Alexander v Mercouris [1979] 1 WLR 1270
Court of Appeal: Buckley, Goff and Waller LJJ.
This case concerned the statutory duty owed by people taking on work connected with providing a dwelling. The question was whether the Defective Premises Act 1972 applied where the work had been taken on before the Act came into force but was completed afterwards.
The building work and the timing problem
On 20 November 1972, the plaintiff entered into an agreement under which the defendants arranged the purchase of a house and its modernisation and conversion into two flats. The plaintiff bought the property and engaged a building firm to carry out the work. The defendants were appointed to supervise it.
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The works reached practical completion in February 1974. The Act had come into force on 1 January 1974. At first instance, the judge held that the relevant date was the date of the agreement, rather than the date on which the dwellings were completed.
When did the statutory duty arise?
Section 1(1) imposed a duty on a person taking on work for or in connection with the provision of a dwelling. It required appropriate workmanship or professional work, proper materials, and a standard of work that would make the dwelling fit for habitation when completed.
The plaintiffs argued that this created a single continuing duty which was not completely performed or breached until completion. On that interpretation, completion after 1 January 1974 would bring the work within the Act, without giving the legislation retrospective effect.
The defendants argued that the duty arose when the work was taken on and operated while it was being carried out. They maintained that applying the Act to the earlier undertaking would give it retrospective effect.
The Court of Appeal’s reasoning
The Court of Appeal rejected the completion-based interpretation. Buckley LJ explained that the duty arose when a person took on the work and was performed during the work. The reference to fitness for habitation on completion described the intended result and supplied a measure of the required standard. It did not mean that there could be no breach before completion.
He illustrated the point with defective foundations: assuming the statutory duty applied, a failure to carry out that work properly could give rise to an immediate cause of action. A claimant did not have to wait until the dwelling was finished to seek relief.
Goff LJ agreed that taking on work pointed to its beginning, rather than its end. Without a contract, that would be when the person started the work. With a contract, he considered that it would be when the contract was made and, in any event, no later than the start of performance. Waller LJ agreed with that approach. The fact that practical completion occurred after the Act commenced therefore did not establish that these earlier arrangements fell within it.
Significance
The decision distinguishes when a statutory duty arises from the standard by which its performance is judged. A requirement that a dwelling be fit for habitation when completed does not necessarily postpone every breach until that date. The case also illustrates why the commencement of legislation must be considered separately from the completion of the transaction or work in dispute.
Source: Harrison v Shepherd Homes Ltd [2011] EWHC 1811 (TCC), paragraphs 129–134.
