#15451 - Opinion On Liability Contract - BPC Opinion

IN THE PROPOSED CLAIM

BETWEEEN:

Mr MARK PEMBERTON

Proposed Claimant

-and-

Mr GEOFF SHORT

Proposed Defendant

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OPINION ON LIABILITY

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INTRODUCTION

1. I am instructed to advise Mr Pemberton on the merits of a claim he wishes to pursue against Mr Short arising out of a contractual dispute. I am specifically asked to advise on whether Mr Pemberton will be likely to succeed in his claim for breach of contract and whether he will be liable to pay the amount outstanding on the contract price. This advice is prepared on the basis of my instructions which enclose the evidence here referenced. Further evidence has been requested and, where specified, my advice is given subject to its provision.

SUMMARY OF THE FACTS

2. On 2^nd March 2015 Mr Pemberton began formal discussions with Mr Short concerning renovation works at his property known as “Prandergast” in Windmill Lane, Ockhurst, Surrey. Mr Pemberton says that he outlined requirements for the doors and windows to be replaced with Georgian-style hardwood units, and described how the sightlines of these units should ‘line-through’ each elevation of the house. Mr Short required more time to devise a design and so discussions recommenced on 7^th April 2015 at Mr Pemberton’s behest. On this date Mr Short produced a design of the units which Mr Pemberton says he approved. He also showed Mr Pemberton hardwood samples out of which Mr Pemberton chose a mahogany hardwood, against Mr Short’s recommendation. On 10^th April Mr Pemberton agreed to install ‘transom windows’ above the internal doors following a telephone call from Mr Short. The written quotation was produced and dated 14^th April, and provided for 20 hardwood units to be designed, supplied and installed at the property, as well as door fittings previously agreed upon, for a total price of 80,000 plus VAT. This quotation was accepted on 17^th April over the telephone, and parties agreed to an instalment payment structure so that 50% was paid up front, and 50% to be paid upon completion. Mr Short began work on 6^th July 2015. Mr Pemberton went abroad and returned to the property on 10^th July, to find that works had been completed. However Mr Pemberton says that he found, firstly, visibly misaligned at the property and, secondly, internal doors which were too low for him to gain access. Upon further inspection he says he discovered work to be sub-standard and that the hardwood purchased was not the material found in the units.

SUMMARY OF ADVICE

3. At this stage Mr Pemberton appears to have a strong case in breach of contract in relation to reasonable care and skill when installing the windows and doors. On the present evidence, the express term relating to equal sightlines will be disputed as an absolute term of the contract. Further evidence establishing agreement of the term and evidence showing failure by lack of care will be persuasive. The implied term relating to door height is also open to rebuttal by Mr Short on the ground that there was express agreement between parties, though it is advised that this rebuttal looks weak at present. If Mr Pemberton’s position on either of these terms is strengthened, establishing repudiation will be more straightforward and it will be unlikely that he will have to pay the outstanding sum owed on the contract.

LIABILITY

CONTRACT FORMATION

4. There seems to be no dispute between parties that a valid oral contract was formed on 17^th April 2015 for renovation work to be carried out in return for a fixed fee of 80,000, to be paid in two instalments. The quotation provided by those instructing me makes reference to the three previous conversations held on 2^nd March, 7^th and 10^th April 2015 and this is consistent with Mr Pemberton’s recollection. The oral contract is evidenced by the sketch and photo of 2^nd March 2015 and the transom window sketch of 10^th April 2015. However the exact content of the oral agreement is not established on the evidence, and this will likely be a matter in dispute regarding terms, below. Therefore those instructing me should seek to find out if anyone was witness to any of the discussions referenced above, and if so if they would be prepared to give witness statements.

TERMS OF THE CONTRACT

Express Terms

5. The terms relating to price, payment process, dates and door fittings are not in dispute.

6. The term specifying hardwood, and specifically mahogany, as the material to be used for the units will need to be established. It is not a term contained in the written quotation of 14^th April 2015, and Mr Pemberton states that its source is the discussion of 7^th April 2015. It is therefore vulnerable to the typical difficulties of oral agreement and statements of any witnesses would, if possible, prove useful. Further if Mr Pemberton has any of the samples shown to him on the 7^th April he should retain them. Nonetheless the term is not likely to be a cause of difficulty as it stands, as it appears from my instructions that Mr Short is contending he did in fact provide mahogany hardwood. It is also the case that the contract price is consistent with hardwood as confirmed by Mr Miller of A1 Glazing.

7. The most hotly disputed express term of the contract will concern the equal sightlines provision. This, too, is not contained in the quotation and Mr Pemberton says that its basis is in discussions on 2^nd March 2015. He says that he informed Mr Short that equal sightlines were an “essential requirement” which, if proved, constitutes a significant breach on his part. The sketch diagram provided by Mr Pemberton is, in my opinion, clear on the requirements and the photograph provided is strong. However Mr Short is likely to argue that an absolute sightlines requirement never became a term of the contract on the basis that he felt perfect symmetry was unachievable. It might be argued that parties agreed on the requirement ‘to the best of Mr Short’s ability’ or ‘as far as is possible’. Yet Mr Pemberton says Mr Short was left to find a workable solution, and never mentioned a failure to do so before the agreement was finalised. This is persuasive in establishing that Mr Short agreed to the term in its absolute form, that is to say wholly aligned sightlines. The report of Mr Miller of A1 Glazing will bear much weight on this matter as it confirms that the sightlines requirement was perfectly attainable, and failure to align was, in his opinion, a result of lack of care. Whilst it may be necessary to get a supporting opinion from another decorator in due course, it is advised that the equal sightlines provision is likely to be established, subject to any evidence Mr Short may produce to suggest the parties agreed to a non-absolute sightlines provision.

Implied Terms

8. The contract is likely to be subject to implied terms under Supply of Goods and Services Act 1982 (“SOGSA”).

9. The simplest provision to be relied on in this matter will be s.13 which applies to contracts where the supplier is acting in the course of a business. It implies a term that the supplier will carry out the service with reasonable care and skill. It seems fairly uncontentious that Mr Short was acting in the course of business as his quotation was written on headed paper containing Mr Short’s trading name ‘QUALITY WINDOWS’.

10. Mr Pemberton should also seek to utilise s.4(4) & (5), which imply a condition where the transferor transfers the property in goods in the course of a business and the transferee, expressly or by implication, makes known….any particular purpose…that the goods supplied under the contract are reasonably fit for that purpose. This applies to the alleged breach regarding substandard door height caused by the transom windows. As the parties met on several occasions, it is reasonable to assume that Mr Short was made aware that the purpose of the doors was for Mr Pemberton’s use, who is 6ft 4 inches tall. It would be helpful to prove that height by statements of family members or doctor’s records. Mr Short, however, is likely to dispute the implication of the term by virtue of the parties’ express agreement over the installation of the windows, which would override the statutory implication. In response to this, the evidence of Mr Miller confirms that a reasonably skilled decorator would be able to install transom windows without losing the 6ft 6 inches standard door height. This effectively allows the express term for transom windows and implied term for door height to coexist. Mr Short would thus have to establish that Mr Pemberton expressly agreed to substandard door height, and this clearly offends common sense. As such weight rests on Mr Miller’s opinion, it is advised that a more detailed report, showing how transom windows can preserve standard door height, would be a proportionate expense in these circumstances. In the alternative, Mr Miller suggests that a reasonable decorator would ‘at least’ make some warning regarding door height.

11. The contract will also operate under s.4(2) which implies a condition into contracts made in the course of business that: goods are of satisfactory quality, where ‘satisfactory’ is such that a reasonable person would regard as satisfactory taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances. This will apply to the supply of mahogany, by reference to the description and price, and the door units, with regards to their normal utility as a relevant circumstance.

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