England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(Mr Justice Jacob)

		Royal Courts of Justice Strand London WC2
		Friday, 30th November 2001

1. LORD JUSTICE RIX: This is the application for permission to appeal of Mrs Anne Saunders. She seeks permission to appeal from the judgment of Mr Justice Jacob, sitting in the Bristol County Court, of 11th July 2001. His judgment was concerned with an assessment of damages.
2. Mrs Saunders lives in, and is the owner of, 127 Tillery Street, Abertillery, Gwent, which is a semi-detached property next door to No 126. Back in late 1992 or early 1993 her then neighbour at No 126, the third defendant, Mrs Guidotti (or Miss Haywood, as she was called after her divorce from Mr Guidotti, the second defendant) did building works in her home, employing the first defendant, Mr Williams, as her builder. In the course of those building works the party wall between Mrs Saunders' house and No 126 was damaged. This caused damage to a number of rooms of Mrs Saunders' home, which she claimed became uninhabitable as a result, and caused distress and inconvenience to her and to her family over the ensuing years and also prevented her from being able to rent out those rooms. The party wall needs to be completely rebuilt and, as of today, is still not rebuilt.
3. The litigation has had a long history, but for today's purposes I need only mention that, following the commencement of these proceedings on 12th December 1998, the matter came before His Honour Judge Price QC at the Cardiff County Court on 7th February 2001. On that occasion, by consent, judgment was given against Mr Williams, the first defendant, for damages to be assessed in respect of certain liabilities identified by reference to paragraphs in the amended particulars of claim, such assessment of damages to take place on 11th July 2001 at the Cardiff Civil Justice Centre. Various directions were given for the purposes of that assessment of damages, including directions for the jointly instructed expert, Mr Newton, who had already provided a report as to the question of this party wall, to provide an additional report on the reasonable costs of the specified remedial work and upon any liabilities arising under the Party Wall Act 1996. A direction was also given that a report should be obtained from a jointly instructed valuer as to the value of the rooms rendered unusable or the rateable value of the whole house. So those arrangements were made for the trial of the assessment of damages to take place on 11th July 2001.
4. Mrs Saunders was unsatisfied with certain aspects of that order made by Judge Price on 7th February 2001. She therefore made several applications for permission to appeal to the Court of Appeal, which came before Lord Justice Mance on 30th April 2001. This morning, as a result of some questions asked by me in the course of Mrs Saunders' submissions, she has provided me with a copy of Lord Justice Mance's judgment dealing with those applications. Amongst the matters for which Mrs Saunders requested permission from Lord Justice Mance on that occasion was one to join the local borough council and also the new owners of 126 (that is to say, not the second and third defendants, but those to whom they had sold) to her action. But Lord Justice Mance pointed out that those were matters which she would have to deal with (if at all) elsewhere, because they did not arise out of any judgment or order of the court that was before him in the Court of Appeal.
5. Lord Justice Mance then came to other matters in respect of which Mrs Saunders requested permission to appeal against the order of 7th February 2001. She was concerned that the direction given for a new report from Mr Newton in relation to the reasonable costs of the specified remedial works did not go far enough. In particular, she was concerned that, without additional opening up and so forth, the report that was specified would not sufficiently cover the costs involved. Lord Justice Mance considered that application in detail, and rejected it. He said, at para 16:

"It does not seem to me that any dissatisfaction she has with Mr Newton's views forms a reason for giving permission to appeal against the judge's order. What the judge was ordering was a report which had a clear purpose and context. It was designed to enable damages to be assessed as against the builders. In any building exercise there are always likely to be some contingencies. Anyone with experience of builders knows, perhaps unfortunately, that one never knows precisely what work will be done until it is done. One can never cross the last `t' or dot the last `i'. I do not see any fundamental flaw in the approach of the court in asking Mr Newton to proceed on the basis on which he has been asked to proceed in the light of his current views about what is reasonable and sensible. If Mrs Saunders has different views there may be ways in which she can carry the matter further. If there are inherent uncertainties - for example, as to what precise costs will be incurred in this or that respect - which she considers cannot be satisfactorily covered by contingency costs there may also be ways in which the court order could cater for them. She has stressed before me that if she gets a monetary award that will leave her to carry out the works and she will end up having to serve a party wall notice under the Party Wall Act 1996 on her current neighbours and that may conceivably expose her to making good damage next door if, in the course of the works, some damage is occasioned. All that is possible."

6. Lord Justice Mance then continued in his judgment to deal with an entirely new point which it appears Mrs Saunders had raised for the first time before him. He said:

"17.Mrs Saunders has started before me to take fundamental issue with the proposition that it should be her who does the work. She said she did not know that she would be given a sum of money with which she would be left to do the work and therefore left to carry the responsibility of serving any party wall notice or dealing with any problems that arose under the Party Wall Act. Unfortunately, that is inherent in the judgment against the builder for damages. Although the original claim contained a prayer for an order to restore forthwith proper support to the wall, that is not an order which one can easily conceive could be made against a builder who does not have any possessional rights next door at all. Indeed, he was instructed by someone who is no longer an owner or in possession of next door and against whom judgment has not yet been given. It is an inherent problem in the present situation.

18.When the court is assessing damages it has to do the best it can. It can never cross the last `t' or dot the last `i' but it will, no doubt, endeavour to cover Mrs Saunders adequately in every respect. I fully understand her fears that any award of damages may not prove to be adequate. But it is the court's task to do the best it can in awarding damages and to ensure that she is appropriately covered.

19.For my part, it seems that this matter should proceed to trial on damages."

7. This morning Mrs Saunders seeks again to make an application for permission to appeal to the Court of Appeal in order to raise against the defendants a claim for what I might call specific performance pursuant to the Party Wall Act or other statutes (for instance, she has mentioned the Law of Property Act 1925 and the Building Act 1984) to carry out the work of rebuilding the party wall. Unfortunately, that is an application which she sought to make before Lord Justice Mance and which he declined on that occasion. For that reason alone it seems to me impossible for me to grant her permission today. She is revisiting something which she has already brought before this court on an application for permission to appeal back in April 2001.
8. The matter goes further than that, however, because Mrs Saunders has brought to my attention the fact that, following that judgment of Lord Justice Mance, she issued two applications in the Cardiff County Court, one of 15th May 2001 and another of 13th June 2001, in which she applied, inter alia, for an order against the third defendant (judgment had not then yet been given as a matter of liability against her) under the Law of Property Act 1925 and the Party Wall Act 1996 and she also applied that the trial date for the assessment of damages be adjourned so that the matter of the claim in relation to the Party Wall Act 1996 should be resolved prior to the assessment of damages. Mrs Saunders has told me that she had no response from the Cardiff County Court concerning the sealing of those applications, but about a month later, on 5th July 2001, she received a notice from Cardiff County Court saying that the matter had been transferred to the Bristol District Registry and that any further applications in the case must be made to that court. She therefore considered - she is a litigant in person - that it would be too late for her to make any further application.
9. At any rate, the matter did come before Mr Justice Jacob in Bristol on 11th July 2001 for the assessment of damages. Mrs Saunders did not raise again before Mr Justice Jacob the question of any relief to be claimed pursuant to the statutes which I have mentioned, nor did she ask for the trial to be adjourned pending the resolution of such a claim for specific performance pursuant to those Acts, and the trial for assessment of damages went ahead. At that trial judgment by consent was given in respect of the major item of damage (that of rebuilding the party wall) in the figure of £24,572, which was the total figure that the latest commissioned report from Mr Newton had revealed. In his judgment Mr Justice Jacob went on to say that the only question before him (other than the matter of a separate cause of action against the builder in negligent misrepresentation, which he dismissed, and which is not raised before me again this morning) was whether there should be any damages awarded in addition to the costs of repairing the party wall in that figure of £24,572. The judge immediately went on to consider Mrs Saunders' separate pleaded heads of damage for distress and inconvenience over the ensuing years and/or for loss of use of the rooms which had been rendered uninhabitable. He went on to deal with those heads of damage by saying that Mrs Saunders was limited to only one year's relief on the basis that it was unreasonable to think that the wall would not be repaired within that year. He awarded £1,000 in respect of those heads of damage. There is no sign in his judgment that any further matters were raised before him.
10. In those circumstances I can see no possibility of my giving permission to appeal in respect of matters relating to specific performance pursuant to the statutes I have mentioned when they were not raised before the judge but had been raised before Lord Justice Mance back in April and he had refused permission to appeal to Mrs Saunders on that occasion. In truth, this was a question of liability, not assessment of damages, which ought to have been dealt with either on 7th February 2001 or on appeal from that order. Lord Justice Mance dealt with it in the way that I mentioned and it seems to me that there is nothing that I can do for Mrs Saunders in that respect on this occasion. In any event, I do not see how specific performance could arise against defendants who are no longer in possession of No 126.
11. Mrs Saunders also makes minor complaints about the extent to which Mr Newton's schedule covered every possible item of damage. She has mentioned one item concerned with concrete slabs at the ground floor level, but it seems to me that Mr Newton's letter at p.171 of section 2 of the bundle before me makes it clear that that point was allowed for. She also submits that there was another item which was not covered in Mr Newton's schedule, but I can see no prospect that the Court of Appeal would come to a view helpful to her on that particular item. Mrs Saunders also raises before me in her skeleton argument some question as to whether she should be able to pursue remedies against the local council, but that was already a matter which was before Lord Justice Mance.
12. Therefore, one comes back to the matters upon which, as I indicated at the outset of this hearing, I am willing to give Mrs Saunders permission to appeal: that is the question of her heads of damage for distress, inconvenience or loss of use, where she has been limited by Mr Justice Jacob to only one year's value in terms of those heads of damage. It seems to me that in respect of that limitation Mrs Saunders has a realistic prospect of success on appeal. I therefore grant her permission, but my permission is limited to those grounds. I will end where I began at this morning's hearing, by warning Mrs Saunders that the fact that I am willing to give permission as so limited does not mean that she will succeed on appeal, and that she bears the risk of costs in that appeal.
Order: application for permission to appeal granted to limited extent set out above; appeal to be heard by three-member court (time estimate ½ day); transcript of this judgment to be supplied to Mrs Saunders at public expense.