England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE YORK COUNTY COURT
Mr Recorder Tim Kerr QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/05/2016

Lord Justice Floyd:

1. This is an appeal from the decision of Mr Recorder Tim Kerr QC dated 10 September 2013 by which he awarded damages of £4227.88 plus interest to the claimants, Mr and Mrs Van Dijk ("the Van Dijks"), in their action for nuisance arising from alleged unlawful interference with their use of a common private drain shared with the first defendant, Mrs Court. Whilst it has no bearing on the issues which we have had to decide, it is a regrettable feature of this case that the litigation continues only because of the enormous sums in costs which are at stake. It is said that Mrs Court now faces a costs bill from the other parties of some £220,000. Mrs Court has herself expended very large sums on her own costs: we were told that they were some £89,000 . We do not know where the blame lies. Nevertheless, the adjective "disproportionate" is wholly inadequate to describe the combined expenditure on resolving the question of who pays a £4,000 bill.

The facts

2. The Van Dijks and Mrs Court live in adjacent properties, numbers 12A and 12B respectively, in New Walk Terrace in York, a terrace of houses built in the 1820s or 1830s. 12A is to the east and 12B is to the west. The private drain in issue runs below the surface of the back yards of the two properties and was originally accessed from each property by individual private vertical gullies each connecting to the transverse private drain. The direction of flow in the private drain was an issue between the parties at the trial. At this stage it is sufficient to point out that the ground sloped downwards generally from east to west towards the River Ouse, and that an abstract of title dated 15 July 1840 provided that the occupants of the dwelling (either what is now 12A or what is now 12A and 12B):

"should at all times … have the use and advantage of a continuing drain then running throughout under the yards of the several houses in the said terrace into the River Ouse…".

3. In the 1890s or later a public sewer was constructed parallel to the River Ouse, at the western end of New Walk Terrace.
4. Mrs Court bought 12B together with her then husband in 1999. They decided to move the kitchen to the basement. In the course of renovation work they discovered that the private drain was cracked and leaking. At the time the private drain received rainwater from the front roofs of 12A and 12B which passed under 12A and possibly also waste water from the kitchen of 12A, then located on the first floor.
5. For the purposes of her renovations Mrs Court employed a builder, a Mr Butt. In early 2000 Mr Butt did work on the drains. He replaced the part of the private drain running under the rear yard of 12B with a plastic pipe, starting near the boundary with 12A. He connected that new plastic pipe to a gully in the rear yard of 12B, to allow rainwater to flow into the plastic pipe. In order to take outflow from a new basement kitchen, he also laid a new pipe directly to the public sewer, thereby bypassing the private drain. Mr Butt also capped off the private drain at a point under the rear yard of 12B towards its western end. There was no direct evidence of why this was done. I will refer to the works done in 2000 as "the 2000 works". The full extent of the 2000 works, and in particular the capping off of the private drain, did not become apparent until after these proceedings had commenced, and the first round of pleadings closed.
6. At the time of the 2000 works, 12A was owned by Mr and Mrs Addison. There was no evidence that the 2000 works caused any drainage problems either at 12A or at 12B. In 2005 the Van Dijks purchased 12A and started their own renovation works. They also moved their kitchen to the basement, so that waste water from the kitchen, which housed a dishwasher and washing machine, all drained into the private drain.
7. In about July 2006 Mrs Court noticed water flowing out of the top of her gully in the rear yard of 12B. Mrs Court contacted the second defendant, the City of York Council ("the council"), whose investigations proved inconclusive. In November 2006 Mr Van Dijk suggested to Mrs Court that they should share the cost of investigating and curing the drainage problem, but Mrs Court declined this offer, saying that she had already incurred costs on her side with the council investigations.
8. In 2007 Mrs Court arranged for a dye test to be performed by an officer of the council. Dye placed in the drain in the yard of 12A surfaced in the water percolating upwards through the gully in the yard of 12B. Mrs Court discussed the problem with a Mr Collins of the council, saying that she wanted the grey water rising up through her gully to be stopped. She wrote a note to the council which reflected advice which she had been given by Mr Collins, and which included the instruction "to cap off the entrance in the rainwater pipe between 12b and 12a and lay a new pipe". For emphasis she wrote in manuscript on her typed note: "Important – 12A to be capped off!!". The recorder found that Mrs Court was not of a technical disposition, and relied on the council for advice as to what needed doing to stop the flow of water into her yard.
9. The council duly attended at 12B on 8 October 2007 as private drainage contractors. They removed the connection between Mrs Court's gully and the private drain, and installed a "sleeve" pipe to connect the two ends of the private drain where the pipe they had removed had formerly connected the private drain to the gully. The council also diverted Mrs Court's gully to the new kitchen drain which had been installed in 2000. Thenceforth, 12B made no use of the private drain. I will refer to the works carried out at 12B in 2007 as "the 2007 works".
10. There was heavy rainfall on the night of 8 to 9 October 2007, and the Van Dijks noticed that water was flooding into the rear yard of 12A. The flooding problems continued until 2010, when remedial work re-routed the outflow from the Van Dijk's kitchen to the public sewer, as Mrs Court had done for 12B. The cost of that work formed the modest subject matter of the claim.
11. The Van Dijks instructed a Mr James Taylor to produce a first report dated 19 May 2009. Mr Taylor wrote his report on the basis of instructions from Mr Van Dijk. He did not excavate the site. His report concluded that Mrs Court and the council were liable to the Van Dijks for what had happened. However his report included the following:

"3.10 I understand that Mrs Court instructed [the council] that she required the drain from your property to be capped off, ie not to be included in her alteration, and all upstream discharges from your property and any beyond and hence to the public sewer in New Walk were to be extinguished."

12. It is hardly surprising, in those circumstances, that Mr Taylor reached the conclusion that he did.
13. The Van Dijks brought this claim in July 2011 alleging nuisance against Mrs Court only, by capping off 12A's access to the private drain by the 2007 works. Mrs Court denied nuisance and made a claim over against the council as Part 20 defendant on the basis that, if the claim against her in nuisance should succeed, the council had failed to carry out the 2007 works in a good and workmanlike manner.
14. Mr Taylor produced a second report dated 31 January 2011 which was served with the particulars of claim. This report again assumed that the council, acting on Mrs Court's instruction, ""capped off" the private drain which severed the flow from the Claimants' property to the public sewer in New Walk." Mr Taylor also asserted that "the alterations at 12B have resulted in the drainage at 12A having no available outlet to the private drain." The report also included the passage from Mr Taylor's first report which I have quoted above.
15. The council and Mrs Court jointly instructed a Mr Stark as their expert to review the documents supplied to him. Working on the now common assumption that the flow was from east to west, i.e. from 12A to 12B, he concluded in a report dated 16 November 2012 that "the cause of flooding [at 12A] is an as yet undiscovered blockage or collapse in the drain downstream of 12B". Thus, once the council had blocked off Mrs Court's gully, the water from 12A's kitchen emerged in 12A's gully because it could no longer escape onto Mrs Court's land.
16. A joint expert report of Mr Taylor and Mr Stark was produced dated 4 January 2013. It was plain that at that stage the facts were materially in dispute. The joint report recorded that Mr Stark considered that, following the work by the council, the private drain was still blocked and the water emerged from the claimant's gully only because it could no longer escape onto Mrs Court's land. Mr Taylor was recorded as considering that the council had also severed the private drain at the point where it crossed the boundary from 12A to 12B, thus effectively blocking drainage from 12A. Mr Stark disagreed.
17. With the case approaching trial, further excavations and observations of the drain took place. These revealed a soft blockage under 12A and a hard blockage under 12B about 1.8 m to the west of Mrs Court's gully, and therefore still on Mrs Court's land. On 17/18 May 2013 a CCTV camera was placed in the drain and confirmed the existence of the blockage, just short of a manhole on 12B.
18. The discovery of this hard blockage led to an application by the Van Dijks to amend their claim which was granted on 23 May 2013 with consequential permission to amend the defences together with a direction to the experts to revisit their conclusions and produce a further joint statement, all in time for trial. The Van Dijks also applied and were given permission to bring a direct claim against the council.
19. On 4 June 2013, when the private drain was fully excavated, it was discovered that the hard blockage was a sealed cap on the private drain which, as the experts agreed, must have been installed by Mr Butt as part of the 2000 works.
20. The experts produced a further joint statement on 8 July 2013, three days before the start of the trial. Mr Stark now suggested for the first time that the private drain must have run from west to east and not from east to west as everyone had previously assumed. Thus the cause of the flooding, according to Mr Stark, must have been an undiagnosed blockage to the east of 12A. The claimants' expert, Mr Taylor, disagreed and remained of the opinion that flow was from east to west.

The Pleadings

21. The Van Dijks' original particulars of claim alleged that during the 2007 works the "private drain that served the Claimants' property at 12A was 'capped off' and thus no longer had an outfall into the public sewer". The action of Mrs Court's contractors during the 2007 works in "capping off" the Van Dijks' private drain "was a nuisance for which the [Van Dijks] hold [Mrs Court] liable for she instructed the contractors 'to cap off 12a'".
22. Mrs Court's defence was served on 12 August 2011. It was to the effect that the 2007 works had been done by the council, who had not at that time interfered with the private drain, but had merely blocked off the gully at 12B in order to prevent water from 12A discharging through her gully and onto her land. She contended that she was not liable for any act of the council, who were independent contractors.
23. In their reply, dated 18 April 2012, the Van Dijks alleged that the 2007 works:

"served in fact to disconnect the drain from the public sewer with the effect that the foul and surface water discharge from both the Claimants [sic] and Defendant's property that had formerly passed through the Defendant's property and thence connected into the public sewer was blocked off with the inevitable back-up and flooding of the Claimants' property."

24. In her claim for an indemnity against the council, which she made in November 2011, Mrs Court recounted the allegation made by the Van Dijks against her that the 2007 works had involved capping off a drain which served 12A such that it no longer had an outfall into a public sewer. If this was so, then Mrs Court sought an indemnity from the council in respect of any liability which she might have to the Van Dijks. The council responded that, in the 2007 works, they removed Mrs Court's connection to the private drain, thereby preventing effluent from coming back up into the gully but contended that at no time did they interfere with or do anything to interfere with the flow of effluent through the private drain.
25. The amended particulars of claim were served on 24 May 2013, pursuant to an order of HHJ Saffman dated the previous day. So far as the claim made against Mrs Court was concerned, the Van Dijks continued to assert that the 2007 works "resulted in effectively 'capping off' the Claimants' private drain". A case was now added directly against the council. It alleged that the council owed the Van Dijks a duty of care in the event that they had not been following Mrs Court's express instructions to cap off the private drain. The work they carried out "had the immediate and foreseeable effect that the waste and water flowing down the drain from 12a (including 12b's front roof surface water) was permanently 'capped off' in that it could no longer connect into the public sewer." There was no reference to the hard blockage under 12B.
26. In a response dated 26 June 2013 to a request made by the council under CPR part 18, the Van Dijks alleged that:

"in carrying out the works the [council] caused or permitted a combination of mud; cement and soil to enter into the private drain upstream from the former connection of the gully into the private drain so as effectively to block the private drain."

27. The Van Dijks gave more information about their claim, all of which made it plain that the allegation being made was that the council's workmen had blocked the drain between 12A and 12B.
28. Accordingly, as the case moved towards trial, and despite an opportunity to amend the pleadings in the immediate run-up to trial when the location and nature of the hard blockage were known, there was no reliance by the Van Dijks on the hard blockage or the 2000 works. Their case remained that the 2007 works had prevented 12A waste water from having an outfall to the public sewer.

The trial

29. Counsel for the Van Dijks did not produce a skeleton argument for the trial. Counsel for Mrs Court sought clarification, before any evidence was called, as to the nature of the case against Mrs Court, and in particular whether it was stoppage of flow from 12A into 12B by the council's work in capping off. Similar enquiries were made on behalf of the council. Counsel for the Van Dijks responded by pointing to the existing pleadings, including the allegations made against the council about capping off the private drain.
30. Mrs Court's counsel made his closing speech before counsel for the Van Dijks, referring to the fact that there was no pleaded reliance on the 2000 works. In his final speech, however, counsel for the Van Dijks put his case on the basis of the 2000 works in combination with the 2007 works.

The judgment of Mr Recorder Tim Kerr QC

31. The recorder considered that there were two species of nuisance relevant to the present case. The first was where there was a substantial interference with an easement of drainage. The second was where there was a use of land which foreseeably caused damage to a neighbour's land. He accepted however that there was no liability in nuisance where reasonable user of a person's land causes flooding to adjacent land. The owner of the adjacent land is not obliged to receive the water and may erect barriers or pen it back, provided that in doing so his user of his land is reasonable, objectively speaking. These propositions were derived from the decision of Piers Ashworth QC sitting as a deputy High Court judge in Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339. None of the parties to this appeal challenged these propositions. However the recorder held that these propositions did not apply in a case in which an easement "is in play".
32. The recorder held that the direction of flow in the private drain was, as the Van Dijks contended, from west to east. Dealing with the first species of nuisance, he dismissed as unrealistic an objection by Mrs Court that the pleaded case against her did not rely on the 2000 works. The works relied on, the 2007 works, were performed against a factual background of a suspected pre-existing blockage downstream of both 12A's and 12B's gully. He held that the substantial interference occurred in 2007. Until then, the interference with the private drain was not substantial. The substantial interference occurred in 2007 when the gully was blocked off. The Recorder rejected the suggestion that the failure to amend the pleadings when the exact nature of the blockage was discovered had led to any unfairness to Mrs Court. Mr Butt had been a material witness as had Mr Court, Mrs Court's ex-husband. He said:

"… the works done in October 2007 rendered toxic the work done by Mr Butt in 2000, making patent the already latent blockage of the private drain under 12B."

33. The recorder also found that the second species of nuisance was made out. He found that Mrs Court ought to have known that the consequence of the 2007 works was likely to cause flooding to the Van Dijks' property. It was no answer to say that she did not think about this at the time. The ultimate cause of the flooding was the contractor's work in 2000.
34. The recorder dismissed a defence of Mrs Court - the independent contractor defence - by which she maintained that, as the council were independent contractors, she was not liable if their work had caused actionable loss to the Van Dijks. This was because the 2007 works were by their very nature likely to cause damage to the Van Dijks.
35. The recorder also dismissed Mrs Court's claim for an indemnity against the council, largely because the council was not obliged to advise Mrs Court as to the possible harm to 12A's drainage. He also dismissed the Van Dijks' claim in negligence against the council because it was not fair and reasonable to impose a duty of care on a third party in these circumstances. There is no appeal from that last aspect of the recorder's conclusions.

The appeal

36. The recorder gave Mrs Court permission to appeal against the dismissal of the independent contractor defence. Aikens LJ gave permission to appeal on three further grounds by order dated 17 October 2014. The grounds of appeal are therefore the following:

Ground 1, procedural irregularity: the recorder ought not to have permitted the Van Dijks to rely on the 2000 works.

Ground 2, wrong factual finding: the recorder's finding that the direction of flow in the private drain was from east to west was not reasonably open to him.

Ground 3, independent contractor: The recorder was wrong to find that the 2007 work involved some special risk, or was by its very nature likely to cause damage.

Ground 4, indemnity claim: The recorder had been wrong to dismiss Mrs Court's indemnity claim against the council.

37. Significantly, an attempt to rely on further evidence concerning the direction of flow was disallowed by Aikens LJ after an oral hearing.

The Law

38. As I have already indicated, there was no dispute as to the existence of the two species of nuisance identified by the recorder. Under the first species it is important to bear in mind that it is the interference with the easement of drainage which gives rise to the actionable nuisance. It is therefore necessary to identify the easement with precision. In the present case the owners of 12A had an easement through the common private drain. They had no general right to discharge waste water from their kitchen onto their neighbour's land. They had no easement to discharge water onto Mrs Court's land, through her gully.
39. In relation to the second species of nuisance, it is common ground that unreasonable use of land is an essential ingredient of the tort. As the recorder held, the owner of adjacent land is not obliged to receive water from his neighbour, and may erect barriers and pen it back, provided that in doing so his user of his land is reasonable: Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339. These propositions were not disputed before us.

Discussion

40. Mr Walker submitted that it was not open to the judge on the state of the pleadings to find either of the two types of nuisance established. As to the first type, the only factual case pleaded against Mrs Court was one based on what the council did in 2007: the 2007 works. No other case was pleaded or opened at the trial. However, the 2007 works had not interfered with any right of drainage possessed by the Van Dijks. They had no easement of drainage via Mrs Court's gully onto her land. Mrs Court, and the council, were involved in nothing more than restricting the outflow from 12A to prevent it coming onto her land through that gully. The only right which the Van Dijks had was to discharge water through the common private drain. By removing the connection to the gully and replacing it with a sleeve the council had not interfered in any way with that right. The judge should have accordingly dismissed the action.
41. Mr Walker submitted that the recorder's decision to make findings on the basis of the 2000 works had resulted in procedural unfairness. It would have been possible for Mrs Court to call Mr Butt to explain the 2000 works, and to join him as a third party (as she had joined the council in respect of the 2007 works), and plead an independent contractor defence.
42. As to the second way of putting the case in nuisance, Mr Walker submitted that the judge had failed to ask whether the action taken by Mrs Court in 2007 was objectively reasonable. The judge had directed himself solely to the question of foreseeability of harm. Action which is objectively reasonable may nevertheless involve foreseeable harm. Mrs Court's desire to prevent waste water flowing into her back yard was not objectively unreasonable, and the action taken on her behalf by the council in securing that end was also reasonable.
43. Mr Shaw for the Van Dijks submitted that the recorder had been justified in making findings on the basis which he did, for the reasons which he gave. The Van Dijks' case had always been one in nuisance. Their case had never changed although the evidence in support of it had changed. It had not been necessary to amend the pleadings as Mrs Court had not suffered any unfairness. It would have been possible for her to have called Mr Butt, or to have joined him in the proceedings, or even to sue him after judgment had been given. As to the second species of nuisance, the judge had been entitled to find that Mrs Court's user of her land was unreasonable.
44. I have no hesitation in preferring Mr Walker's submissions on these issues. The case in nuisance pleaded against Mrs Court was not a general case in nuisance, as Mr Shaw submits, which left the Van Dijks free to put together any case which they chose on the basis of the evidence which emerged at the trial. It was a specific case of nuisance based on the intervention by the council in 2007. When it emerged in the period March to June 2013 that the private drain had, since 2000, been blocked, the pleaded factual case against Mrs Court based on obstruction of the drain by the 2007 works had to fail. Despite having the opportunity to amend their pleadings to rely on the 2000 works, the Van Dijks did not do so. Instead they continued to rely and rely only on the 2007 works.
45. Unlike the recorder, I do not regard the submission made by counsel for Mrs Court at the trial to this effect as unrealistic. On the contrary, I do not see the answer to it. The reality is that the case ultimately accepted by the recorder depended crucially on holding Mrs Court responsible for Mr Butt's work in 2000. It is true that it had been suggested by Mr Stark that there was an undiagnosed blockage, downstream of both gullies. This does not, however, even begin to put Mrs Court on fair notice of a case against her based on the 2000 works, when no such case has been pleaded.
46. The recorder also considered that the 2000 works did not, and the 2007 works did, constitute the substantial interference with the Van Dijks' right of drainage. I do not see how this can be so. The 2000 works were the only interference with the right of drainage. It may well be that no damage occurred as a result of that interference, as Mrs Court's gully was functioning as a relief for the Van Dijks' water. That does not turn the 2007 works into an interference with the drainage right. I do not think it helpful to say that cutting off the gully "renders toxic" the earlier latent nuisance. This is to recognise that the interference was caused by the 2000 works, which were never part of the pleaded case of interference.
47. I also do not think that the recorder's findings can be justified on the basis that Mrs Court has suffered no unfairness by the failure of the Van Dijks to plead their case. Given the way in which the case was actually pleaded and opened, Mrs Court was entitled to assume that the case against her was based on the 2007 works. The Van Dijks were not seeking, by that case, to place responsibility for the 2000 works on Mrs Court. There was accordingly no reason for her to seek to pass on responsibility to Mr Butt, as she undoubtedly would have done in other circumstances. Given that Mrs Court had a perfectly satisfactory defence to the claim based on the 2007 works, I see no reason why she should have called Mr Butt or Mr Court, even if their evidence might have had some relevance on the existing pleaded case. The shift in the defendant's case, of which Mrs Court had no proper warning, was what made their evidence essential.
48. I turn to the alternative way of putting the case in nuisance. The first task is to identify what is said to be the unreasonable use of Mrs Court's land. Insofar as the recorder treated the unreasonable use as being the combination of the 2000 and 2007 works, his findings suffer from the same procedural flaw as affected the first way of putting the case. The pleaded case did not even mention the 2000 works.
49. It is conceivable that the recorder regarded the disconnecting of Mrs Court's gully in 2007 as itself constituting an unreasonable use of her land which she could foresee would damage the Van Dijks. Such a case would not depend specifically on holding Mrs Court responsible for the 2000 works, although one needs to bear in mind that the disconnection occurred against the background that there was some probably some form of blockage affecting the flow in private drain somewhere downstream of 12B's gully.
50. If this is indeed how the recorder saw as established the alternative case in nuisance against Mrs Court, I consider that he was wrong to do so. The disconnecting of Mrs Court's gulley was a reasonable step to take to "pen back" the flow of water onto her land. That is the case whether or not, as the recorder held, it was foreseeable that the Van Dijks' water would then remain on their land. They had no right to discharge their waste water through Mrs Court's gully.
51. I also disagree with the recorder that the principles which he derived from Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339 should be disapplied to this aspect of the case because an easement was "in play". It is obviously correct that where the servient landowner interferes with a right of drainage, he cannot claim that all he has done is reasonably to pen back the flow of water. The Van Dijks' case on the second type of nuisance does not involve the penning back of water which is flowing along the private drain in exercise of the right of drainage. It involves instead the penning back of water which is flowing out of the drain, up the gully and onto Mrs Court's land. There is no sense in which an easement is in play. I think that the recorder fell into error here, an error which led him to fail to take account of the fact that Mrs Court was doing no more than penning back the flow of water onto her land, which water she was under no obligation to receive.
52. In my judgment, once matters are analysed in this way, the 2007 works did not cause an actionable nuisance. Mrs Court was doing no more than penning back the water emerging from her gully. That use of her land was not unreasonable even if she knew, as she did, that the water would emerge in the Van Dijks' back yard.
53. For these reasons I consider that the first ground of appeal succeeds.
54. We also heard argument on the other grounds. I would record that we did not call on the respondents on ground 2, which was an appeal against the recorder's finding of fact on the direction of flow in the private drain. That was because we considered that there was a proper basis for the recorder's finding as to the direction of flow, not least in the terms of the 1840 abstract of title, and the general lie of the land down to the public sewer running parallel to the River Ouse. Mrs Court's independent contractor argument was conditional on a finding of liability against her, as was the claim for an indemnity against the council. These issues raise difficult points which I would prefer to decide in a context where they are necessary for the decision. My judgment should not therefore be read as giving approval to the way in which these issues were disposed of at trial.
55. It follows that I would allow the appeal. I would substitute for the judge's order against Mrs Court an order dismissing the claim against her.

Lord Justice Sales

56. I agree.