HT-2022-000311 & HT-2022-000254 - [2024] EWHC 3179 (TCC)

In addition to, and it must be in the alternative to, the claims for breach of the covenant of quiet enjoyment, the leaseholders aver that Click St Andrews owed a duty:

“to exercise all the reasonable care and skill to be expected of a competent and professional contractor during the course of [the Works] such that they were to be completed to a reasonable standard and fit for purpose. Such a duty included that St Andrews avoid causing any physical damage to the Property and economic loss, whether consequential or pure, to the Claimants.”

That duty of care is denied by the defendants.

Although the leaseholders seek to rely on all the alleged breaches of the FPA, the particular breaches relied on are causing or failing to prevent water ingress to the common parts and flats 5, 6, 7, 8 and 9 and causing or failing to prevent elevated moisture readings and mould growth in the same locations.

The duty to take care to avoid causing physical damage to the property should be uncontroversial and breach of such a duty would be sufficient to found most, if not all, of the leaseholders’ claims in respect of the water ingress, moisture and mould growth.

The pleaded duty on its face, however, extends beyond a duty not to cause physical damage to the leaseholders’ property and amounts to a duty owed to the leaseholders to carry out the Works with reasonable care and skill and, indeed, so that the completed works were fit for purpose. The basis for this extended duty was not the subject of any submissions as to the basis on which it might be owed. It could only arise from some assumption of responsibility. I start by saying that, at highest, I can only see that a duty to exercise reasonable care and skill might be owed and not a duty to provide something which is fit for purpose. The latter goes beyond any duty of care in tort. So far as the former is concerned, on the one hand, RTM acts as nominee for the participating leaseholders in the enfranchisement and, in this case the carrying out of the Works, which militates in favour of finding that Click St Andrews assumed the relevant responsibility to the leaseholders. However, the statutory position is that a nominee must act in the enfranchisement and it would seem to run contrary to that position to find that, where contractual arrangements were then made with the nominee, the selling freeholder also owed duties to the participating leaseholders.

I do not consider it necessary, to decide whether such an extended duty was owed and whether such a claim could succeed. The cost of remedial works can properly be recovered by RTM, and by the leaseholders for breach of the covenant of quiet enjoyment, and a distinct claim by the leaseholders on this alternative basis adds nothing.