England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
AND A STAY OF EXECUTION APPLICATION
FOR PERMISSION FOR A PARTY TO BE JOINED
TO ACTION APPLICATION FOR PARTY TO BE
JOINED IN ACTION

		Royal Courts of Justice Strand London WC2 Monday, 30th April 2001

1. LORD JUSTICE MANCE: Mrs Saunders appears before me in person today with three applications. The first is to appeal an order of His Honour Judge Price QC made on 7th February 2001. The second and third are pursuant to application notices issued in this court on 1st March 2001 to rejoin Blaenau Gwent Borough Council as a defendant in the action and on 31st March 2001 to enjoin as defendants Terence Edward King and Annette King, the current owners of the neighbouring house 126 Tillery Street, Abertillery, Gwent, on the grounds that they were both liable under the terms of the Party Walls Act 1996.
2. As I have explained to Mrs Saunders in the course of dealing with this case and hearing her submissions, those two applications are not applications which I can deal with in this court. I am sitting as the Court of Appeal and those two applications have not been made at any point to a first instance judge. They are only now sought to be pursued for the first time in the Court of Appeal. If there is any merit in them they have to be made to the circuit judge. I record that I mentioned to Mrs Saunders that I, for my part, find it difficult to see how her present neighbours are sought to be held liable under the terms of the Party Wall Act 1996 or at all. They seem to have purchased the property in respect of which works had previously been done in a somewhat cavalier fashion, but they are no more than purchasers and current owners. In other parts of her submissions Mrs Saunders was stressing not the liability of her current neighbours to her under the Party Wall Act 1996 but liabilities which she feared she may incur to them if and when she has to do repairs to the party wall under that Act.
3. As to the permission to rejoin the borough council, for some reason the proceedings initially brought against them were discontinued in March 1999. I fully see from the papers the considerations which might give rise to a claim against them although I can express no view, and do express no view, as to whether it would be justified. However I did draw attention to the potential limitation position and that no doubt needs careful consideration, it would seem to me, when deciding whether to rejoin or apply to rejoin and in considering the alternative possibility of fresh proceedings.
4. The fault of the borough council, if there was fault and if there was a duty, seems to go back to somewhere around late 1992 or 1993 and therefore to be more than six years ago. However in tort there are bases on which any claim might not be time barred, but I cannot go into them or consider whether they would have any prospect of being satisfied. That is all I need say about those two applications.
5. I come to the application for permission to appeal against an order of the first instance judge. Mrs Saunders has expressed content with most of the order of 7th February 2001 and with her counsel Mr Wynne-Griffiths' performance. But in one respect she is dissatisfied with both; that relates to paragraph 8 which reads:

"The jointly instructed expert Mr Newton shall provide a report on the reasonable costs of the specified remedial works and upon an liabilities arising under the Party Walls Act 1996, and upon any other contingencies not later than 21st March 2001."

6. The context of that order is that the works to the neighbouring house to Mrs Saunders evidently damaged the party wall between the two houses and were carried out by a builder, Terry Williams the first defendant. The effective second defendant is Mrs Guidotti, who was the owner instructing such works although she apparently obtained from the borough council very large grants for them. She is not worth powder and shot, but Mr Williams, after initial denials, ultimately has admitted negligence. By the order of 7th February 2001 judgment has been given against him by consent for damages to be assessed in respect of liability under paragraphs 9, 12, 13 and 13A of the amended points of claim, such assessment to take place on 11th July 2001. The problem involving the party wall is not merely damage to it which has knocked bricks through to Mrs Saunders' property but fundamentally making it unstable and also damaging the integrity of the roof structure. Further, it appears that the solution adopted in No 126 was, in effect, to abandon the party wall and build another wall an inch from it but not connected in any way to it on the side of 126 Tillery Street. That wall itself is evidently unsatisfactory, at least in the corners, in the sense that it is not properly floored and it seems to have been built on top of the internal concrete floor of 126 which may be said to be in breach of building regulations.
7. Mr Newton has reported on a number of occasions as a court-appointed joint expert. In an order of 3rd March 2000 he was ordered, by consent, to draft a specification, a bill of quantities and tender documents with a view to remedying the defects in the property out to contract. In a second order of 15th May 2000 he was ordered to prepare a specification for the remedial works which he considers necessary, a bill of quantities for those works, tender documents for remedial work and a document in the form of a Scott schedule itemising the defects to the property with provision for comments in due course upon such items by each side.
8. Mr Newton's report of 8th February 2000, which was no doubt the basis for those orders, included an expression of a wish or need to know further about the structure before determining the full extent of necessary works by specification and tender. He said in particular at page 12 paragraph 5.02:

"At this stage, further opening of the structure will be necessary to determine the full extent of necessary works, before a specification and precise costs can be formulated through competitive tender. For budgetary purposes only, I anticipate that costs would be in the region of £3,000 - £4,000 exclusive of VAT and any professional/statutory fees applicable."

9. Mrs Saunders places much weight on that and no doubt it has contributed to her concern about the situation. I should say that, bearing in mind this problem goes back to somewhere around December 1992, one can only have the greatest of understanding for Mrs Saunders' position, the inconvenience and worry she must have suffered and must be suffering until it is resolved by making good. Unfortunately, that must not allow one to lose sight of the practicalities.
10. Subsequent to Mr Newton's first report and those orders there have been further inspections, in particular by consulting, civil and structural engineers Nicholls and Jones Partnership who were involved at Mrs Saunders' insistence. They produced a report and a revised version 2 of that report dated 2nd November 2000. It contains detailed drawings as to what they think would be necessary to restore the structural integrity of the party wall and of the roof. Mr Newton has also expressed views as to the extent to which the matter can be progressed without extensive further opening up, somewhat different from those in his original report. On 29th June 2000 he said:

"The opening of the structure in this particular instance to reveal the full extend of the necessary works would be somewhat impractical and their scope is unlikely to be known until the works are actually carried out. To disturb this party wall any further would put it at risk of further damage and even collapse, and as such, this is not considered appropriate at this stage. The only area where opening up may be possible is within the roof space to the fire barrier, however, this can easily be carried out with little or no damage."

11. On 11th July he said:

"It is therefore unlikely that the `full extent' of the works will be known until the defective wall can be removed in totality which, would be impracticable at this stage. It is quite normal in preparing specification such as this to make professional and educated assumptions, in order to get over this sort of problem.

Certain opening up works can, however, take place without ill effect and much disturbance to Mrs Saunders within their roof space, in particular with regard to the fire break. I would suggest that this be done prior to the specification."

12. On 22nd November, in submitting a specification, he said he had included -

" ..... a provisional sum of £100 for repairs to the existing ground floor slab within 126 Tillery Street, where there is evidence that voids occur."

13. That refers to the possible defects of the new wall created within the neighbouring house. He went on:

"The new foundations to be provided for the new party wall will fill these voids in part and the £100 is for any unforeseen voids exposed during demolition of the existing brick and timber frame party wall."

14. I have seen his specification. I need not go through it in detail. It is quite detailed in my view, and I simply read one passage which relates to the present area. In paragraph 3.2.4 he said:

"Carefully break out the ground floor construction as shown and excavate and form a new 400mm x 1000mm mass concrete foundation beneath the new party wall as shown on the drawings.

NB The new concrete foundation is to be excavated and poured in 1.2m sections only at any one time, to avoid undermining the adjacent property structure. Include to provide and case in 4 No. 20mm x 600mm continuity bars per section as shown on the drawings. Backfill with appropriate material and prepare ground for new floor construction."

15. On the basis of that Mr Newton has also obtained some estimates, which I have seen at bundle 2 pages 43 to 50, based on the specification and drawings. The order made on 7th February was no doubt intended to reflect, at least as far as counsel was concerned, Mrs Saunders' concerns that there might be further undisclosed costs beyond any builder's estimate. I should note also that she is apparently not satisfied with the quality of the builders. Insofar as she is not satisfied with the joint expert's approach she faces a difficulty in that he is the joint expert and at the moment the only expert. However if she wishes to question the appropriateness or reasonableness of his conclusion, no doubt it is open to her to do so; she may find it difficult to do so without obtaining her own fresh advice and seeking permission to adduce it. That is an inherent difficulty of the system of use of joint experts. It is open to her to take any one of the courses, with permission of the judge below, that I have mentioned.
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 Walls 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.
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 Walls 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 do 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.
20. In so far as Mrs Saunders' application for permission to appeal is directed against paragraph 8, I have to ask myself whether she has a real prospect of success in showing that the order made was wrong, despite the fact it was apparently consented to by her own counsel, or whether there is any other reason for an appeal to which I should give effect. To my mind, far from being satisfied of either of those things, it seems to me the order was, on the face of it, right and there is no reason for appeal.
21. I note that in a letter that appears in bundle 2 at page 100 Mrs Saunders has expressed the gravest concern about the integrity of solicitors on the other side. She thinks that this is some devious plan by the builder and his solicitor or insurers to commit her to underpinning work for which compensation could be claimed by her present neighbours. I cannot see any basis for that and I find it difficult to see what possible "compensation" could be sought anyway. If and insofar as any underpinning of the next door wall is required, that seems to be an inherent part of the present problem and something necessary in order to give effect to the repairs to the party wall and will be of benefit to the next door neighbour.
22. Mrs Saunders is quite entitled to ask the court to take into account - and I suppose this is what Mr Newton is being asked to do - the possibility that she may incur responsibility for making good damage to the next door neighbour's wall or decorations or whatever. No doubt, if and when this matter progresses, that may be a matter in respect of which she receives damages. At the moment she seems to me to be aiming at stopping the matter progressing and pursuing an appeal. I do not see any basis for that.
23. I shall refuse this application for permission to appeal. It is open to Mrs Saunders, as I have indicated, to progress this matter in a way that I think will be sensible before the circuit judge. That is what should take place.
Order: Applications refused