From poor foundations comes more TCC perspective on the application of the DPA and the cost of cure
In October, judgment was given in Mallas v Persimmon Homes Limited [2025] EWHC 2581 (TCC), which concerned the plight of a claimant who, in 2015, purchased a new-build house in Berkshire from Persimmon for £649,495. Shortly after purchase, issues relating to movement began to develop in the house’s fabric because, it transpired, the house had been built on inappropriate strip foundations that were too shallow and thus affected by movement in the ground beneath them. Rather, deeper piled foundations should have been used.
The claimant brought a claim against Persimmon under the sale contract and the Defective Premises Act 1972 (“DPA”). Persimmon accepted that it was in breach of the clause of the sale contract by which it “warrants that it has built or will build the Home on the Property in a good and workmanlike manner in accordance with the terms of the relevant planning permission and building regulation consent to the standard of the New Home Warranty Provider”, and that the appropriate remedy was the cost of cure.
What was not agreed, however, was the appropriate cost of cure.
DPA Liability
Nevertheless, before assessing the cost of cure, the TCC determined the claimant’s case under the DPA, despite it being the TCC’s view that the DPA claim brought no substantive benefit to the claimant: the TCC considered that the duty under the clause cited above was similar to that under section 1 of the DPA, and that in this case there was no distinction between the approach to damages under the sale contract and the DPA.
Whether Persimmon breached the DPA turned on whether the house was fit for habitation, with the test being, per Vainker v Marbank Construction Limited [2024] EWGC 667 (TCC), whether the house was capable of occupation for a reasonable time without risk to the occupants’ health or safety, and without undue inconvenience or discomfort to them. In relation to the porch, the TCC rejected Persimmon’s argument that it was safe on completion, as illustrated by the claimant having occupied the property for 9 years. The porch was at risk of collapse from soon after completion, and the fact it had not collapsed did not negate the fact there was an ongoing risk. However, the degree of movement and its effects on the main house was not such as to create a risk or render occupation unduly inconvenient or uncomfortable.
Cost of Cure
On the question of damages, the claimant sought sums to cover the demolition and rebuilding of the house on the basis that the movement could have caused further latent damage to the superstructure, that there was insufficiently detailed as-built information to give to the remedial contractor, and that the house was generally of poor construction. The TCC rejected all three reasons, noting in relation to the first that it is unlikely to be reasonable to award damages because of a risk of “known unknowns”, particularly where any concerns could have been explored by opening-up works which the claimant had declined to carry out. The TCC held that demolition would be “an extreme and disproportionate approach” given that the issues identified with the superstructure could be addressed through discrete repairs.
Concerning the costs of the preferred remedial scheme, the TCC favoured the defendant’s approach to quantum. Whereas the claimant used higher rates where they were consistent with its expert’s own assessments of prevailing market rates, the defendant generally defaulted to the rates in Spon’s Architects’ and Builders’ Price Book wherever available, and they tended to be lower. Nevertheless, the TCC considered it reasonable to anticipate that the costs of the scheme would still turn out to be materially higher than the amount estimated by the defendant, and so awarded a 15% contingency allowance on top.
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