01/04/2025
In the case of Mr and Mrs Vainker v. Marbank Construction Ltd & Ors [2024] EWHC 667 (TCC), the Technology and Construction Court (TCC) provided considered insights into the application of the Defective Premises Act 1972 (DPA). Charlotte Waters of FSW-Law assisted Mr and Mrs Vainker in this successful claim.
Case Background:
Mr and Mrs Vainker employed Marbank Construction Ltd as the main contractor and SCD Architects Ltd as the architect for building their new home in Twickenham. During the build and after practical completion, they discovered several defects, especially safety-related issues, with the glass balustrades installed throughout the property. They pursued claims against Marbank Construction Ltd and SCD Architects Ltd under the Defective Premises Act 1972 (DPA) because the dwelling was not fit for habitation.
Failure to Mitigate Allegations:
Marbank contended that the Vainkers failed to mitigate their losses by not providing Marbank the opportunity (by inviting it or allowing access) to rectify the defects before engaging another contractor for remedial work. The Court examined whether the Vainkers took reasonable steps to mitigate their losses and concluded that their decision to hire a different contractor for repairs and the delay in doing so was justified, given the circumstances. The Court emphasized that while claimants have a duty to mitigate, they are not obligated to allow the original contractor to perform remedial work, especially when confidence in the contractor's ability to ascertain the cause of the defects and provide a suitable remedial scheme is uncertain. Therefore, the Court rejected Marbank's argument regarding the Vainkers' alleged failure to mitigate.
This judgment underscores that homeowners are expected to take reasonable steps to mitigate damages but are not necessarily required to permit the original contractor to undertake remedial work, particularly when there are valid concerns about the contractor's performance.
Key Findings:
- Duty Under the DPA: The Court held that both Marbank and SCD had a duty under Section 1(1) of the DPA to carry out their work in a professional manner, using appropriate materials, ensuring the home would be habitable to live in once finished.
- Fitness for Habitation: The main question was whether the defects made the house uninhabitable. The Court noted that while minor or cosmetic issues might not meet this standard, defects that pose health and safety risks, like inadequate glass balustrades, could make a home unfit. In this case, using toughened 'exploding' glass instead of the specified toughened laminated glass in the balustrades was unsafe, violating the DPA.
- Net Contribution Clauses: The judgment examined whether net contribution clauses apply under the DPA. It concluded that Section 6(3) of the DPA invalidates any contract terms that try to exclude or limit liability under the Act, including net contribution clauses. This highlights the strong protection the DPA offers homeowners against attempts to reduce liability through contractual terms.
Limitation Periods:
Although not a feature in this action as the DPA Claim was brought within the relevant limitation period applicable at the time, the Building Safety Act 2022 extended the time limit for bringing DPA claims, giving homeowners more time to seek remedies for defective work.
Conclusion:
The Vainker v. Marbank Construction Ltd & Ors case is a key example of construction professionals' responsibilities under the DPA. It underscores the need for contractors and architects to strictly follow professional standards and specifications to ensure that completed homes.