England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION, COMMERCIAL COURT
(HIS HONOUR JUDGE MILWYN JARMAN QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 July 2010

Master of the Rolls:

1. This is (a) an appeal brought by a defendant, the Carmarthen County Council, with the permission of Arden LJ on an issue of costs, and (b) an application for permission to appeal by claimant, Mr Graham Mainwaring, on an issue of substance, an issue of amendment, and an issue of costs, all in relation to a decision of HHJ Milwyn Jarman QC in the Swansea County Court on 8 July 2009.
2. In his judgment, the judge dismissed a claim brought by Mr Mainwaring for relief against the Council. He had issued proceedings on 8 July 2008 for damages arising from the collapse of an old stone culvert, claiming that this was the fault of the Council (or its statutory predecessor) because of works carried out to divert water by means of a diversion pipe, from one stream to another, as a result of which water coming through Mr Mainwaring's culvert destroyed the culvert. In paragraph 7 of the judgment, which followed immediately after a three day hearing, the judge identified a number of issues. They included the date on which the works were carried out, the date on which the culvert collapsed, the condition of the culvert before it collapsed, the cause of the collapse, limitation, contributory negligence, prescription and quantum.
3. He decided that the Council's works were done between April and June 1982. As for the date of collapse, in the Statement of Claim and in Mr Mainwaring's witness statement it was said to be April 2004. However, in evidence-in-chief after he had referred to the culvert collapsing, in answer to the question from his counsel, "Can you help us, can you remember what year that was?" Mr Mainwaring said 2002. He confirmed that in answer to the next question, "I ordered the pipe in February 2002 and the pipe arrived in April 2002 and by the time it had arrived the whole culvert had collapsed."
4. As to it's state before the collapse, the judge held that the condition of the culvert was such that it was in reasonable condition, although old. On the issue of the cause of the collapse, after careful analysis of the evidence, factual and expert, the judge concluded that the increased water attributable to the flow of water due to the Council's diversion work had caused the collapse.
5. There were two limitation points. The first was whether or not section 14B of the Limitation Act 1980 could be raised by the Council in relation to an allegation that the works had been negligently carried out. The judge said that it could. A second limitation point arose by amendment following the answers Mr Mainwaring had given in his evidence-in-chief (which I have quoted), and it was that the collapse had occurred more than six years before action was brought and therefore the claim as a whole was statute barred. The judge dealt with that because it had been the subject of amendment in paragraph 50 and 51 in his judgment, in these terms:

"At the end of the case, indeed at the end of his submissions, Mr Moody on behalf of the defendant had applied to amend further the defence to rely upon the Limitation Act in relation to the collapse of the culvert in 2002. He relies upon section 2 of the 1980 Act. […] This was a very late amendment application. However, as indicated, the date of the collapse had been pleaded as 2004. The October 2002 letter [this was a reference to a letter wherein it was said by Mr Mainwaring's solicitor that 'during the past ten months or so excessive amounts of water from the rubbish tip [...] has run into a brook running through the land [...] and as a result of the water has uprooted trees, causing a tree to collapse and destroying part of the boundary fence] it seems to me was sufficient to put the defendant reasonably on notice there was an arguable case on the limitation in relation to the collapse of the culvert.

The statement of Mr Mainwaring was not entirely clear. It was only when he gave his evidence, in my judgment, that it became clearer. By April 2002 that pipe which he had ordered was no longer a solution to the problem because of the extent of the collapse. Mr Mainwaring and his witnesses were clearly and squarely asked questions about the date of the collapse. Accordingly, by the end of the evidence the issue of limitation was established both factually and in terms of law. The law is clear. In my judgment, the court should strike without prejudice to another party to deal with all issues. The date of collapse which was within the knowledge of the claimant and his witnesses, and it was that evidence upon which I find that the date of collapse substantially was April 2002.

51. In those circumstances, in my judgment, subject of course to the question of costs to which I shall have to come in due course, it is proper to allow the amendment."

6. On that basis the judge found that the claim was statute barred.
7. On the contributory negligence issue, which was unnecessary, for the judge to consider in light of his conclusion on limitation, he concluded that Mr Mainwaring was liable as to 25% by way of contributory negligence.
8. On the prescription issue, he held that a prescriptive right had been obtained by the Council because there had been more than 20 years use through the running of water following the works which were done in 1982 on Mr Mainwaring's land.
9. On the final issue on quantum, the judge indicated he would have awarded some £8,400 by way of damages, very substantially less than that which Mr Mainwaring had sought.
10. In those circumstances the order that was in due course drawn up to reflect the judge's decision involved the Council having leave to amend their defence, the claim being dismissed and a declaration that the Council had a prescriptive right.
11. There was also an issue on costs which the judge decided the same day. He decided also that in all the circumstances it was right to make no order for costs. The defendant Council had won and on the face of it therefore one might have thought they should get the costs. However, they won on the basis of an amendment which was made very late, indeed into closing speeches, and therefore one might have thought that the claimant would have had his costs, or at least in light of the relatively small damages he got some of his costs, up to the date of amendment at any rate. However, on the view the judge had formed, the Council could have pleaded limitation earlier in light of what was in the October 2002 letter, but on the other hand it was by no means clear, in the light of what was in the Statement of Claim and later on in the witness statement, that the right date was 2002. The Council had good reason to think it was 2004. The facts were well known to Mr Mainwaring, not so well known to the Council. In those circumstances, the judge thought that justice would best be done by making no order for costs.
12. The Council's case is that they should have been awarded all, or at least a substantial proportion of their costs, and that is the subject matter of the appeal which was permitted by Arden LJ. It is convenient, however, to consider, before the question of costs, the two other matters which are the subject of the application for permission to appeal by Mr Mainwaring. First, he says, on a discrete point, that he should be entitled to appeal on the finding that the Council had a prescriptive right. He contends that the judge was wrong in principle because, the evidence showed that the Council had not obtained land drainage consent for the diversion work which resulted in the water passing through his land, and in those circumstances it is not open to the Council to claim a prescriptive right, because a claim based on prescription cannot be made out if founded on an illegal act.
13. I do not need to go into the merits of that point. It is considered in a number of cases, many of which were discussed in the opinions of Lord Scott and Lord Walker in Bakewell Management Limited v Brandwood [2004] UKHL 14. I am prepared to proceed on the assumption that the point, if it had been argued below and if it had been made out on the evidence to the judge's satisfaction, would have achieved the result which Mr Mainwaring contends for, namely no prescriptive right. Even on that assumption, an important point, made by the judge, is that, if possible, one ensures that all issues between the parties which can properly be raised are raised and dealt with. On this basis I consider that it is quite inappropriate for this point to be dealt with now, as it could have been raised before. There is no good reason why it was not raised below and it is quite unreasonable for it to be raised now because the evidence has all been heard and none of the relevant matters have been put to the Council's witnesses. Investigations might have been carried out which would have enabled the Council to find some evidence which supported their case. Similarly, their witness, Mr Rees, who the judge found to be impressive, might have been able to deal with the matter if he had been given notice of it. It would have been evidenced by what happened a long time ago and he might have been able to search his mind or search records to find some evidence to establish what happened. Therefore it seems to me it would be unfairly prejudicial on the Council for it to be raised now.
14. Furthermore, it seems to me, on the evidence that is available, that the probability is that the judge would have found that land drainage consent was either was obtained or unnecessary. Although the point is not open to us to be conclusively decided and indeed has not been gone into in any detail, it is accepted on all sides that the Carmarthen County Council, or its statutory predecessor who did the work, may themselves have been the land drainage authority. Even if that is not the case, as Richards LJ mentioned in argument, there is a presumption of regularity which the judge might well have relied on in the present case, particularly bearing in mind his finding about Mr Rees, who was responsible for the works, and bearing in mind that the Council had actually obtained planning permission.
15. There is also some evidence, although it does not relate directly to the question of land drainage consent, to suggest that the relevant documents relating to this work have all been mislaid or as easy to find as (and I quote from the letter from the Council) "a needle in a haystack". Accordingly, the fact that there is no documentary evidence is not to my mind of great assistance to the argument that no consent was obtained.
16. So it seems to me that this is not a point that by any means can be said to be clearly determined in favour of Mr Mainwaring on the evidence we have, and in any event, it would be unfairly prejudicial on the Council if this point was allowed to be raised at this very late stage. So I would refuse permission to appeal on that point.
17. The next point it is convenient to consider is the application by Mr Mainwaring for permission to appeal against the judge's giving of permission to the Council to amend to plead the limitation point on which they succeeded. In my judgment, that was a classic example of a judicial decision with which an appellate court should not interfere, unless satisfied that the judge reached a conclusion that no reasonable judge could have reached or took irrelevant material into consideration or failed to take relevant material into consideration. In this case, the point was made quite clearly in chief, and therefore not under any particular pressure, by the one person who knew about it, namely Mr Mainwaring, and indeed although we have a transcript of his evidence it does appear possible that there were other witnesses who gave evidence to this effect in light of the passages I have quoted from the judgment. Whether or not that is the case does not matter. The evidence was quite clear, and to my mind the judge was well within the ambit of what a reasonable judge could have done in giving permission to amend. Indeed, as my Lord, Pill LJ, observed during argument, counsel -- not Mr Burn who appears today for Mr Mainwaring -- appearing for Mr Mainwaring below could have applied to recall Mr Mainwaring to correct the evidence if, as I say, there had been any basis for doing so, and the judge, I would have thought, would have been obliged to let him do so once the application for permission to amend was made.
18. I rather suspect that the judge would not have been very impressed by an attempt to undo what Mr Mainwaring had said very clearly in chief, but that would have been a course that would have been open to Mr Mainwaring and the counsel then representing him if had wished to go back on the evidence he had so clearly given. He did not take that opportunity. In my view, therefore, to put it at its lowest, the judge was quite entitled to give permission to amend. It was a decision with which this court should not interfere.
19. Finally, that brings me to the application to appeal and the appeal itself. The judge made no order for costs. Each counsel contends that the judge should have made an order for costs more favourable to his client. In my judgment, the judge was faced with a rather unusual case where the defendant had succeeded in fighting off the claim on the basis of a point pleaded very late, where the circumstances were such that it was not by any means entirely the defendant's fault that the amendment had been late, but one could not say that the defendant was by any means blameless.
20. First of all, there was some reason to think that the damage occurred in 2002 and had been completed in 2002; in particular, there is an important letter of October 2002 to which I have referred. Secondly, as Pill LJ pointed out in argument, it is not as if the amendment was made immediately. The very clear statement I have quoted was made by Mr Mainwaring in chief on the morning of the first day, but the amendment was made late in the second day, in light of something that was said by the judge. It seems to me that that is also something which can be taken into account. To that extent, therefore, the judge was entitled to take the view that the Council was to some extent responsible for the lateness of its amendment. On the other hand, the judge was equally entitled, indeed right, to think that the question of when the claimant's culvert collapsed there was something in the particular knowledge of Mr Mainwaring, the claimant himself, and that he had very much put the defendant off the scent -- and I am not in any way suggesting that he was doing so dishonestly, I am merely saying as a matter of fact that is what happened -- when he pleaded through his lawyers, as he did in his Statement of Claim, that the damage occurred in 2004: a point he reinforced in his witness statement.
21. Different judges may have taken different views, but to my mind it was an eminently sensible and fair view to take that the right order to make was no order for costs, and for my part I would, therefore, dismiss the appeal and dismiss the application for permission to appeal.

Lord Justice Pill:

22. I agree.

Lord Justice Richards:

23. I also agree.

Order: Application refused