England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 January 2015

The Hon. Mr Justice Coulson:

1. INTRODUCTION

1. This dispute concerns two adjoining properties in Grosvenor Crescent in Belgravia. The claimant owns a house at No 10. The defendant (a development company based outside the jurisdiction) owns Nos 11 to 15 and is currently carrying out an extensive redevelopment to those properties, said to be costing £243 million.
2. On 8 December 2014, Edwards-Stuart J granted an ex parte injunction preventing the defendant from carrying out excavations close to the party wall shared with the claimant's property "otherwise than in strict accordance with the O'Keefe method statement dated 13 November 2014 attached to and forming part of the party wall award dated 27 November 2014…". This order resulted from a specific incident involving the digging of a hole close to the party wall earlier on 8 December, with which I deal in greater detail below. At the return date on 10 December 2014 the defendant indicated that it was content for the injunction to continue (because it said that all the probing works in that area had been concluded), but objected to paying the claimant's costs of the action to date on the basis that "the defendant's contractors were not removing obstructions [on 8^th December] and thus were not acting in breach of the [party wall] award…" Instead the defendant sought an order that the claimant pay its costs.
3. In consequence of this stance, Edwards-Stuart J had no option but to require the parties (if they wished) to serve evidence about the alleged breach, so that costs could then be dealt with at a separate hearing. The parties have therefore put in a considerable amount of written evidence about precisely what was happening on 8 December, and whether or not the defendant was in breach of the party wall award. This has involved, amongst other things, the service of four witness statements from the defendant, and a statement from his party wall surveyor; an additional statement from the claimant, together with a statement from his party wall surveyor; and a report dated 23 December 2014, from Dr Zeljko Cabarkapa, the claimant's geotechnical expert. The attendance at today's hearing has numbered 18 people, excluding me, and has involved oral evidence and cross-examination. Obviously the costs of all of this has been significant, yet they have been costs that have been incurred solely in order to enable the parties to argue about their liability for costs, surely the most pointless exercise in any civil litigation.
4. In those circumstances, my first task is to decide whether or not the defendant was in breach of the party wall award. I do that by making a series of findings on the evidence. To the extent that I find a breach or breaches of the party wall award, the claimant argues that he is the successful party pursuant to the CPR r.44.2(2)(a), but there is then a second issue raised by the defendant to the effect that, whether or not there was a breach of the award, the claimant acted precipitately in seeking an ex parte injunction on 8 December, and should not therefore be entitled to his costs in any event.

2. THE PARTY WALL AWARD

5. The party wall award expressly incorporated a document entitled "Mace/O'Keefe Method Statement: Probing for Piling and Obstruction Removal". Paragraph 3 of the award made clear that those works were to be carried strictly in accordance with that document. The method statement contains two elements which are relevant to the dispute before me. They are as follows:

(a) "Probing

The pile probing will be undertaken using a probing attachment mounted on a 21T excavator. The excavator will be operated by an operator competent with the use of the probe. The probing attachment will consist of a standard breaker fitted with a 3 metre long pin. Any obstructions that the pin refuses to penetrate will require removal. Probing will continue to establish the extent of the obstruction along the line of the pile wall."

(b) "Obstruction Removal

… depending on the extent of the obstruction, a 900mm or 1200mm wide trench box will be placed at 90° to the boundary extending into the site. The box will be installed to the depth of the obstruction using the dig-and-push method. This process involves the ground being carefully excavated in layers of around 600mm with a box being pushed down as the excavation proceeds…"

3. THE EVENTS ON 8 DECEMBER: THE PARTIES' RESPECTIVE CASES.

6. It was the claimant's case, certainly when the injunction was first sought, that on the morning of 8 December, the defendant's contractors were using a mechanical digger to remove from the ground, close to the party wall, a large piece of rusted metal. To do that, they dug a large hole almost against the party wall, far in excess of 600mm deep, but without using a trench box. It was therefore said that the defendant was in breach of the method statement and therefore the party wall award.
7. In response, the defendant said that the metal in the photographs and on the DVD was in fact a piece of RSJ, which, a fortnight before, the defendant had been using to probe the ground by driving it into the soil to check for obstructions. The defendant's case was that the RSJ had been deliberately left in the ground (apparently for reasons of space) with just the top section protruding. Subsequently that top section was covered by rubble (referred to in the documents as the piling mat). A couple of weeks later, when the defendant was obliged to remove the RSJ, this proved difficult and the top broke off. As a result, a hole had to be dug, first by the digger and then by hand, so as to expose enough of the RSJ to attach a sling and pull it out of the ground. The defendant said that that was what was going on in the photographs and the DVD.
8. The defendant also raised separate points to the effect that the hole was not anywhere near as deep as the claimant asserted and was, either wholly or in part, an excavation through the piling mat rather than an excavation into existing soil. That becomes relevant for reasons which I shall come to.

4. THE EVENTS ON 8 DECEMBER: FINDINGS

9. As to the explanation of the events on 8 December 2014, I broadly accept the evidence of the defendant's witnesses, and in particular, the evidence of the driver, Mr Dovhanych who gave oral evidence this morning. Accordingly I find that the metal in the ground was a large piece of RSJ that had earlier been used to probe the ground for obstructions in the area of the party wall. I also accept that, when the defendant came to remove that buried RSJ, it was difficult to remove and ultimately required extensive digging out. However, on analysis, as I indicated during argument, it seems to me that those findings make the defendant's case more difficult than had originally been assumed by the claimant. I need to explain why.
10. First, the probing should have been done using a probing pin in accordance with the method statement. It was not. Indeed it might be said that the probing was done rather crudely, by driving into the ground a random piece of RSJ. It seems plain that, amongst other things, this would have involved a percussive operation which is not mentioned in the method statement. As to the use of the RSJ, rather than a probing pin, I can do no better than quoting from Dr Cabarkapa's report, in which he said:

"In my opinion it is clear that the contractor was not using a standard breaker for pile probing and instead was removing a piece of metal, which was probably buried in the ground.

The object shown in the photo is not the equipment described [in the method statement]...

A careful examination of the photographs reveal that the piece of metal was rusted which indicates that this piece of metal was partly buried in the ground."

11. The probing operation was therefore carried out in a way which was contrary to the method statement and therefore a breach of the party wall award. The fact that the claimant did not know about this failure until the exchange of evidence was a point relied on by Mr Weekes, for the defendant, but the answer to that is two-fold: the claimant would have had no way of knowing about the failure until it was explained by the defendant, and his ignorance of this breach at the time of the original injunction application is in any event irrelevant. Moreover, this breach was accepted by Mr Hartigan, the defendant's contractor, during the course of his oral evidence today, having not been previously accepted in any of the correspondence.
12. Secondly, the fact that the RSJ had been left by the defendant's contractors in the ground, with the top section subsequently being covered by rubble, did not mean that the RSJ was not an obstruction, as defined in the method statement. Self-evidently it was an obstruction: in his oral evidence, Mr Hartigan accepted that the RSJ would have to be removed from the ground before piling work could be carried out. I find, therefore, that the RSJ was an obstruction, at least until it was removed. Accordingly, it had to be carefully removed in accordance with that part of the method statement to which I have referred at paragraph 5. It was not. In particular there was no trench box and indeed, as we saw in the DVD, no method of stabilising the sides of the hole was adopted at all. I find therefore that this part of the work was carried out in a fashion which can only be described as cavalier. I note from Dr Cabarkapa's report that he also concluded that the excavation of the trench was plainly and obviously not in accordance with the method statement. Again, I agree.
13. I ought to deal with one related aspect of this dispute. On behalf of the defendant, Mr Weekes took the point that the method statement was concerned with the removal of obstructions that were there prior to the probing works, and did not concern obstructions that were a consequence of the probing works themselves. I do not accept that argument. In my view the method statement plainly covers both types of obstructions. Further, if it did not do so expressly, the obligation to comply with the method statement when dealing with the RSJ would be implied. It is both common sense and basic health and safety law that, if excavations are required to be stabilised using a trench box when a pre-existing obstruction is removed, the removal of a similar obstruction in a similar location will require similar precautions, even if that obstruction has arisen as a result of the works themselves.
14. There is a third and related point. The defendant maintains that the hole was not as deep as had been suggested and that the photographs were misleading in this regard. Having looked at the photographs and the DVD, I do not agree. It seems plain that the hole that was dug was at least two metres deep. Indeed the defendant's own photograph AF1 makes that clear beyond doubt. Furthermore, in the DVD both the driver of the machine and the banksman are shown getting into the hole, and their heads are not higher than the surrounding ground level. Indeed, on my observation of the DVD, their heads are lower.
15. The defendant also says that most (if not all) of the hole, was in the rubble (piling mat) that had been added after the RSJ had been left. That, at one point, was Mr Hartigan's suggestion this morning, although subsequently he did row back from that and maintained instead that the RSJ was "not fully" in the existing ground.
16. In my view it is obvious that this deep excavation was principally in the original ground. That is the only conclusion that can be reached for a number of reasons. First, on the defendant's own case, most of the RSJ was stuck in the existing ground because it was the existing ground that the RSJ had been probing. It was not probing the rubble which was added later. The top layer of rubble had to be excavated to allow the top of the RSJ to be identified. Secondly, the fact that, following removal of the layer of rubble, the exposed top of the RSJ broke off, but not the much longer part of the RSJ which was not exposed, made plain that this longer section was embedded in the original ground rather than in the later, looser rubble. Thirdly, the photographs show that, when the deep hole was dug, the excavated ground was London clay and soil, not rubble piled there by the defendant's contractors. London clay and excavated soil is always naturally dark in colour and the dark materials can be seen in the photographs. Again the defendant's own photograph AF1 is clear in that regard. Fourthly, the other calculations which Mr Isaac has done in his skeleton argument at paragraphs 14 to 20 also demonstrate that the hole was a deep excavation into existing ground, close to the party wall.
17. Accordingly, I find that this was an excavation into the ground close to the party wall which extended at least two metres into the existing ground and therefore had to be properly supported with a trench box in accordance with the method statement. Trench boxes were on site – they are shown in the photographs. They were not however, used in this location.
18. It appears from Mr Hartigan's evidence that the reason why trench boxes were not used was because this piece of metal 'did not count as an obstruction', because it involved the removal of an original probe. It is not clear to me that anyone on site on the morning of 8 December reached such a studied decision but, to the extent that they did, it was incorrect, for the reasons previously noted.
19. Accordingly, for all those reasons, I find that the defendant was in breach of the party wall award, and that the claimant was therefore prima facie entitled to protect his interests by seeking an injunction. To put the point by reference to the order made by Edwards-Stuart J on 10 December, the defendant was removing obstructions without having regard to the method statement and was therefore acting in breach of the party wall award. But as I have said, that is not the end of the matter, because the defendant maintains that, even if there was a breach, the claimant acted precipitately in seeking the injunction in the first place, and that, in those circumstances, the defendant is entitled to its costs of the action. The defendant says in terms that the claimant should have resolved this dispute and should not have resorted to litigation on 8 December.

5. THE CLAIMANT'S CONDUCT

20. The claimant's conduct has to be seen against a certain amount of history of bad feeling between the parties. I note that:

(a) The claimant unsuccessfully sought judicial review of the decision granting planning permission for this major redevelopment. As a result of changes to the planning law that is now the only way in which a householder can effectively appeal against the grant of planning permission for a neighbouring property, so in my view no criticism can be made of the claimant for taking this course.

(b) The claimant appealed an earlier party wall award. I am told that that appeal was allowed by consent, so plainly no criticism can be made of the claimant as a result. I also understand that there is an existing appeal against this party wall award, but that was not issued until after the injunction, so it is irrelevant for these purposes.

(c) There have been threats of litigation by the claimant on a number of occasions. I also understand that the defendant has responded to the effect that any disruption to the building works might cost the claimant up to £500,000 per week.

21. The party wall award was dated 27 November 2014. It did not put an end to the difficulties. Indeed, it is plain that from 29 November onwards, the date that notice was given of pile probing works to commence on 1 December, that there were still various disputes between the parties. First I should note that on Mr Hartigan's evidence, it would appear that the pile probing works had actually commenced before that notice was even given, because he talks about the pile probing works being carried out in the last full week of November 2014. Secondly, during the week of 1 to 5 December, there were exchanges of correspondence between solicitors and problems emerged relating to the provision of information, surveys, monitoring data, trigger levels and the like. It is plain that, whether rightly or wrongly, the claimant felt that information was not being properly provided to him.
22. On 8 December itself, it appears that the following happened:

a) Once the claimant had noticed the digging of the hole he contacted his solicitors, they sent an email at 10:20am saying (correctly) that the defendant was in breach of the party wall award by failing to install a trench box;

(b) The defendant's solicitors responded at 12:41 denying (incorrectly) that they were in breach of the method statement. There is a reference in that letter to an undertaking that the defendant would comply with the method statement. It is therefore that letter in particular on which Mr Weekes relies to say that the claimant's subsequent resort to court was unnecessary.

(c) The claimant responded to that just after 2:00pm by indicating that an appointment had been arranged with Edwards-Stuart J at 3:00pm and asking for a formal undertaking to the court. The defendant's response was again to argue that there was no breach of the party wall award. No formal undertaking to the court was offered.

23. When deciding whether or not the claimant acted precipitately I have to bear in mind all of the matters noted in paragraphs 20-22 above, as well as my conclusions about the defendant's conduct on site. It is plainly a balancing exercise. However, it seems to me that the most significant factors in that exercise are these:

(a) No 10, Grosvenor Crescent is the claimant's family home. He is entitled to take what steps he reasonably can to protect his property and his right to enjoy it with his family. Given the history that I have summarised, I can sympathise with the claimant's concerns on the morning of 8 December, when works which were plainly and obviously in breach of the party wall award were being carried out without warning or notice.

(b) By contrast, the defendant's conduct on site was cavalier, again for the reasons that I have noted. The claimant was therefore entitled to be concerned, both about what was happening on site and the fact that, notwithstanding that conduct, the defendant was resolutely maintaining that it was not in breach of the party wall award.

(c) The defendant did not accept liability either on 8 December or indeed, at any time thereafter. The informal undertaking that was offered has to be seen against the background of the repeated denials of liability by the defendant. Furthermore, these denials were advanced on a number of bases, such as the ground levels, and the nature of the material in which the excavations were being carried out, which were, as I have found, obviously wrong, and which the defendant would or should have known were wrong.

(d) The fact that the claimant successfully obtained an injunction on 8 December, which was maintained on 10 December, is clearly a relevant factor. I accept Mr Weekes' point that this cannot alone be determinative, and the defendant is entitled to raise what points it wishes to on the argument about costs. But I cannot escape the fact that the claimant was successful in obtaining, and maintaining, an injunction from Edwards-Stuart J.

(e) For the reasons that I earlier indicated, I am concerned about the costs that have been incurred in relation to these proceedings since 10 December. It does seem to me that, given my findings as to what happened on 8 December, it would have been much better for the defendant to acknowledge that a mistake had been made and that the usual costs consequences flowed, so that the parties could then move on. The defendant acted unreasonably in refusing ever to accept liability.

24. I agree and endorse the submission that the seeking of an ex parte injunction is a last resort. I also accept that the claimant did act very quickly on 8 December. However, taking into account all of the factors in the balancing exercise, and in particular those set out in paragraph 23 above, I conclude that the claimant did not act unreasonably in seeking an injunction on 8 December. In all the circumstances, the claimant was entitled to seek and obtain the ex parte injunction. So for those reasons of conduct, I also conclude that the claimant is entitled to his costs.

6. OTHER MATTERS

25. Mr Weekes argued that the claimant should not have his costs because the injunction was pointless. That submission is based on the suggestion that no further probing works will be done in the area of the party wall. The difficulty with that submission for me is a pragmatic one: I simply do not know what is likely to happen in the future. Nor does the claimant. It may be that no further probing works will be carried out, but this is a major project involving large sums of money, and it is simply not possible for me to say whether or not in the future, such works will, in fact, be required.
26. For completeness I should say that, although Mr Isaac referred to a possibility of nuisance in his skeleton, it is unnecessary for me to consider this, given the strict liability on the part of the defendant to comply with the method statement. Moreover, I note that the injunction granted in the case to which he referred, Hiscox Syndicates Ltd v The Pinnacle Ltd [2008] EWHC 145 (Ch), was subsequently significantly modified by Jackson J (as he then was).
27. That therefore deals with the question of liability for costs. I am anxious now to go on and summarily assess the claimant's costs, simply to save the parties from a further round of expensive argument as to the precise level of costs which should be paid. I note that all of this effort has been expended on costs which, even when taking both parties' costs together, amount to just over £60,000.