England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 February 2004

Mr Justice Eady:

1. On 19 January 2004 I heard an appeal from a judgment given on 14 August 2003 following a trial in the Plymouth County Court. Permission to appeal was given by Coleridge J on 26 November last year.
2. There was a somewhat unusual dispute between counsel as to whether this appeal should be regarded as a review or re-hearing. Nowadays, of course, such appeals are limited to review in most cases. The circumstances in which a re-hearing can take place are defined in CPR Pt 52.11(1). It is provided that every appeal will be limited to a review of the decision of the lower court unless –

(a) a practice direction makes different provision for a particular category of appeals; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.

3. The suggestion made on the Claimants' behalf by Mr Telford was that, in giving permission on 26 November, Coleridge J had directed in effect that there should be a re-hearing. It does not seem to me, however, that this submission is consistent with the wording of his Lordship's order which, insofar as it was relevant, was in the following terms:

" The matter is to be listed for argument only, with a time estimate of 2 hours 30 minutes on a date to be fixed before a High Court judge".

4. Mr Telford submitted that I should come to my own conclusions on the evidence in the bundle and, in particular, on the basis of the experts' reports and the transcript of those witnesses who gave oral evidence (the experts were not in that category). I saw no reason to treat this appeal as being so "unusual" as to justify a re-hearing: see e.g. Asiansky Television plc v Bayer-Rosin [2002] 2 CPLR 111. I concluded, therefore, that if either of the relevant conditions set out in CPR Pt 52.11(3) was fulfilled the appropriate order would, unfortunately, need to provide for a re-trial.
5. The relevant conditions for allowing an appeal are either that the lower court was "wrong" or that the decision was "unjust because of a serious procedural or other irregularity in the proceedings in the lower court". Although an appellate tribunal may draw any inference of fact which it considers justified on the evidence, I could only be in a position to substitute my own decision for that of the learned Recorder if the material facts were agreed or uncontested, or if he had clearly erred in finding a fact or in drawing an inference. That is not truly the position here. The conflicting evidence of the experts was not tested by cross-examination and the differences between them therefore remained unresolved. Moreover, the transcript of evidence and, in particular, the evidence of Mrs Ball is not as clear as it might be – not least because there were numerous occasions when her sentences remained incomplete because of interruption from the bench. (Neither counsel sought to make serious criticism of the learned Recorder in this respect, since it was recognised that he was doing his best to get to the heart of the matter. The hearing took place between approximately 11 a.m. and 6.15 p.m. on a busy and warm day when there were a number of interruptions because of other pressing matters.)
6. The claim was brought by Mr and Mrs Ball, who are tenants of the Plymouth City Council in a flat at number 29 Valletort House, Union Place, in that city. The tenancy began in 1996. The Claimants sought remedies in respect of the consequences of dampness in the property and reliance was placed, variously, on an implied term of the tenancy agreement, s.11 of the Landlord and Tenant Act 1985, and/or s.4 of the Defective Premises Act 1972. They claimed damages and specific performance.
7. The principal dispute was conveniently highlighted in paragraph 5.3 of the defence:

"Any dampness that it (sic) is found in the property, to which no admission is made, is caused by condensation which is not as a result of any defect in the structure and/or exterior of the building. Such condensation being caused by the Claimants using the property in an un-tenant like manner".

8. In the course of the trial and in the light of Mrs Ball's evidence especially, Mr Cornford properly conceded that any criticism of the Claimants' usage of the premises would be quite unjustified. It was therefore made clear, by implication, that it would not be appropriate to pursue the last sentence of paragraph 5.3 of the defence (cited above).
9. By the end of the hearing, when the learned Recorder came to give his ex tempore judgment, the essential issue for him to resolve was whether or not the Claimants had succeeded in proving, on a balance of probabilities, that the undoubted dampness problem from which they suffered had been caused by an actionable defect in the structure or exterior of the building; that is to say, rather than any inherent design problem, or by poor ventilation, or by the moisture created by the ordinary incidents of everyday life (such as e.g. intermittent central heating, cooking, bathing, etc.). The matter was bound to turn, therefore, largely on the evidence of Mrs Ball and the expert surveyors and how it was to be interpreted.
10. Mr and Mrs Ball complained of cold and damp. The property was said to have been smelly and unsightly, the damp walls making it impossible to have any lasting impact through decorating internally at regular intervals. Mrs Ball described how she had to run a dehumidifier to help reduce the condensation. She said that it was "… one large smelly, expensive, damp place to live in". It has apparently affected her children's health, and she has also incurred some £3000 of expenditure through repeated but ineffective redecoration and damaged items of property.
11. More detail was given as to the situation throughout the two bedroom flat. In every room there was a similar problem of condensation and black spot mould together with loose plaster or blown tiles.
12. There was an expert report from Mr Michael Redmond for the Claimants and one from Mr John Byers for the City Council. Mr Redmond's opinion is stated succinctly, if somewhat sweepingly, on page 5 of his report:

"Condensation occurs as a result of a combination of four factors namely, inadequate insulation, inadequate ventilation, inadequate heating and excessive moisture vapour leading to a relative humidity. Certain combinations of these factors can lead to parts of the building fabric cooling sufficiently to prompt moisture laden air in the immediate vicinity to condense. Regular occurrences allow mildew growth to occur on the building fabric and 'condensation dampness' is commonly experienced.

The combination of the four influencing factors causing condensation usually results from inherent defects in the property, disrepair to the property and/or usage of the property or any combination of the three. In this case, in my professional opinion, based on the evidence specified in the Scott Schedule, condensation is occurring as a result of excessive moisture production due to damp penetration through the external walls which is damaging internal plaster finishes.

This defect is, in my professional opinion, classed as disrepair of the property and disrepair is estimated to be causing all of the condensation which is actionable under Section 11 of the LTA 1985.

The guttering to the front and rear roof slopes is blocked and leaking to joints and requires clearing and an overhaul.

Generally the property is suffering from insufficient historic maintenance and repairs undertaken recently have contributed to the property's poor state of repair due to the quality of workmanship and materials used".

13. Unfortunately there was little by way of particulars to support the general assertion that the root cause of the moisture problem was "damp penetration through the external walls". Obviously, since neither expert gave oral evidence, there was no room at trial for elucidation.
14. Mrs Ball could only do her best to assist the court by explaining what she could see and the steps she took internally to remedy the dampness. She was unable to throw light on any particular defects of structure or external walls and, as she fairly pointed out, it was not her function to do so, since she was not an expert. The Recorder was understandably inclined to accept all her evidence, so far as it went.
15. The case mounted on the Claimants' behalf lacked not only specificity but also clarity. Various possible causes were explored in the course of the hearing but it is clear from the judgment that ultimately nothing was done to button down the chain of causation, so as to persuade the judge that the Claimants' burden of proof had been discharged.
16. Reference was made to external walls, leakage around windows, and signs of dampness around the flat roof timbers above a dormer window. There was also an allegation about a crack in the chimney and the possible consequences of blocked guttering, which undoubtedly does seem to have been severely obstructed by grass or other vegetation.
17. Mr Byers told the court (through his report) that he could find no reason why water should be penetrating the external walls. He thought that a long-standing problem of water ingress to the flat roof timbers had been overcome by repairs carried out in November 2000. There was, however, no evidence to show that this played a significant part in the general dampness problem prior to that time or that any significant change had taken place following the repairs. Mr Byers was unable to find any black mould growth, but this was not especially surprising since the flat had been redecorated after Mr Redmond's report was prepared. This unhappy circumstance did nothing to assist the court in resolving the differences between the two reports.
18. Mr Byers also pointed out that the external walls of the premises do not meet current insulation standards, and that this is a common problem which can lead to water vapour generated internally condensing on the internal surfaces of external walls.
19. Mr Byers was also unable to find any evidence to justify the works recommended Mr Redmond in relation to hacking off extensive areas of plaster, or those relating to the chimney or the windows. There was thus very little common ground between the experts.
20. Faced with those unfortunate limitations on the evidence before him, the learned Recorder found for the City Council largely on the basis of accepting the evidence of Mr Byers. There are a number of grounds of appeal, but the Appellants' principal criticism is that he gave no or no sufficient reasons for his decision and took into account irrelevant matters.
21. Given the incomplete picture presented in the expert reports, it is difficult to see what further reasons the judge could have given for the decision he made, beyond recognising that Mr Redmond had made a number of bare and rather breezy assertions and that Mr Byers, on the other hand, had been unable to plug the gap for Mr Redmond by finding any support for his assertions during his own inspection.
22. There was a certain amount of general discussion in the course of submissions, as appears from the transcript, which inevitably tended to fuel the Claimants' contentions they did not have a fair and unbiased hearing and that irrelevant matters were taken into account.
23. The judge appeared to be concerned, for example, about the nature of the Claimants' funding arrangements with their solicitors, and as to how a Liverpool firm came to be acting at all. These matters are plainly irrelevant to issues of liability. It is generally unwise to enter into discussions of that kind for the very reason that, later on, it may be said to have affected the ultimate outcome. Having said that, the learned Recorder was naturally concerned as to the financial consequences of any decision he might make for Mr and Mrs Ball. If he were to make a finding in her favour (as at one stage he seemed inclined to do) and make a small award of damages, he was apprehensive that she might find herself out of pocket under the funding arrangements.
24. It is submitted by counsel that he was not entitled to go into those matters and that, in any event, he misinformed himself as to the true nature of the contract. He undoubtedly expressed sympathy for Mr and Mrs Ball's position, partly because he had the impression (whether correctly or otherwise) that the Liverpool solicitors had "cold called" on them as part of what he no doubt perceived to be an "ambulance chasing" exercise. It has to be said, if he was at one stage inclined to sympathy for the Claimants for reasons of that kind, those factors were obviously overcome in the course of the judgment because the finding was against them.
25. In fairness to the learned Recorder, there is always something of a tension between the need on the one hand to give no impression of bias and, on the other hand, the need to take steps by way of case management to encourage the parties to settle. It is a fine balance sometimes but here the discussion ranged over matters which were plainly irrelevant and in an apparently unguarded way. Here I have to ask myself whether the conduct of the proceedings rendered the ultimate decision "unjust because of a serious procedural or other irregularity in the proceedings in the lower court". I cannot accept that the learned Recorder's decision falls into that category.
26. The remaining question for me to consider, therefore, is whether in the light of the tantalisingly incomplete picture which the evidence disclosed the decision which the Recorder reached was "wrong".
27. The ex tempore judgment was somewhat discursive, but it was delivered very late after a long, hot and busy day. I need to address the issues of whether the learned Recorder gave reasons for his conclusion that are adequate and comprehensible and, secondly, whether he took anything irrelevant into account such as to have any impact on his reasoning process.
28. I should consider each of the grounds of appeal in turn. First, it is said that the Recorder failed to give any reasons for "preferring" the expert evidence of Mr Byers. I believe the position is simply this. Mr Redmond failed to give particulars to back up his assertion, in particular about the external walls. He did not explain how the damp was supposed to penetrate across the cavity walls (it being accepted that, on a balance of probabilities, this was the form of construction). Since Mr Byers was unable to find any reason for such water penetration, the learned Recorder concluded that the Claimants had failed to discharge the burden. Similarly, the judgment did address other possible causes of water ingress. Mr Cornford submitted that the chimney point was addressed in paragraph 15 of the judgment. It was significant that Mr Byers found no evidence of water penetration from that source and, in any event, there was no basis for assuming that any such limited ingress could have been responsible for an on-going condensation problem throughout the flat.
29. It seems from paragraph 16 of the judgment that the learned Recorder concluded that Mrs Ball accepted, in the end, that no material penetration of water was occurring via the windows. I am not sure that is an accurate summary of her evidence. At page 29 of the transcript, the witness seems to be bombarded with questions both from counsel and the bench so that she finds it difficult to complete a sentence. Nevertheless, she was invited by counsel to point out the problem:

"Q: The windows. Where this water comes in.

A: It's actually around from the window. It's around the windows and it's underneath.

Q: Because there doesn't appear to be any damage there, does there, on the photograph?

A: No, because I'd repaired to there".

30. She says a little later that the damp still comes through around the windows, and she also seems to accept that the area around the window sometimes "goes powdery" (in response to a question from the learned Recorder). Nevertheless, once again, the ingress of water around the windows when it rains could not account for the large-scale condensation problem.
31. The second ground appears to be closely related. Complaint is made that the Recorder failed to give any reasons for finding in the Defendant's favour, in the light of the fact that he had accepted Mrs Ball's evidence. As I have already observed, however, her evidence went to the symptoms rather than causation. As she noted at page 27 of the transcript:

"All I can see is there's damp and there's you know, water seeping into my flat. I, I'm not qualified to say where it's coming from and from downstairs I cannot physically see that high without binoculars. I'm sorry I don't mean to be vague, but …"

32. The third ground related to the Recorder's pre-judgment indication that he wished to award Mrs Ball £1,000 but without rewarding her solicitors by way of costs. I cannot accept that he was affected in the result by any such consideration. It is no doubt undesirable to enter into general "chit-chat" about the financial consequences of various hypothetical outcomes, and it is not surprising that it should provide fodder for a suggestion of bias or irrelevant reasoning. In the particular circumstances, however, I do not believe it has led to injustice or a "wrong" decision.
33. The fourth ground returns to the learned Recorder's close interest in the role of Liverpool lawyers litigating as far south as Plymouth. As I have already commented, it seems to me that his concern was with what he took to be "cold canvassing" and the impression that Mrs Ball had been prompted by her solicitors to take legal action which otherwise would not have entered her head. A judge is entitled to inquire into the conduct of solicitors, provided he does not come to any unfair conclusion, and I cannot see that this factor has in any way influenced his reasoning in the judgment.
34. The fifth ground harks back to the suggestion that the judgment contained inadequate reasons and that the judge took into account irrelevant issues. In the light of that, it is said that he should have awarded the Claimant damages and costs. For the reasons I have already stated, I am unable to agree.
35. My overall conclusion is that the learned Recorder's decision was neither wrong nor unjust, and that the unfortunate discussion which took place does not provide any solid basis for concluding otherwise.