
Floors/carpets			2960			5178			4640	
Walls			2441			3295			3516	
Decorations			23688			14980			11630	
Electrical			9855			16725			†14950	
Heating			700			300			450		
Contingencies		10000			10000			10000			
Total	70182	28570	87073
	109521	26044	103093	74108	18600	80950		

*My estimate from compendious figure of £54450.
	
† Amended tender figure.