Court guidance on a Defective Premises Act 1972 claim – Vainker and another v Marbank Construction Ltd and others [2024] EWHC 667 (TCC)

Posted: 13/05/2024

The Technology and Construction Court (TCC) has provided important guidance on claims under the Defective Premises Act 1972 (DPA). In light of the increased interest in claims under the DPA, following the retrospective extended limitation period introduced by the Building Safety Act 2022 (BSA), this judgment provides useful insight into how the courts will apply the DPA in construction disputes.

The case 

This case arose following the construction of a residential property known as The Croft in Strawberry Hill, Twickenham. The claimants engaged the first defendant, Marbank Construction Ltd, to build the new-build house. The third defendant, SCD Architects Ltd, was the architect for the project. 

There were a range of alleged defects in the completed house, including in relation to external brickwork and internal glass balustrades. The claimants claimed against Marbank and SCD alleging breach of contract, in tort and for breach of section 1 of the DPA. However, for limitation reasons, the claim (particularly against SCD) focused on the DPA claim. 

Assessing DPA liability

Section 1 of the DPA provides that a person undertaking work in connection with the provision of a dwelling owes a duty to ensure that the works undertaken are carried out in a workmanlike/professional manner, with proper materials, so that the dwelling is ‘fit for habitation’ once complete.

The court stated that, in considering whether the house was, at the time of completion, ‘fit for habitation’:

• it is relevant to take into account that it was intended to be not only a new build, but a modern house in design;
• it is unlikely that a defect that is only aesthetic or inconvenient would render a dwelling unfit for habitation;
• there may be a breach of the duty in respect of a defect which means that the condition of the dwelling is likely to deteriorate over time and render it unfit for habitation when it does so. In that case, the dwelling can be said to be unfit for habitation at the time of completion; and
• it is appropriate to consider the aggregate effect of defects when determining whether the dwelling is unfit for habitation. However, defects which are minor or aesthetic on their own should not be considered.

Applying this guidance to the claim, the court concluded that only certain proven defects rendered the house unfit for habitation. One such defect was the glass balustrades within the house, which posed a serious health and safety risk.  In terms of remedial works for this defect, the defendants argued that all that was needed was the installation of handrails and the wholesale replacement of the balustrades was unnecessary and disproportionate. 

The court disagreed. In the context of the claim against SCD, it stated that, in DPA claims, damages will not be limited to the minimum necessary to put the dwelling back into a habitable condition. Instead, the court will take into account design briefs and aspirations and recoverable damages should include the costs incurred in making the dwelling fit for habitation in the way it should have been, had the services been supplied in a professional manner. This meant the claimants recovered the costs of replacing the glass balustrades. 

DPA claims and net contribution clauses

SCD had the benefit of a net contribution clause within its appointment with the claimants and sought to rely upon this clause to restrict its liability for the DPA claim against it.

Net contribution clauses are very common in professional appointments. The clause was intended to allow SCD to avoid being joint and severally liable with Marbank for 100% of any damages for which they were both liable. Instead, SCD would only be liable for the extent of its responsibility for the defect. Based on this, SCD argued it should only be 20% liable for the replacement of the glass balustrades (as its breach was limited to not identifying that Marbank’s works were defective).

The court disagreed. Section 6(3) of the DPA provides that any term of an agreement which purports to exclude or restrict liability under the DPA shall be void. The net contribution clause was a clear attempt to do this and, therefore, it was of no effect and assistance to SCD in defence of the DPA claim. 

Comment

Unsurprisingly, since the BSA, DPA claims are on the rise and any court guidance on them is very welcome. 

This decision is a useful reminder that it is not possible through contract to limit or exclude liability under the DPA. It also provides guidance on how the courts will assess the ‘unfit for habitation’ test, as well as indicating that damages for DPA claims will have reference back to what would have happened had the DPA duty not been breached (and not only the minimum required to render the dwelling fit for habitation).  

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