Khouly Construction and Engineering Ltd v Edward Mansoor

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA AND BARBUDA ANUHCVAP2020/0023 (formerly ANUHCVAP2019/0009) BETWEEN: KHOULY CONSTRUCTION & ENGINEERING LIMITED Appellant and EDMOND MANSOOR Respondent Before: The Hon. Dame. Janice M. Pereira, DBE Chief Justice The Hon. Mde. Louise Esther Blenman Justice of Appeal The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.] Appearances: Mr. Anthony Astaphan, SC with him Mr. Loy Weste and Mr. Kendrickson Kentish for the Appellant Dr. David Dorsett for the Respondent _____________________________ 2020: September 29; 2021: April 15. ________________________________ Civil appeal – Appellate approach to review of findings of fact – Contract law – Implied term – Breach of implied term of building contract – Whether trial judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care – Whether implied term conflicts with express terms of the contract – Whether trial judge erred in relying on or attaching weight or too much weight to the Schamber report in coming to her decision on the counterclaim – Whether trial judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving cracks, leaks and damage were caused by poor workmanship on the part of the appellant in breach of the implied term – Causation – Requisite standard of proof – Balance of probabilities – Approach of appellate court to issue of causation – Whether the judge erred when she gave judgment on the appellant’s claim – Whether contractual rates or market rates to be applied to extras on quantum meruit basis – Applicability of principle of subjective devaluation – Whether respondent/counter-appellant can rely at this stage on principle of subjective devaluation Khouly Construction and Engineering Limited (“the appellant”) and Mr. Edmond Mansoor (“the respondent”) entered into a written building contract on 14th February 2008. By the said contract, the appellant agreed to construct on the respondent’s property, a two-storey dwelling house comprising 6000 square feet, a generator room, a driveway and retaining walls at a total agreed cost of EC$3,168,100.00, exclusive of owner supplied materials and fixtures. The said building works were to be carried out by the appellant in accordance with the terms of the contract, the approved drawings and specifications, and the Project Manual Bid Set document dated 29th October 2006 (“the project manual”). It was a term of the contract that the appellant was to commence the building works no later than 15th February 2008 and, subject to the stipulated exceptions of natural disasters and unforeseen delays that cannot be attributed to the appellant, to complete the main house and driveway on or before 15th June 2009. In the event of the occurrence of any of these exceptions, the contract provided that a new timeline for completion of the said works is to be mutually agreed by the appellant and the respondent. The appellant commenced the building works on 15th February 2008. During the course of the construction some 88 items of extras and variations, approved by the respondent, were made to the original contract works. These included changing the design and construction of the original galvanised roof to a concrete roof with tiles with increased rafter sizes in April 2009, the respondent having agreed in writing to one of two options sent to him by the appellant. As a result of the extras and variations, the size of the dwelling-house increased from 6,000 square feet to approximately 17,000 square feet. The aggregate value of the extras and variations, as claimed by the appellant, was EC$1,954,165.42. Disputes arose between the appellant and respondent with regard to the building works, the amounts claimed by the appellant as the value of the extras and variations, and the value of credits to which the respondent claimed to be entitled as deductions from the contract sum. These issues remained unresolved. By email sent on 10th March 2010, the respondent requested the appellant to cease all work at the site as of said date until certain specified matters were agreed and informed the appellant that he will be placing 24-hour security at the site. The appellant’s exclusion from the site was confirmed by email dated 12th March 2010 from the respondent. Further attempts by the parties to resolve issues between them were unsuccessful. The appellant was never permitted back on the site, except to remove its property and, accordingly, did not resume the building works. By letter dated 12th May 2010 the respondent, having, in April 2010, obtained separate reports from two independent structural engineers, terminated the contract with the appellant and requested that it remove all of its belonging from the site within 7 days. Before the High Court of Justice, the appellant claimed against the respondent payment of the sum of EC$588,255.65 damages for breach of contract. The appellant’s claim for the said sum is the net amount said to be due and owing to the appellant, as set out in the Ronald Gardner report dated 22nd June 2010 (“the Gardner report”), after taking into account the value of the extra works and contract variations carried out by the appellant and the credits or savings due to the respondent under the contract. The appellant pleaded that the contract document dated 14th February 2008 together with the project manual set out the full scope of works agreed between the appellant and the respondent, except for extras and variations. The appellant pleaded further that the respondent had, in breach of the contract, terminated the contract on 12th March 2010 when he requested that the appellant remove its belongings from the building site altogether. In his defence, the respondent made several allegations of poor or defective workmanship against the appellant and claimed damages for breach of contract and breach of an implied term to carry out the work in a ‘professional and workmanlike manner and with proper materials of good quality and that the work, when completed would be suitable for its required purpose, that is fit for human habitation.’ The respondent also disputed that the contract between himself and the appellant was entirely contained in the written agreement dated 14th February 2008, but included the conditions set out in two letters to the respondent dated, respectively, 7th February 2008 and 14th February 2008 from Mr. Raymond Khouly, the managing director of the appellant company and engineer of the project. Accordingly, the respondent counterclaimed against the appellant for special damages in the aggregate sum of EC$3,077,466.50. The respondent also claimed damages for breach of contract against Mr. Jessy Khouly, the project architect, as an ancillary defendant. Several reports of experts were admitted into evidence at the trial and considered by the trial judge in determining the issues of liability and damages with respect to the claim, defence and counterclaim, and ancillary claim. The trial judge, in his written decision, entered judgment for the appellant on its claim in the sum of EC$588,288.65; and entered judgment in favour of the respondent on his counterclaim against the appellant and on the ancillary claim, apportioning liability as between the appellant and the ancillary defendant under certain heads of damages, including professional fees incurred by the respondent in relation to the various expert reports. Being dissatisfied, the appellant appealed against the decision of the trial judge entering judgment in favour of the respondent on his counterclaim. The notice of appeal sets out 19 grounds of appeal. These were distilled into three main issues for determination on appeal, namely: (i) whether the trial judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care, and in concluding that the implied term did not conflict with the express terms of the contract; (ii) whether the trial judge erred in relying on or attaching weight or too much weight to the expert report of Mr. Hugh Schamber (“the Schamber report”) in coming to her decision on the counterclaim; and (iii) whether the trial judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks and damage were caused by poor workmanship on the part of the appellant, in breach of the implied term. The respondent counter-appealed and argued that the trial judge erred in several respects when she gave judgment in the sum of EC$588,288.65 on the appellant’s claim. However, an appeal by the ancillary defendant from the judgment on the ancillary claim was not before the Court of Appeal for its determination in this appeal. Held: dismissing the appeal and affirming the orders made by the trial judge at paragraph 132(2) of the judgment save that the order at sub-paragraph (d) awarding 100% liability against the appellant for damage done to the interior of the building is varied to 50%; dismissing the counter appeal and affirming the order made by the trial judge at paragraph 132(1) of the judgment; and ordering 75 percent of the respondent’s costs of the appeal to be paid by the appellant and the appellant’s costs of the counter appeal to be paid by the respondent, such costs to be assessed by a judge of the High Court, if not agreed within 21 days, that: 1. Where the evidence before the court below is largely documentary, the unique position of the trial judge in assessing the credibility of witnesses and the weight to be attributed to their evidence is of less significance than it would be in cases decided on the basis of mostly oral evidence. However, the restraint required of an appellate court in cases involving the findings of fact by the trial court is not overcome by the view of an appellate court that it is suitably situated to make the decision under review. The appellant must therefore demonstrate that the trial judge was plainly wrong in her approach to and assessment of the evidence and her application of it to the issues before her for determination; that she came to a wrong conclusion on the applicable law; that she omitted relevant evidence from her consideration and assessment; or that there was no evidence before the trial judge from which she could properly have reached the conclusions that she did; or that, on the evidence, the reliability of which it was for her to assess, her decision was plainly wrong. Ming Siu Hung and others v J F Ming Inc and another [2021] UKPC 1 applied; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 considered; Re B (A Child) [2013] UKSC applied Watt (or Thomas) v Thomas [1947] AC 484 considered; Rawle Hannibal v The BVI Health Services Authority [2019] ECSCJ No.394 (delivered 13th December 2019) considered; Yates Associates Construction Company Ltd v Blue Sand Investments Limited [2016] ECSCJ No. 63 (delivered 20th April 2016) considered. 2. Where contract documents do not contain any provision which speaks directly to the skill and standard of care and workmanship required of the contractor in the execution of the works, but confers an obligation to carry-out the building works in accordance with the drawings and specifications, the law will imply into the building contract a duty to use reasonable skill and care and to execute works in a good and workmanlike manner. This is especially so in circumstances where the contractor has held themself out as possessing the necessary skills to carry out the works and to complete the building in accordance with the drawings and specifications. However, any term implied by the court must not conflict with the express terms of the contract. In the instant matter, the contract documents provided that the building works were to be effected in accordance with the approved drawings and specifications and evinced the appellant’s understanding of these documents and its agreement or obligation to construct the building in accordance with them and with the project manual. However, the contract documents did not set out or indicate the standard of workmanship required under the contract. Johnson v Unisys Limited [2001] 2 WLR 1076 applied; Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Limited and another [2015] 3 WLR 1843 considered. 3. The trial judge was correct to imply into the contract between the appellant and the respondent a term that the appellant, in its execution of the building works and any specific instructions provided to it by the owner or his agent as to a method and quality of construction of or as to the materials to be used or finishes to be achieved in relation to a particular aspect of the contracted building works, would carry out the said works in a workmanlike manner using proper skill and care. Such an implied term does not contradict but supplements and is consistent with the express obligations of the appellant under the contract. However, implying such a term into the contract does not carry with it a general obligation on the appellant to use ‘international industry standards’ or ‘international best practices’ or any obligation to comply with the building codes or regulations of some other country, which obligations can only apply where the contract documents expressly so stipulate or such a term arises thereunder by necessary implication having regard to the nature of the works being carried out or other germane surrounding circumstances. The critical question for determination in this case is whether the appellant, as contractor, had complied with its obligation to execute the building works in accordance with the contract, the project manual and the drawings and specifications provided to it, and in accordance with any instructions provided to it by the respondent or his agent, and whether, in doing so, the appellant used or employed proper skill and care commensurate with industry standards recognised in Antigua and Barbuda. 4. An expert witness is not, strictly speaking, the witness of any particular party to the proceedings, but is an independent witness required to provide an unbiased opinion on a specific matter or question in issue in order to assist the court in its determination of the issues before it. A party who wishes to rely on the evidence of an expert or put into evidence in the matter before the court the report of an expert witness, is required by rule 32.6 of the Civil Procedure Rules 2000 (“CPR) to first seek and obtain the court’s permission and the general rule is that permission must be sought at a case management conference. However, a judge has a discretion to grant such permission at any stage of the litigation, where he is satisfied that there are cogent and persuasive reasons for doing so in the interest of justice. Whether the court will permit a single expert witness or whether the court will permit each party to produce and to rely on the evidence of separate experts, is a matter to be decided by the court taking into account all the circumstances of the matter, including, the nature and complexity of the claim, the issue or issues upon which expert evidence may be of assistance to the court’s determination of the claim, and the costs to the parties associated with obtaining expert evidence. Part 32 of the Civil Procedure Rules 2000 applied. 5. It is a fundamental principle that whether expert evidence is to be accepted is a question of fact for the trial judge. A critical aspect of the credibility of the expert and hence the weight to be attached to his opinions and conclusions, is whether they are explained and reasoned. Mere assertions or ‘bare ipse dixit’ carries little weight. An expert’s evidence must be considered by the trial judge together with all the other evidence before the court which the judge has accepted. A challenge to a trial judge’s decision to admit and to rely on expert evidence must be assessed being mindful that decisions as to the admissibility of expert evidence and the weight to be attached to that evidence, are fact-sensitive matters involving an evaluative exercise on the part of the trial judge. In this case, the appellant’s criticisms of the respondent’s expert witness, Mr. Schamber, falls short of satisfying the threshold for warranting appellate interference with the trial judge’s decision. It cannot be said that the statement in the Schamber report as to his company’s willingness to be of further assistance, if requested, or any other statement in the said report, crossed the line so as to lead to Mr. Schamber not being an independent expert capable of giving an unbiased or independent opinion to the court, or that he was in some way tainted as an expert witness as to the matters contained or addressed in his report, which matters all related to roofing issues. Further, it is wholly unsustainable to ground any objection to the admissibility of the Schamber report on the fact that the said report was rendered on the letterhead of his firm or organisation. If this was a disqualifying factor in this matter or if this, by itself, pointed conclusively to a lack of independence, then all the experts whose reports were admitted into evidence by the lower court, would be likewise tainted. It was therefore open to the judge, and she was correct, not to reject the Schamber report purely on the basis of the opinions or conclusions which he reached not being those of an independent and unbiased witness. Rule 32.4 of the Civil Procedure Rules 2000 applied, Kennedy v Cordia (Services) LLP [2016] UKSC 6 considered; Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft 1(1976) (3) SA 352,371 considered; Yates Associates Construction Company Limited v Blue Sand Investments Limited [2016] ECSCJ No. 63 (delivered 20th April 2016) considered; Rawle Hannibal v The BVI Health Services Authority [2019] ECSCJ No. 394 (delivered 13th December 2019) considered. 6. A court’s approach to the issue of causation must not be sterile, academic, or viewed purely through the prism of a methodical consideration of the sequencing or chronology of historical events or facts. The court must approach this issue of causation in the round and in a practical and common-sense way, taking all relevant circumstances into account, including the sequence of certain events, when determining whether the particular loss or damage suffered by a claimant was as a result of or was sufficiently ‘causally’ connected to the actions or omissions of the defendant, whether such actions or omissions sound in contract or tort. However, this does not mean that a trial judge ought to ignore or to entirely discount, in an appropriate case, the importance to the issue of causation of the historical or chronological events or other relevant factors and whether they point either to liability or no liability on the part of the defendant/contractor for the claimant’s loss. Equally so, a court should not ignore or discount, in an appropriate case, an intervening factor or event of evidential significance not caused by the defendant (be it an act of God or the act of some third party) which may tend to establish or to point decisively to a causal connection with the alleged loss suffered by the claimant and to no liability for such loss on the part of the defendant. In an appropriate case, these factors, taken individually or collectively, when viewed or assessed in a practical or common-sense way, may be determinative of the issue of causation and hence of liability. Further, in considering the issue of causation, a trial judge must not lose sight of where the burden of proof lies, to the requisite standard in a civil case, and whether the evidence led by the claimant, when properly assessed against the other accepted evidence in the case for its quality, cogency and weight, satisfies the burden and standard of proof that some breach or actionable wrong in law was suffered and, that such breach or wrong was caused by an act or omission of the defendant. Weld-Blundell v Stephens [1920] AC 956 applied; Jones v Livox Quarries Ltd [1952] 2 QB 608 applied. 7. In this instant case, it is apparent that several of the respondent’s expert witnesses had sight of the drawings and/or were privy, in the preparation of their respective reports, to certain written instructions given by the respondent to the appellant as to the manner in which certain works were to be carried out by the appellant. This is apparent from the reports of Messrs Conway, Workman and Sobers. It cannot be said that the fact that other experts did not note or record, in their report, that they had sight of the drawings or instructions, renders the evidential value of their report entirely useless. This is especially so where they were sufficiently apprised of and reviewed the historical photographs of the works done by the appellant (as in the case of Mr. Schamber); or where, as stated in their report, they did not seek to address compliance by the appellant with design specifications, but sought, as professionals, to assess the works actually done by the appellant (as in the case of Messrs Walcott and Martin). Accordingly, there was not any sound basis upon which the learned judge ought to have rejected wholesale the evidence of the respondent’s experts in this case. 8. It is not accepted that the Schamber report contains bare or unsupported assertions and accordingly was of no real evidential value or that the trial judge ought to have given no weight to it or to his evidence at trial. The trial judge was correct to have considered the Schamber report in the context of the CSE report of Mr. Chris Conway and the Workman report in determining whether the appellant had carried out defective work or poor workmanship in its construction of the roof system, especially the vaulted or hip roofs and whether such works were the cause of cracks and leaks and resulting damage to the interior of the main building. 9. The appellant was required under the contract to construct the roofs in accordance with the details provided to it in the respondent’s letter dated 20th April 2009 and to do so using proper skill and care of an experienced contractor. This included an obligation to do so in accordance with accepted industry standards for the placement of waterproofing subsurface or underlay. Accordingly, it was open to the trial judge, on the evidence, to find, as she did, that the appellant had failed to exercise proper skill and care in the placement of the aluminium foil subsurface underlay or protection barrier in the construction of the roofs, by incorrectly stopping it at the inside of the exterior masonry wall instead of extending it to the outer edge of the exterior wall. Further, it was open to the trial judge to accept the expert evidence and opinion of Mr. Schamber that this poor workmanship on the part of the appellant in the construction of the hip roofs was a likely cause of the ingress of water into the interior of the building and resulting staining and damage. However, the trial judge erred in finding that the appellant had, in relation to the concrete hip roofs, breached the implied duty to use proper skill and care by failing to comply with international standards for the installation of the tiles and or failing to comply with the installation requirements of the concrete tile manufacturers, there being no evidence that such instructions were provided to or brought to the attention of the appellant, the said tiles having been selected and bought by the respondent. In all the circumstances, there is no basis for disturbing the judge’s award of 50% liability for the cost of remedial repairs to the roofs and the stairs to the south of the building at paragraph 132 (2)(a) of the judgment. 10. The learned judge having erred in finding that the appellant had, in relation to the concrete hip roofs, failed to comply with international standards for the installation of the tiles and or failed to comply with the installation requirements of the concrete tile manufacturers, erred in assessing the appellant’s liability for damage to the interior of the main building from leaks to the hip roofs and through cracks in the walls of the master bedroom at 100%. It is clear that full blame ought not to be attributed to the appellant for damage caused to the interior of the main building from leaks relating to the hip roof or the flat roof. With respect to the flat roofs there was no evidence of leaks but of ponding of water due to a lack of appropriate fall in the finished roof, which defect the appellant had agreed to remedy as recommended by Mr. Conway in the CSE report. Accordingly, the trial judge’s findings and award of 100% liability against the appellant at paragraph 132 (2)(d) of the judgment, is set aside and 50% liability substituted. 11. The trial judge did not err in her overall approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks and or damage to the stairs to the south (front) of the building, to the floor of the garage and the open area next to the front steps, storage areas and north basement floor and to the retaining walls were caused by poor workmanship on the part of the appellant in breach of the implied term. The trial judge was sufficiently seised of the relevant evidence relating to each of these items of defective or poor workmanship and was entitled to make the findings of liability which she did on the respondent’s counterclaim at sub-paragraph (c) of paragraph 132 (2) of the judgment, which findings are accordingly affirmed. Likewise, there is no basis upon which to disturb the judge’s finding and apportionment of liability for the professional fees incurred by the respondent at paragraphs 129, 131 and 132 (2)(e) of the judgment. 12. Where the contract does not specify an agreed rate or rates to be applied to the valuation of any extras or variations in the works, the court must proceed to assess the value of the extras and any variations on a quantum meruit basis. In the absence of any cogent evidence of market rates, the best indication of the reasonable rates applicable to the extras or variations is the evidence of the rates used by the parties in arriving at the sums in the original contract and which had been agreed to and paid by the owner. The trial judge had before her in evidence the valuation of Mr. Gardner, an expert witness relied on by the appellant, and the costings arrived at by Mr. Sanjay Amin of BCQS relied on by the respondent. Accordingly, in arriving at an award of EC$588,288.65 on the appellant’s claim, it was open to the trial judge, and she was correct in accepting, the Gardner report as to the amounts due to the appellant for the original works completed under the contract and for the extras and variations, after deducting the appropriate or reasonable sums for savings or deductions due to the respondent. 13. The respondent’s challenge to the award made by the trial judge in favour of the appellant, based upon the principle of ‘subjective devaluation’, was not foreshadowed in either his grounds of appeal or in written submissions, nor was any such argument put to the learned judge below. It is not, therefore, open to the respondent to now rely, for the first time, on this criticism of the trial judge’s decision as a basis for setting aside the award made by the judge on the appellant’s claim. Accordingly, the said award at paragraph 132(1) of the judgment is affirmed. JUDGMENT

[1]FARARA JA [AG.]: This is an appeal and counterappeal against orders for damages (and related orders) made by a learned judge of the High Court on 25th February 2019 in favour of both Khouly Construction and Engineering Limited (“Khouly Construction” or “the appellant”) and Mr. Edmond Mansoor (“Mr. Mansoor” or “the respondent”) in respect of the claim by Khouly Construction and the counterclaim by Mr. Mansoor for damages resulting from breaches of a building contract between the parties.

[2]The background to the appeal is set out below. Background (i) The Claim

[3]The appellant, as claimant, claimed against the respondent, as defendant, for payment of the sum of $588,255.65 in damages for breach of a building contract entered into on 14th February 2008 between the appellant, as contractor and the respondent, as owner of property situated at McKinnons, Saint John in Antigua. By the said contract, the appellant agreed to construct on the respondent’s property a two-story dwelling-house comprising 6000 square feet and generator room at a cost of $3,002,700.00 and driveway A and retaining walls at a cost of $165,400.00, for a total cost, excluding materials and items to be supplied by owner, of $3,168,100.00. The appellant’s pleaded case was that the contract document dated 14th February 2008 together with the Project Manual Bid Set dated 29th October 2006 (“the project manual”) set out the full scope of works agreed upon by the appellant and the respondent, except for extras and variations.1

[4]It was a term of the contract that the appellant was to commence the building works no later than 15th February 2008 and, subject to the stipulated exceptions of natural disasters and unforeseen delays that cannot be attributed to the appellant, to complete the main house and driveway A on or before 15th June 2009. In the event of the occurrence of any of these exceptions, the contract provided that a new timeline for completion of the said works is to be mutually agreed by the appellant and the respondent. The appellant commenced the building works on 15th February 2008.

[5]During the course of the construction works some 88 items of extras and variations, approved by the respondent, were made to the original contract works. These included changing the design and construction of the original galvanised roof to a concrete roof with tiles and increased rafter sizes in April 2009, the respondent having agreed in writing to one of two options sent to him by the appellant. As a result of the extras and variations, the size of the dwelling-house increased from 6,000 square feet to approximately 17,000 square feet.

[6]The appellant’s claim for $588,255.65 is the balance, assessed by Mr. Ronald Gardner, a Chartered Surveyor, in his report dated 22nd June 2010 (“the Gardner report”). In the said report, the pricing or valuation of extras and variations is expressly stated to be ‘based upon measurement and the application of unit price rates used in the compilation of the Original Contract Amount’. The resulting sum is the net amount said to be due and owing to the appellant as set out in the Gardner report after taking into account the value of the extra works and contract variations carried out by the appellant and the credits or savings due to the respondent under the contract.2

[7]In its statement of claim, the appellant pleaded that the respondent had, in breach of the contract, terminated the contract when, by email sent 12th March 2010, he requested that the appellant ‘remove [its] belongings from the building site altogether’. (ii) Amended Defence and Counterclaim

[8]In the amended defence and counterclaim filed 28th February 2017, the respondent made several allegations of poor or defective workmanship against the appellant and claimed damages for breach of contract and breach of an implied term to carry out the work in a ‘professional and workmanlike manner and with proper materials of good quality and that the work, when completed would be suitable for its required purpose, that is fit for human habitation.’3

[9]The respondent averred that the contract between himself and the appellant was not totally contained in the written agreement dated 14th February 2008, but included the conditions set out in two letters dated, respectively, 7th February 2008 and 14th February 2008 from Mr. Raymond Khouly, the managing director of the appellant company and engineer of the project, to the respondent.4 The respondent also pleaded that he had, by a written agreement dated 12th May 2006, engaged the services of Mr. Jessy Khouly of Architecture Design Works Limited of Saint John’s in Antigua to design the two-storey dwelling-house of approximately 6,000 square feet, to be constructed by the appellant on his property at McKinnons.5

[10]In relation to breaches of the ‘implied term’, the respondent pleaded certain particulars of the appellant’s failure to apply, or to comply with, the required standard of workmanship.6 These consist of allegations of poor or substandard workmanship, covering some seven (7) specific areas as pleaded. They include, having the concrete roof slab resting on the ring beam rather than being tied into it; insufficient vertical re-bars in the ring beams to form the structural connection required to transfer loads during superimposed live loads; the re-bars in the reinforced suspended concrete floor slab, which was designed to be supported by the ring beams, not being tied into the ring beam so as to be so structurally connected as to form part of the ring beam; water ingress problems through the concrete tile roof system, leaking into the exterior walls and exiting into the interior of the building or behind the exterior gutter system; the tile roofing system not being in accordance with ‘international industry standards or the concrete tile manufacturing installation requirements’; and the inappropriate use of aluminium foil as a subsurface protective barrier, its incorrect installation on the roof assembly - stopping at the inside of the exterior wall - thereby contributing to water ingress and finish damage.

[11]At paragraph 8, the respondent pleaded a failure by the appellant to comply with ‘traditional industry standards required for a tropical environment by not installing continuous waterproofing underlay from ridge to eave under the concrete tile system.’

[12]Specifically in relation to cracks in the building, the respondent, at paragraph 7(a), averred: “As a result of the [appellant’s] failure to use all professional skill and care as stated in paragraph 7 above the said building has developed numerous cracks resulting in damage (sic) to the interior and exterior finishes as a result of water leaks.” (Emphasis added) The respondent pleaded that these cracks and damage occurred in the areas: (a) where the front steps join the building; (b) the open area next to the front steps; (c) the entertainment room; and (d) the garage and storage areas. The respondent also pleaded that because of the extensive cracking to the building, he engaged the services of Mr. Phillip Sobers, a civil and structural engineer of Consulting Engineers Partnership Ltd of Christ Church in Barbados. Accordingly, the respondent intended to rely at trial on Mr. Sobers’ report dated 11th July 2012 (“the Sobers report”). It is to be noted, as will be addressed later, that the appellant was effectively excluded from access to the building site on 10th March 2010 and, as the learned judge found, the contract was terminated by the respondent by letter dated 12th May 2010 (by which time the respondent had in April 2010 obtained separate reports from two independent structural engineers and requested that the appellant remove all of its belonging from the site within 7 days). Accordingly, no building works were carried out by the appellant at the site from 10th March 2010, some 29 months prior to the Sobers report.

[13]In support of the alleged breaches of the implied term and defective or poor workmanship, the respondent, in his amended defence and counterclaim, relied on the report of several ‘experts’ in the disciplines of structural engineering and project management, who inspected the construction of the building works at various stages, and their observations, findings and recommendations as set out in their respective reports. In particular, the respondent relied, in his amended defence and counterclaim on the report of Mr. Chris Conway of Civil and Structural Engineering Limited (“CSE”) of the Turks and Caicos Islands dated 8th April 2010 (“the CSE report”); the report of Mr. Addison Workman of Workman Engineers of St. John’s in Antigua (“the Workman report”); the observations and spreadsheet of Mr. Sanjay Amin of BCQS International, setting out his assessment and valuation of the cost of the additional work carried out on the building and comparison with the appellant’s costings and claim for said additional work (“the BCQS report”); and the Sobers report. The respondent pleaded and relied in his amended defence and counterclaim on the appellant’s letter dated 23rd April 2010 in response to the 30 findings and recommendations made by Mr. Conway in the CSE report.7 By the said letter, the appellant offered ‘no comment’ with respect to 17 of the Conway recommendations, posited that 3 of them should be referred to the architect, and agreed to rectify or to remedy 9 of them. Of the said 9 recommendations, which the appellant accepted, three (3) related to findings of ‘cracking’. I will return to the CSE report, the appellant’s said letter, and the other expert reports later.

[14]The respondent counterclaimed against the appellant for special damages in the aggregate sum of $3,077,466.50 broken down as follows: $1,560,980.00 for the cost of remedial work to remedy defective construction; $1,220,144.00 value of work for which the respondent was overcharged by the appellant as set out in the BCQS report (spreadsheet); estimated professional and consulting fees to date for seven (7) named consultants/specialists; cost of professional fees, travel, accommodation and meals for Junie Davis, Phillip Sobers and Hugh Schamber amounting collectively to $95,296.50; and for general damages and interest. (iii) Reply to Amended Defence and Defence to Counterclaim

[15]The appellant filed its reply to the amended defence and defence to the counterclaim on 25th May 2017. By this pleading, the appellant admitted its acceptance, in the second paragraph of the contract document dated 14th February 2008, that it had thoroughly evaluated the drawings and specifications and confirmed its ability to, and that it will, comply with all architectural, structural, electrical, and plumbing specifications, schedules and details. However, the appellant specifically denied the implied term pleaded at paragraph 7 of the amended defence to carry out the works in a professional or workmanlike manner;8 and averred, inter alia, that its obligation under the contract with the respondent was to ‘comply with all drawings and specifications, and the terms and conditions of the project manual’.9

[16]The appellant also pleaded that the respondent, having selected one of the two options provided by the appellant for the construction of the new roof, it (the appellant) was ‘required to do no more than construct the roof, and it in fact constructed the roof, as instructed by the [respondent] in its letter dated April 20th to the [appellant]’;10 and that the appellant was first informed of leaks from the roofs on 11th September 2011, some 2 years after completion of the roof. At paragraph 7 of the reply to the amended defence, the appellant addressed, specifically, each of the particulars of poor or substandard workmanship pleaded at paragraph 7 of the amended defence, each of which were expressly denied and responded to.

[17]The appellant also pleaded that after it had been wrongfully excluded by the respondent from the site on 10th March 2010, ‘considerable additional work was executed on the property [by others] including the drilling of holes on the concrete roof, and the use of jackhammers to remove the concrete tiles’; and that it was on 12th September 2011, two years after completion of the roof, that Mr. Raymond Khouly of the appellant company was called to a meeting on the property with Mr. Hugh Schamber ‘and was told of leaks below the flat concrete roofs’, at which meeting the new contractor, Mr. Stannislus Moore, ‘admitted that holes were drilled into the existing concrete slab’; ‘that he had placed reinforcement into the slab’; that blocks had been built on top of the flat concrete roofs to support the water tanks; and that his workmen or agents ‘had penetrated the concrete roof to install extra electrical and plumbing pipes.’11 Accordingly, it is the appellant’s pleaded case that ‘the leaks from the concrete roofs began or must have begun to occur after the [appellant] was denied entry, and the subsequent execution of works of the roofs, and removal of all the concrete tiles with what were clearly heavy jackhammers.’12

[18]The appellant denied the averments and particulars of ‘numerous cracks’ at paragraph 7(a) of the amended defence and counterclaim.13 It averred that ‘the water ingress allegedly occurred more than a year and a half after the [appellant] was excluded from the premises’; that this was followed by ‘extensive modifications to the building and roof structure’; that the respondent’s photographs show that he was in occupation of the premises when the leaks occurred; and this meant that the roof tiles had already been removed.

[19]Also, in response to the particulars at paragraph 7(a) of the amended defence, the appellant, at paragraph 10 of the reply, relied on its pleaded facts at paragraphs 5 and 8, on the CSE and Sobers reports, on the written notes of Sanjay Amin and Richard Brewer of certain meetings, and on certain punch lists and email correspondences in 2009 and 2010. The appellant specifically averred that in none of these documents was there any complaint made of leaks from or widespread cracking in relation to the concrete roofs constructed by the appellant.14 However, at paragraph 12 of the reply to the amended defence to counterclaim, it is admitted by the appellant that Mr. Brewer and Mr. Conway in their respective reports in 2010, and Mr. Sobers in his report dated 11th July 2012, did speak of cracks at the front (entrance) steps, garage floor and retaining wall; and Mr. Sobers did point to cracks in the walls of a number of rooms of the house, albeit in 2012.

[20]In conclusion, the appellant stated that it would rely on the CSE report at trial ‘in support of the [appellant’s] claim that the work was performed by [it] in a workmanlike manner notwithstanding some inadequacies found by the said Chris Conway in the architectural drawings of Architecture Design Works Limited.’15 Accordingly, as to the counterclaim, the appellant denied the alleged breaches of contract and the respondent’s claim for special damages.16 (iv) The Ancillary Claim

[21]For completeness, the respondent brought an ancillary claim against Mr. Jessy Khouly for damages for breach of a separate agreement dated 12th May 2006 entered into between the respondent, as owner, and Jessy Khouly of Architecture Design Works, as architect, for the design of the said two-storey dwelling-house, including preparation of the plans and specifications. That claim was defended by the ancillary defendant, Jessy Khouly and judgment was entered by the learned judge on the ancillary claim against Jessy Khouly for damages. An appeal from the judge’s determination of the ancillary claim in the court below is not before us for determination in this appeal.

The Learned Judge’s Decision

[22]The trial in the court below lasted four days. At trial, the reports of several expert witnesses were admitted into evidence and considered by the learned judge in determining the issue of liability and damages. Many of these expert witnesses gave evidence and were cross-examined. The named experts, with respect to whose professional fees the respondent received an award, are listed at paragraph 129 of the judgment. They are: (i) Associated Engineers Partnership (Mr. Brian Lyn). (ii) BCQS (Mr. Sanjay Amin). (iii) Civil and Structural Engineering Limited (CSE) - Mr. Chris Conway. (iv) Mr. Addison Workman of Addison Workman Engineers. (v) Mr. Oliver Davis of Davis Engineering. (vi) Mr. Philip T. Sobers of Consulting Engineers Partnership Ltd (CEP). (vii) Mr. Hugh Schamber of Weathershield Systems Caribbean Limited.

[23]On 25th February 2019, the learned judge delivered a written decision by which she entered judgment on the appellant’s claim, the respondent’s counterclaim and the ancillary claim in the following terms: “(1) In favour of the [appellant] against the [respondent] in the sum of $588,288.65. (2) In favour of the [respondent] against the [appellant] on the counterclaim for – (a) 50% of the cost of remedial repairs to the roof, [and] stairs to the south of the building; (b) 75% of the costs of remedial works to both retaining walls; (c) 100% of the cost of remedial works to the floor in the garage, cracks to the open area next to the front steps, cracks to the storage areas, and the north basement floor; (d) 100% of the damage done to the interior [of the house] from leaks to the hip roofs and through cracks in the walls of the master bedroom; and (e) 60% of the professional fees in respect of the experts. (3) In favour of the [respondent] as claimant against the ancillary defendant, Jessy Khouly for – (a) 50% of the cost of remedial repairs to the roof, stairs to the south of the building and leaks; (b) 25% of the cost of remedial repairs to the retaining walls; and (c) 40% of the professional fees of the experts. (4) Damages to be assessed if not agreed within 30 days. (5) Costs to be assessed.” The Appeal

[24]The appellant now appeals against the decision of the learned judge to enter judgment in favour of the respondent on his counterclaim. The appellant’s notice of appeal sets out 19 grounds of appeal, some grounds consisting of several sub- grounds. Having considered the notice of appeal and the appellant’s submissions, the issues arising for this Court’s determination on the appellant’s appeal are: (i) Whether the learned judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care, and in concluding that the implied term did not conflict with the express terms of the contract. (ii) Whether the learned judge erred in relying on or attaching weight or too much weight to the expert report of Mr. Hugh Schamber (the Schamber report) in coming to her decision on the counterclaim. (iii) Whether the learned judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks, and damage were caused by poor workmanship on the part of the appellant, in breach of the implied term.

[25]The respondent has counter appealed. By his counter appeal, the respondent challenges the sum of $588,288.65 awarded by the learned judge to the appellant at paragraph 1 of the order, and relies on the following singular ground of appeal: “The learned judge erred in law in granting judgment to the claimant [appellant] in the amount of $588,255.65 using the report of Mr. Gardner when the report of Gardner included payment for items which the court found were defective and which report did not use rates that had been agreed with the respondent under the initial contract.”

[26]The issues raised by the appellant’s appeal largely invoke this Court’s jurisdiction to review a lower court’s findings and evaluations of fact. I shall therefore discuss, in brief, the principles undergirding that jurisdiction.

Appellate Approach to Review of Findings of Fact

[27]The caution with which an appellate court should approach a lower court’s findings and evaluations of fact was recently discussed by the Privy Council in Ming Siu Hung and others v J F Ming Inc and another.17 At paragraph 20, the Board cited with approval the following statements made, at paragraph 114, in Fage UK Ltd v Chobani UK Ltd18 by Lewison LJ: “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva plc [1977] RPC 1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.”

[28]The reasons advanced by Lewison LJ in Fage UK Ltd for the need for appellate restraint in cases involving findings and evaluations of fact include that, ‘[i]n making his or her decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping’; and that ‘the atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence)’ and ‘even if it were possible to duplicate the role of the trial judge, it cannot in practice be done’.19

[29]This appeal concerns the kind of case where the proper determination of the issues of fact or of mixed law and fact turned, to a large extent, on the documentary evidence, including the contractual terms, the drawings and specifications, any specific instructions issued to the appellant by the respondent and or the architect, the contemporaneous notes of meetings held involving the appellant and the respondent and others, and the various expert reports as to the quality of the construction and execution and progress of the works and any issues pointing to defective or incomplete work.

[30]The need for appellate restraint in cases involving the evaluation of expert evidence by a trial judge was underscored in Rawle Hannibal v The BVI Health Services Authority,20 where Baptiste JA observed, at paragraph 24, that: “A first instance judge’s assessment of or evaluation based upon expert evidence adduced at trial must be approached by an appellate court with similar caution. Since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene. An appeal court always proceeds with caution in considering appeals against findings of fact or findings based on an assessment of expert evidence: see Thomson v Christie Manson & Woods Limited & ors [14 [2005] EWCA Civ. 555]“.

[31]It has been recognised, that in cases such as the present one, where the evidence before the court below is largely documentary, the unique position of the trial judge in assessing the credibility of witnesses and evidence in the court below is of less significance than it would be in cases decided on the basis of mostly oral evidence.21 Quite instructively, however, the Board in Ming Siu Hung stated that the restraint required of an appellate court in cases involving the findings of fact by the trial court is not overcome by the view of an appellate court that it is suitably situated to make the decision under review. At paragraph 22, the Board advised – ‘… it is not an answer to the need for the exercise of appellate restraint for the appeal court to regard itself as well placed as the judge to carry out the relevant task.’

[32]In keeping with the approach evidenced in cases such as Re B (A Child),22 Watt (or Thomas) v Thomas,23 Rawle Hannibal v The BVI Health Services Authority and Yates Associates Construction Company Ltd v Blue Sand Investments Limited,24 for the appellant to succeed in this appeal, it must demonstrate that the learned judge was plainly wrong in her approach to and assessment of the evidence and her application to the issues before her for determination; that she came to a wrong conclusion on the applicable law; that she omitted relevant evidence from her consideration and assessment; or there was no evidence before the learned judge from which she could properly have reached the conclusions that she did; or that, on the evidence, the reliability of which it was for her to assess, her decision was plainly wrong. Issue 1 – Whether the learned judge erred in upholding the implied term and in concluding that the term does not conflict with the express terms of the construction contract

[33]The learned judge, after summarising the respective submissions of the parties on the issue of implied terms in the contract, considered inter alia the decision of the House of Lords in Johnson v Unisys Limited25 and concluded, at paragraphs 47- 49, as follows: “[47] The contractor must carry out his works using all proper skill and care, and the standard required in the particular case is to be gathered from all the circumstances of the contract. [48] Secondly, the provisions from Volume II of the Construction Law only means that if the contractor is instructed, for example, to use a particular size of rafter, he is not free to increase or decrease as he wishes unless the contract gives him authority. He is not free to change those specifications. That is not to say that if the specifications call for him to lay foil insulation, that in applying same he is relieved from his duty to do so in a professional and workmanlike manner using proper skill and care. The implied term continues to apply to the manner in which he carries out his instructions. [49] The case pleaded by the defendant [respondent] is that the claimant [appellant] failed to carry out the works in a professional and workmanlike manner. In the court’s view there is no conflict.”

[34]The appellant submits that the learned judge erred in holding that the implied term to carry out the contract works in a professional and workmanlike manner applied to the contract between the appellant and the respondent, and that the appellant committed a repudiatory breach of the said contract by failing to carry out the works in accordance with the said implied term. The appellant submits that the implied term relied on by the respondent was either unnecessary or conflicted with the express terms and, therefore, ought not to have been implied into the contract between the parties.26

[35]The appellant argues further, and in any event, that the judge erred in finding that the implied term had been breached, as the appellant micromanaged the execution of the works on a near daily basis to ensure quality control and took several photographs during the construction. This gave the respondent the fullest opportunity to monitor the execution of the works, and, if necessary, complain to the appellant or his architect.27 Furthermore, the appellant was required to execute certain works in accordance with the specific instructions and requirements of the respondent, which it did, and the respondent ought not to be heard to complain if the works carried out in accordance with his said instructions and requirements, turned out to be defective.28 Specifically, the appellant submits, the contract works were effected by the appellant exactly as required or as instructed by the respondent; and that the tiles used on the hip roofs, which were the subject of criticism in the Schamber report, were selected by the respondent.29

[36]The respondent submits that there is nothing objectionable in the learned judge’s finding and conclusion of an implied term in the contract that the appellant, as contractor, was to carry-out the contract works ‘using all proper skill and care, and that the standard required in the particular case is to be gathered from all the circumstances of the contract.’30 He also contends that there is no serious argument by the appellant that the learned judge misconstrued the terms of the contract.

Discussion

[37]The power of the court to imply terms into a contract is not disputed in this case. The crux of the appellant’s contention in this regard is that the implied term as to the standard of workmanship required under the building contract, upon which the respondent founded its counterclaim, was not necessary and conflicted with the express terms of the building contract.

[38]It is usual to imply, into building contracts, a term or obligation on the contractor to use reasonable skill and care in the execution of the works. As the learned authors of Halsbury’s Laws of England stated in their discussion of building contracts: “Three warranties will be implied: (1) that the materials used in the works and the completed works themselves will be reasonably fit for the purpose for which they are required; (2) that the materials used will be of good quality; and (3) that the work will be carried out in a good and workmanlike manner.”31 This is particularly so in circumstances where the contract documents confer an obligation to carry-out the building works in accordance with the drawings and specifications, but does not contain any provision which speaks directly to the skill and standard of care and workmanship required of the contractor. 32 In such circumstances, the law will imply into a building contract a duty to use reasonable skill and care and to execute works in a good and workmanlike manner, especially in circumstances where the contractor has held themself out as possessing the necessary skills to carry out the works and to complete the building in accordance with the drawings and specifications.

[39]It is cardinal to the law on implied terms that any term implied by the court must not conflict with the express terms of the contract. This longstanding principle was recently confirmed in the decision of the English Court of Appeal in Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Limited and another33 Lord Neuberger of Abbotsbury opined at paragraph 28: “In most, possibly all, disputes about whether a term should be implied into a contract, it is only after the process of construing the express words is complete that the issue of an implied term falls to be considered. Until one has decided what the parties have expressly agreed, it is difficult to see how one can set about deciding whether a term should be implied and if so what term. … Further, given that it is a cardinal rule that no term can be implied into a contract if it contradicts an express term, it would seem logically to follow that, until the express terms of the contract have been construed, it is, at least normally, not sensibly possible to decide whether a further term should be implied.” (Emphasis added)

[40]In light of the appellant’s submissions on this point, and the common law rules evidenced by Marks and Spencer quoted above, the critical question on this issue is whether the implied term as to workmanship was either unnecessary or conflicted with the clear terms of the building contract. The starting point here must therefore be construing the terms and obligations of the appellant under the contract.

[41]It is common ground between the appellant and the respondent that the agreement governing the construction by the appellant of the respondent’s home at McKinnons is comprised of letters dated 7th and 14th February 2008,34 a written contract dated 14th February 2008 and the project manual dated 29th October 2006. The 7th February 2008 letter is in essence the appellant’s ‘bid’ or cost estimate to construct the dwelling-house on the respondent’s property. The 14th February 2008 letter addresses the contractor’s breakdown of payments commencing with the amount for ‘mobilization’ and ending with the sums to be paid after ‘substantial completion’ of the building and at the end of what, presumptively, was a 3-month post contract assessment (defects) period. The main contract document dated 14th February 2008 was a short document. It did not contain any provision speaking directly to the quality of materials or workmanship, except to the extent that the completed building must be capable of withstanding category 5 hurricanes and zone 4 earthquakes; and that the works were to be executed by the appellant in accordance with the drawings and specifications (which had been prepared by the ancillary defendant, Jessy Khouly of Architecture Design Works Limited). In the said document, the appellant represented and confirmed that it had ‘thoroughly evaluated the drawings and the project manual and agreed that [it] can fully comply with all the architectural, structural, electrical and plumbing specifications as well as the relevant schedules and details.’ The appellant also represented and confirmed its ability to ‘comply with the specifications, schedules and details by affixing his initials on each page of the drawings as well as on each page of the project manual.’

[42]While the contract documents provide that the works were to be effected in accordance with the approved drawings and specifications and evince the appellant’s understanding of these documents and his agreement or obligation to construct the building in accordance with them, the contract documents do not indicate the standard of workmanship required under the contract. The appellant’s obligations under this contract were simply to construct the dwelling-house in accordance with the terms of the contract contained in the contract document dated 14th February 2008 and the project manual dated 29th October 2006, and in accordance with the drawings and specifications. The project manual addressed a range of standards to be applied to site works, concrete, masonry, carpentry, waterproofing, doors and windows, finishes including tiling and painting, installation of bathroom fixtures and accessories and plumbing and electrical. Likewise, the appellant was obligated to execute certain of the works in accordance and in full compliance with any instructions or directives given to it by the respondent or his agent or architect.

[43]In my view, the learned judge was quite correct to imply into the contract between the appellant and the respondent a term that the appellant, as contractor, would execute the works under the contract in a workmanlike manner using proper skill and care. As earlier stated, such a term is normally implied in building contracts, if not expressly stated. It is clear that such an implied term does not contradict but supplements and is consistent with, the express obligations of the appellant under the contract to construct the dwelling-house in accordance with the terms of the contract document and the project manual and with the drawings and specifications, and any instructions by the respondent. Furthermore, it cannot be said with any cogency, as the appellant seeks to argue, that the duty to use proper skill and care is necessarily superseded by or inherently inconsistent with continuous supervision of or so-called ‘micromanagement’ of the construction by the respondent.

[44]Accordingly, the learned judge was correct when, at paragraph 48 of the judgment, she surmised that in adhering to and implementing any specifications, whether in the contract itself or in the drawings or otherwise, or in executing any specific instructions provided to the contractor by the owner or his agent as to a method and quality of construction of or materials to be used or finishes to be achieved in relation to a particular aspect of the contracted building works, the contractor is not relieved of his duty to execute those works, requirements or instructions using proper skill and care or in a professional and workmanlike manner. To this I would add, and in accordance with any specific written instructions from the manufacturer as to the method or sequencing of the installation of certain materials or the installation of certain fixtures, be they tiles, air conditioners or any other owner supplied products under the contract.

[45]In my view, however, implying such a term into this contract does not carry with it a general implied obligation to use ‘international industry standards’ or what may be considered as international best practices, as contended by the respondent. Nor for that matter, is it to be implied that the appellant was under an obligation to comply with the building codes or regulations of or applicable to some other country, such as Canada, as adverted to in the expert report of Thomas Walcott dated 12th July 2012. In my opinion, no such ‘international industry standard’ of care and of workmanship can be implied into the contract between these parties, unless the contract documents themselves had expressly so stipulated or such a term arises thereunder by necessary implication having regard to the nature of the works to be carried out or other germane surrounding circumstances. The implied term in this case, was to execute the contract works in a professional and workmanlike manner in accordance with such standards as are accepted in Antigua and Barbuda and would necessarily apply to the works as detailed under the contract, to any additional works or variations approved by the respondent, and in the discharge by the appellant of any specific instructions given to it by the respondent.

[46]The critical question therefore which the learned judge had to determine in this matter, is whether or not the appellant, as contractor, had complied with its contractual obligation to execute the building works in accordance with the contract, the project manual, and the drawings and specifications provided to it, and also in accordance with any instructions provided to it by the respondent as owner or his agent; and whether, in doing so, the appellant used or employed proper skill and care commensurate with industry standards recognised in Antigua and Barbuda. Issue 2 – Whether the learned judge erred in relying on or attaching weight or too much weight to the Schamber report in coming to her decision

[47]The appellant criticises the learned judge’s reliance on the Schamber report. The appellant argues that the judge ought not to have ascribed any weight to Mr. Schamber’s expert report and evidence on the basis that Mr. Schamber was ‘no more than a travelling salesman’.35 In other words, Mr. Schamber was not an independent expert as required by rule 32.4 of the Civil Procedure Rules 2000 (the “CPR”). The appellant also submits that Mr. Schamber made recommendations as an expert which ‘would have resulted in business for the company of which he is a director’. That company is Weathershield Systems Caribbean Limited.

[48]The appellant points to the following matters set out in the Schamber report,36 in support of its contention that Mr. Schamber was not independent: (i) A statement by Mr. Schamber that he had been engaged by the respondent to ‘undertake a condition survey… to assess the extent of the reported roofing problems’ at the respondent’s residence, and to ‘submit appropriate remedial recommendations’. (ii) Under the ‘Remedial Solution’ section of his report, Mr. Schamber stated that the ‘only permanent solution is to remove the external PVC gutter system, concrete roof tiles and masonry bedding screed down to the top of the structural concrete deck level’, and to ‘install a perimeter metal drip edge flashing over the facia board and install a continuous monolithic modified bitumen waterproofing membrane over the drip edge flashing and onto the concrete deck. Then install the masonry bedding screed, concrete roof tiles and external PVC gutter all in keeping with the Eagle Roofing Products requirements and international best practices.’ (iii) The statement at the end of the report that: ‘We appreciate the opportunity to be of assistance on this project and hold ourselves available to be of any further assistance required.’ The appellant seeks to buttress this submission by adverting to the fact that Mr. Schamber’s report was on his company’s letterhead.

Discussion

[49]Expert evidence in civil proceedings is governed by Part 32 of the CPR. Part 32, unlike the previous rules of the Supreme Court, places the court in control of the process and manner by which expert evidence may be adduced in a matter before the court. Importantly, a party who wishes to rely on the evidence of an expert or put into evidence in the matter before the court the report of an expert witness, is required by rule CPR 32.6 to first seek and obtain the court’s permission and the general rule is that permission must be sought at a case management conference. However, the rules do not preclude, and a judge has a discretion to grant such permission at any stage of the litigation where he is satisfied that there are cogent and persuasive reasons for doing so in the interest of justice. Whether the court will permit a single expert witness or whether the court permits each party to rely on the evidence of separate experts is a matter to be decided by the court taking into account all the circumstances of the matter, including, the nature and complexity of the claim, the issue, or issues upon which expert evidence may be of assistance to the court’s determination of the claim, and the costs to the parties associated with obtaining expert evidence.

[50]Part 32 provides that an expert witness is not, strictly speaking, the witness of any particular party to the proceedings, but is an independent witness required to provide an unbiased opinion on a specific matter or question in issue in order to assist the court in its determination of the issues before it. Accordingly, CPR 32.4(1) provides that expert evidence– ‘must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the demands of the litigation’;37 the expert is obliged to provide ‘independent assistance to the court by way of objective unbiased opinion’;38 and to provide such assistance continuously from the point of the formal engagement of the expert by the party until the expert has rendered evidence at the trial or hearing of the matter. The manner in which an expert’s obligation under Part 32 is to be discharged includes, but is not limited to, the obligation to ‘state the facts or assumptions upon which his or her opinion is based’.39 The obligation also extends to considering and including in his or her report ‘any material fact which would detract from his or her conclusion’, and ‘any fact which falls outside his or her expertise’.40

[51]It is a fundamental principle that whether expert evidence is to be accepted is a question of fact to be decided by the trial court.41 Furthermore, a critical aspect of the credibility of an expert’s opinion and conclusions and hence the weight to be attached to it is that the opinion is explained and reasoned. In this regard, Lords Reed and Hodge in Kennedy v Cordia (Services) LLP42 stated as follows: “An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edingburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless.”

[52]In Kennedy, their Lordships cited with approval the following passage from the judgment of Wessels JA in the appellate division of the Supreme Court of South Africa in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft:43 “[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”

[53]Similarly, as Blenman JA observed at paragraph 97 of Yates Associates Construction Company Limited: “Expert evidence must be considered together with all of the evidence which is before the court and which the judge has accepted. The judge must determine what weight to attach to the expert evidence. It is necessary for an expert to present the analytical process by which he or she reached the conclusion in the report. It is insufficient that an expert merely supplies his or her conclusion on a matter in issue between the parties.”

[54]In arriving at their conclusions, an expert is able to draw on their experience and other available sources. As Baptiste JA stated, at paragraph 32, in Rawle Hannibal:44 “An expert may give evidence based on his knowledge and experience of a subject matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she works: Kennedy v Cordia (Services) LLP 20 [2016] UKSC 6.”

[55]The appellant’s challenge to the judge’s decision, to admit the Schamber report and to ascribe weight to it on the basis that Mr. Schamber was not an independent expert in accordance with the requirements of CPR 32.4, must be assessed against the background that decisions as to the admissibility of expert evidence and the weight to be attached to that evidence are fact-sensitive matters involving an evaluative exercise on the part of a trial judge. The central question here therefore is whether, in light of the earlier cited principles, the matters complained of constitute a sufficient basis on which this Court can interfere with the judge’s reliance on the Schamber report.

[56]In my judgment, the appellant’s criticisms of the respondent’s expert witness Mr. Schamber falls short of satisfying the threshold for warranting appellate interference with the learned judge’s decision. In my view, while the matters relied on by the appellant could possibly be interpreted as Mr. Schamber holding his company open to be of further assistance if requested, I do not consider that this or any other statement in the Schamber report crossed the line so as to lead to him not being an independent expert capable of giving unbiased or independent opinion to the court, or that he was in some way tainted as an ‘expert’ witness of the matters contained in his report, which all related to roofing issues. In my view, it was open to the judge not to reject the Schamber report purely on the basis of the opinions or conclusions which he reached, as identified by the appellant.

[57]With regards to the letterhead, I observe that the reports of all the experts admitted into evidence at the trial, with the exception of Mr. Thomas Walcott, were on the letterhead of their respective firm or organisation. Specifically, this was true of the expert reports of Messrs. Conway, Workman, Schamber, Martin and Sobers. In my view, any objection to the admissibility of the Schamber report, or of any of these other expert witnesses, on that basis, would be wholly unsustainable. If this was a disqualifying factor or if this, of itself, pointed conclusively to a lack of independence, then all the ‘experts’ whose reports were admitted into evidence by the lower court would be likewise tainted. Furthermore, it is not unusual, or put differently, it is quite usual, that reports of expert witnesses in this jurisdiction are proffered on the letterhead of their firm or group or attached to a cover note issued on such letterhead. Additionally, it is also the usual practice for the cost associated with the work of the expert witness to be billed by his or her organisation or employer. In my view, these reasons advanced by the appellant for why the judge ought to have rejected the Schamber report, must fail.

[58]The more substantial question (in relation to the reliance by the judge on the Schamber report and the weight to be attached to the report) is therefore the appellant’s complaint as to the substance of the report in the context of the entirety of the evidence before the judge, and whether the Schamber report can be characterised, in the words of Lords Reed and Hodge in Kennedy v Cordia (Services) LLP, as ‘mere assertions’ or ‘bare ipse dixit’ carrying little weight. This question leads inexorably to a consideration of the learned judge’s assessment of the expert reports and evidence before her as they concerned the important issue of causation, which must be assessed bearing in mind the civil standard of proof – on a balance of probabilities. Issue 3 – Whether the learned judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks, and damage counterclaimed by the respondent were caused by poor workmanship on the part of the appellant in breach of the implied term.

[59]The determination of the issue of causation and whether the learned judge properly assessed and weighed the expert evidence in this case, will be decisive of this appeal.

Appellant’s Submissions

[60]As foreshadowed, at the heart of this issue, are complaints that the learned judge erred in her assessment of and reliance on the expert evidence in concluding that the matters complained of by the respondent were caused by a breach of the implied term of the contract as to workmanship. The kernel of the appellant’s submissions in this regard is encapsulated at paragraph 34 of its main submissions in this way: “…. none of the Respondent’s experts have provided any credible expert evidence that the leaks on the flat roofs seen in September 2011 or cracks seen by Sobers in June 2012 or otherwise were caused by the Appellant’s breach of its contract. There is no or no credible evidence on causation. At best all the evidence shows is that what the Respondent’s experts did was point out what they observed. Conway conducted a successful water flow test from the hip roofs. However, Schamber and Sobers gave no expert evidence or provided any engineering or other analysis or tests beyond what they observed in order to explain the cause of the cracks or leaks in the house. Much more was required than mere conclusions. Schamber relied substantially if not solely on the allegation of porous tiles and absence of bitumen underlay.”

[61]The arguments advanced by the appellant in support of these broad contentions are more extensively set out in the appellant’s submissions.45 Without intending any disrespect, and in the interest of brevity, I do not propose to repeat those submissions in detail here. In summary, the contentions of the appellant are: (i) The judge should not have accepted the expert evidence before the court as the expert reports were made without reference to the contract documents and agreed design specifications and instructions for construction – the experts therefore were not in a position to give evidence as to the appellant’s workmanship within the proper context of the specific instructions given to the appellant. (ii) The learned judge relied heavily on the Schamber report in coming to her conclusions; the quality of the evidence in the Schamber report however was such that the learned judge ought not to have accepted it. (iii) There was no evidence from the respondent or any of the experts as to cracks or leaks in the building or on the flat and hip roofs prior to the date of the appellant’s exclusion from the worksite on 10th March 2010, and therefore no evidence that the works done by the appellant were carried out without due skill and workmanship; and the learned judge did not weigh sufficiently in the balance the effect of substantial works done on the building and the flat roof after the appellant’s exclusion from the worksite on 10th March 2010 in determining whether the cracks were caused by poor workmanship on the appellant’s part or were caused by the post-exclusion works.

Respondent’s Submissions

[62]The respondent’s submissions on the specific issue of defective construction of the roofs are set out at paragraphs 11 to 16 of their written submissions. The respondent contends that he had serious complaints about the quality of the work carried out by the appellant on the site and this became a ‘sore point’ between Mr. Mansoor and Mr. Raymond Khouly.46 The respondent opines that the judge’s findings on this issue are quite damning to the appellant. In this regard, he relies on the findings at paragraphs 95, 98 and 100 of the learned judge’s judgment. The respondent concludes, on this aspect, by submitting that ‘there was overwhelming evidence in support of the findings of the learned judge that the roof was defective in design and in construction.’47 Discussion

[63]A court’s approach to the issue of causation cannot be sterile, academic, or viewed purely through the prism of a methodical consideration of the sequencing or a chronology of historical events or facts. This is particularly so in the construction of buildings and other structures, such as in the instant matter, where defective work may, in some instances, not be immediately obvious or detectable, even to the trained or professional eye, and where the manifestation of such defective work may occur over some period. In Weld-Blundell v Stephens48 Lord Sumner stated at page 986 as follows: “The object of civil inquiry into cause and consequence is to fix liability on some responsible person and to give reparation for damage done, not to inflict punishment for duty disregarded. The trial of an action for damage is not a scientific inquest into mixed sequence of phenomena, or an historical investigation of the chapter of events... It is a practical inquiry….”

[64]Similarly, as Lord Denning in Jones v Livox Quarries Ltd49 stated at page 616: “There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of common sense more than anything else.”

[65]A court must therefore approach the issue of causation in the round and in a practical and common-sense way, taking all relevant circumstances into account, including the sequence of certain events, when determining whether the particular loss or damage suffered by the claimant was as a result of or was sufficiently ‘causally’ connected to the actions or omissions of the defendant, whether such actions or omissions sound in contract or tort.

[66]I hasten to say that this does not mean that a trial judge ought to ignore or to entirely discount, in an appropriate case, the importance to the issue of causation of the historical or chronological events or other relevant factors and whether they point either to liability or no liability on the part of the defendant/contractor for the claimant’s loss. Equally so, a court should not ignore or discount, in an appropriate case, an intervening factor or event of evidential significance not caused by the defendant (be it an act of God or the act of some third party) which may tend to establish or to point decisively to a causal connection with the alleged loss suffered by the claimant and to no liability for such loss on the part of the defendant. In an appropriate case, these factors, taken individually or collectively, when viewed or assessed in a practical or common-sense way, may be determinative of the issue of causation and hence of liability. Importantly, in considering the issue of causation, a trial judge must not lose sight of where the burden of proof lies, to the requisite standard in a civil case, and whether the evidence led by the claimant, when properly assessed against the other accepted evidence in the case for its quality, cogency and weight, satisfies the burden and standard of proof that some breach or actionable wrong in law was suffered and, that such breach or wrong was caused by an act or omission of the defendant.

[67]With that said, the appellant’s points of challenge to the learned judge’s decision and arguments in support of them, must be considered and assessed against the pleaded cases in this matter, in particular the amended defence and counterclaim; and against the expert reports and evidence adduced or accepted at trial, the testimony of the parties and other witnesses, especially during cross-examination; and the findings made by the learned judge leading to her entering judgment in favour of the respondent on his counterclaim. (i) Reference to contract documents and instructions

[68]It must be said at the outset that I do not agree with learned senior counsel for the appellant, Mr. Astaphan, that none of the experts who gave evidence had examined the drawings and specifications for construction of the respondent’s residence. As earlier stated, the learned judge had before her several reports in assessing the respondent’s counterclaim as to the breach of the implied term as to the standard of workmanship required. Mr. Conway, in his report (the CSE report), expressly states that several of his observations and recommendations were made as a result of the inspection of the drawings, inspection of the photographs taken during the construction period and inspections made at the site. Mr. Conway further stated that he was ‘able to inspect the original design drawings (signed by both parties). There was a further set of drawings representing the ‘final’ design at the site, although some further changes had been made from these drawings.’ Mr. Addison Workman in his report concerning the retaining walls, similarly, refers to the ‘approved drawings’ A2-01, A2-02, A6-00, A6-01 and A6-05 -prepared in January 2007 and approved on 7th December 2007. Mr. Sobers in his report dated 11th July 2012 dealing with the issue of ‘cracks’ refers, at different points, to drawings provided to him by the respondent for his review ‘in order to establish familiarity with the building,’ to several digital photographs ‘of some of the affected areas’, and to photographs taken as the construction of the house progressed. Mention was also made by Mr. Sobers of the ‘original drawings and what they specified in relation to the ‘timber roof over the ground floor patio on the south elevation’, and also concerning the original design of the master bedroom and patio. Mr. Sobers also pointed out that the original roof design ‘was subsequently altered after the concrete tiles were in place’ and that, consequent upon a report by Weathershield Systems Caribbean Ltd, ‘the roof tiles and cement bedding mortar were removed. The equipment used in the removal process and the strength of vibrations, if any, during the process are not known.’ (Emphasis added) Furthermore, Mr. Sobers commented that ‘the drawings indicate that both the original and revised project drawings were designed by Architecture Design Works Ltd and prepared by J. Khouly.’ Specific reference was also made by him to the details of the eastern cantilever retaining wall ‘as per the drawings.’

[69]Mr. Schamber did not record anywhere in his report dated 19th September 2011, that he had seen or reviewed any of the contract drawings, and specifically any drawings relating to the roof or to the written instructions given by the respondent to the appellant conveying his selection of a particular method of construction of the new roof. What is clear is that he did review certain of the historical construction photographs taken by the respondent during the course of the construction works carried out by the appellant on site. Mr. Wayne Martin of Associated Engineers Partnership, in his report dated 18th April 2012, on the structural integrity of the retaining walls and entry stairs, does not expressly note having been provided with or having reviewed any of the drawings, whether original or revised drawings, and seems, to a large extent, to have confined his comments to what he observed on site during his inspection regarding the retaining wall and the entry stair structure of the main building. However, there is some passing reference in his report to the original design and its inadequacy as to structural details without specifically referencing any of the pertinent drawings. In relation to the retaining wall, Mr. Martin addressed in his report the excavation to accommodate the wall, the design and size of the footing for it, the construction of the wall itself using 8” concrete blocks, and the capping beam. He referred to the inadequate width of the footing of the original retaining wall again without specifically referencing that he had been provided with and reviewed any specific drawing or drawings. His report also focuses on the stair structure, its excavations and footings, the stair framing, and the lack of an adequate structural design and construction being provided. His report concludes - ‘Both of the building components described in this report were inadequately designed and/or constructed. New designs, drawings and construction were done to suitably address the functions as per design purposes.’

[70]Nowhere in his report does Mr. Thomas Walcott make reference to the contract or to the drawings and specifications relating to this project. However, in the section headed ‘Declaration’ at the end of his report, Mr. Walcott states: ” I have been involved in cases like this before, I am satisfied that the Construction Firm of Khouly Construction and Engineering Ltd have met accepted Construction Standards. The structural sizes are extremely well established and adequate, and any analysis carried out on the structure for live, dead, wind and seismic loads would result in a factor of safety larger than which is structurally required. Although my terms of reference were mainly structural, I took the liberty to discuss other aspect of construction with the owner Dr. Mansoor. I found Dr. Mansoor’s attitude demanding and uncompromising.”

[71]The BCQS document put into evidence is not an expert report. Even if it was, it does not pertain to or address in any way any defective work found or the cause of the cracks and leaks. In any event, any reliance on this document was rejected by the judge.50

[72]It is clear in my view that at least Mr. Conway, Mr. Workman and Mr. Sobers had sight of drawings and/or were privy, in the preparation of their respective reports, to instructions given by the respondent to the appellant as to how certain works were to be carried out by the appellant. In my view, it cannot be said that the fact that other experts did not note or record, in their report, that they had sight of the drawings or instructions, renders the evidential value of their report entirely useless, especially where they were sufficiently apprised of and reviewed the historical photographs of the works done by the appellant (as in the case of Mr. Schamber); or where in their report they expressly stated that they did not seek to address compliance with design specifications but, as professionals, sought to assess the works as actually done by the appellant (as in the case of Mr. Walcott and Mr. Martin). In my view, therefore, this line of complaint or criticism by the appellant could therefore not have been a sound basis upon which the learned judge ought to have rejected wholesale the evidence of the experts in this case. (ii) Substantive criticisms of the Schamber report

[73]The appellant’s complaints in relation to the substance of the Schamber report are several in number. The complaints are in essence that: (i) No weight ought to have been attached to the report as it was nothing short of mere unsupported assertions and is simply bare ipse dixit, and, accordingly, of little or no evidential value in establishing to the requisite standard the critical issue of causation; (ii) Mr. Schamber’s report had been undermined in cross examination and by other evidence adduced before the learned judge; and (iii) Mr. Schamber did not give any direct or conclusive evidence ascribing blame for the cracks and leaks he found to the appellant’s workmanship, or whether the cracks and leaks were the result of following the instructions given to the appellant.

[74]I do not agree that the Schamber report contains bare or unsupported assertions and accordingly was of no real evidential value or that the learned judge ought to have given no weight to it and to Mr. Schamber’s evidence at trial. In my opinion, the learned judge was quite correct to have considered the Schamber report in the context of the CSE report of Mr. Conway and the Workman report in determining whether the appellant had carried out defective work or poor workmanship in its construction of the roof system, especially the vaulted or hip roofs and whether such works were the cause of cracks and leaks and resulting damage to the interior of the main building.

[75]Mr. Schamber was requested by the respondent to review the historical construction photographs and to conduct a ‘condition survey’ on the morning of 12th September 2011 to assess the extent of the reported roofing problems’ at the respondent’s residence and submit appropriate remedial recommendations. The focus of his brief and hence his report was on the roofing system. His report is dated 19th September 2011, over a year and 5 months after the CSE and Workman reports, during which period the appellant’s contract had been terminated and it was not allowed to continue the works since 10th March 2010 when the respondent had imposed a unilateral suspension of the building works by the appellant at the site.

[76]Under the heading ‘Roofing problems’, Mr. Schamber records that he carried out an interior and exterior survey of the vaulted hip roofs, and he observed that ‘water ingress and finish damage to both the interior and exterior walls along the lower eave of these vaulted roofs was identified in many locations.’ (Photos #9, #10, #11, #12, #13, #14, #15 and #16 refer). As to defect, Mr. Schamber stated that from the survey and review of the historical photographs – ”it was easily discernible that the source of the water ingress problems is that the tile roof system installation is not in keeping with international industry standards or the concrete tile manufacturer (Eagle Roofing Products) installation requirements.”

[77]He also pointed to the: “…inappropriate use of aluminium foil as a subsurface protection barrier and its installation being in the incorrect location of the roof assembly and that its partial coverage of the building interior, stopping at the inside of the exterior wall, all contributed to the substantial water ingress and finish damage being experienced.”

[78]Mr. Schamber further stated: “It’s noteworthy that concrete tiles are water shedding roof systems that consist of an assembly of multiple rigid tiles and innumerable joints. These roof systems are notoriously porous and vulnerable to water ingress by wind driven rain and capillary action. Accordingly, these systems by themselves are not considered watertight. Traditional industry standards for a tropical environment application requires that a continuous waterproofing underlay be installed from Ridge to Eave under the concrete tile system. As to the concrete tile manufacturer’s requirements for a mortar set application similar to the one used here, a 90 lb modified bitumen cap sheet underlay is required with a metal drip edge flashing being installed at the eave.”

[79]Mr. Schamber found that notwithstanding these requirements, ‘it is apparent that no waterproofing underlay or perimeter metal drip edge flashing was installed under the concrete tile roof system in the existing construction.’ He also found that the aluminium foil layer was installed incorrectly and is in the wrong location to function as a waterproofing or protection barrier. The aluminium deteriorates when exposed to wet cement and it was punctured by the numerous nails used to anchor the concrete reinforcement over it and: “most importantly it stops short of the exterior edge at the inside of the exterior wall. As a consequence, any water that migrates through the tile roof, screed, and concrete deck, would then run onto the aluminium to the lower eave and collect at a subsurface level on top of the exterior block wall cavity. This laten moisture would then exit below the roof tile and gutter level at any convenient construction joint or opening on the interior or exterior surface of the exterior block wall.” This explanation is entirely consistent with the current water ingress and finish damage being experienced and is believed to be a major source of the existing problems.’

[80]In making his report, Mr. Schamber clearly had inspected the works done by the appellant and had recourse to the historical construction photographs taken by the respondent during the course of the construction works carried out by the appellant on site. He explained his reasons for coming to his conclusions and justified his conclusions with reference to the historical photographs and his own observations and experience. It was therefore the judge’s role in the circumstances to determine what weight ought to have been attached to the report in the context of the other relevant evidence in the case adduced at trial, oral and documentary, especially the report of Mr. Conway (CSE) issued in April 2010, (a mere 2 months after the appellant had been excluded from the construction site by the respondent) and the respondent’s letter dated 20th April 2009, by which he agreed to certain changes in the construction of the roof system and specified a design for the master bedroom roof and a common design for all other roofs.

[81]It was also for the judge to determine whether the contents of the Schamber report, in the context of the other expert reports, provided any basis upon which to conclude that the appellant had breached the implied term as to workmanship. In my view, given the totality of the expert evidence (which the learned judge was well- positioned to assess, and in relation to which she was empowered to accept, reject, make findings of primary fact and draw inferences), and the principles applicable to a trial judge’s approach to causation which I have gratefully adopted from Weld- Blundell v Stephens and Jones v Livox Quarries Ltd, it was entirely open to the judge in the circumstances to rely on the Schamber report in coming to the conclusion that the appellant’s poor workmanship had caused the cracks, leaks and/or damage complained of by the respondent. Mr. Schamber’s report is clearly of evidential value as an expert report in relation to the condition and construction of the roof system, especially the vaulted or hip roofs of which there were six, and the learned judge did not err in relying on it or in ascribing weight to it. (iii) The sufficiency and evaluation of evidence as to causation

[82]The learned judge considered the appellant’s liability for defective construction of the hip and flat roofs, cracks in the floor of the garage, in the open area next to the front steps, to the storage areas and the north basement floor, leaks to the hip roofs/through cracks in the wall, the construction of the retaining walls, and cracks to the stairs to the south (front) of the building. The learned judge also addressed the appellant’s liability for professional fees occasioned by the respondent’s procurement of experts. I shall address each of these areas. The Construction of the Hip and Flat Roofs

[83]The learned judge in considering the counterclaim as it pertains to the construction of the hip and flat roofs relied significantly on the findings in the Schamber report. The appellant argued that Mr. Schamber, in his report, did not specifically assess the construction of the roof system against the details provided in the respondent’s 20th April 2009 letter to Mr. Raymond Khouly, written after discussions on the said day with both Mr. Jessy Khouly (the Project Architect) and Mr. Raymond Khouly of the appellant company.51 In the said letter, the respondent conveyed his agreement to certain changes in the construction of the roofs of the building. Specifically, “Roof: Design: all roofs will have as a minimum, treated 3 X 10 rafters and bigger as designated by the Project Engineer, 1 X 6 tongue and grove V-joints, reflective foil insulation, galvanize fence wire, 2½ inches concrete on roof, concrete tiles.” “Master bedroom: design is as above except that instead of galvanize fence wire, ½ inch steel will be placed at 6 inches on the roof and 5 inches of concrete will be cast on the roof.” (Emphasis added)

[84]In my view, there is some merit in this criticism levelled by the appellant. While the learned judge did recount what was stated in the said letter, she did not approach the assessment of Mr. Schamber’s report and evidence cognisant of this glaring omission, one which Mr. Schamber admitted to in his oral evidence. The importance of this fact is that the appellant was required to construct the roofs in accordance with the details provided in the said letter and to do so using all proper skill and care of an experienced contractor. That meant that the appellant was required, in relation to all roofs (except the master bedroom roof) to use at minimum 3” X 10” rafters, 1” X 6” tongue and grove V-joints, reflective foil installation, galvanize fence wire, 2 ½ inches concrete on the roof and concrete tiles which were to be supplied by the respondent. In relation to the master bedroom roof, the appellant was required to use the same design concept except that, instead of galvanised fence wire, ½ inch steel was to be placed at 6 inches on the roof and 5 inches, instead of 2½ inches, of concrete was to be cast on the roof.

[85]In his report, Mr. Schamber noted his observation of water ingress and finish damage to both the interior and exterior walls along the eaves of the vaulted roofs in many locations. These observations were backed up by several photographs. His conclusion was that water was ‘obviously getting through the concrete tile roof system and leaking into the exterior walls where it would exit into the building interior or behind the exterior gutter system.’ His report is critical of the existing tile roof system in several respects. He observed the following in relation to this type of concrete roof systems: “These roof systems are notoriously porous and vulnerable to water ingress by wind driven rain and capillary action. Accordingly, these systems by themselves are not considered watertight. Traditional industry standards for a tropical environment application requires that a continuous waterproofing underlay be installed from Ridge to Eave under the concrete tile system.”

[86]Mr. Schamber, in his report, concluded that the installation was not in keeping with ‘international industry standards or the concrete tile manufacturer (Eagle Roofing Products) installation requirements’, which, among other requirements, called for the installation of a 90 lb modified bitumen cap sheet underlay with a metal drip edge flashing installed at the eave. He also stated that ‘extracts from the design manual of the world’s largest independent roofing authority, the American National Roofing Contractors Association (NRCA), reinforce the need for a continuous waterproofing underlayment.’ Accordingly, Mr. Schamber concluded as follows: “Notwithstanding these requirements from photo #5 it is apparent that no waterproofing underlay or perimeter metal drip edge flashing was installed under the concrete tile roof system in the existing construction. Additionally, from Photos #2, #3, #4, #5 and #6 it’s apparent that an aluminium foil layer is installed improperly and in the wrong location to function as a waterproof or protection barrier. Not only does aluminium deteriorate when exposed to wet cement, the aluminium foil layer is punctured by numerous nails used to anchor the concrete reinforcement over it and most importantly it stops short of the exterior at the inside of the exterior wall. As a consequence, any water that migrates through the tile roof, screed and concrete deck, would then run on top of the aluminium to the lower eave and collect at a subsurface level on top of the exterior block wall cavity. This latent moisture would then exit below the roof tile and gutter level at any convenient construction joint or opening on the interior or exterior surface of the exterior block wall. This explanation is entirely consistent with the current water ingress and finish damage being experienced and is believed to be a major source of the existing problems.”

[87]It was Mr. Schamber’s opinion that the only permanent solution to this problem: “… is to remove the external PVC gutter system, concrete roof tiles and masonry bedding screed down to the top of the structural concrete deck level. On top of this concrete deck surface, install a perimeter metal drip edge flashing over the facia board and install a continuous monolithic modified bitumen waterproofing membrane over the drip edge flashing and on to the concrete deck. Then install the masonry bedding screed, concrete roof tiles and external PVC gutter system all in keeping with the Eagle Roofing Products requirements and international best practice.”

[88]The appellant heavily criticises the report and finding of Mr. Schamber and concludes that he provided no analytical process by which he arrived at his conclusions which were merely speculative. The appellant also submits that Mr. Schamber made no finding (as oppose to guesswork) of ‘any specific cause or source of leaks, or cracks or leaks emanating from the hip roofs’. They rely on the CSE report and the evidence of Mr. Conway that at the time of his inspection in March 2010, he found no evidence of cracks in the walls and leaks from the roofs of the building under construction and there was no photograph or in which any such crack or leaks were indicated. In particular, the appellant relies on the cross examination of Mr. Conway at the trial during which he admitted to observing stains ‘on the top of the roof’ and decolourisation of the rafters of the roofs which he attributed to moisture in the rafters which had been pressure treated before being purchased and shipped to Antigua, and not to any crack or leak from the hip roofs.52 The only crack found by Mr. Conway, whose evidence the appellant submits was to be preferred over that of Mr. Schamber or Mr. Sobers, was at the junction between the mortar and the copper of the gutters in the valleys to the hip or slopping roofs, which crack he concluded had been caused by ‘differential thermal expansion between the copper and the cementitious products.’ Importantly, says the appellant, Mr. Conway who, unlike Mr. Schamber, had reviewed the drawings, observed at note 26 (p6) of the CSE report that– ‘[t]he valley gutter detail on the drawings also shows a screed build up under the waterproofing to allow water to drain from the centre of the roof to the outside locations and away.’53

[89]The appellant also points to the photographs which were taken by Mr. Sobers on 29th June 2012 some 2.5 years after the appellant had been excluded from the building site by the respondent on 10th March 2010. They submit that the Sobers photographs are the only ones tendered into evidence by the respondent which show cracks and leaks in the building with a date specific as to when the photograph was taken. In their view, these photographs, taken after the hip and flat roofs had been completely replaced on Mr. Schamber’s recommendation, provide ‘clear and unanswerable evidence’ that that these cracks and leaks occurred after 10th March 2010, and after the removal of the flat and hip roofs between 2011 and 2012 and their replacement. They also rely on them as proof that the bitumen placed on the flat roofs by the appellant in 2009 had been removed subsequently by the respondent; no bitumen was placed on the hip roofs by the appellant; the hip roofs had been jackhammered to remove the concrete tiles and underlying mortar and foil; tar bitumen had been placed on the hip roofs in September 2011 on the basis of the Schamber recommendation; by June 2012 there was no bitumen on any roof which had been placed there by the appellant; and therefore, inferentially, the cracking and or leaks had to have occurred after the laying of the bitumen in September 2011.54

[90]The appellant also points out in its written submissions that the evidence before the learned judge also disclosed that, at the time of the site visit by Mr. Schamber on 12th September 2011, it was pointed out to him by Mr. Raymond Khouly, on behalf of the appellant, that the waterproofing which the appellant had installed on the roofs had been replaced by a new contractor and had not been ‘taken up the wall in certain areas.’ As to the possible effect of this, Mr. Schamber is recorded in the minutes of the said site meeting as confirming that where the waterproofing had not been replaced properly, it will cause leaks. In their written submissions, the appellants also point to the evidence in the Sobers report as to the several known and accepted causes of cracks in reinforced concrete, many of which, such as shrinkage and settlement and excessive loads, deflection, and vibration, do not point to any negligence or breach of duty on the part of a contractor.55 Discussion and Conclusion

[91]In my view, the learned judge erred in accepting that the appellant had failed to comply with the specific requirements of the concrete tile manufacturer as it relates to the use of bitumen and not aluminium foil as a waterproofing subsurface or underlay. Further, the evidence discloses that the concrete roof tiles which were used in finishing the roofs, as per the respondent’s 20th April 2009 letter, were not selected or purchased by the appellant as one of its contractual obligations or responsibilities. These were items, the purchase and delivery of which, were the responsibility of the respondent. Furthermore, as to their installation by the appellant, there is no direct or other evidence from which it was established or could be inferred that the written installation requirements of the concrete tile manufacturer Eagle Roofing Products, had been provided to the appellant for it to use or to follow. Likewise, there was no evidence that the method of construction of the roofs as set out in the letter of 20th April 2009 had been altered or that the appellant had been instructed or directed by the respondent or the Project Architect to use a 90 lb modified bitumen cap sheet underlay instead of the reflective aluminium foil specified in the said letter, and to install the said bitumen underlay with a metal drip edge flashing installed at the eave as was apparently specified in the USA’s Tile Roofing Institutes Concrete & Clay Roof Tile Installation Manual referenced in the concrete tile manufacturer’s guide. In my view, and in these circumstances the appellant was not under a contractual obligation or duty to install the tiles using the said manufacturer’s requirements or in accordance with the requirement for installation of such concrete roof tiles set out in the American National Roofing Contractors Association (NRCA).

[92]The method of installation of the roofs specified in the respondent’s letter of 20th April 2009 required the use of ‘reflective foil insulation’, either galvanised fence wire or ½ inch steel placed 6 inches on the roof in the case of the master bedroom roof, and either 2 1/2 inches or 5 inches of concrete. Accordingly, the appellant cannot be faulted for having used aluminium foil. The important question is was the aluminium foil installed or laid incorrectly by the appellant in breach of the implied term to use proper skill and care and, if so, was this a casual effect of the ingress of water into the building, as concluded by Mr. Schamber in his report? These questions fall to be considered against the absence of evidence of water ingress or leaks from the flat and/or hip roofs when Mr. Conway conducted his site inspections in March 2010, as his testimony at the trial confirms, and the evidence of such water ingress and damage to the interior of the building as observed, photographed, and documented by Mr. Schamber in his report some 17 months later.

[93]It is to be borne in mind, however, that at the time Mr. Schamber inspected the building works in September 2011, the extensive jackhammering to remove the concrete from the flat roofs and the concrete tiles and masonry from the hip or vaulted roofs had not yet taken place. Likewise, the installation of equipment on the flat roofs of the building occurred subsequent to the Schamber report. This extensive drilling/jackhammering work, which from the evidence occurred in 2011 to 2012, followed from the recommended remedial works in the Schamber report as set out above. The fact of such works having taken place was referred to by Mr. Sobers in his report in July 2012. At section 7.3, Mr. Sobers stated: “We are aware that the homeowner, after being severely affected by water ingress, and on observing certain defects, has taken advice from various other professionals in the field, and had carried out corrective action to the roof and another retaining wall which was demolished and rebuilt. These actions appear to have been completed without substantial alteration to the main structure of the house as constructed by Khouly construction.”

[94]On the evidence before the learned judge, it was open to her to find, as she did, that the appellant had failed to exercise proper care and skill in the placement of the aluminium foil subsurface underlay or protection barrier, by incorrectly stopping it at the inside of the exterior masonry wall instead of extending it to the outer edge of the exterior wall. This was not simply a matter of following the details in the contract drawings or specifications or in the respondent’s letter dated 20th April 2009. In my view, this was a matter which required the appellant to carry out the works in accordance with accepted industry standards for the placement of waterproofing subsurface or underlay when constructing a concrete roof. The appellant failed to use such proper skill and care as an experienced contractor.

[95]Furthermore, the appellant, as an experienced contractor ought to have known or realised that driving nails through the aluminium foil insulation or protective underlay in order to nail or to secure in place either the galvanised fence wire or the ½ inch steel reinforcing mesh (as had been specified by the respondent), would compromise the ability of the foil to act as a waterproofing or insulation barrier to water ingress. In my view, the appellant, as an experienced contractor, had a duty to bring these matters to the attention of the respondent and/or the Project Architect. On the evidence he failed to do so. Instead, it is apparent from the evidence that the appellant just proceeded to drive nails through the foil underlay and to thereby perforate the protective barrier, with the result that it made, in the opinion of Mr. Schamber which the learned judge accepted, the roof permeable and hence vulnerable to the ingress of water and to leaking into the interior of the building. However, the trial judge erred in finding that the appellant had, in relation to the concrete hip roofs, breached the implied duty to use proper skill and care by failing to comply with international standards for the installation of the tiles and or failing to comply with the installation requirements of the concrete tile manufacturers, there being no evidence that such instructions were provided to or brought to the attention of the appellant, the said tiles having been selected and bought by the respondent.

[96]In my judgment, on these specific aspects of the appellant’s workmanship, it was open to the learned judge to accept the expert evidence and opinion of Mr. Schamber that this poor workmanship on the part of the appellant in the construction of the hip roofs was a likely cause of the ingress of water into the interior of the building and resulting staining and damage. I say this being mindful that Mr. Conway did not make any observations similar to those of Mr. Schamber, including observations of leaking into the interior of the building from the hip roofs. In fact, Mr. Conway expressly stated in his report that ‘no design check has been carried out [by him] on the property as a whole at this stage,’ Also, his inspection of the concrete hip roof system seems to have been limited to the change in the size of the rafters from the original design and the selection of a new design by the respondent. Mr. Conway only observed that, contrary to what the appellant had informed him, the steel in the 5” slab (master bedroom roof) was lapped with the beam steel, ‘the steel is visible in the photographs as only just turning into the beams at that level.’

[97]Specifically, as to the appellant’s construction of the flat roofs, Mr. Conway in the CSE report recommended that they should be removed, and the screed re-laid to falls to the drainage on the roofs. This was one of the nine recommendations in his report which the appellant agreed to comply with. The problem observed by Mr. Conway was that the flat roofs as laid were not laid to falls resulting in evidence of ponding of water. However, the appellant was never allowed to return to the site after 10th March 2010 to remedy this defective work, having accepted and agreed with Mr. Conway’s recommendation to remove and relay the screed as to falls.

[98]In apportioning liability for the cost of remedial works to the roofs, the learned judge held the appellant 50% to blame. Taking into account the matters in the Schamber report which point to liability on the part of the appellant for defective work in relation to the construction of the hip roofs and the appellant’s acceptance of liability to remedy the defective work in relation to the flat roof, in my considered opinion there is no proper basis upon which to disturb the judge’s apportionment on this aspect of 50% to the appellant. Accordingly, the judge’s finding and apportionment of liability is upheld. Damage to the interior of the building from leaks to the Hip Roofs and through cracks in the wall

[99]The learned judge found the appellant liable for damage done to the interior of the building from leaks to the hip roofs and through cracks in the walls of the master bedroom. The judge’s findings on this point were as follows: “[98] Leaks in that part of the house covered by the flat roof have also not been shown to be attributable to the claimant. Having considered the findings of the other experts and the circumstances, the court accepts the expert evidence of Mr. Schamber concerning the interior and exterior survey of the hip roof; his findings of water ingress and damage to the finishes of the walls. The court accepts his finding that the aluminium foil layer was improperly installed and in the wrong location to function as a waterproof or protective barrier. [99] The court also accepts Mr. Sobers analysis and his opinion that responsibility for the waterproofing failures which led to water ingress through the walls and the cracks in the walls lies with the Architect, and the Contractor.

[100]The defendant is therefore entitled to damages to compensate him for remedial work in respect of damage from leaks in the hip roof and through the cracks in the walls in the master bedroom to include damage to the interior walls and finishes caused by the leaks.” [100] In my view, the learned judge having erred in finding the appellant had, in relation to the concrete hip roofs, failed to comply with international standards for the installation of the tiles and or failed to comply with the installation requirements of the concrete tile manufacturers, erred in assessing the appellant’s liability for damage to the interior of the main building from leaks to the hip roofs and through cracks in the walls of the master bedroom at 100%. In considering the proper apportionment of liability under this head of loss, I have taken into account that in all the circumstances, it is clear that full blame ought not to be attributed to the appellant for damage caused to the interior of the main building from leaks relating to the hip roof or the flat roof. With respect of the flat roof, there was no evidence of leaks but of ponding of water due to a lack of appropriate fall in the finished roof, which defect the appellant had agreed to remedy as recommended by Mr. Chris Conway at recommendation No. 27 in the CSE report, by having the screed relayed and ‘the waterproofing …laid up the wall and preferably laid into a joint in the wall so that the water can pass over the top and away from the roof.’

[101]Also, the appellant had agreed to recommendations Nos. 22 and 23 in the CSE report which require the holes or voids in the bathroom slab and in the external walls to be filled, the latter being voids which would make parts of the building liable to the ingress of water particularly during wind driven rain. I have also taken into account the fact that the appellant had followed and complied with all of the specifications for the installation of the new hip roofs provided to it by the respondent, but had breached the implied term of the contract to use proper skill and care in carrying out that work, and that the learned judge did not find the appellant liable for any leaks emanating from the flat roofs which had also been subjected to extensive jackhammering in order to remove the concrete tiles and concrete after the appellant had been excluded from the site on 10th March 2010. Taking all these matters into account, I would attribute to the appellant 50% of the blame for the resulting damage to the interior of the main building from the ingress of water into the building from the hip roofs. The learned judge’s finding of 100% liability under this head of damage at paragraph 132 (2)(d) of the judgment is accordingly set aside and an order made for the appellant to pay 50% of the remedial costs for damage done to the interior of the building from leaks from the hip roofs and cracks in the walls of the master bedroom.

Retaining Walls

[102]The learned judge relied heavily on the Workman report dated 14th April 2010 in assessing whether the retaining walls were constructed in breach of the implied term as to workmanship. The Workman Report was produced a mere 2 months after the appellant had been excluded from the site by the respondent and was critical of both the architect and the contractor both of whom had failed, in his view, to bring to the attention of the respondent the conflicting details on the various drawings relating to retaining walls. Mr. Workman examined two walls, one unplastered and the other a plastered wall at the rear of the building. As to the unplastered wall, Mr. Workman observed an almost one inch (1”) wide crack traversing the entire height of the wall, and that there was no ring or top beam. In his opinion this wall ‘clearly needed to be demolished, a footing of adequate design provided, and the wall rebuilt. As to the back wall, he observed several cracks including at the top of the wall, and that it did not have a beam at the top. These findings were confirmed to some extent by the Sobers report in 2012.

[103]The appellant agreed to the remedial work advised by Mr. Conway in the CSE report, that is, to strengthen the back wall by the ‘installation of a top beam, ties and dead men behind the wall or the excavation behind the wall and the construction of a reinforced concrete wall behind the block wall.’ As to what he described as a ‘major crack’ in the small retaining wall to the side of the building (the unplastered wall) that is ‘serious in nature and indicates that the wall has heaved on the left- hand side, probably as a result of the passage of the excavator’, Mr. Conway recommended its complete removal and replacement with a correctly designed reinforced concrete wall. The judge in effect found that the appellant agreed with the latter recommendation (No. 17) and was therefore liable for the cost of remedial works in relation to both retaining walls, including the installation a perforated pipe behind and at the base of the retaining walls. The learned judge accordingly apportioned 75% of liability to the appellant and 25% to the ancillary defendant, Mr. Jessy Khouly. In my view, that apportionment is within the ambit of reasonable disagreement and therefore ought not to be disturbed.

[104]In passing, I note that the appellant has also submitted that the workmanship in relation to the retaining walls was not in dispute in the proceedings before the judge.56 The learned judge was not of that view and I certainly am not. Complaints in relation to the retaining walls formed the basis of the Workman report and were placed before the judge as a substantive complaint in relation to the appellant’s workmanship.57 Cracks to the stairs to the south (front) of the building

[105]The learned judge found that the appellant had carried out defective work in the construction of the front stairs, which had been enlarged during the construction, but had separated from the external wall of the main building itself. She apportioned liability 50/50 as between the appellant and the ancillary defendant, Mr. Jessy Khouly. Mr. Wayne Martin in his report dated 18th April 2012, observed cracks where the stairs attached to the main building. He concluded that these cracks were serious enough that the separation from the main building was inevitable. He also found that there was an inadequate number of support points for the staircase structure. He opined that ‘an adequate structural design and construction was not provided to satisfy or to avoid the deficiencies’ outlined in his report; and that retrofitting, and upgrade of the staircase was necessary to provide adequate support, prevention of major settlement, and to avoid sliding and separation from the main building. Demolition of the structure was not recommended as a solution to the defects with the building and site.

[106]The findings by Mr. Martin in his report with regard to the front stair were essentially substantiated by the findings in the Sobers report dated 11th July 2012. In my view it was certainly open to the judge to conclude, on the basis of both reports, that the cracks to the stairs to the south of the building were caused by poor workmanship and poor design on the part of the ancillary defendant, Mr. Jessy Khouly, and equally so. The learned judge was therefore, in my view, correct in her assessment of this evidence and in finding the appellant liable for 50% the cost of remedying these cracks. Accordingly, there is no basis upon which to disturb the judge’s finding on this item of damage. Cracks in the floor of the garage, in the open area next to the front steps, to the storage areas and the north basement floor

[107]The learned judge found the appellant fully liable for the cost of remedying the cracks found in these areas. She concluded at paragraph 97 of her judgment, that it was unlikely that these cracks, as catalogued in the Martin report of April 2012, ‘can be attributed to the [remedial] work on the flat roof, given the opinions of Mr. Martin as to the cause of those cracks, which the court accepts. The defendant is therefore entitled [to] recover for the remedial work in respect of those cracks.’ Similar observations and findings were made in relation to the cracks in each of these areas in the Sobers report also of 2012.

[108]In my view, the learned judge was entitled to base her reasoning and conclusions on the causes attributed to the cracks in these four areas by Mr. Martin in his report, buttressed by the report of Mr. Sobers. Accordingly, the learned judge’s finding of 100% liability on the part of the appellant for the cost of remedying these defects cannot be faulted.

Award in relation to professional fees

[109]The appellant has not challenged this aspect of the judge’s award in terms of apportionment between the appellant and the ancillary defendant, except to the extent that the appellant invites this Court to set aside all the awards against it, which, if it were successful, would have had the consequential effect of setting aside of the awards in relation to professional fees of the named expert witnesses. Since the conclusion in this judgment is that the appellant’s appeal fails (except in one respect), there is no basis upon which to set aside and no good reason for this Court to alter the finding of 60% liability in the appellant for these fees.

Conclusion

[110]For all the above reasons, I am of the view that the learned judge did not err in her overall approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks and or damage to the building were caused by poor workmanship on the part of the appellant in breach of the implied term. The learned judge was, in my view, sufficiently seised of the relevant evidence relating to each of these items of defective or poor workmanship and was entitled to make the findings and apportionment of liability which she did on the respondent’s counterclaim, at sub- paragraphs (a), (b) and (c) of paragraph 132 (2) of the judgment, which findings and apportionment of liability are accordingly affirmed. Likewise, there is no basis upon which to disturb the judge’s finding and apportionment of liability for the professional fees incurred by the respondent at paragraphs 129, 131 and 132 (2)(e) of the judgment.

The Counter Appeal

[111]In relation to his counternotice, the respondent argues that the learned judge erred in several respects when she gave judgment in the sum of $588,288.65 on the appellant’s claim. Firstly, the respondent contends that the learned judge erred when, having correctly found that the contract did not specify any rate or rates to be applied to extra work, went on to conclude erroneously that: “…the best indication of the reasonable rates applicable to the extra work is the evidence of the rates used by the claimant in the initial works and which had been agreed and paid by the defendant. The evidence is that in compiling the estimates, the claimant used the same rates it used under the initial contract. These are the rates used by Mr. Gardner.”

[112]The second basis of challenge is that the learned judge erred in accepting the rates and report of Mr. Gardner dated 22nd June 2010, which report was mostly unexplained. The third is that the learned judge ought to have accepted the rates and evidence of Mr. Sanjay Amin of BCQS as indicative or as evidence of the prevailing rates in the construction industry in Antigua and Barbuda (market rates), Mr. Amin having indicated that the rates used by him were based on his experience in Antigua and in the Caribbean ‘speaking to contractors and suppliers’,58 and it was not suggested to Mr. Amin in cross-examination that his rates were flawed or that his experience was questionable.59 Fourth, that accordingly the rates used by Mr. Amin in his assessment of the value of the extras being indicative of market rates in Antigua and Barbuda provides ‘a basis for an assessment by the court based upon quantum meruit’. Fifth, in the absence of any agreed rates in the contract, the court ought to have considered what was a reasonable sum based upon market rates and not rely, without more, on the rates put forward by the appellant which may bare no relationship to the market rates. In support of these submissions, the respondent relies on the decision of the Supreme Court of the United Kingdom in Benedetti v Sawiris60 and excerpts from the learned authors of Chitty on Contracts.61

[113]In oral argument, Dr. Dorsett, learned counsel for the respondent, relied on an additional submission based upon an extract from The Principles of the Law of Restitution.62 Dr. Dorsett submitted that in the instant matter where the appellant had failed to perform the contract by failing to complete the works it had contracted to do, the principle of ‘subjective devaluation’ applies, which requires that a valuation must be done of the services provided by the appellant to the respondent. He submitted that where the appellant has carried out defective work, that must be taken into account in the valuation, and the quantum to be awarded to the appellant is affected by the devaluation of the work executed under the contract as a result of the proven defective work. Dr. Dorsett argued that English law recognises that the value must be taken at the time the contract came to an end which, in the instant matter, was either 12th March 2010 or 12th May 2010.

[114]In Dr. Dorsett’s submission, the sum of $588,288.65 awarded to the appellant by the learned judge is incorrect as it is affected by the defective works carried out by the appellant and, more properly, the judge ought not to have made an award at this stage, but ought to have left these issues and matters to be sorted out and a final sum arrived at during the assessment phase, with the said sum being viewed as the ceiling or maximum sum for any such award. In any event, that sum is an inflated sum because it is subject to devaluation for the defective works carried out by the appellant.

[115]The ‘subjective devaluation principle’ is put in these terms by the learned author of the text The Principles of the Law of Restitution, at page 94, under the rubric ‘Part Performance of a Contract’: “Where the defendant has received the benefit of the claimant’s partial performance of the contract, the defendant will typically have received an objective benefit. So, for example. If the claimant agreed to build a house for the defendant and, after having done half of the work, the claimant fails, for whatever reason, to complete the house, the defendant is in receipt of a benefit, namely, half a house, which is of some objective value. But, because the defendant wanted a whole house, it would be perfectly appropriate for him or her subjectively to devalue the benefit which had been received. Will it be possible for the claimant to defeat the defendant’s reliance on this principle? This will depend on the circumstances of the case, and five different circumstances need to be considered.”

[116]At page 95 of The Principles of the Law of Restitution, under the rubric ‘The Claimant breached the Contract’, the learned author states: “Where the reason why the claimant failed to perform the contract was that he or she breached it, it will be very difficult to prevent the defendant from relying on the subjective devaluation principle, save where it can be shown either that the defendant had voluntarily accepted the benefit despite the breach, or that the benefit was incontrovertibly beneficial.”

[117]This basis of challenge to the award made in favour of the appellant by the learned judge based upon the ‘subjective devaluation principle’, was not foreshadowed by the respondent in either his ground of appeal or in written submissions. Indeed, no such submission was put before the learned judge below. Mr. Astaphan, SC on behalf of the appellant, submitted in reply that the issue in the court below was simply one of what was the reasonable value or cost of the extra works. The appellant was willing to comply with certain of the recommendations made by Mr. Conway in the CSE report, and the only issue before the lower court was what was the proper value of the extras.

Discussion

[118]The learned judge had before her the valuation of Mr. Gardner, an expert relied on by the appellant, and the costings arrived at by Mr. Sanjay Amin of BCQS, relied on by the respondent. In my view, the learned judge quite properly determined that, in the absence of any provision in the contract which specified an agreed rate or rates to be applied to the valuation of any extras or variations in the works, the court must proceed to assess the value of the extras and any variations on a quantum meruit basis.63 The judge went on to state, correctly in my view, that a contractor is entitled to the cost of carrying out work as have been reasonably incurred by him and without fault on his own part.

[119]The learned judge considered and rejected the report and evidence of Mr. Amin and gave cogent reasons for doing so. Firstly, and respectfully, it would be farfetched to ascribe what Mr. Amin provided in written form as an ‘expert report’. It was simply a schedule, in spread sheet form, showing the comparative rates, costings, differences and totals which, he came up with and the construction rates which, in his assessment, were used by the appellant. Secondly, the said document did not comply with the requirements for expert evidence being admitted as set out in Part 32 of the CPR, the effect of which would and should have been to render such evidence inadmissible expert evidence. Thirdly, as the learned judge correctly pointed out, Mr. Amin failed to indicate how he arrived at the rates which he used. It was not sufficient to merely state that these rates were based on his experience in the Caribbean and in Antigua, without providing some proof or pertinent examples of such rates to support that statement. Nothing short of this would be required of an expert as it is insufficient or inadequate for an expert to merely supply a conclusion without providing the proper basis upon which such conclusion was reached. I say so, based upon the relevant authorities already canvassed under issue 2 of this judgment, including the decision of this Court in Yates Associates Construction Company Ltd, referred to by the learned judge at paragraph 38. In my judgment, the learned judge was correct to accord little or no weight to the Amin document as to comparative rates and to his oral evidence at the trial.

[120]In my judgment, the same objections or criticism cannot be made of the report of Mr. Gardner dated 22nd June 2010 relied on by the appellant in proof of the net sum owing to it under the contract including for extras, and the learned judge was correct in relying on the said document in coming to her conclusion on the quantum of the appellant’s claim. In fact, the Gardner report is, to a large extent, what the respondent had asked the appellant to provide. That is a document showing the amount due under the contract sum for the original contract works completed, deductions for savings due to the respondent, and an assessment of the cost for the 88 extra items of work carried out by the appellant. In this context, it must be borne in mind that the building, as originally contracted, comprised two floors and 6,000 square feet and this was increased during the course of the works to three floors and approximately 17,000 square feet.

[121]The Gardner report was based on ‘measurement [taken] and the application of unit price rates used in the compilation of the original contract amount.’ In the said report, Mr. Gardner showed the percentage of the original contract work completed by the appellant ascribing a value to each such line item after applying the unit price rates used in the original bid. Mr. Gardner also considered 39 items of ‘saving’ or credits, ascribing to each a value based upon the unit price rates used in the original bid. In relation to the extras (additional work or variations), Mr. Gardner considered the 88 items ascribing to each the percentage of completion and value using, again, the unit price rates in the original bid. Having done these calculations, he arrived at a net total of $578,792.93 as the final balance due to the appellant under the contract.

[122]In my view, in the absence of any cogent evidence of market rates, the learned judge was correct in concluding that the best indication of the reasonable rates applicable to the extra work, is the evidence of the rates used by the parties in arriving at the sums in the original contract works and which had been agreed to and paid by the owner. The evidence is that in compiling the estimates, the claimant used the same rates it used under the initial contract. These are the rates used by Mr. Gardner.’ In this regard, I note that the first bid dated 7th February 2008 in the total sum of $4,605,400.00 provided by the appellant was not accepted by the respondent. It was the second bid dated 14th February 2008 which was agreed and formed that basis for the written contract (setting out the works and contract sum) entered into by the parties on the same day.

[123]In the circumstances, in my judgment, in arriving at an award of $588,288.65 on the appellant’s claim, it was open to the learned judge, and she was correct in accepting the report of Mr. Gardner as to the amount due to the appellant for the original works completed under the contract and for the extras and variations, after deducting the appropriate or reasonable sums for savings or deductions due to the respondent.

[124]As to the new point raised by the appellant based upon the principle of subjective devaluation, this was not relied upon before the court below and was not a ground of appeal in the respondent’s counternotice. I am of the firm view that it is not open to the respondent to now rely, for the first time, on this criticism of the trial judge’s decision as a basis for setting aside the award made by the judge on the appellant’s claim. I say so without considering in detail this new point, except to say that the basis upon which such an argument can be grounded must have first been pleaded and or dealt with in witness statements and in submissions before the lower court at the trial, in order for it to be properly addressed by way of cross-examination of witnesses, and properly considered by the trial judge. None of this was done.

[125]Finally, I would add that, in any event, the learned judge was alive to the issue of set off or reduction in the amount to be awarded to the appellant under the contract, when at paragraph 41 she gave judgment for the appellant in the sum of $588,255.65 ‘less any amount found due to the defendant for defective work under the counterclaim’. This approach by the learned judge, takes into proper account the cost of remedying any defective work carried out by the appellant on the amount due to the appellant under the contract, and does so at a rate and cost not limited to the rates and costing applied by the appellant in preparing its bid and in entering into the contract with the respondent, but instead, the actual reasonable cost for any remedial works to be carried out by another contractor. For the above-stated reasons, the counterappeal fails and is accordingly dismissed. Accordingly, the said award at paragraph 132 (1) of the judgment is affirmed.

Costs

[126]On the matter of costs, I note that the learned judge below made an order for ‘costs to be assessed’. I understand this to mean that the judge did not determine either the incidence or the quantum of costs. Accordingly, in this appeal, the costs order will address only the costs of the appeal and counterappeal. As set out above, the appellant has a partial success on its appeal and this success must be reflected in the costs order. In accordance with the basic principle that costs followed the event, the respondent, as the successful party in the main on the appeal except to that limited extent, will have 75 percent of his costs in the appeal to be assessed; and the appellant will have its costs on the counterappeal to be assessed.

Disposition

[127]I would therefore make the following orders: (1) The appeal by the appellant, Khouly Construction & Engineering Limited, is dismissed and the orders made by the learned judge at paragraph

[132](2) (a), (b), (c) and (e) of the judgment of the lower court are affirmed, except that the order at sub-paragraph (d) awarding 100% liability against the appellant for damage to the interior of the building from leaks to the hip roofs and through cracks in the walls of the master bedroom is varied to 50%. (2) The counterappeal of the respondent, Edmond Mansoor, is dismissed and the order made by the learned judge at paragraph [132] (1) of the judgment of the lower court is affirmed. (3) The respondent’s costs of the appeal, up to 75%, shall be paid by the appellant, to be assessed by a judge of the High Court, if not agreed within 21 days. (4) The appellant’s costs of the counterappeal shall be paid by the respondent/counter appellant, to be assessed by a judge of the High Court, if not agreed within 21 days.

[128]I take this opportunity to express the Court’s appreciation to counsel for the parties for their helpful submissions and assistance in this matter. I concur. Dame Janice M. Pereira, DBE Chief Justice I concur.

Louise Esther Blenman

Justice of Appeal

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL ANTIGUA AND BARBUDA ANUHCVAP2020/0023 (formerly ANUHCVAP2019/0009) BETWEEN: KHOULY CONSTRUCTION & ENGINEERING LIMITED Appellant and EDMOND MANSOOR Respondent Before: The Hon. Dame. Janice M. Pereira, DBE Chief Justice The Hon. Mde. Louise Esther Blenman Justice of Appeal The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.] Appearances: Mr. Anthony Astaphan, SC with him Mr. Loy Weste and Mr. Kendrickson Kentish for the Appellant Dr. David Dorsett for the Respondent _____________________________ 2020: September 29; 2021: April 15. ________________________________ Civil appeal – Appellate approach to review of findings of fact – Contract law – Implied term – Breach of implied term of building contract – Whether trial judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care – Whether implied term conflicts with express terms of the contract – Whether trial judge erred in relying on or attaching weight or too much weight to the Schamber report in coming to her decision on the counterclaim – Whether trial judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving cracks, leaks and damage were caused by poor workmanship on the part of the appellant in breach of the implied term – Causation – Requisite standard of proof – Balance of probabilities – Approach of appellate court to issue of causation – Whether the judge erred when she gave judgment on the appellant’s claim – Whether contractual rates or market rates to be applied to extras on quantum meruit basis – Applicability of principle of subjective devaluation – Whether respondent/counter-appellant can rely at this stage on principle of subjective devaluation Khouly Construction and Engineering Limited (“the appellant”) and Mr. Edmond Mansoor (“the respondent”) entered into a written building contract on 14 th February 2008. By the said contract, the appellant agreed to construct on the respondent’s property, a two-storey dwelling house comprising 6000 square feet, a generator room, a driveway and retaining walls at a total agreed cost of EC$3,168,100.00, exclusive of owner supplied materials and fixtures. The said building works were to be carried out by the appellant in accordance with the terms of the contract, the approved drawings and specifications, and the Project Manual Bid Set document dated 29 th October 2006 (“the project manual”). It was a term of the contract that the appellant was to commence the building works no later than 15 th February 2008 and, subject to the stipulated exceptions of natural disasters and unforeseen delays that cannot be attributed to the appellant, to complete the main house and driveway on or before 15 th June 2009. In the event of the occurrence of any of these exceptions, the contract provided that a new timeline for completion of the said works is to be mutually agreed by the appellant and the respondent. The appellant commenced the building works on 15 th February 2008. During the course of the construction some 88 items of extras and variations, approved by the respondent, were made to the original contract works. These included changing the design and construction of the original galvanised roof to a concrete roof with tiles with increased rafter sizes in April 2009, the respondent having agreed in writing to one of two options sent to him by the appellant. As a result of the extras and variations, the size of the dwelling-house increased from 6,000 square feet to approximately 17,000 square feet. The aggregate value of the extras and variations, as claimed by the appellant, was EC$1,954,165.42. Disputes arose between the appellant and respondent with regard to the building works, the amounts claimed by the appellant as the value of the extras and variations, and the value of credits to which the respondent claimed to be entitled as deductions from the contract sum. These issues remained unresolved. By email sent on 10 th March 2010, the respondent requested the appellant to cease all work at the site as of said date until certain specified matters were agreed and informed the appellant that he will be placing 24-hour security at the site. The appellant’s exclusion from the site was confirmed by email dated 12 th March 2010 from the respondent. Further attempts by the parties to resolve issues between them were unsuccessful. The appellant was never permitted back on the site, except to remove its property and, accordingly, did not resume the building works. By letter dated 12 th May 2010 the respondent, having, in April 2010, obtained separate reports from two independent structural engineers, terminated the contract with the appellant and requested that it remove all of its belonging from the site within 7 days. Before the High Court of Justice, the appellant claimed against the respondent payment of the sum of EC$588,255.65 damages for breach of contract. The appellant’s claim for the said sum is the net amount said to be due and owing to the appellant, as set out in the Ronald Gardner report dated 22 nd June 2010 (“the Gardner report”), after taking into account the value of the extra works and contract variations carried out by the appellant and the credits or savings due to the respondent under the contract. The appellant pleaded that the contract document dated 14 th February 2008 together with the project manual set out the full scope of works agreed between the appellant and the respondent, except for extras and variations. The appellant pleaded further that the respondent had, in breach of the contract, terminated the contract on 12 th March 2010 when he requested that the appellant remove its belongings from the building site altogether. In his defence, the respondent made several allegations of poor or defective workmanship against the appellant and claimed damages for breach of contract and breach of an implied term to carry out the work in a ‘professional and workmanlike manner and with proper materials of good quality and that the work, when completed would be suitable for its required purpose, that is fit for human habitation.’ The respondent also disputed that the contract between himself and the appellant was entirely contained in the written agreement dated 14 th February 2008, but included the conditions set out in two letters to the respondent dated, respectively, 7 th February 2008 and 14 th February 2008 from Mr. Raymond Khouly, the managing director of the appellant company and engineer of the project. Accordingly, the respondent counterclaimed against the appellant for special damages in the aggregate sum of EC$3,077,466.50. The respondent also claimed damages for breach of contract against Mr. Jessy Khouly, the project architect, as an ancillary defendant. Several reports of experts were admitted into evidence at the trial and considered by the trial judge in determining the issues of liability and damages with respect to the claim, defence and counterclaim, and ancillary claim. The trial judge, in his written decision, entered judgment for the appellant on its claim in the sum of EC$588,288.65; and entered judgment in favour of the respondent on his counterclaim against the appellant and on the ancillary claim, apportioning liability as between the appellant and the ancillary defendant under certain heads of damages, including professional fees incurred by the respondent in relation to the various expert reports. Being dissatisfied, the appellant appealed against the decision of the trial judge entering judgment in favour of the respondent on his counterclaim. The notice of appeal sets out 19 grounds of appeal. These were distilled into three main issues for determination on appeal, namely: (i) whether the trial judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care, and in concluding that the implied term did not conflict with the express terms of the contract; (ii) whether the trial judge erred in relying on or attaching weight or too much weight to the expert report of Mr. Hugh Schamber (“the Schamber report”) in coming to her decision on the counterclaim; and (iii) whether the trial judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks and damage were caused by poor workmanship on the part of the appellant, in breach of the implied term. The respondent counter-appealed and argued that the trial judge erred in several respects when she gave judgment in the sum of EC$588,288.65 on the appellant’s claim. However, an appeal by the ancillary defendant from the judgment on the ancillary claim was not before the Court of Appeal for its determination in this appeal. Held : dismissing the appeal and affirming the orders made by the trial judge at paragraph 132(2) of the judgment save that the order at sub-paragraph (d) awarding 100% liability against the appellant for damage done to the interior of the building is varied to 50%; dismissing the counter appeal and affirming the order made by the trial judge at paragraph 132(1) of the judgment; and ordering 75 percent of the respondent’s costs of the appeal to be paid by the appellant and the appellant’s costs of the counter appeal to be paid by the respondent, such costs to be assessed by a judge of the High Court, if not agreed within 21 days, that:

[1](1976) (3) SA 352,371 considered; Yates Associates Construction Company Limited v Blue Sand Investments Limited [2016] ECSCJ No. 63 (delivered 20 th April 2016) considered; Rawle Hannibal v the BVI Health Services Authority [2019] ECSCJ No. 394 (delivered 13 th December 2019) considered.

[2]The background to the appeal is set out below. Background (i) The Claim

[3]The appellant, as claimant, claimed against the respondent, as defendant, for payment of the sum of $588,255.65 in damages for breach of a building contract entered into on 14 th February 2008 between the appellant, as contractor and the respondent, as owner of property situated at McKinnons, Saint John in Antigua. By the said contract, the appellant agreed to construct on the respondent’s property a two-story dwelling-house comprising 6000 square feet and generator room at a cost of $3,002,700.00 and driveway A and retaining walls at a cost of $165,400.00, for a total cost, excluding materials and items to be supplied by owner, of $3,168,100.00. The appellant’s pleaded case was that the contract document dated 14 th February 2008 together with the Project Manual Bid Set dated 29 th October 2006 (“the project manual”) set out the full scope of works agreed upon by the appellant and the respondent, except for extras and variations .

[4]the respondent also pleaded that he had, by A written agreement dated 12 th May 2006, engaged the services of Mr. Jessy Khouly of Architecture Design Works Limited of Saint John’s in Antigua to design the two-storey dwelling-house of approximately 6,000 square feet, to be constructed by the appellant on his property at McKinnons.

[5]During the course of the construction works some 88 items of extras and variations, approved by the respondent, were made to the original contract works. These included changing the design and construction of the original galvanised roof to a concrete roof with tiles and increased rafter sizes in April 2009, the respondent having agreed in writing to one of two options sent to him by the appellant. As a result of the extras and variations, the size of the dwelling-house increased from 6,000 square feet to approximately 17,000 square feet.

[6]The appellant’s claim for $588,255.65 is the balance, assessed by Mr. Ronald Gardner, a Chartered Surveyor, in his report dated 22 nd June 2010 (“the Gardner report”). In the said report, the pricing or valuation of extras and variations is expressly stated to be ‘based upon measurement and the application of unit price rates used in the compilation of the Original Contract Amount’. The resulting sum is the net amount said to be due and owing to the appellant as set out in the Gardner report after taking into account the value of the extra works and contract variations carried out by the appellant and the credits or savings due to the respondent under the contract.

[7]By the said letter, the appellant offered ‘no comment’ with respect to 17 of the Conway recommendations, posited that 3 of them should be referred to the architect, and agreed to rectify or to remedy 9 of them. Of the said 9 recommendations, which the appellant accepted, three (3) related to findings of ‘cracking’. I will return to the CSE report, the appellant’s said letter, and the other expert reports later.

[8]In the amended defence and counterclaim filed 28 th February 2017, the respondent made several allegations of poor or defective workmanship against the appellant and claimed damages for breach of contract and breach of an implied term to carry out the work in a ‘professional and workmanlike manner and with proper materials of good quality and that the work, when completed would be suitable for its required purpose, that is fit for human habitation.’

[9][16] the appellant also pleaded that the respondent, having selected one of the two options provided by the appellant for the construction of the new roof, it (the appellant) was ‘required to do no more than construct the roof, and it in fact constructed The roof, as instructed by the [respondent] in its letter dated April 20 th to the appellant

[10]and that the appellant was first informed of leaks from the roofs on 11 th September 2011, some 2 years after completion of the roof. At paragraph 7 of the reply to the amended defence, the appellant addressed, specifically, each of the particulars of poor or substandard workmanship, pleaded. at paragraph 7 of the amended defence, each of which were expressly denied and responded to

[11]At paragraph 8, the respondent pleaded a failure by the appellant to comply with ‘traditional industry standards required for a tropical environment by not installing continuous waterproofing underlay from ridge to eave under the concrete tile system.’

[12]Specifically in relation to cracks in the building, the respondent, at paragraph 7(a), averred: “As a result of the [appellant’s] failure to use all professional skill and care as stated in paragraph 7 above the said building has developed numerous cracks resulting in damage (sic) to the interior and exterior finishes as a result of water leaks.” (Emphasis added) The respondent pleaded that these cracks and damage occurred in the areas: (a) where the front steps join the building; (b) the open area next to the front steps; (c) the entertainment room; and (d) the garage and storage areas. The respondent also pleaded that because of the extensive cracking to the building, he engaged the services of Mr. Phillip Sobers, a civil and structural engineer of Consulting Engineers Partnership Ltd of Christ Church in Barbados. Accordingly, the respondent intended to rely at trial on Mr. Sobers’ report dated 11 th July 2012 (“the Sobers report”). It is to be noted, as will be addressed later, that the appellant was effectively excluded from access to the building site on 10 th March 2010 and, as the learned judge found, the contract was terminated by the respondent by letter dated 12 th May 2010 (by which time the respondent had in April 2010 obtained separate reports from two independent structural engineers and requested that the appellant remove all of its belonging from the site within 7 days). Accordingly, no building works were carried out by the appellant at the site from 10 th March 2010, some 29 months prior to the Sobers report.

[13]In support of the alleged breaches of the implied term and defective or poor workmanship, the respondent, in his amended defence and counterclaim, relied on the report of several ‘experts’ in the disciplines of structural engineering and project management, who inspected the construction of the building works at various stages, and their observations, findings and recommendations as set out in their respective reports. In particular, the respondent relied, in his amended defence and counterclaim on the report of Mr. Chris Conway of Civil and Structural Engineering Limited (“CSE”) of the Turks and Caicos Islands dated 8 th April 2010 (“the CSE report”); the report of Mr. Addison Workman of Workman Engineers of St. John’s in Antigua (“the Workman report”); the observations and spreadsheet of Mr. Sanjay Amin of BCQS International, setting out his assessment and valuation of the cost of the additional work carried out on the building and comparison with the appellant’s costings and claim for said additional work (“the BCQS report”); and the Sobers report. The respondent pleaded and relied in his amended defence and counterclaim on the appellant’s letter dated 23 rd April 2010 in response to the 30 findings and recommendations made by Mr. Conway in the CSE report,

[14]The respondent counterclaimed against the appellant for special damages in the aggregate sum of $3,077,466.50 broken down as follows: $1,560,980.00 for the cost of remedial work to remedy defective construction; $1,220,144.00 value of work for which the respondent was overcharged by the appellant as set out in the BCQS report (spreadsheet); estimated professional and consulting fees to date for seven (7) named consultants/specialists; cost of professional fees, travel, accommodation and meals for Junie Davis, Phillip Sobers and Hugh Schamber amounting collectively to $95,296.50; and for general damages and interest. (iii) Reply to Amended Defence and Defence to Counterclaim

[15]The appellant filed its reply to the amended defence and defence to the counterclaim on 25 th May 2017. By this pleading, the appellant admitted its acceptance, in the second paragraph of the contract document dated 14 th February 2008, that it had thoroughly evaluated the drawings and specifications and confirmed its ability to, and that it will, comply with all architectural, structural, electrical, and plumbing specifications, schedules and details. However, the appellant specifically denied the implied term pleaded at paragraph 7 of the amended defence to carry out the works in a professional or workmanlike manner;

[16](iv) the Ancillary Claim

[17]The appellant also pleaded that after it had been wrongfully excluded by the respondent from the site on 10 th March 2010, ‘considerable additional work was executed on the property [by others] including the drilling of holes on the concrete roof, and the use of jackhammers to remove the concrete tiles’; and that it was on 12 th September 2011, two years after completion of the roof, that Mr. Raymond Khouly of the appellant company was called to a meeting on the property with Mr. Hugh Schamber ‘and was told of leaks below the flat concrete roofs’, at which meeting the new contractor, Mr. Stannislus Moore, ‘admitted that holes were drilled into the existing concrete slab’; ‘that he had placed reinforcement into the slab’; that blocks had been built on top of the flat concrete roofs to support the water tanks; and that his workmen or agents ‘had penetrated the concrete roof to install extra electrical and plumbing pipes.’

[18]by Lewison LJ: “Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. the best known of these cases are: Biogen Inc v Medeva plc [1977] RPC 1; Piglowska v Piglowski [1999] 1 WLR 1360; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325; In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.”

[19]Also, in response to the particulars at paragraph 7(a) of the amended defence, the appellant, at paragraph 10 of the reply, relied on its pleaded facts at paragraphs 5 and 8, on the CSE and Sobers reports, on the written notes of Sanjay Amin and Richard Brewer of certain meetings, and on certain punch lists and email correspondences in 2009 and 2010. The appellant specifically averred that in none of these documents was there any complaint made of leaks from or widespread cracking in relation to the concrete roofs constructed by the appellant

[20]In conclusion, the appellant stated that it would rely on the CSE report at trial ‘in support of the [appellant’s] claim that the work was performed by [it] in a workmanlike manner notwithstanding some inadequacies found by the said Chris Conway in the architectural drawings of Architecture Design Works Limited.’

[21]For completeness, the respondent brought an ancillary claim against Mr. Jessy Khouly for damages for breach of a separate agreement dated 12 th May 2006 entered into between the respondent, as owner, and Jessy Khouly of Architecture Design Works, as architect, for the design of the said two-storey dwelling-house, including preparation of the plans and specifications. That claim was defended by the ancillary defendant, Jessy Khouly and judgment was entered by the learned judge on the ancillary claim against Jessy Khouly for damages. An appeal from the judge’s determination of the ancillary claim in the court below is not before us for determination in this appeal. The Learned Judge’s Decision

[22]The trial in the court below lasted four days. At trial, the reports of several expert witnesses were admitted into evidence and considered by the learned judge in determining the issue of liability and damages. Many of these expert witnesses gave evidence and were cross-examined. The named experts, with respect to whose professional fees the respondent received an award, are listed at paragraph 129 of the judgment. They are: (i) Associated Engineers Partnership (Mr. Brian Lyn). (ii) BCQS (Mr. Sanjay Amin). (iii) Civil and Structural Engineering Limited (CSE) – Mr. Chris Conway. (iv) Mr. Addison Workman of Addison Workman Engineers. (v) Mr. Oliver Davis of Davis Engineering. (vi) Mr. Philip T. Sobers of Consulting Engineers Partnership Ltd (CEP). (vii) Mr. Hugh Schamber of Weathershield Systems Caribbean Limited.

[23]On 25 th February 2019, the learned judge delivered a written decision by which she entered judgment on the appellant’s claim, the respondent’s counterclaim and the ancillary claim in the following terms: “(1) In favour of the [appellant] against the [respondent] in the sum of $588,288.65. (2) In favour of the [respondent] against the [appellant] on the counterclaim for – (a) 50% of the cost of remedial repairs to the roof, [and] stairs to the south of the building; (b) 75% of the costs of remedial works to both retaining walls; (c) 100% of the cost of remedial works to the floor in the garage, cracks to the open area next to the front steps, cracks to the storage areas, and the north basement floor; (d) 100% of the damage done to the interior [of the house] from leaks to the hip roofs and through cracks in the walls of the master bedroom; and (e) 60% of the professional fees in respect of the experts. (3) In favour of the [respondent] as claimant against the ancillary defendant, Jessy Khouly for – (a) 50% of the cost of remedial repairs to the roof, stairs to the south of the building and leaks; (b) 25% of the cost of remedial repairs to the retaining walls; and (c) 40% of the professional fees of the experts. (4) Damages to be assessed if not agreed within 30 days. (5) Costs to be assessed.” The Appeal

[24]The appellant now appeals against the decision of the learned judge to enter judgment in favour of the respondent on his counterclaim. The appellant’s notice of appeal sets out 19 grounds of appeal, some grounds consisting of several sub-grounds. Having considered the notice of appeal and the appellant’s submissions, the issues arising for this Court’s determination on the appellant’s appeal are: (i) Whether the learned judge erred in upholding an implied contractual term to carry out the works under the contract in a professional and workmanlike manner using proper skill and care, and in concluding that the implied term did not conflict with the express terms of the contract. (ii) Whether the learned judge erred in relying on or attaching weight or too much weight to the expert report of Mr. Hugh Schamber (the Schamber report) in coming to her decision on the counterclaim. (iii) Whether the learned judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks, and damage were caused by poor workmanship on the part of the appellant, in breach of the implied term.

[25]The respondent has counter appealed. By his counter appeal, the respondent challenges the sum of $588,288.65 awarded by the learned judge to the appellant at paragraph 1 of the order, and relies on the following singular ground of appeal: “The learned judge erred in law in granting judgment to the claimant [appellant] in the amount of $588,255.65 using the report of Mr. Gardner when the report of Gardner included payment for items which the court found were defective and which report did not use rates that had been agreed with the respondent under the initial contract.”

[26]The issues raised by the appellant’s appeal largely invoke this Court’s jurisdiction to review a lower court’s findings and evaluations of fact. I shall therefore discuss, in brief, the principles undergirding that jurisdiction. Appellate Approach to Review of Findings of Fact

[27]The caution with which an appellate court should approach a lower court’s findings and evaluations of fact was recently discussed by the Privy Council in Ming Siu Hung and others v J F Ming Inc and another .

[28]The reasons advanced by Lewison LJ in Fage UK Ltd for the need for appellate restraint in cases involving findings and evaluations of fact include that, ‘[i]n making his or her decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping’; and that ‘the atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence)’ and ‘even if it were possible to duplicate the role of the trial judge, it cannot in practice be done’.

[29][36] the respondent submits that there is nothing objectionable in the learned judge’s finding and conclusion of an implied term in the contract that the appellant as contractor, was to carry-out the contract works ‘using all proper skill and care, and that the standard required in the particular case is to be gathered from all the circumstances of the contract.’

[30]The need for appellate restraint in cases involving the evaluation of expert evidence by a trial judge was underscored in Rawle Hannibal v The BVI Health Services Authority ,

[31]It has been recognised, that in cases such as the present one, where the evidence before the court below is largely documentary, the unique position of the trial judge in assessing the credibility of witnesses and evidence in the court below is of less significance than it would be in cases decided on the basis of mostly oral evidence.

[32]In keeping with the approach evidenced in cases such as Re B (A Child) ,

[33]The learned judge, after summarising the respective submissions of the parties on the issue of implied terms in the contract, considered inter alia the decision of the House of Lords in Johnson v Unisys Limited

[34]The appellant submits that the learned judge erred in holding that the implied term to carry out the contract works in a professional and workmanlike manner applied to the contract between the appellant and the respondent, and that the appellant committed a repudiatory breach of the said contract by failing to carry out the works in accordance with the said implied term. The appellant submits that the implied term relied on by the respondent was either unnecessary or conflicted with the express terms and, therefore, ought not to have been implied into the contract between the parties.

[35]in other words, Mr. Schamber was not an independent expert as required by rule 32.4 of the Civil Procedure Rules 2000 the “CPR”). the appellant also submits, that Mr. Schamber made recommendations as an expert which ‘would have resulted in business for the company of which he is a director’. That company is Weathershield Systems Caribbean Limited.

[36]in support of its contention that Mr. Schamber was not independent: (i) A statement by Mr. Schamber that he had been engaged by The respondent to ‘undertake a condition survey… to assess the extent of the reported roofing problems’ at the respondent’s residence, and to ‘submit appropriate remedial recommendations’. (ii) Under the ‘Remedial Solution’ section of his report, Mr. Schamber stated that the ‘only permanent solution is to remove the external PVC gutter system, concrete roof tiles and masonry bedding screed down to the top of the structural concrete deck level’, and to ‘install a perimeter metal drip edge flashing over the facia board and install a continuous monolithic modified bitumen waterproofing membrane over the drip edge flashing and onto the concrete deck. Then install the masonry bedding screed, concrete roof tiles and external PVC gutter all in keeping with the Eagle Roofing Products requirements and international best practices.’ (iii) the statement at the end of the report that: ‘We appreciate the opportunity to be of assistance on this project and hold ourselves available to be of any further assistance required.’ the appellant seeks to buttress this submission by adverting to the fact that Mr. Schamber’s report was on his company’s letterhead. Discussion

[13]It averred that ‘the water ingress allegedly occurred more than a year and a half after the [appellant] was excluded from the premises’; that this was followed by ‘extensive modifications to the building and roof structure’; that the respondent’s photographs show that he was in occupation of the premises when the leaks occurred; and this meant that the roof tiles had already been removed.

[37]The power of the court to imply terms into a contract is not disputed in this case. The crux of the appellant’s contention in this regard is that the implied term as to the standard of workmanship required under the building contract, upon which the respondent founded its counterclaim, was not necessary and conflicted with the express terms of the building contract.

[38]It is usual to imply, into building contracts, a term or obligation on the contractor to use reasonable skill and care in the execution of the works. As the learned authors of Halsbury’s Laws of England stated in their discussion of building contracts: “Three warranties will be implied: (1) that the materials used in the works and the completed works themselves will be reasonably fit for the purpose for which they are required; (2) that the materials used will be of good quality; and (3) that the work will be carried out in a good and workmanlike manner,

[39]It is cardinal to the law on implied terms that any term implied by the court must not conflict with the express terms of the contract. This longstanding principle was recently confirmed in the decision of the English Court of Appeal in Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Limited and another

[40]In light of the appellant’s submissions on this point, and the common law rules evidenced by Marks and Spencer quoted above, the critical question on this issue is whether the implied term as to workmanship was either unnecessary or conflicted with the clear terms of the building contract. The starting point here must therefore be construing the terms and obligations of the appellant under the contract.

[41]It is common ground between the appellant and the respondent that the agreement governing the construction by the appellant of the respondent’s home at McKinnons is comprised of letters dated 7 th and 14 th February 2008

[42]While the contract documents provide that the works were to be effected in accordance with the approved drawings and specifications and evince the appellant’s understanding of these documents and his agreement or obligation to construct the building in accordance with them, the contract documents do not indicate the standard of workmanship required under the contract. The appellant’s obligations under this contract were simply to construct the dwelling-house in accordance with the terms of the contract contained in the contract document dated 14 th February 2008 and the project manual dated 29 th October 2006, and in accordance with the drawings and specifications. The project manual addressed a range of standards to be applied to site works, concrete, masonry, carpentry, waterproofing, doors and windows, finishes including tiling and painting, installation of bathroom fixtures and accessories and plumbing and electrical. Likewise, the appellant was obligated to execute certain of the works in accordance and in full compliance with any instructions or directives given to it by the respondent or his agent or architect.

[43]In my view, the learned judge was quite correct to imply into the contract between the appellant and the respondent a term that the appellant, as contractor, would execute the works under the contract in a workmanlike manner using proper skill and care. As earlier stated, such a term is normally implied in building contracts, if not expressly stated. It is clear that such an implied term does not contradict but supplements and is consistent with, the express obligations of the appellant under the contract to construct the dwelling-house in accordance with the terms of the contract document and the project manual and with the drawings and specifications, and any instructions by the respondent. Furthermore, it cannot be said with any cogency, as the appellant seeks to argue, that the duty to use proper skill and care is necessarily superseded by or inherently inconsistent with continuous supervision of or so-called ‘micromanagement’ of the construction by the respondent.

[44]Accordingly, the learned judge was correct when, at paragraph 48 of the judgment, she surmised that in adhering to and implementing any specifications, whether in the contract itself or in the drawings or otherwise, or in executing any specific instructions provided to the contractor by the owner or his agent as to a method and quality of construction of or materials to be used or finishes to be achieved in relation to a particular aspect of the contracted building works, the contractor is not relieved of his duty to execute those works, requirements or instructions using proper skill and care or in a professional and workmanlike manner. To this I would add, and in accordance with any specific written instructions from the manufacturer as to the method or sequencing of the installation of certain materials or the installation of certain fixtures, be they tiles, air conditioners or any other owner supplied products under the contract.

[45]In my view, however, implying such a term into this contract does not carry with it a general implied obligation to use ‘international industry standards’ or what may be considered as international best practices, as contended by the respondent. Nor for that matter, is it to be implied that the appellant was under an obligation to comply with the building codes or regulations of or applicable to some other country, such as Canada, as adverted to in the expert report of Thomas Walcott dated 12 th July 2012. In my opinion, no such ‘international industry standard’ of care and of workmanship can be implied into the contract between these parties, unless the contract documents themselves had expressly so stipulated or such a term arises thereunder by necessary implication having regard to the nature of the works to be carried out or other germane surrounding circumstances. The implied term in this case, was to execute the contract works in a professional and workmanlike manner in accordance with such standards as are accepted in Antigua and Barbuda and would necessarily apply to the works as detailed under the contract, to any additional works or variations approved by the respondent, and in the discharge by the appellant of any specific instructions given to it by the respondent.

[46]The critical question therefore which the learned judge had to determine in this matter, is whether or not the appellant, as contractor, had complied with its contractual obligation to execute the building works in accordance with the contract, the project manual, and the drawings and specifications provided to it, and also in accordance with any instructions provided to it by the respondent as owner or his agent; and whether, in doing so, the appellant used or employed proper skill and care commensurate with industry standards recognised in Antigua and Barbuda. Issue 2 – Whether the learned judge erred in relying on or attaching weight or too much weight to the Schamber report in coming to her decision

[47]The appellant criticises the learned judge’s reliance on the Schamber report. The appellant argues that the judge ought not to have ascribed any weight to Mr. Schamber’s expert report and evidence on the basis that Mr. Schamber was ‘no more than a travelling salesman’.

[48]Secondly, the provisions from Volume II of the Construction Law only means that if the contractor is instructed, for example, to use a particular size of rafter, he is not free to increase or decrease as he wishes unless the contract gives him authority. He is not free to change those specifications. that is not to say that if the specifications call for him to lay foil insulation, that in applying same he is relieved from his duty to do so in a professional and workmanlike manner using proper skill and care. The implied term continues to apply to the manner in which he carries out his instructions.

[17]At paragraph 20, the Board cited with approval the following statements made, at paragraph 114, in Fage UK Ltd v Chobani UK Ltd

[49]the case pleaded by the defendant [respondent] is that the claimant [appellant] failed to carry out the works in a professional and workmanlike manner. In the court’s view there is no conflict.”

[50]Part 32 provides that an expert witness is not, strictly speaking, the witness of any particular party to the proceedings, but is an independent witness required to provide an unbiased opinion on a specific matter or question in issue in order to assist the court in its determination of the issues before it. Accordingly, CPR 32.4(1) provides that expert evidence– ‘must be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the demands of the litigation’;

[51]In the said letter, the respondent conveyed his agreement to certain changes in the construction of the roofs of the building. Specifically, “Roof: Design: all roofs will have as a minimum, treated 3 X 10 rafters and bigger as designated by the Project Engineer, 1 X 6 tongue and grove V-joints, reflective foil insulation, galvanize fence wire, 2½ inches concrete on roof, concrete tiles.” “Master bedroom: design is as above except that instead of galvanize fence wire, ½ inch steel will be placed at 6 inches on the roof and 5 inches of concrete will be cast on the roof .” (Emphasis added)

[52]In Kennedy, , their Lordships cited with approval the following passage from the judgment of Wessels JA in the appellate division of the Supreme Court of South Africa in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft :

[53]Similarly, as Blenman JA observed at paragraph 97 of Yates Associates Construction Company Limited: : “Expert evidence must be considered together with all of the evidence which is before the court and which the judge has accepted. The judge must determine what weight to attach to the expert evidence. It is necessary for an expert to present the analytical process by which he or she reached the conclusion in the report. It is insufficient that an expert merely supplies his or her conclusion on a matter in issue between the parties.”

[54]In arriving at their conclusions, an expert is able to draw on their experience and other available sources. . As Baptiste JA stated, at paragraph 32, in Rawle Hannibal :

[55]The appellant’s challenge to the judge’s decision, to admit the Schamber report and to ascribe weight to it on the basis that Mr. Schamber was not an independent expert in accordance with the requirements of CPR

[56]In my judgment, the appellant’s criticisms of the respondent’s expert witness Mr. Schamber falls short of satisfying the threshold for warranting appellate interference with the learned judge’s decision. In my view, while the matters relied on by the appellant could possibly be interpreted as Mr. Schamber holding his company open to be of further assistance if requested, I do not consider that this or any other statement in the Schamber report crossed the line so as to lead to him not being an independent expert capable of giving unbiased or independent opinion to the court, or that he was in some way tainted as an ‘expert’ witness of the matters contained in his report, which all related to roofing issues. In my view, it was open to the judge not to reject the Schamber report purely on the basis of the opinions or conclusions which he reached, as identified by the appellant.

[57]With regards to the letterhead, I observe that the reports of all the experts admitted into evidence at the trial, with the exception of Mr. Thomas Walcott, were on the letterhead of their respective firm or organisation. Specifically, this was true of the expert reports of Messrs. Conway, Workman, Schamber, Martin and Sobers. In my view, any objection to the admissibility of the Schamber report, or of any of these other expert witnesses, on that basis, would be wholly unsustainable. If this was a disqualifying factor or if this, of itself, pointed conclusively to a lack of independence, then all the ‘experts’ whose reports were admitted into evidence by the lower court would be likewise tainted. Furthermore, it is not unusual, or put differently, it is quite usual, that reports of expert witnesses in this jurisdiction are proffered on the letterhead of their firm or group or attached to a cover note issued on such letterhead. Additionally, it is also the usual practice for the cost associated with the work of the expert witness to be billed by his or her organisation or employer. In my view, these reasons advanced by the appellant for why the judge ought to have rejected the Schamber report, must fail.

[58]The more substantial question (in relation to the reliance by the judge on the Schamber report and the weight to be attached to the report) is therefore the appellant’s complaint as to the substance of the report in the context of the entirety of the evidence before the judge, and whether the Schamber report can be characterised, in the words of Lords Reed and Hodge in Kennedy v Cordia (Services) LLP, , as ‘mere assertions’ or ‘bare ipse dixit’ carrying little weight. This question leads inexorably to a consideration of the learned judge’s assessment of the expert reports and evidence before her as they concerned the important issue of causation, which must be assessed bearing in mind the civil standard of proof – on a balance of probabilities. Issue 3 – Whether the learned judge erred in her approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks, and damage counterclaimed by the respondent were caused by poor workmanship on the part of the appellant in breach of the implied term.

[59]The determination of the issue of causation and whether the learned judge properly assessed and weighed the expert evidence in this case, will be decisive of this appeal. Appellant’s Submissions

[60]As foreshadowed, at the heart of this issue, are complaints that the learned judge erred in her assessment of and reliance on the expert evidence in concluding that the matters complained of by the respondent were caused by a breach of the implied term of the contract as to workmanship. The kernel of the appellant’s submissions in this regard is encapsulated at paragraph 34 of its main submissions in this way: “…. none of the Respondent’s experts have provided any credible expert evidence that the leaks on the flat roofs seen in September 2011 or cracks seen by Sobers in June 2012 or otherwise were caused by the Appellant’s breach of its contract. There is no or no credible evidence on causation. At best all the evidence shows is that what the Respondent’s experts did was point out what they observed. Conway conducted a successful water flow test from the hip roofs. However, Schamber and Sobers gave no expert evidence or provided any engineering or other analysis or tests beyond what they observed in order to explain the cause of the cracks or leaks in the house. Much more was required than mere conclusions. Schamber relied substantially if not solely on the allegation of porous tiles and absence of bitumen underlay.”

[61]The arguments advanced by the appellant in support of these broad contentions are more extensively set out in the appellant’s submissions

[62]The respondent’s submissions on the specific issue of defective construction of the roofs are set out at paragraphs 11 to 16 of their written submissions. The respondent contends that he had serious complaints about the quality of the work carried out by the appellant on the site and this became a ‘sore point’ between Mr. Mansoor and Mr. Raymond Khouly.

[63]A court’s approach to the issue of causation cannot be sterile, academic, or viewed purely through the prism of a methodical consideration of the sequencing or a chronology of historical events or facts. This is particularly so in the construction of buildings and other structures, such as in the instant matter, where defective work may, in some instances, not be immediately obvious or detectable, even to the trained or professional eye, and where the manifestation of such defective work may occur over some period. In Weld-Blundell v Stephens

[64]Similarly, as Lord Denning in Jones v Livox Quarries Ltd

[65]A court must therefore approach the issue of causation in the round and in a practical and common-sense way, taking all relevant circumstances into account, including the sequence of certain events, when determining whether the particular loss or damage suffered by the claimant was as a result of or was sufficiently ‘causally’ connected to the actions or omissions of the defendant, whether such actions or omissions sound in contract or tort.

[66]I hasten to say that this does not mean that a trial judge ought to ignore or to entirely discount, in an appropriate case, the importance to the issue of causation of the historical or chronological events or other relevant factors and whether they point either to liability or no liability on the part of the defendant/contractor for the claimant’s loss. Equally so, a court should not ignore or discount, in an appropriate case, an intervening factor or event of evidential significance not caused by the defendant (be it an act of God or the act of some third party) which may tend to establish or to point decisively to a causal connection with the alleged loss suffered by the claimant and to no liability for such loss on the part of the defendant. In an appropriate case, these factors, taken individually or collectively, when viewed or assessed in a practical or common-sense way, may be determinative of the issue of causation and hence of liability. Importantly, in considering the issue of causation, a trial judge must not lose sight of where the burden of proof lies, to the requisite standard in a civil case, and whether the evidence led by the claimant, when properly assessed against the other accepted evidence in the case for its quality, cogency and weight, satisfies the burden and standard of proof that some breach or actionable wrong in law was suffered and, that such breach or wrong was caused by an act or omission of the defendant.

[67]With that said, the appellant’s points of challenge to the learned judge’s decision and arguments in support of them, must be considered and assessed against the pleaded cases in this matter, in particular the amended defence and counterclaim; and against the expert reports and evidence adduced or accepted at trial, the testimony of the parties and other witnesses, especially during cross-examination; and the findings made by the learned judge leading to her entering judgment in favour of the respondent on his counterclaim. (i) Reference to contract documents and instructions

[68]It must be said at the outset that I do not agree with learned senior counsel for the appellant, Mr. Astaphan, that none of the experts who gave evidence had examined the drawings and specifications for construction of the respondent’s residence. As earlier stated, the learned judge had before her several reports in assessing the respondent’s counterclaim as to the breach of the implied term as to the standard of workmanship required. Mr. Conway, in his report (the CSE report), expressly states that several of his observations and recommendations were made as a result of the inspection of the drawings, inspection of the photographs taken during the construction period and inspections made at the site. Mr. Conway further stated that he was ‘able to inspect the original design drawings (signed by both parties). There was a further set of drawings representing the ‘final’ design at the site, although some further changes had been made from these drawings.’ Mr. Addison Workman in his report concerning the retaining walls, similarly, refers to the ‘approved drawings’ A2-01, A2-02, A6-00, A6-01 and A6-05 -prepared in January 2007 and approved on 7 th December 2007. Mr. Sobers in his report dated 11 th July 2012 dealing with the issue of ‘cracks’ refers, at different points, to drawings provided to him by the respondent for his review ‘in order to establish familiarity with the building,’ to several digital photographs ‘of some of the affected areas’, and to photographs taken as the construction of the house progressed. Mention was also made by Mr. Sobers of the ‘original drawings and what they specified in relation to the ‘timber roof over the ground floor patio on the south elevation’, and also concerning the original design of the master bedroom and patio. Mr. Sobers also pointed out that the original roof design ‘was subsequently altered after the concrete tiles were in place’ and that, consequent upon a report by Weathershield Systems Caribbean Ltd, ‘the roof tiles and cement bedding mortar were removed. The equipment used in the removal process and the strength of vibrations, if any, during the process are not known .’ (Emphasis added) Furthermore, Mr. Sobers commented that ‘the drawings indicate that both the original and revised project drawings were designed by Architecture Design Works Ltd and prepared by J. Khouly.’ Specific reference was also made by him to the details of the eastern cantilever retaining wall ‘as per the drawings.’

[69]Mr. Schamber did not record anywhere in his report dated 19 th September 2011, that he had seen or reviewed any of the contract drawings, and specifically any drawings relating to the roof or to the written instructions given by the respondent to the appellant conveying his selection of a particular method of construction of the new roof. What is clear is that he did review certain of the historical construction photographs taken by the respondent during the course of the construction works carried out by the appellant on site. Mr. Wayne Martin of Associated Engineers Partnership, in his report dated 18 th April 2012, on the structural integrity of the retaining walls and entry stairs, does not expressly note having been provided with or having reviewed any of the drawings, whether original or revised drawings, and seems, to a large extent, to have confined his comments to what he observed on site during his inspection regarding the retaining wall and the entry stair structure of the main building. However, there is some passing reference in his report to the original design and its inadequacy as to structural details without specifically referencing any of the pertinent drawings. In relation to the retaining wall, Mr. Martin addressed in his report the excavation to accommodate the wall, the design and size of the footing for it, the construction of the wall itself using 8” concrete blocks, and the capping beam. He referred to the inadequate width of the footing of the original retaining wall again without specifically referencing that he had been provided with and reviewed any specific drawing or drawings. His report also focuses on the stair structure, its excavations and footings, the stair framing, and the lack of an adequate structural design and construction being provided. His report concludes – ‘Both of the building components described in this report were inadequately designed and/or constructed. New designs, drawings and construction were done to suitably address the functions as per design purposes.’

[70]Nowhere in his report does Mr. Thomas Walcott make reference to the contract or to the drawings and specifications relating to this project. However, in the section headed ‘Declaration’ at the end of his report, Mr. Walcott states: ” I have been involved in cases like this before, I am satisfied that the Construction Firm of Khouly Construction and Engineering Ltd have met accepted Construction Standards. The structural sizes are extremely well established and adequate, and any analysis carried out on the structure for live, dead, wind and seismic loads would result in a factor of safety larger than which is structurally required. Although my terms of reference were mainly structural, I took the liberty to discuss other aspect of construction with the owner Dr. Mansoor. I found Dr. Mansoor’s attitude demanding and uncompromising.”

[71]The BCQS document put into evidence is not an expert report. Even if it was, it does not pertain to or address in any way any defective work found or the cause of the cracks and leaks. In any event, any reliance on this document was rejected by the judge.

[73]The appellant’s complaints in relation to the substance of the Schamber report are several in number. The complaints are in essence that: (i) No weight ought to have been attached to the report as it was nothing short of mere unsupported assertions and is simply bare ipse dixit, and, accordingly, of little or no evidential value in establishing to the requisite standard the critical issue of causation; (ii) Mr. Schamber’s report had been undermined in cross examination and by other evidence adduced before the learned judge; and (iii) Mr. Schamber did not give any direct or conclusive evidence ascribing blame for the cracks and leaks he found to the appellant’s workmanship, or whether the cracks and leaks were the result of following the instructions given to the appellant.

[74]I do not agree that the Schamber report contains bare or unsupported assertions and accordingly was of no real evidential value or that the learned judge ought to have given no weight to it and to Mr. Schamber’s evidence at trial. In my opinion, the learned judge was quite correct to have considered the Schamber report in the context of the CSE report of Mr. Conway and the Workman report in determining whether the appellant had carried out defective work or poor workmanship in its construction of the roof system, especially the vaulted or hip roofs and whether such works were the cause of cracks and leaks and resulting damage to the interior of the main building.

[75]Mr. Schamber was requested by the respondent to review the historical construction photographs and to conduct a ‘condition survey’ on the morning of 12 th September 2011 to assess the extent of the reported roofing problems’ at the respondent’s residence and submit appropriate remedial recommendations. The focus of his brief and hence his report was on the roofing system. His report is dated 19 th September 2011, over a year and 5 months after the CSE and Workman reports, during which period the appellant’s contract had been terminated and it was not allowed to continue the works since 10 th March 2010 when the respondent had imposed a unilateral suspension of the building works by the appellant at the site.

[76]Under the heading ‘Roofing problems’, Mr. Schamber records that he carried out an interior and exterior survey of the vaulted hip roofs, and he observed that ‘water ingress and finish damage to both the interior and exterior walls along the lower eave of these vaulted roofs was identified in many locations.’ (Photos #9, #10, #11, #12, #13, #14, #15 and #16 refer). As to defect, Mr. Schamber stated that from the survey and review of the historical photographs – ”it was easily discernible that the source of the water ingress problems is that the tile roof system installation is not in keeping with international industry standards or the concrete tile manufacturer (Eagle Roofing Products) installation requirements.”

[77]He also pointed to the: “…inappropriate use of aluminium foil as a subsurface protection barrier and its installation being in the incorrect location of the roof assembly and that its partial coverage of the building interior, stopping at the inside of the exterior wall, all contributed to the substantial water ingress and finish damage being experienced.”

[78]Mr. Schamber further stated: “It’s noteworthy that concrete tiles are water shedding roof systems that consist of an assembly of multiple rigid tiles and innumerable joints. These roof systems are notoriously porous and vulnerable to water ingress by wind driven rain and capillary action. Accordingly, these systems by themselves are not considered watertight. Traditional industry standards for a tropical environment application requires that a continuous waterproofing underlay be installed from Ridge to Eave under the concrete tile system. As to the concrete tile manufacturer’s requirements for a mortar set application similar to the one used here, a 90 lb modified bitumen cap sheet underlay is required with a metal drip edge flashing being installed at the eave.”

[79]Mr. Schamber found that notwithstanding these requirements, ‘it is apparent that no waterproofing underlay or perimeter metal drip edge flashing was installed under the concrete tile roof system in the existing construction.’ He also found that the aluminium foil layer was installed incorrectly and is in the wrong location to function as a waterproofing or protection barrier. The aluminium deteriorates when exposed to wet cement and it was punctured by the numerous nails used to anchor the concrete reinforcement over it and: “most importantly it stops short of the exterior edge at the inside of the exterior wall. As a consequence, any water that migrates through the tile roof, screed, and concrete deck, would then run onto the aluminium to the lower eave and collect at a subsurface level on top of the exterior block wall cavity. This laten moisture would then exit below the roof tile and gutter level at any convenient construction joint or opening on the interior or exterior surface of the exterior block wall.” This explanation is entirely consistent with the current water ingress and finish damage being experienced and is believed to be a major source of the existing problems.’

[80]In making his report, Mr. Schamber clearly had inspected the works done by the appellant and had recourse to the historical construction photographs taken by the respondent during the course of the construction works carried out by the appellant on site. He explained his reasons for coming to his conclusions and justified his conclusions with reference to the historical photographs and his own observations and experience. It was therefore the judge’s role in the circumstances to determine what weight ought to have been attached to the report in the context of the other relevant evidence in the case adduced at trial, oral and documentary, especially the report of Mr. Conway (CSE) issued in April 2010, (a mere 2 months after the appellant had been excluded from the construction site by the respondent) and the respondent’s letter dated 20 th April 2009, by which he agreed to certain changes in the construction of the roof system and specified a design for the master bedroom roof and a common design for all other roofs.

[81]It was also for the judge to determine whether the contents of the Schamber report, in the context of the other expert reports, provided any basis upon which to conclude that the appellant had breached the implied term as to workmanship. In my view, given the totality of the expert evidence (which the learned judge was well-positioned to assess, and in relation to which she was empowered to accept, reject, make findings of primary fact and draw inferences), and the principles applicable to a trial judge’s approach to causation which I have gratefully adopted from Weld-Blundell v Stephens and Jones v Livox Quarries Ltd, , it was entirely open to the judge in the circumstances to rely on the Schamber report in coming to the conclusion that the appellant’s poor workmanship had caused the cracks, leaks and/or damage complained of by the respondent. Mr. Schamber’s report is clearly of evidential value as an expert report in relation to the condition and construction of the roof system, especially the vaulted or hip roofs of which there were six, and the learned judge did not err in relying on it or in ascribing weight to it. (iii) The sufficiency and evaluation of evidence as to causation

[82]The learned judge considered the appellant’s liability for defective construction of the hip and flat roofs, cracks in the floor of the garage, in the open area next to the front steps, to the storage areas and the north basement floor, leaks to the hip roofs/through cracks in the wall, the construction of the retaining walls, and cracks to the stairs to the south (front) of the building. The learned judge also addressed the appellant’s liability for professional fees occasioned by the respondent’s procurement of experts. I shall address each of these areas. The Construction of the Hip and Flat Roofs

[83]The learned judge in considering the counterclaim as it pertains to the construction of the hip and flat roofs relied significantly on the findings in the Schamber report. The appellant argued that Mr. Schamber, in his report, did not specifically assess the construction of the roof system against the details provided in the respondent’s 20 th April 2009 letter to Mr. Raymond Khouly, written after discussions on the said day with both Mr. Jessy Khouly (the Project Architect) and Mr. Raymond Khouly of the appellant company.

[84]In my view, there is some merit in this criticism levelled by the appellant. While the learned judge did recount what was stated in the said letter, she did not approach the assessment of Mr. Schamber’s report and evidence cognisant of this glaring omission, one which Mr. Schamber admitted to in his oral evidence. The importance of this fact is that the appellant was required to construct the roofs in accordance with the details provided in the said letter and to do so using all proper skill and care of an experienced contractor. That meant that the appellant was required, in relation to all roofs (except the master bedroom roof) to use at minimum 3” X 10” rafters, 1” X 6” tongue and grove V-joints, reflective foil installation, galvanize fence wire, 2 ½ inches concrete on the roof and concrete tiles which were to be supplied by the respondent. In relation to the master bedroom roof, the appellant was required to use the same design concept except that, instead of galvanised fence wire, ½ inch steel was to be placed at 6 inches on the roof and 5 inches, instead of 2½ inches, of concrete was to be cast on the roof.

[85]In his report, Mr. Schamber noted his observation of water ingress and finish damage to both the interior and exterior walls along the eaves of the vaulted roofs in many locations. These observations were backed up by several photographs. His conclusion was that water was ‘obviously getting through the concrete tile roof system and leaking into the exterior walls where it would exit into the building interior or behind the exterior gutter system.’ His report is critical of the existing tile roof system in several respects. He observed the following in relation to this type of concrete roof systems: “These roof systems are notoriously porous and vulnerable to water ingress by wind driven rain and capillary action. Accordingly, these systems by themselves are not considered watertight. Traditional industry standards for a tropical environment application requires that a continuous waterproofing underlay be installed from Ridge to Eave under the concrete tile system.”

[86]Mr. Schamber, in his report, concluded that the installation was not in keeping with ‘international industry standards or the concrete tile manufacturer (Eagle Roofing Products) installation requirements’, which, among other requirements, called for the installation of a 90 lb modified bitumen cap sheet underlay with a metal drip edge flashing installed at the eave. He also stated that ‘extracts from the design manual of the world’s largest independent roofing authority, the American National Roofing Contractors Association (NRCA), reinforce the need for a continuous waterproofing underlayment.’ Accordingly, Mr. Schamber concluded as follows: “Notwithstanding these requirements from photo #5 it is apparent that no waterproofing underlay or perimeter metal drip edge flashing was installed under the concrete tile roof system in the existing construction. Additionally, from Photos #2, #3, #4, #5 and #6 it’s apparent that an aluminium foil layer is installed improperly and in the wrong location to function as a waterproof or protection barrier. Not only does aluminium deteriorate when exposed to wet cement, the aluminium foil layer is punctured by numerous nails used to anchor the concrete reinforcement over it and most importantly it stops short of the exterior at the inside of the exterior wall. As a consequence, any water that migrates through the tile roof, screed and concrete deck, would then run on top of the aluminium to the lower eave and collect at a subsurface level on top of the exterior block wall cavity. This latent moisture would then exit below the roof tile and gutter level at any convenient construction joint or opening on the interior or exterior surface of the exterior block wall. This explanation is entirely consistent with the current water ingress and finish damage being experienced and is believed to be a major source of the existing problems.”

[87]It was Mr. Schamber’s opinion that the only permanent solution to this problem: “… is to remove the external PVC gutter system, concrete roof tiles and masonry bedding screed down to the top of the structural concrete deck level. On top of this concrete deck surface, install a perimeter metal drip edge flashing over the facia board and install a continuous monolithic modified bitumen waterproofing membrane over the drip edge flashing and on to the concrete deck. Then install the masonry bedding screed, concrete roof tiles and external PVC gutter system all in keeping with the Eagle Roofing Products requirements and international best practice.”

[88]The appellant heavily criticises the report and finding of Mr. Schamber and concludes that he provided no analytical process by which he arrived at his conclusions which were merely speculative. The appellant also submits that Mr. Schamber made no finding (as oppose to guesswork) of ‘any specific cause or source of leaks, or cracks or leaks emanating from the hip roofs’. They rely on the CSE report and the evidence of Mr. Conway that at the time of his inspection in March 2010, he found no evidence of cracks in the walls and leaks from the roofs of the building under construction and there was no photograph or in which any such crack or leaks were indicated. In particular, the appellant relies on the cross examination of Mr. Conway at the trial during which he admitted to observing stains ‘on the top of the roof’ and decolourisation of the rafters of the roofs which he attributed to moisture in the rafters which had been pressure treated before being purchased and shipped to Antigua, and not to any crack or leak from the hip roofs,

[38]and to provide such assistance continuously from the point of the formal engagement of the expert by the party until the expert has rendered evidence’ at the trial or hearing of the matter. the manner in which an expert’s obligation under Part 32 is to be discharged includes, but is not limited to, the obligation to ‘state the facts or assumptions upon which his or her opinion is based’.

[39]The obligation also extends to considering and including in his or her report ‘any material fact which, would detract from his or her conclusion’, and any fact which falls outside his or her expertise’.

[91]In my view, the learned judge erred in accepting that the appellant had failed to comply with the specific requirements of the concrete tile manufacturer as it relates to the use of bitumen and not aluminium foil as a waterproofing subsurface or underlay. Further, the evidence discloses that the concrete roof tiles which were used in finishing the roofs, as per the respondent’s 20 th April 2009 letter, were not selected or purchased by the appellant as one of its contractual obligations or responsibilities. These were items, the purchase and delivery of which, were the responsibility of the respondent. Furthermore, as to their installation by the appellant, there is no direct or other evidence from which it was established or could be inferred that the written installation requirements of the concrete tile manufacturer Eagle Roofing Products, had been provided to the appellant for it to use or to follow. Likewise, there was no evidence that the method of construction of the roofs as set out in the letter of 20 th April 2009 had been altered or that the appellant had been instructed or directed by the respondent or the Project Architect to use a 90 lb modified bitumen cap sheet underlay instead of the reflective aluminium foil specified in the said letter, and to install the said bitumen underlay with a metal drip edge flashing installed at the eave as was apparently specified in the USA’s Tile Roofing Institutes Concrete & Clay Roof Tile Installation Manual referenced in the concrete tile manufacturer’s guide. In my view, and in these circumstances the appellant was not under a contractual obligation or duty to install the tiles using the said manufacturer’s requirements or in accordance with the requirement for installation of such concrete roof tiles set out in the American National Roofing Contractors Association (NRCA).

[92]The method of installation of the roofs specified in the respondent’s letter of 20 th April 2009 required the use of ‘reflective foil insulation’, either galvanised fence wire or ½ inch steel placed 6 inches on the roof in the case of the master bedroom roof, and either 2 1/2 inches or 5 inches of concrete. Accordingly, the appellant cannot be faulted for having used aluminium foil. The important question is was the aluminium foil installed or laid incorrectly by the appellant in breach of the implied term to use proper skill and care and, if so, was this a casual effect of the ingress of water into the building, as concluded by Mr. Schamber in his report? These questions fall to be considered against the absence of evidence of water ingress or leaks from the flat and/or hip roofs when Mr. Conway conducted his site inspections in March 2010, as his testimony at the trial confirms, and the evidence of such water ingress and damage to the interior of the building as observed, photographed, and documented by Mr. Schamber in his report some 17 months later.

[93]It is to be borne in mind, however, that at the time Mr. Schamber inspected the building works in September 2011, the extensive jackhammering to remove the concrete from the flat roofs and the concrete tiles and masonry from the hip or vaulted roofs had not yet taken place. Likewise, the installation of equipment on the flat roofs of the building occurred subsequent to the Schamber report. This extensive drilling/jackhammering work, which from the evidence occurred in 2011 to 2012, followed from the recommended remedial works in the Schamber report as set out above. The fact of such works having taken place was referred to by Mr. Sobers in his report in July 2012. At section

[94]On the evidence before the learned judge, it was open to her to find, as she did, that the appellant had failed to exercise proper care and skill in the placement of the aluminium foil subsurface underlay or protection barrier, by incorrectly stopping it at the inside of the exterior masonry wall instead of extending it to the outer edge of the exterior wall. This was not simply a matter of following the details in the contract drawings or specifications or in the respondent’s letter dated 20 th April 2009. In my view, this was a matter which required the appellant to carry out the works in accordance with accepted industry standards for the placement of waterproofing subsurface or underlay when constructing a concrete roof. The appellant failed to use such proper skill and care as an experienced contractor.

[95]Furthermore, the appellant, as an experienced contractor ought to have known or realised that driving nails through the aluminium foil insulation or protective underlay in order to nail or to secure in place either the galvanised fence wire or the ½ inch steel reinforcing mesh (as had been specified by the respondent), would compromise the ability of the foil to act as a waterproofing or insulation barrier to water ingress. In my view, the appellant, as an experienced contractor, had a duty to bring these matters to the attention of the respondent and/or the Project Architect. On the evidence he failed to do so. Instead, it is apparent from the evidence that the appellant just proceeded to drive nails through the foil underlay and to thereby perforate the protective barrier, with the result that it made, in the opinion of Mr. Schamber which the learned judge accepted, the roof permeable and hence vulnerable to the ingress of water and to leaking into the interior of the building. However, the trial judge erred in finding that the appellant had, in relation to the concrete hip roofs, breached the implied duty to use proper skill and care by failing to comply with international standards for the installation of the tiles and or failing to comply with the installation requirements of the concrete tile manufacturers, there being no evidence that such instructions were provided to or brought to the attention of the appellant, the said tiles having been selected and bought by the respondent.

[96]In my judgment, on these specific aspects of the appellant’s workmanship, it was open to the learned judge to accept the expert evidence and opinion of Mr. Schamber that this poor workmanship on the part of the appellant in the construction of the hip roofs was a likely cause of the ingress of water into the interior of the building and resulting staining and damage. I say this being mindful that Mr. Conway did not make any observations similar to those of Mr. Schamber, including observations of leaking into the interior of the building from the hip roofs. In fact, Mr. Conway expressly stated in his report that ‘no design check has been carried out [by him] on the property as a whole at this stage,’ Also, his inspection of the concrete hip roof system seems to have been limited to the change in the size of the rafters from the original design and the selection of a new design by the respondent. Mr. Conway only observed that, contrary to what the appellant had informed him, the steel in the 5” slab (master bedroom roof) was lapped with the beam steel, ‘the steel is visible in the photographs as only just turning into the beams at that level.’

[97]Specifically, as to the appellant’s construction of the flat roofs, Mr. Conway in the CSE report recommended that they should be removed, and the screed re-laid to falls to the drainage on the roofs. This was one of the nine recommendations in his report which the appellant agreed to comply with. The problem observed by Mr. Conway was that the flat roofs as laid were not laid to falls resulting in evidence of ponding of water. However, the appellant was never allowed to return to the site after 10 th March 2010 to remedy this defective work, having accepted and agreed with Mr. Conway’s recommendation to remove and relay the screed as to falls.

[98]In apportioning liability for the cost of remedial works to the roofs, the learned judge held the appellant 50% to blame. Taking into account the matters in the Schamber report which point to liability on the part of the appellant for defective work in relation to the construction of the hip roofs and the appellant’s acceptance of liability to remedy the defective work in relation to the flat roof, in my considered opinion there is no proper basis upon which to disturb the judge’s apportionment on this aspect of 50% to the appellant. Accordingly, the judge’s finding and apportionment of liability is upheld. Damage to the interior of the building from leaks to the Hip Roofs and through cracks in the wall

[99]The learned judge found the appellant liable for damage done to the interior of the building from leaks to the hip roofs and through cracks in the walls of the master bedroom. The judge’s findings on this point were as follows: “[98] Leaks in that part of the house covered by the flat roof have also not been shown to be attributable to the claimant. Having considered the findings of the other experts and the circumstances, the court accepts the expert evidence of Mr. Schamber concerning the interior and exterior survey of the hip roof; his findings of water ingress and damage to the finishes of the walls. The court accepts his finding that the aluminium foil layer was improperly installed and in the wrong location to function as a waterproof or protective barrier.

[100]The defendant is therefore entitled to damages to compensate him for remedial work in respect of damage from leaks in the hip roof and through the cracks in the walls in the master bedroom to include damage to the interior walls and finishes caused by the leaks.”

[101]Also, the appellant had agreed to recommendations Nos. 22 and 23 in the CSE report which require the holes or voids in the bathroom slab and in the external walls to be filled, the latter being voids which would make parts of the building liable to the ingress of water particularly during wind driven rain. I have also taken into account the fact that the appellant had followed and complied with all of the specifications for the installation of the new hip roofs provided to it by the respondent, but had breached the implied term of the contract to use proper skill and care in carrying out that work, and that the learned judge did not find the appellant liable for any leaks emanating from the flat roofs which had also been subjected to extensive jackhammering in order to remove the concrete tiles and concrete after the appellant had been excluded from the site on th March 2010. Taking all these matters into account, I would attribute to the appellant 50% of the blame for the resulting damage to the interior of the main building from the ingress of water into the building from the hip roofs. The learned judge’s finding of 100% liability under this head of damage at paragraph 132 (2)(d) of the judgment is accordingly set aside and an order made for the appellant to pay 50% of the remedial costs for damage done to the interior of the building from leaks from the hip roofs and cracks in the walls of the master bedroom. Retaining Walls

[102]The learned judge relied heavily on the Workman report dated 14 th April 2010 in assessing whether the retaining walls were constructed in breach of the implied term as to workmanship. The Workman Report was produced a mere 2 months after the appellant had been excluded from the site by the respondent and was critical of both the architect and the contractor both of whom had failed, in his view, to bring to the attention of the respondent the conflicting details on the various drawings relating to retaining walls. Mr. Workman examined two walls, one unplastered and the other a plastered wall at the rear of the building. As to the unplastered wall, Mr. Workman observed an almost one inch (1”) wide crack traversing the entire height of the wall, and that there was no ring or top beam. In his opinion this wall ‘clearly needed to be demolished, a footing of adequate design provided, and the wall rebuilt. As to the back wall, he observed several cracks including at the top of the wall, and that it did not have a beam at the top. These findings were confirmed to some extent by the Sobers report in 2012.

[103]The appellant agreed to the remedial work advised by Mr. Conway in the CSE report, that is, to strengthen the back wall by the ‘installation of a top beam, ties and dead men behind the wall or the excavation behind the wall and the construction of a reinforced concrete wall behind the block wall.’ As to what he described as a ‘major crack’ in the small retaining wall to the side of the building (the unplastered wall) that is ‘serious in nature and indicates that the wall has heaved on the left-hand side, probably as a result of the passage of the excavator’, Mr. Conway recommended its complete removal and replacement with a correctly designed reinforced concrete wall. The judge in effect found that the appellant agreed with the latter recommendation (No. 17) and was therefore liable for the cost of remedial works in relation to both retaining walls, including the installation a perforated pipe behind and at the base of the retaining walls. The learned judge accordingly apportioned 75% of liability to the appellant and 25% to the ancillary defendant, Mr. Jessy Khouly. In my view, that apportionment is within the ambit of reasonable disagreement and therefore ought not to be disturbed.

[104]In passing, I note that the appellant has also submitted that the workmanship in relation to the retaining walls was not in dispute in the proceedings before the judge

[105]The learned judge found that the appellant had carried out defective work in the construction of the front stairs, which had been enlarged during the construction, but had separated from the external wall of the main building itself. She apportioned liability 50/50 as between the appellant and the ancillary defendant, Mr. Jessy Khouly. Mr. Wayne Martin in his report dated 18 th April 2012, observed cracks where the stairs attached to the main building. He concluded that these cracks were serious enough that the separation from the main building was inevitable. He also found that there was an inadequate number of support points for the staircase structure. He opined that ‘an adequate structural design and construction was not provided to satisfy or to avoid the deficiencies’ outlined in his report; and that retrofitting, and upgrade of the staircase was necessary to provide adequate support, prevention of major settlement, and to avoid sliding and separation from the main building. Demolition of the structure was not recommended as a solution to the defects with the building and site.

[106]The findings by Mr. Martin in his report with regard to the front stair were essentially substantiated by the findings in the Sobers report dated 11 th July 2012. In my view it was certainly open to the judge to conclude, on the basis of both reports, that the cracks to the stairs to the south of the building were caused by poor workmanship and poor design on the part of the ancillary defendant, Mr. Jessy Khouly, and equally so. The learned judge was therefore, in my view, correct in her assessment of this evidence and in finding the appellant liable for 50% the cost of remedying these cracks. Accordingly, there is no basis upon which to disturb the judge’s finding on this item of damage. Cracks in the floor of the garage, in the open area next to the front steps, to the storage areas and the north basement floor

[107]The learned judge found the appellant fully liable for the cost of remedying the cracks found in these areas. She concluded at paragraph 97 of her judgment, that it was unlikely that these cracks, as catalogued in the Martin report of April 2012, ‘can be attributed to the [remedial] work on the flat roof, given the opinions of Mr. Martin as to the cause of those cracks, which the court accepts. The defendant is therefore entitled [to] recover for the remedial work in respect of those cracks.’ Similar observations and findings were made in relation to the cracks in each of these areas in the Sobers report also of 2012.

[108]In my view, the learned judge was entitled to base her reasoning and conclusions on the causes attributed to the cracks in these four areas by Mr. Martin in his report, buttressed by the report of Mr. Sobers. Accordingly, the learned judge’s finding of 100% liability on the part of the appellant for the cost of remedying these defects cannot be faulted. Award in relation to professional fees

[47]Discussion

[109]The appellant has not challenged this aspect of the judge’s award in terms of apportionment between the appellant and the ancillary defendant, except to the extent that the appellant invites this Court to set aside all the awards against it, which, if it were successful, would have had the consequential effect of setting aside of the awards in relation to professional fees of the named expert witnesses. Since the conclusion in this judgment is that the appellant’s appeal fails (except in one respect), there is no basis upon which to set aside and no good reason for this Court to alter the finding of 60% liability in the appellant for these fees. Conclusion

[48]Lord Sumner stated at page 986 as follows: “The object of civil inquiry into cause and consequence is to fix liability on some responsible person and to give reparation for damage done, not to inflict punishment for duty disregarded. The trial of an action for damage is not a scientific inquest into mixed sequence of phenomena, or an historical investigation of the chapter of events… It is a practical inquiry….”

[110]For all the above reasons, I am of the view that the learned judge did not err in her overall approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks, leaks and or damage to the building were caused by poor workmanship on the part of the appellant in breach of the implied term. The learned judge was, in my view, sufficiently seised of the relevant evidence relating to each of these items of defective or poor workmanship and was entitled to make the findings and apportionment of liability which she did on the respondent’s counterclaim, at sub-paragraphs (a), (b) and (c) of paragraph 132 (2) of the judgment, which findings and apportionment of liability are accordingly affirmed. Likewise, there is no basis upon which to disturb the judge’s finding and apportionment of liability for the professional fees incurred by the respondent at paragraphs 129, 131 and 132 (2)(e) of the judgment. The Counter Appeal

[49]stated at page 616: “There is no clear guidance to be found in The books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of common sense more than anything else.”

[111]In relation to his counternotice, the respondent argues that the learned judge erred in several respects when she gave judgment in the sum of $588,288.65 on the appellant’s claim. Firstly, the respondent contends that the learned judge erred when, having correctly found that the contract did not specify any rate or rates to be applied to extra work, went on to conclude erroneously that: “…the best indication of the reasonable rates applicable to the extra work is the evidence of the rates used by the claimant in the initial works and which had been agreed and paid by the defendant. The evidence is that in compiling the estimates, the claimant used the same rates it used under the initial contract. These are the rates used by Mr. Gardner.”

[112]The second basis of challenge is that the learned judge erred in accepting the rates and report of Mr. Gardner dated 22 nd June 2010, which report was mostly unexplained. The third is that the learned judge ought to have accepted the rates and evidence of Mr. Sanjay Amin of BCQS as indicative or as evidence of the prevailing rates in the construction industry in Antigua and Barbuda (market rates), Mr. Amin having indicated that the rates used by him were based on his experience in Antigua and in the Caribbean ‘speaking to contractors and suppliers’,

[114]In Dr. Dorsett’s submission, the sum of $588,288.65 awarded to the appellant by the learned judge is incorrect as it is affected by the defective works carried out by the appellant and, more properly, the judge ought not to have made an award at this stage, but ought to have left these issues and matters to be sorted out and a final sum arrived at during the assessment phase, with the said sum being viewed as the ceiling or maximum sum for any such award. In any event, that sum is an inflated sum because it is subject to devaluation for the defective works carried out by the appellant.

[115]The ‘subjective devaluation principle’ is put in these terms by the learned author of the text The Principles of the Law of Restitution, , at page 94, under the rubric ‘Part Performance of a Contract’: “Where the defendant has received the benefit of the claimant’s partial performance of the contract, the defendant will typically have received an objective benefit. So, for example. If the claimant agreed to build a house for the defendant and, after having done half of the work, the claimant fails, for whatever reason, to complete the house, the defendant is in receipt of a benefit, namely, half a house, which is of some objective value. But, because the defendant wanted a whole house, it would be perfectly appropriate for him or her subjectively to devalue the benefit which had been received. Will it be possible for the claimant to defeat the defendant’s reliance on this principle? This will depend on the circumstances of the case, and five different circumstances need to be considered.”

[116]At page 95 of The Principles of the Law of Restitution, , under the rubric ‘The Claimant breached the Contract’, the learned author states: “Where the reason why the claimant failed to perform the contract was that he or she breached it, it will be very difficult to prevent the defendant from relying on the subjective devaluation principle, save where it can be shown either that the defendant had voluntarily accepted the benefit despite the breach, or that the benefit was incontrovertibly beneficial.”

[117]This basis of challenge to the award made in favour of the appellant by the learned judge based upon the ‘subjective devaluation principle’, was not foreshadowed by the respondent in either his ground of appeal or in written submissions. Indeed, no such submission was put before the learned judge below. Mr. Astaphan, SC on behalf of the appellant, submitted in reply that the issue in the court below was simply one of what was the reasonable value or cost of the extra works. The appellant was willing to comply with certain of the recommendations made by Mr. Conway in the CSE report, and the only issue before the lower court was what was the proper value of the extras. Discussion

[50][72] It is clear in my view that at least Mr. Conway, Mr. Workman and Mr. Sobers had sight of drawings and/or were privy, in the preparation of their respective reports, to instructions given by the respondent to the appellant as to how certain works were to be carried out by the appellant. In my view, it cannot be said that the fact that other experts did not note or record, in their report, that they had sight of the drawings or instructions, renders the evidential value of their report entirely useless, especially where they were sufficiently apprised of and reviewed the historical photographs of the works done by the appellant (as in the case of Mr. Schamber); or where in their report they expressly stated that they did not seek to address compliance with design specifications but, as professionals, sought to assess the works as actually done by the appellant (as in the case of Mr. Walcott and Mr. Martin). In my view, therefore, this line of complaint or criticism by the appellant could therefore not have been a sound basis upon which the learned judge ought to have rejected wholesale the evidence of the experts in this case. (ii) Substantive criticisms of the Schamber report

[118]The learned judge had before her the valuation of Mr. Gardner, an expert relied on by the appellant, and the costings arrived at by Mr. Sanjay Amin of BCQS, relied on by the respondent. In my view, the learned judge quite properly determined that, in the absence of any provision in the contract which specified an agreed rate or rates to be applied to the valuation of any extras or variations in the works, the court must proceed to assess the value of the extras and any variations on a quantum meruit basis.

[119]The learned judge considered and rejected the report and evidence of Mr. Amin and gave cogent reasons for doing so. Firstly, and respectfully, it would be farfetched to ascribe what Mr. Amin provided in written form as an ‘expert report’. It was simply a schedule, in spread sheet form, showing the comparative rates, costings, differences and totals which, he came up with and the construction rates which, in his assessment, were used by the appellant. Secondly, the said document did not comply with the requirements for expert evidence being admitted as set out in Part 32 of the CPR, the effect of which would and should have been to render such evidence inadmissible expert evidence. Thirdly, as the learned judge correctly pointed out, Mr. Amin failed to indicate how he arrived at the rates which he used. It was not sufficient to merely state that these rates were based on his experience in the Caribbean and in Antigua, without providing some proof or pertinent examples of such rates to support that statement. Nothing short of this would be required of an expert as it is insufficient or inadequate for an expert to merely supply a conclusion without providing the proper basis upon which such conclusion was reached. I say so, based upon the relevant authorities already canvassed under issue 2 of this judgment, including the decision of this Court in Yates Associates Construction Company Ltd, , referred to by the learned judge at paragraph 38. . In my judgment, the learned judge was correct to accord little or no weight to the Amin document as to comparative rates and to his oral evidence at the trial.

[120]In my judgment, the same objections or criticism cannot be made of the report of Mr. Gardner dated 22 nd June 2010 relied on by the appellant in proof of the net sum owing to it under the contract including for extras, and the learned judge was correct in relying on the said document in coming to her conclusion on the quantum of the appellant’s claim. In fact, the Gardner report is, to a large extent, what the respondent had asked the appellant to provide. That is a document showing the amount due under the contract sum for the original contract works completed, deductions for savings due to the respondent, and an assessment of the cost for the 88 extra items of work carried out by the appellant. In this context, it must be borne in mind that the building, as originally contracted, comprised two floors and 6,000 square feet and this was increased during the course of the works to three floors and approximately 17,000 square feet.

[121]The Gardner report was based on ‘measurement [taken] and the application of unit price rates used in the compilation of the original contract amount.’ In the said report, Mr. Gardner showed the percentage of the original contract work completed by the appellant ascribing a value to each such line item after applying the unit price rates used in the original bid. Mr. Gardner also considered 39 items of ‘saving’ or credits, ascribing to each a value based upon the unit price rates used in the original bid. In relation to the extras (additional work or variations), Mr. Gardner considered the 88 items ascribing to each the percentage of completion and value using, again, the unit price rates in the original bid. Having done these calculations, he arrived at a net total of $578,792.93 as the final balance due to the appellant under the contract.

[122]In my view, in the absence of any cogent evidence of market rates, the learned judge was correct in concluding that the best indication of the reasonable rates applicable to the extra work, is the evidence of the rates used by the parties in arriving at the sums in the original contract works and which had been agreed to and paid by the owner. The evidence is that in compiling the estimates, the claimant used the same rates it used under the initial contract. These are the rates used by Mr. Gardner.’ In this regard, I note that the first bid dated 7 th February 2008 in the total sum of $4,605,400.00 provided by the appellant was not accepted by the respondent. It was the second bid dated 14 th February 2008 which was agreed and formed that basis for the written contract (setting out the works and contract sum) entered into by the parties on the same day.

[123]In the circumstances, in my judgment, in arriving at an award of $588,288.65 on the appellant’s claim, it was open to the learned judge, and she was correct in accepting the report of Mr. Gardner as to the amount due to the appellant for the original works completed under the contract and for the extras and variations, after deducting the appropriate or reasonable sums for savings or deductions due to the respondent.

[124]As to the new point raised by the appellant based upon the principle of subjective devaluation, this was not relied upon before the court below and was not a ground of appeal in the respondent’s counternotice. I am of the firm view that it is not open to the respondent to now rely, for the first time, on this criticism of the trial judge’s decision as a basis for setting aside the award made by the judge on the appellant’s claim. . I say so without considering in detail this new point, except to say that the basis upon which such an argument can be grounded must have first been pleaded and or dealt with in witness statements and in submissions before the lower court at the trial, in order for it to be properly addressed by way of cross-examination of witnesses, and properly considered by the trial judge. None of this was done.

[125]Finally, I would add that, in any event, the learned judge was alive to the issue of set off or reduction in the amount to be awarded to the appellant under the contract, when at paragraph 41 she gave judgment for the appellant in the sum of $588,255.65 ‘less any amount found due to the defendant for defective work under the counterclaim’. This approach by the learned judge, takes into proper account the cost of remedying any defective work carried out by the appellant on the amount due to the appellant under the contract, and does so at a rate and cost not limited to the rates and costing applied by the appellant in preparing its bid and in entering into the contract with the respondent, but instead, the actual reasonable cost for any remedial works to be carried out by another contractor. For the above-stated reasons, the counterappeal fails and is accordingly dismissed. Accordingly, the said award at paragraph 132 (1) of the judgment is affirmed. Costs

[126]On the matter of costs, I note that the learned judge below made an order for ‘costs to be assessed’. I understand this to mean that the judge did not determine either the incidence or the quantum of costs. Accordingly, in this appeal, the costs order will address only the costs of the appeal and counterappeal. As set out above, the appellant has a partial success on its appeal and this success must be reflected in the costs order. In accordance with the basic principle that costs followed the event, the respondent, as the successful party in the main on the appeal except to that limited extent, will have 75 percent of his costs in the appeal to be assessed; and the appellant will have its costs on the counterappeal to be assessed. Disposition

[127]I would therefore make the following orders: (1) The appeal by the appellant, Khouly Construction & Engineering Limited, is dismissed and the orders made by the learned judge at paragraph

[132](2) (a), (b), (c) and (e) of the judgment of the lower court are affirmed, except that the order at sub-paragraph (d) awarding 100% liability against the appellant for damage to the interior of the building from leaks to the hip roofs and through cracks in the walls of the master bedroom is varied to 50%. (2) The counterappeal of the respondent, Edmond Mansoor, is dismissed and the order made by the learned judge at paragraph

[128]I take this opportunity to express the Court’s appreciation to counsel for the parties for their helpful submissions and assistance in this matter. I concur. Dame Janice M. Pereira, DBE Chief Justice I concur. Louise Esther Blenman Justice of Appeal By the Court Chief Registrar

[52]The only crack found by Mr. Conway, whose evidence the appellant submits was to be preferred over that of Mr. Schamber or Mr. Sobers, was at the junction between the mortar and the copper of the gutters in the valleys to the hip or slopping roofs, which crack he concluded had been caused by ‘differential thermal expansion between the copper and the cementitious products.’ Importantly, says the appellant, Mr. Conway who, unlike Mr. Schamber, had reviewed the drawings, observed at note 26 (p6) of the CSE report that- ‘[t]he valley gutter detail on the drawings also shows a screed build up under the waterproofing to allow water to drain from the centre of the roof to the outside locations and away.’

1.Where the evidence before the court below is largely documentary, the unique position of the trial judge in assessing the credibility of witnesses and the weight to be attributed to their evidence is of less significance than it would be in cases decided on the basis of mostly oral evidence. However, the restraint required of an appellate court in cases involving the findings of fact by the trial court is not overcome by the view of an appellate court that it is suitably situated to make the decision under review. The appellant must therefore demonstrate that the trial judge was plainly wrong in her approach to and assessment of the evidence and her application of it to the issues before her for determination; that she came to a wrong conclusion on the applicable law; that she omitted relevant evidence from her consideration and assessment; or that there was no evidence before the trial judge from which she could properly have reached the conclusions that she did; or that, on the evidence, the reliability of which it was for her to assess, her decision was plainly wrong. Ming Siu Hung and others v J F Ming Inc and another [2021] UKPC 1 applied; Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 considered; Re B (A Child) [2013] UKSC applied Watt (or Thomas) v Thomas [1947] AC 484 considered; Rawle Hannibal v The BVI Health Services Authority [2019] ECSCJ No.394 (delivered 13 th December 2019) considered; Yates Associates Construction Company Ltd v Blue Sand Investments Limited [2016] ECSCJ No. 63 (delivered 20 th April 2016) considered.

2.Where contract documents do not contain any provision which speaks directly to the skill and standard of care and workmanship required of the contractor in the execution of the works, but confers an obligation to carry-out the building works in accordance with the drawings and specifications, the law will imply into the building contract a duty to use reasonable skill and care and to execute works in a good and workmanlike manner. This is especially so in circumstances where the contractor has held themself out as possessing the necessary skills to carry out the works and to complete the building in accordance with the drawings and specifications. However, any term implied by the court must not conflict with the express terms of the contract. In the instant matter, the contract documents provided that the building works were to be effected in accordance with the approved drawings and specifications and evinced the appellant’s understanding of these documents and its agreement or obligation to construct the building in accordance with them and with the project manual. However, the contract documents did not set out or indicate the standard of workmanship required under the contract. Johnson v Unisys Limited [2001] 2 WLR 1076 applied; Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Limited and another [2015] 3 WLR 1843 considered.

3.The trial judge was correct to imply into the contract between the appellant and the respondent a term that the appellant, in its execution of the building works and any specific instructions provided to it by the owner or his agent as to a method and quality of construction of or as to the materials to be used or finishes to be achieved in relation to a particular aspect of the contracted building works, would carry out the said works in a workmanlike manner using proper skill and care. Such an implied term does not contradict but supplements and is consistent with the express obligations of the appellant under the contract. However, implying such a term into the contract does not carry with it a general obligation on the appellant to use ‘international industry standards’ or ‘international best practices’ or any obligation to comply with the building codes or regulations of some other country, which obligations can only apply where the contract documents expressly so stipulate or such a term arises thereunder by necessary implication having regard to the nature of the works being carried out or other germane surrounding circumstances. The critical question for determination in this case is whether the appellant, as contractor, had complied with its obligation to execute the building works in accordance with the contract, the project manual and the drawings and specifications provided to it, and in accordance with any instructions provided to it by the respondent or his agent, and whether, in doing so, the appellant used or employed proper skill and care commensurate with industry standards recognised in Antigua and Barbuda.

4.An expert witness is not, strictly speaking, the witness of any particular party to the proceedings, but is an independent witness required to provide an unbiased opinion on a specific matter or question in issue in order to assist the court in its determination of the issues before it. A party who wishes to rely on the evidence of an expert or put into evidence in the matter before the court the report of an expert witness, is required by rule 32.6 of the Civil Procedure Rules 2000 (“CPR) to first seek and obtain the court’s permission and the general rule is that permission must be sought at a case management conference. However, a judge has a discretion to grant such permission at any stage of the litigation, where he is satisfied that there are cogent and persuasive reasons for doing so in the interest of justice. Whether the court will permit a single expert witness or whether the court will permit each party to produce and to rely on the evidence of separate experts, is a matter to be decided by the court taking into account all the circumstances of the matter, including, the nature and complexity of the claim, the issue or issues upon which expert evidence may be of assistance to the court’s determination of the claim, and the costs to the parties associated with obtaining expert evidence. Part 32 of the Civil Procedure Rules 2000 applied.

5.It is a fundamental principle that whether expert evidence is to be accepted is a question of fact for the trial judge. A critical aspect of the credibility of the expert and hence the weight to be attached to his opinions and conclusions, is whether they are explained and reasoned. Mere assertions or ‘bare ipse dixit’ carries little weight. An expert’s evidence must be considered by the trial judge together with all the other evidence before the court which the judge has accepted. A challenge to a trial judge’s decision to admit and to rely on expert evidence must be assessed being mindful that decisions as to the admissibility of expert evidence and the weight to be attached to that evidence, are fact-sensitive matters involving an evaluative exercise on the part of the trial judge. In this case, the appellant’s criticisms of the respondent’s expert witness, Mr. Schamber, falls short of satisfying the threshold for warranting appellate interference with the trial judge’s decision. It cannot be said that the statement in the Schamber report as to his company’s willingness to be of further assistance, if requested, or any other statement in the said report, crossed the line so as to lead to Mr. Schamber not being an independent expert capable of giving an unbiased or independent opinion to the court, or that he was in some way tainted as an expert witness as to the matters contained or addressed in his report, which matters all related to roofing issues. Further, it is wholly unsustainable to ground any objection to the admissibility of the Schamber report on the fact that the said report was rendered on the letterhead of his firm or organisation. If this was a disqualifying factor in this matter or if this, by itself, pointed conclusively to a lack of independence, then all the experts whose reports were admitted into evidence by the lower court, would be likewise tainted. It was therefore open to the judge, and she was correct, not to reject the Schamber report purely on the basis of the opinions or conclusions which he reached not being those of an independent and unbiased witness. Rule 32.4 of the Civil Procedure Rules 2000 applied, Kennedy v Cordia (Services) LLP [2016] UKSC 6 considered; Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft

6.A court’s approach to the issue of causation must not be sterile, academic, or viewed purely through the prism of a methodical consideration of the sequencing or chronology of historical events or facts. The court must approach this issue of causation in the round and in a practical and common-sense way, taking all relevant circumstances into account, including the sequence of certain events, when determining whether the particular loss or damage suffered by a claimant was as a result of or was sufficiently ‘causally’ connected to the actions or omissions of the defendant, whether such actions or omissions sound in contract or tort. However, this does not mean that a trial judge ought to ignore or to entirely discount, in an appropriate case, the importance to the issue of causation of the historical or chronological events or other relevant factors and whether they point either to liability or no liability on the part of the defendant/contractor for the claimant’s loss. Equally so, a court should not ignore or discount, in an appropriate case, an intervening factor or event of evidential significance not caused by the defendant (be it an act of God or the act of some third party) which may tend to establish or to point decisively to a causal connection with the alleged loss suffered by the claimant and to no liability for such loss on the part of the defendant. In an appropriate case, these factors, taken individually or collectively, when viewed or assessed in a practical or common-sense way, may be determinative of the issue of causation and hence of liability. Further, in considering the issue of causation, a trial judge must not lose sight of where the burden of proof lies, to the requisite standard in a civil case, and whether the evidence led by the claimant, when properly assessed against the other accepted evidence in the case for its quality, cogency and weight, satisfies the burden and standard of proof that some breach or actionable wrong in law was suffered and, that such breach or wrong was caused by an act or omission of the defendant. Weld-Blundell v Stephens [1920] AC 956 applied; Jones v Livox Quarries Ltd [1952] 2 QB 608 applied.

7.In this instant case, it is apparent that several of the respondent’s expert witnesses had sight of the drawings and/or were privy, in the preparation of their respective reports, to certain written instructions given by the respondent to the appellant as to the manner in which certain works were to be carried out by the appellant. This is apparent from the reports of Messrs Conway, Workman and Sobers. It cannot be said that the fact that other experts did not note or record, in their report, that they had sight of the drawings or instructions, renders the evidential value of their report entirely useless. This is especially so where they were sufficiently apprised of and reviewed the historical photographs of the works done by the appellant (as in the case of Mr. Schamber); or where, as stated in their report, they did not seek to address compliance by the appellant with design specifications, but sought, as professionals, to assess the works actually done by the appellant (as in the case of Messrs Walcott and Martin). Accordingly, there was not any sound basis upon which the learned judge ought to have rejected wholesale the evidence of the respondent’s experts in this case.

8.It is not accepted that the Schamber report contains bare or unsupported assertions and accordingly was of no real evidential value or that the trial judge ought to have given no weight to it or to his evidence at trial. The trial judge was correct to have considered the Schamber report in the context of the CSE report of Mr. Chris Conway and the Workman report in determining whether the appellant had carried out defective work or poor workmanship in its construction of the roof system, especially the vaulted or hip roofs and whether such works were the cause of cracks and leaks and resulting damage to the interior of the main building.

9.The appellant was required under the contract to construct the roofs in accordance with the details provided to it in the respondent’s letter dated th April 2009 and to do so using proper skill and care of an experienced contractor. This included an obligation to do so in accordance with accepted industry standards for the placement of waterproofing subsurface or underlay. Accordingly, it was open to the trial judge, on the evidence, to find, as she did, that the appellant had failed to exercise proper skill and care in the placement of the aluminium foil subsurface underlay or protection barrier in the construction of the roofs, by incorrectly stopping it at the inside of the exterior masonry wall instead of extending it to the outer edge of the exterior wall. Further, it was open to the trial judge to accept the expert evidence and opinion of Mr. Schamber that this poor workmanship on the part of the appellant in the construction of the hip roofs was a likely cause of the ingress of water into the interior of the building and resulting staining and damage. However, the trial judge erred in finding that the appellant had, in relation to the concrete hip roofs, breached the implied duty to use proper skill and care by failing to comply with international standards for the installation of the tiles and or failing to comply with the installation requirements of the concrete tile manufacturers, there being no evidence that such instructions were provided to or brought to the attention of the appellant, the said tiles having been selected and bought by the respondent. In all the circumstances, there is no basis for disturbing the judge’s award of 50% liability for the cost of remedial repairs to the roofs and the stairs to the south of the building at paragraph 132 (2)(a) of the judgment.

10.The learned judge having erred in finding that the appellant had, in relation to the concrete hip roofs, failed to comply with international standards for the installation of the tiles and or failed to comply with the installation requirements of the concrete tile manufacturers, erred in assessing the appellant’s liability for damage to the interior of the main building from leaks to the hip roofs and through cracks in the walls of the master bedroom at 100%. It is clear that full blame ought not to be attributed to the appellant for damage caused to the interior of the main building from leaks relating to the hip roof or the flat roof. With respect to the flat roofs there was no evidence of leaks but of ponding of water due to a lack of appropriate fall in the finished roof, which defect the appellant had agreed to remedy as recommended by Mr. Conway in the CSE report. Accordingly, the trial judge’s findings and award of 100% liability against the appellant at paragraph 132 (2)(d) of the judgment, is set aside and 50% liability substituted.

11.The trial judge did not err in her overall approach to and evaluation of the expert evidence in determining whether the respondent had discharged the burden of proving that the cracks and or damage to the stairs to the south (front) of the building, to the floor of the garage and the open area next to the front steps, storage areas and north basement floor and to the retaining walls were caused by poor workmanship on the part of the appellant in breach of the implied term. The trial judge was sufficiently seised of the relevant evidence relating to each of these items of defective or poor workmanship and was entitled to make the findings of liability which she did on the respondent’s counterclaim at sub-paragraph (c) of paragraph 132 (2) of the judgment, which findings are accordingly affirmed. Likewise, there is no basis upon which to disturb the judge’s finding and apportionment of liability for the professional fees incurred by the respondent at paragraphs 129, 131 and 132 (2)(e) of the judgment.

12.Where the contract does not specify an agreed rate or rates to be applied to the valuation of any extras or variations in the works, the court must proceed to assess the value of the extras and any variations on a quantum meruit basis. In the absence of any cogent evidence of market rates, the best indication of the reasonable rates applicable to the extras or variations is the evidence of the rates used by the parties in arriving at the sums in the original contract and which had been agreed to and paid by the owner. The trial judge had before her in evidence the valuation of Mr. Gardner, an expert witness relied on by the appellant, and the costings arrived at by Mr. Sanjay Amin of BCQS relied on by the respondent. Accordingly, in arriving at an award of EC$588,288.65 on the appellant’s claim, it was open to the trial judge, and she was correct in accepting, the Gardner report as to the amounts due to the appellant for the original works completed under the contract and for the extras and variations, after deducting the appropriate or reasonable sums for savings or deductions due to the respondent.

13.The respondent’s challenge to the award made by the trial judge in favour of the appellant, based upon the principle of ‘subjective devaluation’, was not foreshadowed in either his grounds of appeal or in written submissions, nor was any such argument put to the learned judge below. It is not, therefore, open to the respondent to now rely, for the first time, on this criticism of the trial judge’s decision as a basis for setting aside the award made by the judge on the appellant’s claim. Accordingly, the said award at paragraph 132(1) of the judgment is affirmed. JUDGMENT

[1]FARARA JA [AG.] : This is an appeal and counterappeal against orders for damages (and related orders) made by a learned judge of the High Court on 25 th February 2019 in favour of both Khouly Construction and Engineering Limited (“Khouly Construction” or “the appellant”) and Mr. Edmond Mansoor (“Mr. Mansoor” or “the respondent”) in respect of the claim by Khouly Construction and the counterclaim by Mr. Mansoor for damages resulting from breaches of a building contract between the parties.

[1][4] It was a term of the contract that the appellant was to commence the building works no later than 15 th February 2008 and, subject to the stipulated exceptions of natural disasters and unforeseen delays that cannot be attributed to the appellant, to complete the main house and driveway A on or before 15 th June 2009. In the event of the occurrence of any of these exceptions, the contract provided that a new timeline for completion of the said works is to be mutually agreed by the appellant and the respondent. The appellant commenced the building works on th February 2008.

[2][7] In its statement of claim, the appellant pleaded that the respondent had, in breach of the contract, terminated the contract when, by email sent th March 2010, he requested that the appellant ‘remove [its] belongings from the building site altogether’. (ii) Amended Defence and Counterclaim

[3][9] The respondent averred that the contract between himself and the appellant was not totally contained in the written agreement dated 14 th February 2008, but included the conditions set out in two letters dated, respectively, 7 th February 2008 and 14 th February 2008 from Mr. Raymond Khouly, the managing director of the appellant company and engineer of the project, to the respondent.

[5][10] In relation to breaches of the ‘implied term’, the respondent pleaded certain particulars of the appellant’s failure to apply, or to comply with, the required standard of workmanship.

[6]These consist of allegations of poor or substandard workmanship, covering some seven (7) specific areas as pleaded. They include, having the concrete roof slab resting on the ring beam rather than being tied into it; insufficient vertical re-bars in the ring beams to form the structural connection required to transfer loads during superimposed live loads; the re-bars in the reinforced suspended concrete floor slab, which was designed to be supported by the ring beams, not being tied into the ring beam so as to be so structurally connected as to form part of the ring beam; water ingress problems through the concrete tile roof system, leaking into the exterior walls and exiting into the interior of the building or behind the exterior gutter system; the tile roofing system not being in accordance with ‘international industry standards or the concrete tile manufacturing installation requirements’; and the inappropriate use of aluminium foil as a subsurface protective barrier, its incorrect installation on the roof assembly – stopping at the inside of the exterior wall – thereby contributing to water ingress and finish damage.

[8]and averred, inter alia, that its obligation under the contract with the respondent was to ‘comply with all drawings and specifications, and the terms and conditions of the project manual’.

[11]Accordingly, it is the appellant’s pleaded case that ‘the leaks from the concrete roofs began or must have begun to occur after the [appellant] was denied entry, and the subsequent execution of works of the roofs, and removal of all the concrete tiles with what were clearly heavy jackhammers.’

[12][18] The appellant denied the averments and particulars of ‘numerous cracks’ at paragraph 7(a) of the amended defence and counterclaim.

[14]However, at paragraph 12 of the reply to the amended defence to counterclaim, it is admitted by the appellant that Mr. Brewer and Mr. Conway in their respective reports in 2010, and Mr. Sobers in his report dated 11 th July 2012, did speak of cracks at the front (entrance) steps, garage floor and retaining wall; and Mr. Sobers did point to cracks in the walls of a number of rooms of the house, albeit in 2012.

[15]Accordingly, as to the counterclaim, the appellant denied the alleged breaches of contract and the respondent’s claim for special damages.

[19][29] This appeal concerns the kind of case where the proper determination of the issues of fact or of mixed law and fact turned, to a large extent, on the documentary evidence, including the contractual terms, the drawings and specifications, any specific instructions issued to the appellant by the respondent and or the architect, the contemporaneous notes of meetings held involving the appellant and the respondent and others, and the various expert reports as to the quality of the construction and execution and progress of the works and any issues pointing to defective or incomplete work.

[20]where Baptiste JA observed, at paragraph 24, that: “A first instance judge’s assessment of or evaluation based upon expert evidence adduced at trial must be approached by an appellate court with similar caution. Since the evaluation of expert evidence is likely to be bound up with a wider evaluation of matters of fact, an appellate court will still be very slow to intervene. An appeal court always proceeds with caution in considering appeals against findings of fact or findings based on an assessment of expert evidence: see Thomson v Christie Manson & Woods Limited & ors [14 [2005] EWCA Civ. 555]”.

[21]Quite instructively, however, the Board in Ming Siu Hung stated that the restraint required of an appellate court in cases involving the findings of fact by the trial court is not overcome by the view of an appellate court that it is suitably situated to make the decision under review. At paragraph 22, the Board advised – ‘… it is not an answer to the need for the exercise of appellate restraint for the appeal court to regard itself as well placed as the judge to carry out the relevant task.’

[22]Watt (or Thomas) v Thomas ,

[23]Rawle Hannibal v The BVI Health Services Authority and Yates Associates Construction Company Ltd v Blue Sand Investments Limited ,

[24]for the appellant to succeed in this appeal, it must demonstrate that the learned judge was plainly wrong in her approach to and assessment of the evidence and her application to the issues before her for determination; that she came to a wrong conclusion on the applicable law; that she omitted relevant evidence from her consideration and assessment; or there was no evidence before the learned judge from which she could properly have reached the conclusions that she did; or that, on the evidence, the reliability of which it was for her to assess, her decision was plainly wrong. Issue 1 – Whether the learned judge erred in upholding the implied term and in concluding that the term does not conflict with the express terms of the construction contract

[25]and concluded, at paragraphs 47- 49, as follows: “[47] The contractor must carry out his works using all proper skill and care, and the standard required in the particular case is to be gathered from all the circumstances of the contract.

[26][35] The appellant argues further, and in any event, that the judge erred in finding that the implied term had been breached, as the appellant micromanaged the execution of the works on a near daily basis to ensure quality control and took several photographs during the construction. This gave the respondent the fullest opportunity to monitor the execution of the works, and, if necessary, complain to the appellant or his architect.

[27]Furthermore, the appellant was required to execute certain works in accordance with the specific instructions and requirements of the respondent, which it did, and the respondent ought not to be heard to complain if the works carried out in accordance with his said instructions and requirements, turned out to be defective.

[28]Specifically, the appellant submits, the contract works were effected by the appellant exactly as required or as instructed by the respondent; and that the tiles used on the hip roofs, which were the subject of criticism in the Schamber report, were selected by the respondent.

[30]He also contends that there is no serious argument by the appellant that the learned judge misconstrued the terms of the contract. Discussion

[31]This is particularly so in circumstances where the contract documents confer an obligation to carry-out the building works in accordance with the drawings and specifications, but does not contain any provision which speaks directly to the skill and standard of care and workmanship required of the contractor.

[32]In such circumstances, the law will imply into a building contract a duty to use reasonable skill and care and to execute works in a good and workmanlike manner, especially in circumstances where the contractor has held themself out as possessing the necessary skills to carry out the works and to complete the building in accordance with the drawings and specifications.

[33]Lord Neuberger of Abbotsbury opined at paragraph 28: “In most, possibly all, disputes about whether a term should be implied into a contract, it is only after the process of construing the express words is complete that the issue of an implied term falls to be considered . Until one has decided what the parties have expressly agreed, it is difficult to see how one can set about deciding whether a term should be implied and if so what term. … Further, given that it is a cardinal rule that no term can be implied into a contract if it contradicts an express term, it would seem logically to follow that, until the express terms of the contract have been construed, it is, at least normally, not sensibly possible to decide whether a further term should be implied .” (Emphasis added)

[34]a written contract dated 14 th February 2008 and the project manual dated 29 th October 2006. The 7 th February 2008 letter is in essence the appellant’s ‘bid’ or cost estimate to construct the dwelling-house on the respondent’s property. The 14 th February 2008 letter addresses the contractor’s breakdown of payments commencing with the amount for ‘mobilization’ and ending with the sums to be paid after ‘substantial completion’ of the building and at the end of what, presumptively, was a 3-month post contract assessment (defects) period. The main contract document dated 14 th February 2008 was a short document. It did not contain any provision speaking directly to the quality of materials or workmanship, except to the extent that the completed building must be capable of withstanding category 5 hurricanes and zone 4 earthquakes; and that the works were to be executed by the appellant in accordance with the drawings and specifications (which had been prepared by the ancillary defendant, Jessy Khouly of Architecture Design Works Limited). In the said document, the appellant represented and confirmed that it had ‘thoroughly evaluated the drawings and the project manual and agreed that [it] can fully comply with all the architectural, structural, electrical and plumbing specifications as well as the relevant schedules and details.’ The appellant also represented and confirmed its ability to ‘comply with the specifications, schedules and details by affixing his initials on each page of the drawings as well as on each page of the project manual.’

[48]The appellant points to the following matters set out in the Schamber report,

[49]Expert evidence in civil proceedings is governed by Part 32 of the CPR. Part 32, unlike the previous rules of the Supreme Court, places the court in control of the process and manner by which expert evidence may be adduced in a matter before the court. Importantly, a party who wishes to rely on the evidence of an expert or put into evidence in the matter before the court the report of an expert witness, is required by rule CPR 32.6 to first seek and obtain the court’s permission and the general rule is that permission must be sought at a case management conference. However, the rules do not preclude, and a judge has a discretion to grant such permission at any stage of the litigation where he is satisfied that there are cogent and persuasive reasons for doing so in the interest of justice. Whether the court will permit a single expert witness or whether the court permits each party to rely on the evidence of separate experts is a matter to be decided by the court taking into account all the circumstances of the matter, including, the nature and complexity of the claim, the issue, or issues upon which expert evidence may be of assistance to the court’s determination of the claim, and the costs to the parties associated with obtaining expert evidence.

[37]the expert is obliged to provide ‘independent assistance to the court by way of objective unbiased opinion’;

[40][51] It is a fundamental principle that whether expert evidence is to be accepted is a question of fact to be decided by the trial court.

[41]Furthermore, a critical aspect of the credibility of an expert’s opinion and conclusions and hence the weight to be attached to it is that the opinion is explained and reasoned. In this regard, Lords Reed and Hodge in Kennedy v Cordia (Services) LLP

[42]stated as follows: “An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or “bare ipse dixit” carries little weight, as the Lord President (Cooper) famously stated in Davie v Magistrates of Edingburgh 1953 SC 34, 40. If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless.”

[43]“[A]n expert’s opinion represents his reasoned conclusion based on certain facts or data, which are either common cause, or established by his own evidence or that of some other competent witness. Except possibly where it is not controverted, an expert’s bald statement of his opinion is not of any real assistance. Proper evaluation of the opinion can only be undertaken if the process of reasoning which led to the conclusion, including the premises from which the reasoning proceeds, are disclosed by the expert.”

[44]“An expert may give evidence based on his knowledge and experience of a subject matter, drawing on the work of others, such as the findings of published research or the pooled knowledge of a team of people with whom he or she works: Kennedy v Cordia (Services) LLP [2016] UKSC 6. ”

32.4, must be assessed against the background that decisions as to the admissibility of expert evidence and the weight to be attached to that evidence are fact-sensitive matters involving an evaluative exercise on the part of a trial judge. The central question here therefore is whether, in light of the earlier cited principles, the matters complained of constitute a sufficient basis on which this Court can interfere with the judge’s reliance on the Schamber report.

[45]Without intending any disrespect, and in the interest of brevity, I do not propose to repeat those submissions in detail here. In summary, the contentions of the appellant are: (i) The judge should not have accepted the expert evidence before the court as the expert reports were made without reference to the contract documents and agreed design specifications and instructions for construction – the experts therefore were not in a position to give evidence as to the appellant’s workmanship within the proper context of the specific instructions given to the appellant. (ii) The learned judge relied heavily on the Schamber report in coming to her conclusions; the quality of the evidence in the Schamber report however was such that the learned judge ought not to have accepted it. (iii) There was no evidence from the respondent or any of the experts as to cracks or leaks in the building or on the flat and hip roofs prior to the date of the appellant’s exclusion from the worksite on 10 th March 2010, and therefore no evidence that the works done by the appellant were carried out without due skill and workmanship; and the learned judge did not weigh sufficiently in the balance the effect of substantial works done on the building and the flat roof after the appellant’s exclusion from the worksite on 10 th March 2010 in determining whether the cracks were caused by poor workmanship on the appellant’s part or were caused by the post-exclusion works. Respondent’s Submissions

[46]The respondent opines that the judge’s findings on this issue are quite damning to the appellant. In this regard, he relies on the findings at paragraphs 95, 98 and 100 of the learned judge’s judgment. The respondent concludes, on this aspect, by submitting that ‘there was overwhelming evidence in support of the findings of the learned judge that the roof was defective in design and in construction.’

[53][89] The appellant also points to the photographs which were taken by Mr. Sobers on 29 th June 2012 some 2.5 years after the appellant had been excluded from the building site by the respondent on 10 th March 2010. They submit that the Sobers photographs are the only ones tendered into evidence by the respondent which show cracks and leaks in the building with a date specific as to when the photograph was taken. In their view, these photographs, taken after the hip and flat roofs had been completely replaced on Mr. Schamber’s recommendation, provide ‘clear and unanswerable evidence’ that that these cracks and leaks occurred after 10 th March 2010, and after the removal of the flat and hip roofs between 2011 and 2012 and their replacement. They also rely on them as proof that the bitumen placed on the flat roofs by the appellant in 2009 had been removed subsequently by the respondent; no bitumen was placed on the hip roofs by the appellant; the hip roofs had been jackhammered to remove the concrete tiles and underlying mortar and foil; tar bitumen had been placed on the hip roofs in September 2011 on the basis of the Schamber recommendation; by June 2012 there was no bitumen on any roof which had been placed there by the appellant; and therefore, inferentially, the cracking and or leaks had to have occurred after the laying of the bitumen in September 2011.

[54][90] The appellant also points out in its written submissions that the evidence before the learned judge also disclosed that, at the time of the site visit by Mr. Schamber on 12 th September 2011, it was pointed out to him by Mr. Raymond Khouly, on behalf of the appellant, that the waterproofing which the appellant had installed on the roofs had been replaced by a new contractor and had not been ‘taken up the wall in certain areas.’ As to the possible effect of this, Mr. Schamber is recorded in the minutes of the said site meeting as confirming that where the waterproofing had not been replaced properly, it will cause leaks. In their written submissions, the appellants also point to the evidence in the Sobers report as to the several known and accepted causes of cracks in reinforced concrete, many of which, such as shrinkage and settlement and excessive loads, deflection, and vibration, do not point to any negligence or breach of duty on the part of a contractor.

[55]Discussion and Conclusion

7.3, Mr. Sobers stated: “We are aware that the homeowner, after being severely affected by water ingress, and on observing certain defects, has taken advice from various other professionals in the field, and had carried out corrective action to the roof and another retaining wall which was demolished and rebuilt. These actions appear to have been completed without substantial alteration to the main structure of the house as constructed by Khouly construction.”

[99]The court also accepts Mr. Sobers analysis and his opinion that responsibility for the waterproofing failures which led to water ingress through the walls and the cracks in the walls lies with the Architect, and the Contractor.

[100]In my view, the learned judge having erred in finding the appellant had, in relation to the concrete hip roofs, failed to comply with international standards for the installation of the tiles and or failed to comply with the installation requirements of the concrete tile manufacturers, erred in assessing the appellant’s liability for damage to the interior of the main building from leaks to the hip roofs and through cracks in the walls of the master bedroom at 100 %. In considering the proper apportionment of liability under this head of loss, I have taken into account that in all the circumstances, it is clear that full blame ought not to be attributed to the appellant for damage caused to the interior of the main building from leaks relating to the hip roof or the flat roof. With respect of the flat roof, there was no evidence of leaks but of ponding of water due to a lack of appropriate fall in the finished roof, which defect the appellant had agreed to remedy as recommended by Mr. Chris Conway at recommendation No. 27 in the CSE report, by having the screed relayed and ‘the waterproofing …laid up the wall and preferably laid into a joint in the wall so that the water can pass over the top and away from the roof.’

[56]The learned judge was not of that view and I certainly am not. Complaints in relation to the retaining walls formed the basis of the Workman report and were placed before the judge as a substantive complaint in relation to the appellant’s workmanship.

[57]Cracks to the stairs to the south (front) of the building

[58]and it was not suggested to Mr. Amin in cross-examination that his rates were flawed or that his experience was questionable.

[59]Fourth, that accordingly the rates used by Mr. Amin in his assessment of the value of the extras being indicative of market rates in Antigua and Barbuda provides ‘a basis for an assessment by the court based upon quantum meruit’. Fifth, in the absence of any agreed rates in the contract, the court ought to have considered what was a reasonable sum based upon market rates and not rely, without more, on the rates put forward by the appellant which may bare no relationship to the market rates. In support of these submissions, the respondent relies on the decision of the Supreme Court of the United Kingdom in Benedetti v Sawiris

[60]and excerpts from the learned authors of Chitty on Contracts .

[61][113] In oral argument, Dr. Dorsett, learned counsel for the respondent, relied on an additional submission based upon an extract from The Principles of the Law of Restitution .

[62]Dr. Dorsett submitted that in the instant matter where the appellant had failed to perform the contract by failing to complete the works it had contracted to do, the principle of ‘subjective devaluation’ applies, which requires that a valuation must be done of the services provided by the appellant to the respondent. He submitted that where the appellant has carried out defective work, that must be taken into account in the valuation, and the quantum to be awarded to the appellant is affected by the devaluation of the work executed under the contract as a result of the proven defective work. Dr. Dorsett argued that English law recognises that the value must be taken at the time the contract came to an end which, in the instant matter, was either 12 th March 2010 or 12 th May 2010.

[63]The judge went on to state, correctly in my view, that a contractor is entitled to the cost of carrying out work as have been reasonably incurred by him and without fault on his own part.

[132](1) of the judgment of the lower court is affirmed. (3) The respondent’s costs of the appeal, up to 75%, shall be paid by the appellant, to be assessed by a judge of the High Court, if not agreed within 21 days. (4) The appellant’s costs of the counterappeal shall be paid by the respondent/counter appellant, to be assessed by a judge of the High Court, if not agreed within 21 days.

[1]Para. 2 of the statement of claim.

[2]Paras. 4,5 and 6 of the statement of claim.

[3]Paras. 6, 7, 7(a), 40, 41 and 42 of the amended defence and counterclaim.

[4]Para. 2 of the amended defence.

[5]Paras. 3,4 and 5 of the amended defence.

[6]Paras. 7 and 8 of the amended defence.

[7]Para. 27 of the amended defence.

[8]Para. 5 of the reply.

[9]Para. 5(i).

[10]Para. 5(ii).

[11]Para. 7(viii) and (ix) of the reply.

[12]Para. 7(x) of the reply.

[13]Para. 8 of the reply.

[14]Para. 11 of the reply.

[15]Para. 20 of the reply.

[16]Paras. 29 and 30 of the reply.

[17][2021] UKPC 1.

[18][2014] EWCA Civ 5.

[19]See para. 114 of Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5.

[20][2019] ECSCJ No.394 (delivered 13 th December 2019).

[21]See Wetton v Ahmed [2011] EWCA Civ 610 per Lady Justice Arden at paras. 12 and 13.

[22][2013] UKSC 33 (cited with approval in Ming Sui Hung).

[23][1947] AC 484.

[24][2016] ECSCJ No. 63 (delivered 20 th April 2016).

[25][2001] 2 WLR 1076.

[26]Appellant’s outline submissions para. 5.1)

[27]Appellant’s outline submissions at para. 6; and para. 56 of the appellant’s submissions (relying on para. 26 witness statement of Jack Khouly).

[28]Appellant’s outline submissions at paras. 5.2 and 5.3.

[29]Appellant’s outline submissions paras. 5.3.

[30]Para. 47 of the judgment below.

[31]Halsbury’s Laws of England (5 th edn, 2018) Vol. 6, paras. 273 and 274.

[32]See for example Hancock v BW Brazier (Anerley) Ltd [1966] 2 All ER 901 at 903, [1966] 1 WLR 1317 at 1332, CA, per Lord Denning MR; Billyack v Leyland Construction Co Ltd [1968] 1 All ER 783, [1968] 1 WLR 471 (applied in National Coal Board v William Neill & Son (St Helens) Ltd [1985] QB 300, [1984] 1 All ER 555, [1984] 3 WLR 1135).

[33][2015] 3 WLR 1843; See also Johnson v Unisys Limited [2001] 2 WLR 1076.

[34]This was admitted by the appellant at para. 2 of its reply to amended defence filed on 28 th February 2017, a matter which was alluded to by the learned judge in the judgment.

[35]See para. 20 of the appellant’s outline submissions.

[36]Core Appeal Bundle, pgs. 144-

[37]CPR 32.4(1).

[38]CPR 32.4(2).

[39]CPR 32.4(3).

[40]CPR 32.4(3) and (4).

[41]See Callwood v Callwood [1960] UKPC 12.

[42][2016] UKSC 6 at para. 48.

[43](1976) (3) SA 352,371.

[44][2019] ECSCJ No. 394 (delivered 13 th December 2019).

[45]At paras. 2 to 5 of the appellant’s main submissions and at paras.

3.1 to 3.12 of its outline submissions under the rubric ‘The Appellant’s Case’.

[46]Para. 11 of respondent’s submissions.

[47]Para. 13 of the respondent’s submissions.

[48][1920] AC 956.

[49][1952] 2 QB 608.

[50]See para. 40 of the judgment below.

[51]See Trial Bundle of Documents, Bundle 3A pg. 146.

[52]See Transcript of Proceedings, pgs. 119-120.

[53]See Core Appeal Bundle, pg. 110.

[54]See Appellant’s Main Submissions, para. 106.

[55]See Appellant’s Main Submissions, paras. 109.4, 109.5 and 109.6.

[56]See paras. 41.1 and 41.3, and footnotes 54 and 58 of the appellant’s main submissions.

[57]See para. 62 of the learned judge’s judgment and paras. 26, 28, 31 and 42(1) of the amended defence and counterclaim.

[58]Record of Appeal, Volume 1 at page 446, lines 6-7 of the Transcript of Proceedings.

[59]Respondent’s submissions at para. 23.

[60][2013] UKSC 50.

[61](33 rd edn, 2018) Vol. II at paras. 37-171 to 37-173.

[62](3 rd edn, 2016) Oxford University Press.

[63]See paragraph 37 above.