England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SOUTHEND COUNTY COURT
(HIS HONOUR JUDGE YELTON)

		Royal Courts of Justice Strand London, WC2
		19th July 2006

1. SIR MARTIN NOURSE: This is a renewed application for permission to appeal on a question of costs, permission having been refused by Sir Christopher Staughton on consideration of the documents on 23 June 2005. The original claimant was Barbara Murphy, but sadly she died from causes unrelated to the subject matter of the action before it came to trial and her widower, Colin Murphy, was substituted as claimant in her place. The defendant is Countryside in Partnership Plc, which in the summer of 2000 carried out building works on Mr and Mrs Murphy's home at 42 Ravenscourt Drive, Basildon, in Essex. They held that property as tenants of a housing association, and the works were carried out pursuant to a contract between the association and the defendant.

2. In order to deal satisfactorily with this application, it is necessary to set out a good number of the background facts. The integral garage forming part of Mr and Mrs Murphy's property had a flat roof with asphalt covering over concrete planks, resting on a concrete ring beam which was supported by the walls. If water penetrated the asphalt covering, it could permeate through the gaps between the concrete planks and thus into the garage below. The housing association contracted with the defendant to carry out works of refurbishment not only to Mr and Mrs Murphy's house but to a large number of neighbouring properties of similar design. In general terms, the refurbishment programme involved replacing the flat roofs of the garages with pitched roofs and also moving the kitchens into what had been the garages.

3. In the Murphys' case, however, it was decided that owing to Mrs Murphy's physical disability, in particular a serious asthmatic condition, the garage should be used as her bedroom. Accordingly, Mr Murphy converted the garage into a living room. He did not plasterboard the ceiling but painted over the concrete planks. The defendant then battened the ceiling and placed on the battens sheets of plasterboard. The position was that by July 2000 the defendant had erected scaffolding around the garage in preparation for the external roof works which were required.

4. I take up the story in the words of the trial judge, HHJ Yelton, reading from paragraph 11 of his judgment:

"(E) The weather reports (p452) indicate that there was considerable rainfall on both 8^th and 18^th August 2000 and I am prepared to accept that the ingress occurred as a result of one or other of those downpours. Mr. Murphy solved the problem by the application of roof sealant.

"(F) In late August or early September 2000 roofing subcontractors working on the instructions of the defendant cut a groove through the asphalt covering in order to provide an anchor point for a plate to which was to be attached the timber frame for the new roof. They used a hammer and chisel to do that.

"(G) On 15^th September 2000 there was an extremely heavy rainfall. The weather charts show that 42.6 mm of rain fell on that day, which was the heaviest rainfall of the year and more than had fallen in the entire month of June or of July.

"(H) On 16^th September 2000 at about 3.30am there was a considerable influx of water through the plasterboard roof of the garage, which resulted in the deceased and her bed being soaked.

"(I) At about 7.30am the claimant telephoned the housing association to report the leak.

"(J) Mr. Murphy then placed a tarpaulin over the roof.

"(K) As he was coming back into the house after having set out the tarpaulin, part of the ceiling came down and landed on Mrs. Murphy. In particular a substantial piece of plasterboard hit her and caused her to suffer personal injury."

5. All that happened in the summer of 2000. In January 2004, Mrs Murphy commenced proceedings in the Doncaster County Court, later transferred to the Southend County Court, claiming that her injury had been caused by the negligence of the defendant in carrying out the works. The trial took place before Judge Yelton on 30 and 31 March 2006, his reserved written judgment being handed down on 19 April. In giving judgment, the judge said at paragraphs 14 and 15:

"When the irrelevancies are stripped away and the focus shifted to the underlying facts, it becomes clear that there is only one issue in the case, namely whether … the defendant's subcontractors allowed water penetration by cutting the groove through the asphalt."

6. In answering that question the judge said, paragraphs 20 to 22:

"20. I am unable to find on the balance of probabilities that the water penetration was attributable to any fault on the part of the defendants or their subcontractors (if they were indeed liable for the latter's negligence). It seems to me unlikely that the membrane was not put on or was not put on properly in circumstances where anyone attaching the plate to hold the roof structure would appreciate that that was the position and where there was a system of inspection.

"21. On the other hand, the fact that there was a very heavy downfall indeed on a time expired roof which was likely to leak seems to me a far likelier explanation for what occurred. It was indeed in my judgment a coincidence that that monsoon like rainstorm occurred at the same time as the work was being carried out.

"22. I therefore dismiss the claim."

7. Some judges would not at that stage have said anything about costs. However, the judge continued in paragraph 23:

"I have been harsh about the conduct of this litigation by the defendants and even their defence obscures, rather than clarifies, the issues. My provisional view is that in the circumstances described, there should be no order as to costs."

8. The judge's reference to harshness was the criticisms of the defendant he had made earlier in his judgment, in particular in paragraphs 2 and 3. After the hand down, he heard argument on costs and then delivered a short further judgment in which, having expressed the view that the defendant had behaved in a wholly unreasonable way and having repeated his main criticisms of that behaviour, he continued:

"If the court decides to make an order about costs the general rule is that the unsuccessful party would be ordered to pay the costs of the successful party -- there is no getting away from that. But the particular circumstances in this case, including the conduct of all the parties -- particularly the conduct of the defendant which I have set out shortly -- and the matters set out in 44(3), (4) and (5) (which I have dealt with sufficiently in my written Judgment) mean that in my view there should be no order as to costs and that is the order I make."

9. On this application the defendant has been represented by Mr Morley, who did not appear in the court below. He has put in a full skeleton argument, identifying the five major criticisms made by the judge of the defendant's behaviour. Mr Morley submits that the criticisms were an inadequate basis for taking the extreme step, as he would put it, of depriving a successful defendant of all its costs. Mr Morley might, I think, accept that there could have been a basis for depriving the defendant of part of its costs, though he would say only a very small part. While Mr Morley is no doubt correct in saying that it was a strong thing for the judge to deprive the defendant of all its costs, it must also be said that it would be a strong thing for this court to interfere with a judge's discretion on a question of this kind.

10. Nevertheless, having considered the matter with care, I have come to the conclusion that Mr Morley has made out an arguable case for an interference with the judge's decision by this court; in other words, that the defendant would have a real prospect of success on an appeal. On that footing it is neither necessary nor desirable that the individual criticisms should be investigated at this stage.

11. I would grant the defendant permission to appeal.

12. LORD JUSTICE AULD: I agree. Permission is therefore granted.

Order: Application granted.