Dispute between building contractors and developers as to responsibility for defects which had appeared in precast-concrete cladding panels and tiles used in the construction of the Arndale Centre in Manchester — Present proceedings concerned an application for an interlocutory order sought by the developers in an action brought by the building contractors against suppliers, developers and architects — Developers applied for an interlocutory mandatory injunction requiring the contractors to repair the defective panels and replace or refix, as the case may be, tiles which were missing, fractured or loose — Official referee refused the application and hence present appeal — Official referee’s decision upheld by Court of Appeal — Principles laid down in leading case of American Cyanamid Co v Ethicon — One of these principles was that if the damages which would be recoverable at the trial by the applicant, in the event of his being refused interlocutory relief, would constitute an adequate remedy, ‘no interlocutory injunction should normally be granted’ however strong the applicant’s claim appears to be at the interlocutory stage — Judge was right in regarding the dispute as essentially about who should pay for the work to be done — Circumstances were not such as to justify grant of a mandatory injunction — Appeal from official referee dismissed
This was a
summons issued by Town & City (Manchester) Developments Ltd, one of the
defendants in an action brought by Taylor Woodrow Construction (Midlands) Ltd
as plaintiffs in connection with a dispute as to work on the Arndale Centre
development in Manchester. The other defendants were Charcon Structures Ltd,
suppliers of materials, and Hugh Wilson & Lewis Womersley, architects. The
summons sought an interlocutory mandatory injunction to compel the plaintiffs
to carry out immediately works of repair and reconstitution in respect of
cladding panels and tiles at the centre. The application was refused by Judge
John Newey QC, sitting as an official referee. Town & City (Manchester)
Developments Ltd appealed to the Court of Appeal.
John
Tackaberry QC (instructed by Warren Murton, agents for Last Suddards, of
Bradford) appeared on behalf of the appellants; David Kemp QC and V A Ramsey
(instructed by McKenna & Co) represented the respondents, Taylor Woodrow
Construction (Midlands) Ltd, but the court did not call on them.
Giving the
first judgment at the invitation of Waller LJ, SLADE LJ said: This is an appeal
from an interlocutory order made in an action in which the plaintiffs are
Taylor Woodrow Construction (Midlands) Ltd (‘Taylor Woodrow’) who are the
respondents to the appeal. The first defendants are Charcon Structures Ltd
(‘Charcon’). The second defendants are Town & City (Manchester)
Developments Ltd (‘Town & City’) who are the appellants. The third
defendants are Hugh Wilson & Lewis Womersley.
The order in
question was one of His Honour Judge Newey, who was sitting as an official
referee, made on May 25 last, whereby he dismissed with costs an application by
Town & City for a mandatory interlocutory injunction against Taylor
Woodrow.
The case
concerns a large development in Manchester, known as Arndale Centre, which
comprises a tall office block raised above a shopping centre.
On January 22
1973 a contract was entered into between Taylor Woodrow, as main contractor,
and Town & City, as employer, for the building by Taylor Woodrow of the
Arndale Centre. The architects in respect of the proposed development were Hugh
Wilson & Lewis Womersley. The designs which they had prepared included
tiles of a particular type which were to be mounted on panels. It was
contemplated that the tiles would be actually placed on the panels at the
factory where both were to be made, and that the panels would then be placed in
position on the building by Taylor Woodrow as the building contractors.
The contract
in question, which was basically in a standard form, contained, among others,
the following provisions: Clause 1 obliged the contractor, Taylor Woodrow,
subject to its conditions, to carry out and complete the works shown on the
contract drawings in every respect to the reasonable satisfaction of the
architects. Clause 2 obliged the contractor, subject to certain qualifications,
to comply with all instructions issued to the contractor by the architect in
respect of any matter in respect of which the architect was empowered by the
conditions to issue instructions. Clause 4 obliged the contractor, inter
alia, to comply with any Act of Parliament or any instrument, rule or order
made under any Act.
As Mr
Tackaberry pointed out on behalf of Town & City, the obligation under this
clause thus obliged the contractor to see that the works satisfied the
statutory obligation and, if such compliance necessitated an alteration in
design, at least prima facie this obliged the contractor to alter the
design accordingly.
Clause 11
empowered the architect to issue instructions requiring a variation or to
sanction a variation made by the contractor. It contained provisions for an
adjustment of the payment due to the contractor in such an event.
Clause 15
provided for the architect to issue a certificate when, in his opinion, the
works were practically completed and provided that practical completion of the
works should be deemed for the purpose of the contract to have taken place on
the day named in the certificate.
Clause 28
contained provisions which were expressed to apply where prime cost sums were
included in the contract bills or arose as a result of the architect’s
instructions given in regard to the expenditure of provisional sums in respect
of any materials or goods to be fixed by the contractor.
Clause 28(b)
began with the following words:
Such sums
shall be expended in favour of such persons as the architect shall instruct,
and all specialists, merchants, tradesmen or others who are nominated by the
architect to supply materials or goods are hereby declared to be suppliers to
the contractor and are referred to in these conditions as ‘nominated
suppliers’. Provided that the architect shall not (save where the architect and
contractor shall otherwise agree) nominate as a supplier a person who will not
enter into a contract of sale which provides . . .
Five subclauses
then followed which stated the provisions that any such contract should
include.
Clause 28(d)
provided as follows:
Where the
said contract of sale between the contractor and the nominated supplier in any
way restricts, limits or excludes the liability of the nominated supplier to
the contractor in respect of materials or goods supplied or to be
restrictions, limitations or exclusions, the liability of the contractor to the
employer in respect of the said materials or goods shall be restricted, limited
or excluded to the same extent . . .
I need not read
the rest of that subclause. As I have said, at all material times, Hugh Wilson
& Lewis Womersley were the architects for the purpose of this contract.
Following the
execution of the contract, the architects were minded to nominate a firm called
Charcon (Concrete) Ltd as suppliers for the manufacture and delivery of the
contemplated precast-concrete tile-faced cladding panels. Taylor Woodrow, it
appears, were not very happy with this proposal. They had had some earlier
dealings with that company and apparently had not regarded it, or its products,
as very satisfactory. There was, therefore, a good deal of correspondence
between May 1973 and July 1973 as to the effect that the nomination of Charcon
(Concrete) Ltd would have on the contractual obligations of Taylor Woodrow
under its contract with Town & City. This correspondence is summarised in
the learned judge’s judgment. I do not propose to summarise it save to mention
that, as he pointed out, it included a letter of July 25 1973 written to Taylor
Woodrow by the architects, who thereby confirmed that the issue of certificates
by them under the contract would not be prejudiced as a result of any defective
quality of the tile units. The material parts of this correspondence were
largely directed to the situation that would arise if the tile units were found
to be defective.
In the end, at
least for the time being, Taylor Woodrow appear to have been satisfied. It
placed an order with Charcon (Concrete) Ltd for the tiles, as instructed by the
architects, and on June 20 1974 (or thereabouts) they concluded a contract with
that company in respect of the tiles. In addition, that company entered into a
direct warranty agreement with Town & City.
In 1975, I
understand, the first defendant, Charcon Structures Ltd, acquired the assets of
Charcon (Concrete) Ltd, and, with Taylor Woodrow’s consent, assumed Charcon
(Concrete) Ltd’s rights and liabilities under the contract. No further
distinction between the two Charcon companies falls to be drawn for the purpose
of this judgment.
Charcon then
purported to manufacture and deliver the panels for the Arndale Centre in
accordance with its agreement with Taylor Woodrow. The development had begun by
1974. The panels, having been delivered by Charcon, were mounted on the building
by Taylor Woodrow, but by 1976 it unfortunately appeared that some tiles were
becoming detached from the building and were falling.
In 1979 Taylor
Woodrow arranged for the trouble to be investigated and early in 1980 it asked
Town & City to require Charcon to do the necessary work under the direct
warranty agreement. Taylor Woodrow’s attitude was that this trouble was not its
responsibility in law because, according to its contention, the trouble had
arisen owing to the defective quality of the panels. Nevertheless, it did
employ a specialist company called Lionel Arnold Tilefixers Ltd (‘Arnolds’) to
do some necessary work, and this was done, I understand, at a cost of something
in excess of £81,000. While improving the state of the building, it did not
apparently entirely eliminate the trouble. The architects, in these
circumstances, refused to offer anything more than qualified certificates, that
is qualified to the extent of not accepting that the work in respect of the
tiling had been completed.
Against this
background, on May 9 1980, Taylor Woodrow (as plaintiffs) issued proceedings
against Charcon in the first instance. The proceedings were then amended, in
May 1981, by the joinder of Town & City and, several months later, were
amended again by the addition of the architects as third defendants. Town &
City have served a defence or counterclaim in the action.
On March 24
1981 the architects wrote to Taylor Woodrow drawing their attention to loose
tiles and expressing a desire to see action taken to remove the danger. On
April 13 Taylor Woodrow replied, pointing out that they had already undertaken
remedial work and that in their opinion any further work ordered by the
architects should be paid for on a fair basis to be agreed in advance.
On May 28 1981
the solicitors for Town & City wrote to Taylor Woodrow’s solicitors saying
that their clients were giving very serious consideration to the necessity for
carrying out remedial works to the panels. On June 8 1981 Town & City wrote
to Taylor Woodrow restating their concern as to the possible danger to the
public of the tiles falling from the building. Further correspondence ensued
between June and August 1981.
By a letter of
December 17 1981, Town & City were informed that Taylor Woodrow were
prepared to undertake remedial works if reimbursed for them. On January 26 1982
the solicitors for Town & City wrote saying that they did not think the
work should wait, in view of the danger to the public at large. Eventually, on
March 1 1982, the plaintiffs’ solicitors were informed of the intention of Town
& City to seek a mandatory injunction to compel Taylor Woodrow to return to
the site to do their work. It seems to be common ground on the evidence that by
that stage there was some real danger to the public from falling tiles, so that
something needed to be done by someone.
A summons in
the action was issued by Town & City on March 16 1982 seeking:
An
interlocutory mandatory injunction requiring the plaintiffs forthwith in and on
a building known as the Arndale Centre in the City of Manchester: (a) to repair
and reconstitute the defective precast-concrete cladding panels, and (b) on
such panels to replace or refix securely all tiles which are missing fractured
or loose, the whole of such work to be carried out to the satisfaction of
Messrs Hugh Wilson and Lewis Womersley who are the nominated architects of the
second defendants.
His Honour
Judge Newey heard the application on May 25 1982. He summarised the submissions
then put forward on behalf of Town & City in the following passage:
It is
submitted that TW, as constructors, are in breach of both contracts which they
entered into with T & C; that they are in breach of contract in respect of
materials used (in particular, of course, that means the panels) and also in respect
of their own workmanship in fitting the panels and attaching them to the frame
of the building; and that they are also in breach because the tiles are liable
to fall, contrary to the Building Regulations, which the contract required that
TW should comply with. Mr Tackaberry further submits that TW failed to work to
the architects’ satisfaction, and that they failed to comply with instructions.
He has submitted, therefore, that this is a clear case and he says it would be
appropriate to grant interlocutory relief requiring TW to carry out this work,
because they are uniquely well placed to carry it out; that they were the head
contractors who knew this building better than anyone else; and, even though of
course he concedes that TW cannot do it themselves, he says that they can
arrange for someone else to carry it out, and that since that someone will
probably need to be attended, will need to have scaffolding or cradles, or
something like that arranged for their fitters, TW could do that. He says that TW
are in a position to do this work more cheaply than anybody else, and he says
that if they do it there will not be the need for supervision and cost
accounting which would be required if somebody else were doing it. He further
says that damages would not be an adequate remedy; that if T & C, for
instance, arrange for somebody else to do the work, damages would not
recompense them because of the rate of inflation and the fact that in practice
interest awarded does not compensate a plaintiff for being out of his money. He
has urged upon me a need for speed. There is, he says, a public nuisance and
certainly danger to the public, and he submits that the form of injunction
composed in the summons is a satisfactory form. He acknowledges that it
probably would not be right that the architects, who are now actually parties
to the action, should supervise the work, but he says that Harry Stanger could
be employed to do it.
Harry Stanger
was a firm of experts which had previously been employed to investigate the state
of the tiling.
The main lines
of defence of Taylor Woodrow to this application had been summarised in an
affidavit sworn by a Mr Conod, one of their directors, on May 12 1982, in which
he said this:
. . . the
principal issue between Taylor Woodrow and Town & City is whether Taylor
Woodrow has any liability for the defects which have appeared in the cladding
panels. Taylor Woodrow contends that it is not liable, and the grounds relied
upon may be summarised as follows: (i) that as a matter of construction of
contract, Taylor Woodrow is not responsible for the fitness for purpose or
suitability of the design of the panels; (ii) that in 1973 and 1974, by its
agents, the architect, Town & City agreed to accept responsibility for any
defects in quality of the cladding panels supplied by Charcon and/or agreed
that the issue of certificates under clauses 15 and 30 of the main contract
would not be prejudiced as a result of the defective quality of the cladding
units and/or agreed to indemnify Taylor Woodrow against any failure by Charcon
with the provisions of clause 28 of the main contract and, (iii) that liability
to Town & City is excluded by operation of clause 28(d) of the main
contract.
I understand
that the second of those three points is largely based on the correspondence
between the architects and Taylor Woodrow in 1973, to which I have already
referred.
Judge Newey,
in his judgment, accepted that mandatory injunctions could, in an appropriate
case, be granted to require the execution of work. Nevertheless, he expressed
the opinion that: ‘. . . the standard required for a party to obtain an
interlocutory mandatory injunction cannot be very much lower than that required
to obtain a summary judgment.’ And he
expressed the view that the case must be a clear one. He said:
In addition
to clarity and a fair degree of certainty, there must obviously be a need for
speedy action, the case must be one in which damages would not provide an
adequate remedy, and, of course, the order made must have the quality of certainty
which would be required for an order for specific performance.
He eventually
came to the conclusion that this was not a proper case for the grant of an
interlocutory injunction. The kernel of his reasoning is, I think, to be found
in this passage:
But it seems
to me that there is certainly doubt as to the contractual position here and
what precisely are TW’s liabilities (if any) in respect of panels and tiles.
Putting it no higher, there definitely are issues to be tried. I think also
that T & C are in as good a position as TW to get this work done. They can
employ fixers direct; they can employ the architects to supervise the fixers’
work. If it is necessary to bring in some builders to provide cradles and the
like, I am sure that can easily be done, but I am not really sure that it would
prove to be necessary. I simply do not know. I think that this is a funding
dispute. One has the situation that neither TW nor T & C can personally
attend to these tiles. It has got to be done by a third party. That being the
case it does boil down to a dispute as to who should put up the money initially
to pay for the work of the third party. That being so, it does not seem to me
to be the sort of case which is appropriate for a mandatory injunction.
And then, a
little later, he said: ‘I think this is a case in which damages would be an
adequate remedy.’ That, I think, was the
basis of his judgment and his refusal of interlocutory relief.
Since he
delivered his judgment, various further matters have occurred which have been
put in evidence. Harry Stanger have delivered two further reports, and Mr
Longbottom, a project director employed by Town & City, in reliance on
these reports, submits to the court in an affidavit that they show that the
defects are partly due to defects in erection as well as in manufacture. But
the most important subsequent occurrence is this. Town & City, having been
advised that, in view of the danger to the public and the importance of not
losing the summer weather, they must put in hand some repair work straight away
in the form of remedial work to the cladding, have employed Arnolds, the firm
previously involved in this work, for this purpose; I understand the work began
a few weeks ago. Town & City say that Arnolds would be perfectly prepared to
accept the substitution of Taylor Woodrow in place of themselves as contracting
party for the purpose of the completion of the work.
In these
circumstances Town & City comes to this court by way of appeal and asks the
court to grant the interlocutory relief by way of mandatory injunction which
Judge Newey declined to grant.
Mr Tackaberry,
in opening the appeal, conceded that the court is reluctant to interfere with
the exercise of their discretion by judges at first instance in deciding
whether or not to grant interlocutory injunctions; and furthermore that
mandatory injunctions are not readily granted by the court. He submitted,
however, that the court has the power to oblige a contractor, who has
constructed a building in which faults have appeared, to return to the site to
do the remedial work and that the learned judge erred in the exercise of his
discretion in refusing the relief sought on the present facts. In his
submission the judge, in saying that the case must be a clear one, set the
standard too high.
Furthermore,
in his submission, there is a public factor involved in this case which renders
it a special one and makes it particularly important that the contractors,
Taylor Woodrow, should be compelled to come back to the site and supervise the
necessary work.
He referred to
the Building Regulations 1972 (SI 1972 No 317) and in particular to regulation
A8, which provides that, subject to any express provision to the contrary, the
regulations in Part B shall apply to the execution of any works. He pointed out
that regulation B1 in Part B states that any materials used in the erection of
a building are to be: ‘(i) of a suitable nature and quality in relation to the
purposes for and conditions in which they are used; (ii) adequately mixed or
prepared; and (iii) applied, used or fixed so as adequately to perform the
functions for which they are designed.’
Thus, he
submits, there was a clear statutory duty on Taylor Woodrow to comply with this
regulation, with which he submits they have failed to comply, quite apart from
their alleged contractual duty to Town & City. In support of the existence
of a statutory duty, he has referred us to decisions in Anns v Merton
London Borough Council [1978] AC 728, to Eames London Estates Ltd v North
Hertfordshire District Council (1981) 18 BLR 50*, and to an unreported
decision of this court delivered on July 22 1982 in Acrecrest Ltd v W
S Hattrell & Partners,* though, very properly, he has also referred us
to a decision of Woolf J in Worlock v SAWS, (1981) 260 ESTATES
GAZETTE 920, in which Woolf J expressed the view that the statutory obligations
in question do not impose an absolute statutory duty on the contractor.
*Also
reported at (1981) 259 EG 491, [1981] 2 EGLR 110
*Reported at
(1982) 264 EG 245, [1982] 2 EGLR 138
Some support
for the view of the learned judge, as to the standard of proof required from a
plaintiff seeking a mandatory interlocutory injunction, is to be found in the judgment
of Megarry J (as he then was) in Shephard Homes Ltd v Sandham [1971]
Ch 340. For my own part, I think there is much force in the submission that the
onus falling on an applicant seeking an interlocutory injunction of a mandatory
nature may be heavier than that falling on an applicant who seeks a mere
prohibitory injunction.
Nevertheless,
I do not think it necessary to decide, as a matter of principle, whether the
burden on a party seeking an interlocutory mandatory relief is as high as Judge
Newey was inclined to think it might be. In my opinion it suffices to say that
the burden can on any footing be no less high than that which falls on a party
seeking a prohibitory injunction according to the principles laid down in American
Cyanamid Co v Ethicon Ltd [1975] AC 396. And, indeed, Mr Tackaberry
submitted that these were the correct principles for the court to apply.
According to
those principles, as stated by Lord Diplock, the first point on which the court
may satisfy itself is that the applicant seeking the injunction has established
a serious question to be tried as between himself and the respondent. In the
present case I have no doubt that, in all the circumstances which I have
mentioned, Town & City have established a serious question to be tried in
their claim that Taylor Woodrow are in breach of their contractual and
statutory obligations. On the other hand, Taylor Woodrow themselves hotly deny
breach of either obligation and I feel no less doubt that they have
established, on the evidence, a seriously arguable defence to the claim based
on contract, on the lines which I have already indicated and which are set out
in Mr Conod’s affidavit. As to the statutory obligation, I think that the
judgment of Woolf J in Worlock v SAWS would alone indicate the
lines on which an arguable defence may be available to them, particularly
bearing in mind that the choice of Charcon was not their choice but that of the
architects and that they found themselves obliged, contrary to their wishes, to
accept Charcon and its products in carrying out this development.
In these
circumstances, I think it is neither necessary nor appropriate to attempt to
evaluate further the relative strengths either of the claim of Town & City
or of Taylor Woodrow’s defence. The House of Lords, in the American Cyanamid
case, emphasised that it is no part of the court’s function, on hearing an
interlocutory application of this kind, to try to resolve conflicts of evidence
on affidavits on which the claims of either party may ultimately depend, or to
decide difficult questions of law which call for detailed argument and mature
consideration.
There is a
mass of evidence which has been filed here, but Mr Tackaberry, in his helpful
as well as economical submissions, has not sought to take the court all through
it. He is, I think, content that we should approach it on the basis on which I
do approach it, that a triable issue has been established by both sides. In
these circumstances, the present decision must turn on the balance of
convenience.
In this
context, as Lord Diplock pointed out in the American Cyanamid case, the
governing principle is that if the damages that would be recoverable at the
trial by the applicant, in the event of his being refused interlocutory relief,
would be an adequate remedy, ‘no interlocutory injunction should normally be
granted’, however strong his claim appears to be at the interlocutory stage
(see at p 408C). This passage of Lord Diplock’s related to a case where the
applicant was seeking an injunction to restrain the respondent from
doing something. But I cannot myself see why similar principles should not
apply any less where he is seeking an injunction to compel the
respondent to do something.
Accordingly,
in the present case, the court has first to consider whether, supposing that
interlocutory relief were now refused but Town & City were to succeed at
the trial in establishing their claims (by way of counterclaim) against Taylor
Woodrow, they could and would be adequately compensated by an award of damages
for the loss that they would have sustained as a result of the failure of
Taylor Woodrow to do the work in question. It seems to me that they could
undoubtedly be adequately compensated by an award of damages, and, though I
understand Mr Tackaberry sought to submit the contrary to the learned judge, he
did not really seek to argue the contrary before this court.
The loss in
question would, as I see it, basically be the price of paying Arnolds to do the
work. This is readily quantifiable and no one suggests that if Taylor Woodrow
were found liable at the trial, they would not be in a financial position to
give Town & City the compensation to which, in that case, they would be
entitled.
Nevertheless,
Mr Tackaberry pointed out — and this, I think, was really his main point on
this appeal — that the guidelines given by the House of Lords in the American
Cyanamid case are not absolute rules, as is shown by the use of the word
‘normally’ in the passage quoted above. He submitted that this is not a normal
case because of the public element involved as a result of Taylor Woodrow’s
alleged breach of the Building Regulations and the danger to the public. Town
& City feel strongly, he claimed, that it would be a monstrous thing if
Taylor Woodrow were allowed to walk away from their contractual obligations,
leaving work uncompleted and a danger to the public. He further pointed out
that, if a mandatory injunction is not granted now, it would probably be too
late for Town & City to ask for a mandatory injunction at the trial.
It may well be
that Town & City genuinely regard this case as involving a matter of
principle, and Mr Tackaberry told us that they do. Nevertheless, the question
whether their views as to the obligations of Taylor Woodrow are well founded
depends on the very same difficult questions of law and fact which the court
will have to decide at the trial of this action. It cannot appropriately decide
them now.
Looking at the
matter purely practically, neither Town & City nor Taylor Woodrow,
according to their respective evidence, have the necessary staff or expertise
to do the necessary work on the tiling themselves. Whichever of them therefore
commissions the work and supervises it, a specialist firm, such as Arnolds, has
actually to do it.
In these
circumstances the learned judge was, in my view, entirely right in regarding
the dispute as essentially boiling down to a dispute as to who should put up
the money initially to pay for the work of Arnolds. Of course, if the evidence
had been that Taylor Woodrow itself was uniquely qualified to do the work, the
position on the balance of convenience might have been quite different. But the
evidence does not come near to suggesting this.
The learned
judge did not specifically refer to the American Cyanamid test but, from
the form of his judgment, I have little doubt that he had it in mind. On any
footing in my view it is impossible for this court to say that he exercised his
discretion wrongly. On the contrary, in my judgment, on the particular facts of
this case, he was clearly right in withholding relief of this nature at this
present stage.
In written
submissions handed up to the court, Mr Kemp, on behalf of the respondents, has
indicated that there would have been a number of other points on which he would
have sought to rely in answer to this application, if we had found it necessary
to call on him. Among the important points which are raised in these
submissions is one relating to the form of the order asked for by Town &
City. In effect, I understand, he would have sought to submit that an order in
the form proposed would not be sufficiently certain to be enforced by the
court. Presumably he would have gone on to submit that in the particular
circumstances no order could be devised which would be of sufficient certainty
to justify the grant of a mandatory injunction. There may well be much force in
these points, as indeed in various other points set out in Mr Kemp’s written
submissions. However, I do not think it necessary to deal with them. For the
reasons which I have given, if no others, I am of the clear opinion that this
appeal must be dismissed.
Agreeing,
WALLER LJ said: I, too, would dismiss this appeal for the reasons given by
Slade LJ, but since Mr Tackaberry made it a very important part of his
submission that the plaintiffs, Taylor Woodrow, were guilty of a breach of
statutory duty, and as a result the public was put at risk, I would add just a
word or two about that point.
The duty which
he said was a statutory duty is set out in regulation B1 of the Building
Regulations 1972, and that regulation contains a great many things which have
to be done with materials used in the erection of a building. That regulation
has already been read so I do not refer to it.
The learned
judge took into account the fact that the difficulty in this case of panels
breaking did cause a danger to the public. It does not appear whether or not he
actually took this regulation into account, but Mr Tackaberry submitted that
the fact that it was a breach of regulation was an important consideration when
considering the balance of convenience and a consideration which would turn the
balance of convenience in a different direction from that which the learned
judge found.
In my opinion
this is simply another factor. Whether or not a breach of regulation B1 would
by itself give rise to an action for damages without proof of negligence is, to
say the least, doubtful. Whether it adds anything to the contractual position
is also, in my view, doubtful. I say that the question of proof of negligence
is doubtful because the only expression of view which gives any support to any
other view was contained in the speech of Lord Wilberforce in Anns v Merton
London Borough Council [1978] AC 728 where, as an obiter dictum,
Lord Wilberforce says, at p 759:
In the alternative,
since it is the duty of the builder (owner or not) to comply with the byelaws,
I would be of opinion that an action could be brought against him, in effect,
for breach of statutory duty by any person for whose benefit or protection the
byelaw was made.
Woolf J, in Worlock
v SAWS reported in (1981) 260 ESTATES GAZETTE 920, came to the
conclusion that it was not an absolute statutory duty but a duty which was duty
of care, and without expressing a concluded opinion about it, it seems to me,
as I have indicated in the course of argument, that a regulation of this kind
is very difficult to construe as a regulation imposing an absolute duty in an
action for damages. Happily we do not have to decide that, and I shall say no
more about it.
The appeal
was dismissed with costs.
