Watson Farley & Williams (“WFW”) has secured another legal victory for claimants Toppan Holdings Limited (“Toppan”) and Abbey Healthcare (Mill Hill) Limited (“Abbey”) in a long running dispute about defects at a care home. Having previously won damages against the contractor for the defects repair costs, now in the case of (1) Toppan Holdings Limited, (2) Abbey Healthcare (Mill Hill) Ltd. v Augusta 2008 LLP (formerly Simply Construct (UK) LLP) WFW has won £6.4m inclusive of damages, interest and costs, to compensate the claimants for their business losses.
The judgment, handed down on 4 July, concerned defects at a new luxury care home in Mill Hill, London. After the care home was built and opened, defects in the design and construction were identified, including as to fire resistance and fire stopping. With the contractor, Augusta 2008 LLP (formerly Simply Construct (UK) LLP) (“Simply”) refusing to remedy the defects, the repairs had to be carried out by the claimants. Although the defects were successfully remedied with the assistance of industry experts, both claimants suffered losses to their business as a result.
Judge Martin Bowdery, KC, sitting as Deputy Judge of the High Court, agreed that occupancy at the care home had to be suppressed from remedying the defects and that resulted in Abbey being awarded substantial compensation for lost trading profits. The repairs had to be carried out in a manner that prioritised the wellbeing of residents; including carefully completing works, under the supervision of project manager Nick Martin of Aedifice, in a way that prevented mixing patients with dementia with those who did not.
The judgment comes following longstanding litigation between the parties over the means by which the claimants’ losses should be recovered. Toppan and Abbey had already successfully recovered some of their losses against Simply through adjudication proceedings. Although the Toppan decision was previously enforced by an earlier decision of Judge Martin Bowdery, KC in the Technology and Construction Court, the Abbey adjudicator’s decision was not enforced on grounds of jurisdiction. That decision was upheld on appeal by the UK Supreme Court. Please find here an in-depth analysis of that decision.
This judgment finally compensates the claimants for their business losses. It also means that losses which were recovered but reserved by the UK Supreme Court, now need to be paid back from Simply to Abbey
The WFW London team that successfully represented the claimants in this claim was led by London Construction Partner Barry Hembling, working closely with Senior Associate Simon Jennings, Associate Caroline Rossman, Trainees Carita Hui, Ankita Negi and William Stewart and PA Alison Parmar. WFW instructed Tom Owen KC of Keating Chambers to represent the claimants at the hearing.
Barry commented: “I am pleased that we have secured this win for our clients. This is an important decision. It confirms their business suffered losses from the defects and the need to carry out repairs. This was a complex financial claim, involving forensic accountancy evidence (from Dan Langley of StoneTurn) and valuation evidence (from Iain Lock from Avison Young). The outcome is a culmination of the team’s dedication and highlights WFW’s reputation for excellence in construction disputes and construction work generally”.
Andy Taylor of Abbey said “This result acknowledges the hard work of our team in opening a new care home in very challenging circumstances, with repairs being completed in a manner that always prioritised the care and safety of our residents. I am incredibly thankful to Barry Hembling and his team for achieving this result for us which highlight their expertise in this area”.
