Anonymised Summary of Judgment

Factual and Procedural Background

This dispute concerns a newly built, two-storey, four-bedroom detached family house (the "Property") on a residential estate developed in the 2010s (the "Residential Estate"). The Property included a detached garage, a front porch and external features including a macadam path (a public right of way) and a dwarf retaining masonry wall. The Property was purchased by the Plaintiff from the Defendant pursuant to a contract (the "Contract") in September 2015 for £649,495.

Construction involved trench strip foundations to support a prefabricated timber-framed superstructure with masonry outer leaves. Soon after occupation the Plaintiff noticed widespread cracking and other defects. It became common ground that the Property had been, and might still be, affected by differential ground movement caused by inadequate foundations in the site-specific ground conditions (topsoil over river terrace deposits over London clay) and the historical presence and removal of trees within the Property's zone of influence. The parties and their experts agreed that the appropriate remedial approach for the substructure required piled foundations.

The Plaintiff issued proceedings on 14 September 2021 seeking damages for remedial costs and related losses under various heads, including breach of express and implied contractual terms, negligence, misrepresentation and the Defective Premises Act 1977 ("DPA 1977"). The Defendant brought into the proceedings Company A (the third-party structural engineers who designed the foundations). Company A and the Defendant reached a confidential settlement before trial, and Company A subsequently played no further part in the proceedings.

By the time of trial the parties had narrowed the issues. It was common ground that the Defendant breached Clause 1 of the Contract by providing foundations inappropriate for the ground conditions and that the appropriate primary measure of damages was the cost of cure (with additional amounts for stress, inconvenience and temporary accommodation). The principal dispute at trial concerned the scope of the necessary remedial works to achieve the Plaintiff's contractual expectation — in particular whether the existing superstructure should be demolished and rebuilt (in whole or in part) or retained and repaired following installation of a piled substructure.

The Judge determined liability on Clause 1 and under s.1(1) DPA 1977 in favour of the Plaintiff and went on to determine the appropriate remedial scheme, certain ancillary remedial scope questions (garage, path and retaining wall), and the quantification of damages, including allowance for remediation project costs, contingency, professional fees and certain non-defect losses (temporary accommodation and aggravated damages). A provisional quantified award was produced and the Court directed a further hearing to finalise the order and determine costs.

Legal Issues Presented

1. Whether the Defendant breached Clause 1 of the Contract (an express warranty about building to a required standard) and/or s.1(1) of the Defective Premises Act 1977 in respect of the Property.
2. What is the appropriate measure of damages for the breach — specifically, whether the cost of demolition and rebuilding the superstructure (Scheme 1 or Scheme 2) or the cost of remediation while retaining the superstructure (Scheme 3) is the reasonable measure of compensation?
3. Whether the Plaintiff had proved on the balance of probabilities that demolition and rebuilding were necessary (including whether latent damage to the structural timber frame had been shown or reasonably established).
4. The precise scope of remedial works required for ancillary structures: (a) whether underpinning is required for the detached garage; and (b) whether the public footpath and the dwarf retaining wall require piling or can be remediated by local repairs.
5. How to quantify project costs and non-defect losses (including reasonable allowances for contingency, contractor overheads/profit, professional fees, VAT, temporary accommodation and aggravated damages).
6. Whether any adverse inferences should be drawn against the Defendant from alleged deficiencies in disclosure or absence of "as built" drawings, and whether any such information gap justified demolition of the superstructure.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff sought damages reflecting the cost of providing what he had contracted for — a house supported by appropriate foundations and free from significant defects. The primary remedial scheme advanced was full demolition and rebuilding of the house, garage, footpath and retaining wall (Scheme 1).
• As an alternative the Plaintiff proposed demolition and rebuilding while retaining the structural timber frame (Scheme 2), or demolition of most of the superstructure so as to eliminate the risk of latent, unknown defects.
• Reasons offered in support of demolition included (i) the risk that differential movement had already caused latent damage to the timber frame or other structural elements that could not be reliably detected without demolition (the "Latent Incurred Damage Reason"); (ii) the Defendant's inability or unwillingness to provide "as built" drawings and detailed construction information (the "Information Deficit Reason"); and (iii) asserted poor general construction quality and the risk of latent defects, including possible absence of some fire-safety features (the "Construction Quality / Defects Reason").
• The Plaintiff contended he should recover the costs of rebuilding because this was the certain way of achieving his contractual expectation and preventing future disclosure/stigma issues on resale.

Defendant's Arguments

• The Defendant accepted breach of Clause 1 insofar as the foundations were inappropriate but resisted demolition of the superstructure as unnecessary and disproportionate. It proposed Scheme 3: underpinning by construction of a piled raft beneath and oversailing the existing trench foundations, retaining the superstructure and making good the cracks and defects.
• The Defendant argued that the relevant legal principles require awarding the cost of reinstatement/repair as the usual measure of loss and that demolition and rebuilding will only be justified where it is reasonable and proportionate (including where demolition is cheaper or where the building is dangerous or structurally unsound).
• The Defendant relied on evidence that any latent risks could be investigated and addressed through opening-up works, that remedial contractors would not be prevented from carrying out Scheme 3 by the absence of additional "as built" documentation, and that items such as the footpath and dwarf retaining wall could be locally repaired rather than rebuilt on piles.
• The Defendant accepted liability for underpinning the porch and (ultimately) was found responsible for underpinning the garage, but argued that piling the public path and dwarf retaining wall would be disproportionate.

Company A (Third Party) — noted position)

• Company A, the structural engineers originally engaged to design the foundations, had defended itself by saying it had relied on a ground investigation report provided by another contractor and had not been told of an updated report. The Court did not determine issues between the Defendant and Company A because those parties settled confidentially before trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Vainker and another v Marbank Construction Ltd and others [2024] EWHC 667 (TCC)	Definition of "fit for human habitation" under the DPA 1977 (capable of occupation without risk to health or safety and without undue inconvenience or discomfort).	The Court applied the principle to conclude that the porch defect represented an ongoing safety risk and therefore that s.1(1) DPA 1977 was breached, even though the house was otherwise occupiable for many years.
BDW Trading Ltd v URS Corporation Ltd [2024] KB 827; upheld by the Supreme Court [2025] UKSC 21	Legal position on limitation following amendment (s.4B Limitation Act 1980) under the Building Safety Act 2022 — retroactive 30 year limitation period.	The Court accepted the current state of the law that claims under DPA 1977 are not time-barred by the shorter historic limitation period, aligning with BDW and its Supreme Court affirmation.
Axa Insurance v Cunningham Lindsey [2007] EWHC 3023 (TCC)	Principles on measure of loss for defective premises — preference for cost of repair/reinstatement, and when demolition may be justified.	The Court adopted the statement of applicable principles consistent with this authority in deciding that demolition would be disproportionate absent evidence of serious structural unsoundness.
McGlinn v Waltham Contractors [2007] EWHC 149 (TCC)	Authority emphasising demolition as an "extreme course" and that it is ordinarily justified only where the building is dangerous or structurally unsound.	The Court relied on this authority to reinforce that demolition and rebuilding are unlikely to be appropriate unless the building is unsafe or remediation is disproportionate.

Court's Reasoning and Analysis

The Court proceeded in stages: first to determine liability under Clause 1 and s.1(1) DPA 1977; second to identify the appropriate remedial scheme; third to resolve discrete scope questions for ancillary elements (garage, path, retaining wall); and fourth to quantify damages. The reasoning is summarised below.

Liability

• The Defendant admitted (and the Court found) that the house was built on inadequate trench strip foundations for the site's ground conditions; this caused differential movement and constituted a breach of Clause 1 of the Contract.
• The Court found a breach of s.1(1) DPA 1977 as well, on the basis that the porch was unsafe due to inadequate shallow foundations and therefore the property, as completed, was not fit for human habitation in the statutory sense. The Court did not find the inadequate trench strip foundations of the main house itself rendered the house unsafe for occupation.

Approach to the remedial-scheme question

• The Court accepted the legal principles advanced by the Defendant: ordinarily the appropriate measure is the cost of repair/reinstatement; demolition and rebuilding are only appropriate where they are reasonable and proportionate (including where demolition is cheaper or the building is dangerous/structurally unsound).
• The parties had identified three candidate schemes: (i) Scheme 1 — full demolition and rebuild; (ii) Scheme 2 — demolition and rebuild retaining the timber frame; and (iii) Scheme 3 — retain superstructure and underpin with a piled raft oversailing the existing foundations, remove the suspended floor to facilitate works, then make good.
• The Court assessed the evidence on the superstructure's condition. Although there was widespread visible cracking attributable to differential movement, expert evidence did not establish on the balance of probabilities that the timber frame or other non-visible structural elements had suffered damage requiring replacement. The Plaintiff's structural expert did not carry out opening-up works that could have demonstrated latent structural damage; the Court considered it reasonable to expect such investigative works to have been undertaken if the Plaintiff sought demolition on the basis of latent damage.
• The Court found that visible defects in the house (excluding the porch) were likely cosmetic and remediable if differential movement ceased following underpinning. The Court was not persuaded that the absence of "as built" drawings constituted a breach of contract or that it prevented remedial contractors from safely implementing Scheme 3, as differences could be investigated by opening-up as needed.
• Concerns about possible missing fire-safety features (cavity barriers) and about the electrical installation or drainage were either unproven or amenable to discrete remedial works; the Court considered demolition disproportionate on these grounds.
• The Court preferred the Defendant's structural evidence over the Plaintiff's where there were conflicts on measurements and relied on objective measurements (e.g., crack gauges) where available.

Ancillary scope determinations

• Garage: Although present evidence of damage was limited, the Court found it reasonable to include underpinning of the detached garage as part of the remedial scheme. The geotechnical evidence supported that piled foundations would be appropriate for the garage footprint, and the continuing risk of ground heave and potential tree planting in a nearby eco-zone justified underpinning.
• Footpath (public right of way): The Court concluded it would be disproportionate to construct piled foundations for the path. Local repairs (filling cracks) were adequate.
• Dwarf retaining wall: Given its modest size and function, the Court found it disproportionate to demolish and rebuild the wall on piled foundations; local repair was appropriate.

Quantification methodology and cost allowances

• The Court adopted the Defendant's Scheme 3 as the appropriate remediation scheme (subject to including underpinning of the garage) and assessed the quantification evidence provided by both parties' quantity surveying experts.
• The Court accepted the general approach that published guideline rates (SPONS) are a valid starting point but that adjustments may be justified for smaller scale remediation projects. It preferred rates and methods grounded in objective evidence and was cautious about higher comparator rates offered without clear comparability.
• The Court rejected provision for pile casings/sleeves and for Continuous Flight Auger (CFA) piles as unjustified on the evidence; standard bored reinforced piles were assessed as adequate based on the geotechnical evidence before the Court.
• The Court allowed a relatively generous single contingency of 15% (rather than the 5% proposed by experts) to deal with 'known unknowns', risk of latent defects revealed during works, likely market rate variations and inflation.
• The Court adjusted contractor overhead and profit to 13% as a midpoint between the experts' estimates (10% and 15%) and allowed a total sum of £32,000 for professional fees and surveys (rejecting an inflated figure that was driven by the Plaintiff's expert's projected fees).
• For underpinning the garage the Court allowed £35,000 (exc. VAT) based on the difference between costed options and reasonable adjustment.
• On non-defect losses, the Court awarded the Defendant's offered sum for temporary alternative accommodation (£27,700) rather than the Plaintiff's higher claim, and agreed to aggravated damages of £10,000. The Court disallowed other non-defect categories advanced by the Plaintiff as either litigation costs, project costs, unproven or insufficiently particularised.

Holding and Implications

Core holdings:

The Court found that the Defendant breached Clause 1 of the Contract and s.1(1) of the Defective Premises Act 1977 and awarded damages to the Plaintiff based on a remediation scheme retaining the superstructure (Scheme 3) but including underpinning of the detached garage. The Court produced a provisional quantified award totalling £423,243 (inclusive of VAT), subject to finalisation.

Implications and direct effects

• Direct effect: The Defendant is liable to pay the Plaintiff damages reflecting the reasonable cost of remedial works (a piled-raft underpinning scheme with making-good of the superstructure, and underpinning of the garage), plus allowances for contingency, professional fees, VAT, reasonable temporary accommodation costs and aggravated damages. The Court provided a provisional breakdown and directed a further hearing to finalise the award and address costs.
• No broad new legal principle was established. The Court applied established authorities on the measure of damages for defective premises and reiterated that demolition and rebuilding is an extreme remedy reserved for cases where it is reasonable and proportionate (e.g., where the building is dangerous or structurally unsound or where demolition is cheaper than remediation).
• The decision emphasises the evidential burden on a claimant seeking demolition: on the balance of probabilities a claimant must demonstrate latent structural damage or other compelling reasons justifying demolition rather than remediation; failure to carry out reasonable investigatory opening-up works may undermine such a claim.
• The Court illustrated practical quantification principles for remediation claims: careful assessment of remedial methods (type of piles, casings), sensible use of guideline rates, reasoned contingencies and cautious allowance for professional fees are all material to the award.

Provisional quantum (as given by the Court)

The Judge set out a provisional quantification of damages to be finalised following a further hearing. The headline provisional total was:

Grand total (provisional): £423,243

This total comprised the Court's estimate of project costs for the remedial works (including contingency, professional fees and the addition for underpinning the garage) together with awards for temporary accommodation and aggravated damages. The Court ordered a further hearing to allow correction of calculation errors or omissions and to determine consequential matters including costs.

Notes on Anonymisation and Sources

This summary is strictly anonymised: personal names, the address and certain organisation names from the original judgment have been replaced with generic placeholders (for example, "Plaintiff", "Defendant", "Company A", "Residential Estate", and "[Number] Main Street, The City") to comply with the required anonymisation protocol. All substantive findings, legal reasoning and quantified figures set out in this summary reflect only the information explicitly contained in the provided opinion and do not add, assume or infer facts beyond that text.