IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MAYOR'S AND CITY OF LONDON COUNTY COURT
(HIS HONOUR JUDGE COX)
B e f o r e :
LORD JUSTICE SEDLEY
|ROADRUNNER PROPERTIES LIMITED||Claimant/Appellant|
|(1) JOHN DEAN|
|(2) SUFFOLK AND ESSEX JOINERY LIMITED||Defendants/Respondents|
Smith Bernal Wordwave Limited
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MR VIKRAM SACHDEVA (instructed by Keoghs Solicitors (Bolton)) appeared on behalf of the Respondents
Crown Copyright ©
"... to cut into a party structure for any purpose which may be or include the purpose of inserting a damp proof course."
This was that kind of work. Section 2(5) of the Act provides:
"Any right falling within, inter alia, subsection (2)(f) is exercisable, subject to making good all damage occasioned by the work to the adjoining premises."
Section 7(2) provides:
"A building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act."
The question in this case, as in many other cases involving work carried out in respect of party walls, is whether the damage in respect of which the adjoining owner is claiming was "occasioned by" - or, put another way, "resulted from" - the work carried out. The question is one of causation.
"Q. Could you explain, please, Mr Pepper, why in the 13 years of climatic conditions ... [before] ... on 27th October 2000 these tiles had not risen conspicuously ... in the intervening period from 27th October to 30th November 2000 the climatic conditions were so either unusual, different or exceptional that it produced this dramatic explosion of the floor, bearing in mind the previous 13 years?"
As Mr Morgan was pointing out, in that questions, it was quite a remarkable coincidence that climatic conditions had led to the expansion of these floor tiles - which had previously been unaffected for 13 years since they were laid - within a few weeks of the work that had been done to the party wall, immediately adjoining them. Mr Pepper was not in a position to answer that question. But he told the judge that coincidence was simply not a forensic tool: the fact that two events occur at or about the same time is no evidence that one influences the other.
"I am bound to say that comparing Mr Pepper's view with that of Mr Blinkow there is not a great deal of difference. As Mr Pepper himself observed the cause that he assigned to it was essentially the same as the cause Mr Blinkow assigned to it, namely compression in the centre of the floor. The difference between them was the cause of that compression. When one looks at Mr Blinko's evidence, in the absence of Mr Blinko's being given any opportunity to consider the investigation that he had himself suggested, it seems to me that there is only one conclusion that the court can draw and that is that on the balance of probability Mr Pepper's view is the appropriate one."
"Coincidence is not a forensic tool, I am afraid. The fact that two events occur at the same time is not evidence that one influences the other."
Whether this is true is wholly dependent on the nature of the coinciding events: The coincidence in time, as I suggested in argument, of cracks in a building's fabric with work to the adjacent building is inconsequential, no doubt, if the work is wallpapering; not so if it is pile driving.
"(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.
(3) Where the instructing parties cannot agree who should be the expert, the court may:
(a) select the expert from a list prepared or identified by the instructing parties, or
(b) direct that the expert be selected in such other manner as the court may direct."
This was, in my judgment, a paradigm case for the exercise of the power of the court to break the deadlock by naming its own expert or by providing for a single expert to be otherwise nominated. A single expert was all that was needed to tabulate the possible causes of the damage. If the defendants were then to persuade the judge to prefer atmospheric causes, they needed to add some meteorological evidence of the kind that is routinely available. If the claimant was to clinch the case that the Kango hammer was the cause, it might have done well to obtain some evidence of the hammer's capacity. But in the absence of either of these things, I agree that the balance of probabilities came down firmly on the claimant's side, especially if one adopts, as I respectfully do, the approach to the evidence commended by my Lord, Chadwick LJ, in the absence of a party wall notice.