BuildLaw Issue 33 November 2018 | Page 32

United Kingdom

Deal or no deal? another lesson in ensuring your contract is clearly set up

The recent English case of Williams Tarr Construction Limited v Anthony Roylance Limited and Anthony Roylance [2018] EWHC 23 highlights the importance of taking time at the commencement of a project to set out the basis on which parties intend to contract with each other.
WTC was the main contractor on a housing development in Cheshire. The works included the construction of a retaining wall to the south of the site, the original intention had been that the wall would be a blockwork wall but this was subsequently revised to stone-filled gabion baskets. During the course of the works unexpected ground conditions were encountered which caused problems with the retaining wall.
WTC engaged either Anthony Roylance Limited or Anthony Roylance in his individual capacity to either design a solution so that the retaining wall would be fit for purpose or to design a drain to assist with water inflow problems so that the rear of the retaining wall could be accessed.
And therein lies the rub.
WTC believed that it had engaged Mr Roylance in his capacity as an individual to design a solution to the problems with the wall so that the wall would be fit for purpose.
Mr Roylance for his part disagreed with this analysis, WTC had contracted with his limited company on a far more limited scope to design a drain for the wall, he had not designed the





wall, he had not taken on the obligation to ensure that the wall would be fit for purpose.
The court found that each party had become fixed in their view and were unable or unwilling to accept that matters may have been more complex than their own view.
In addition Mr Roylance had produced design drawings in about 2010. When problems first came to light it was thought to be as a result of errors in workmanship rather than design. This avenue was pursued for some time with the subcontractor who constructed the wall and it was not until almost six years after the original discussions took place regarding the design of the wall that a claim was intimated. Due to the passage of time and the fact that the matter had been put out of everyone’s heads for a significant period the court found the witness evidence, although honestly given, to be of little assistance.
Therefore the task for the court was to consider each piece of correspondence between the parties to determine what had been agreed and between whom. The documents were often unclear, for example a design had been produced for the retaining wall by Mr Roylance, Mr Roylance claimed this was an “as-built” drawing produced simply as a record of what was already on site, WTC claimed that there were additional details on that drawing added by Mr Roylance in an attempt to resolve the difficulties with the wall.
As to the parties to the contract WTC said that the bulk of the documentation pointed to Mr Roylance acting in his personal capacity, he did not use headed notepaper or refer to his limited company in his communications. Mr Roylance stated that payments were processed through the limited company and that a draft collateral warranty produced by WTC had referred to Mr Roylance’s company number.