HT-2022-000090 - [2025] EWHC 723 (TCC)

the normal position in cases of defective construction work is that the measure of loss is the cost of reinstatement. (Lord Cohen in East Ham Corporation v Bernard Sunley & Sons Ltd [1966] A.C. 406, 434-435, approving text from the Eighth Edition of Hudson’s Building and Engineering Contracts which stated: 'There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage';

this is subject to reinstatement being a proportionate and reasonable course of action. If it is unreasonable to reinstate, the loss does not extend to reinstatement and the loss would generally be the diminution in value. (Ruxley Electronics v Forsyth [1996] AC 344);

in assessing what is reasonable the correct approach is an objective one (Scutt v Lomax [2000] 1 WLUK 530 at [50]);

it is for the claimant to prove causation, and if he relies upon a decision which he says was reasonable, it is for him to prove its reasonableness (Skandia Property (UK) Ltd v Thames Water Ltd 57 Con LR 65 at 79);

the advice of an expert may be a material factor when determining what was a reasonable course of action (Axa Insurance UK Place v Cunningham Lindsey United Kingdom [2007] EWHC 3032 (TCC) at [268], [2007] All ER(D) 290); (Linklaters Business Services v Sir Robert McAlpine Ltd & Or [2010] EWHC 2931 (TCC); [2010] 133 Con LR 211 at [131]);

once a course of action is established as reasonable, the starting point for recovery will usually mean the actual costs incurred if work has been done, from which there should be a reason to depart (Hall v Van de Heiden [2010] EWHC 586 (TCC) at [66]);

once causation is established, it is for the defendant to allege and prove a break in the chain of causation, for example by establishing a failure to mitigate (Skandia Property (UK) Ltd v Thames Water Ltd 57 Con LR 65 at 79);

the claimant has a duty to mitigate loss. That duty is not an exacting one. It is not enough for the wrongdoer to show that it would have been reasonable to take the steps he has proposed: he must show that it was unreasonable of the innocent party not to take them. This is a real distinction. It reflects the fact that if there is more than one reasonable response open to the wronged party, the wrongdoer has no right to determine his choice. It is where, and only where, the wrongdoer can show affirmatively that the other party has acted unreasonably in relation to his duty to mitigate that the defence will succeed (per Sedley LJ in Wilding v British Telecommunications plc [2002] ICR 1079 at [55]);

there is no requirement for a party to be satisfied with reinstatement of an article to an inferior quality to that stipulated in the contract merely because it is cheaper for a contract breaker to supply that (Radford v deFroberville [1977] 1 WLR 1262 at 1248H);

reasonable costs do not mean the minimum amount which, with hindsight, it could be held would have sufficed (The Board of Governors of Hospital for Sick Children v McLaughlin & Harvey Plc 19 Con LR 95);

however, if there are two equally efficacious alternative remedial schemes and one is cheaper than the other, then prima facie the claimant is obliged to put in hand the cheaper of the two schemes (McGlinn v Waltham Contractors Ltd (No 3) [2008] Bus LR 233) Put another way, if the claimant in fact chooses a more expensive option in this scenario, this does not mean that he is acting unreasonably; but the additional cost is regarded as a consequence of the claimant’s choice and not of the defendant’s wrong (Hirtenstein v Hill Dickinson [2014] EWHC 2711 at [127]).