Wooden retaining walls, of various types, are a relatively familiar feature. They came under the spotlight when Mr and Mrs Thomas brought court proceedings against the housebuilder, Taylor Wimpey Developments Limited, that build their new house (Thomas and Anor v Taylor Wimpey Developments Ltd).

They argued that the log walls were defective and inadequately built. They put the cost of rectification at £200,000, which they claimed from Taylor Wimpey.

Breach of duty of care claim

The claim was brought on the basis of a breach of duty of care owed by Taylor Wimpey to the Thomases at common law, and under the Defective Premises Act 1972. Although their contract with the developer included a warranty, the claim was not brought on that basis because they were outside of the limitation period for bringing a claim under the contract.

The Thomases also brought a claim against the NHBC. They said the log walls fell under the Buildmark Warranty and the NHBC had wrongly refused to pay for the cost of the remedial works.

The court decided that it should determine the bases of the claims brought as preliminary issues. The purpose appears to have been to decide whether the Thomases could pursue these claims in principle.

Pure economic loss v breach of contract

In relation to Taylor Wimpey, the problem for the Thomases was that the general legal principle is that for claims in tort, that is a claim relating to a breach of duty of care (a non-contractual claim), the damage caused to the thing being built is what is known as “pure economic loss” and is not recoverable. So, if a builder builds a house, then the cost of rectification of defects in those works, by reference to breach of a duty of care, is pure economic loss and is not recoverable.

This should be contrasted with a claim for breach of contract, where the cost of rectification of those defects would be recoverable.

To try and get around that problem, the Thomases sought to rely on comments made by the House of Lords judge who laid down the above principle concerning pure economic loss. He made comments to the effect that there was a qualification to the above principle, when the property stands very close (as here) to the building owner’s land.

The judge dealing with the Thomases' claim considered the case law on this issue. He decided that the above comments from the House of Lords judge did not represent the law, and there was no such qualification to the above principle concerning pure economic loss.

In relation to the claim under the Defective Premises Act, the judge noted that the Thomases had conceded that they were outside of the limitation period for claims under that Act, and so they were no longer pursuing that part of their claim.

As to the claim against the NHBC, the Buildmark Warranty did cover “Retaining walls necessary for the structural stability of the house…its garage or other permanent outbuilding.” But did that cover the wooden retaining walls?

Both parties relied on expert evidence on that structural stability issue.

Expert evidence inadequately prepared

The judge noted that the experts were agreed that the retaining function of the log walls related solely to the bank behind and above the plateau on which the buildings were built. They had no function in preventing the collapse of the buildings.

Rather, the expert evidence focused on the importance of the retaining walls in preventing the bank behind the properties from collapsing and so imposing pressures from the soil on the walls of the buildings.

However, the judge found that the Thomases had failed to prove that the walls were necessary for the structural stability of the buildings. As a result, the NHBC was not in breach of the Buildmark Warranty.

The Thomases, therefore, failed entirely in their claims.

It is worth noting that the judge recorded that the expert evidence on both sides had been put together in some haste and “that was all too obvious at trial”.

It will never be known whether the Thomases would have succeeded in their claim against the NHBC had their expert evidence not been put together in such haste.

This case highlights the importance of proper preparation of expert evidence before trial, which in turn means appointing the right expert at the right time.

About the author

Stuart Thwaites Legal Director

Stuart is a lawyer specialising in construction and engineering work in relation to resolving disputes and in the drafting and negotiation of contractual documentation.