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

B: Background History

C: Relevant history re 31 Trafalgar Street, and the claimants' position

"We renovated it with a new roof, re-plastering and damp proof course. We became members of the Stoke-on-Trent Landlords Association. We rented the house to students from Keele University from September 2004 to 2008. From 2004 to 2007 no damp problems were noted or reported."

" ... we found that the factory unit had been demolished and that our house was very damp. There was mildew all over the inside gable end the wall. The factory unit had covered a large portion of the gable wall that was now exposed to the elements."

" ... there was some mildew damp, but there was also clearly significant brown staining from damp on the shared wall."

"... the damp problem was first reported to you on 12 July 2010 when we inspected the property following the vacation of the first tenant."

"Dear Sir

We are the owners and landlords of number 31 Trafalgar Street, Hanley. Despite having a new roof and damp proof course, we have been unable to let this house due to the damp that has been directly caused by the removal of the adjacent factory. We therefore need access to the yard on the 9 ^th and 10 ^th of this month in order to install a French drain parallel to our property. At a later date we will also have to render the end wall of number 31 and will again need access to do this. I trust that you can arrange this for us."

"I have asked my client's building surveyor to contact you with regards to your proposed works. Please refrain from carrying out any works on my client's land or that might affect its property until such time as we have established what is required. It is then likely we will need to grant you a licence to carry out the works if appropriate to safeguard both yours and my client's position ..."

Jonathan Cornes, the defendant's building surveyor, wrote to Anita Bridgland that evening as follows (2/305):

"Thank you for your e-mail. This has been forwarded to us by the owner's agents ... We are chartered building surveyors and we act for the freehold owner of this property and can confirm that the notice period provided below is not reasonable for us to consider the full extent of the proposed works and how the works are intended to be carried out. We are however prepared to meet with you at your cost on site on the 10th of this month to discuss your proposals so that we can document an agreement between us before proceeding on our client's property. ...

Our fees are £95 per hour plus VAT and I would expect that our initial meeting should not exceed more than one hour to discuss your proposals."

"... (Mr Cornes) explained that we should have tanking damp proofing works on the inside of our property. I explained that this would significantly affect the inside of the already small hallway and that this would prevent the water pooling against the external wall."

He then referred to Mr Cornes' notes of the meeting, and continued in paragraph 14:

"Mr Cornes explained to me that by lifting the concrete, placing down a type of membrane, insulation and shingle before replacing the concrete, that this could also work to prevent the damp. ... He then also explained another method may be internal tanking. I note that there are no references to this other option in his ... note."

"Q: He told you that the problem was because damp was coming through, because of the ground being above the flank wall?

A: Yes

Q: And a French drain was not going to work?

A: What he said was that an internal tanking system would work. ... He told me that we needed to tackle the job from the inside.

Q: And he said that a slurry render or cement system would not do the job?

A: Yes

Q: And he also said that a damp proof course would not do the job?

A: I can't remember about a damp proof course

Q: So Mr Cornes must have been referring to something different to slurry render or cement when he was referring to internal tanking?

A: He referred to plastic internal tanking. I was led to believe H&M that it would work, as it was a tanking system. But H&M did also suggest work be done to the external side wall ...

Q: And his final advice was that while external works might include a French drain, that was not something he could recommend to his client, because of the impact it might have had on its plans?

A: That's what he said ...

"300 ml channel beside number 31. Remove soil, apply bitumen (sic) membrane 2000-3000, then insulation board, then back fill with shingle and replace concrete.

Membrane to go up 150 ml above finished floor level chased into brickwork.

Gable end brickwork to be re-pointed, scaffolding

No materials or waste and no parking of vehicles on site

Insurance of workers timescales"

In his cross-examination, while he disagreed that the description in paragraph 1 of that note amounted to a French drain in the technical sense of that word, Mr Cornes accepted (DG/109) that it was an accurate record of what they had discussed, and of what he had recommended to Anthony Bridgland during that meeting. However, as I find below, it is not a complete record of all the matters they discussed during that meeting.

"Not rising damp - penetrating damp the g.l. Is lower (approx 1.2m) than the external yard level.

I advised that a chemical dpc will not work, this needs tanking sited externally or internally. I advised against a french drain - if they develop the yard the french drain may get damaged. Also not his land.

I advised that his surveyor/damp man was wrong to suggest a damp proof course or slurry wall. I recommended Peter Cox or Rentokil to give a quote for a tanking system.

Invoice £95 plus VAT."

In his evidence at trial Mr Cornes explained (DG/110) that he made this note contemporaneously, and that the date 19/9/13 at the top of the page was one which he incorrectly added at that later date. It is also to be noted that Mr Cornes did not send the claimants any formal written note of his advice following that meeting; instead he simply kept this manuscript note on his file.

20. The day after that meeting Anita Bridgland sent Graham Hulse an e-mail (2/308). In her penultimate paragraph she wrote:

"As our primary concern is to get the work done as soon as possible to prevent more damage to our house we suggest that we pay for the wall to be re-pointed as this also includes a section that is not your client's responsibility. As your client's surveyor recommended a membrane along the length of the house and not a french drain, we feel very strongly that the cost of this should be met by your client. As there is visible evidence of water lying adjacent to our house we do not think the above facts can be disputed."

On 13 September 2010 Graham Hulse replied, inter alia, as follows (2/308):

"I will speak with my client's building surveyor asap with regards to what he believes is the cause of the problems you have highlighted. Certainly the building that was removed was nothing more than a derelict lean-to. It was built later than your own building. Therefore, nothing has been exposed other than was always originally exposed ... I recall it was totally unusable mainly because it had been poorly maintained; probably for years and in particular the roof was very poor and allowed the elements in. ... I don't believe that its removal has caused the problems you have referred to ...

... Following your meeting with the building surveyor you are now saying that my client has caused damage to your property and you want him to pay to maintain your property. Clearly the goalposts seem to keep moving ... In essence you must have known about these issues for many months yet seem to be saying that it will be my client's problem if you he doesn't allow you immediate access? ... You have made a great deal of assumptions and allegations, some of which may or may not be correct. Unfortunately, in the circumstances we must try to establish the facts before we can allow you access onto my client's land ...

We will of course do our best to expedite our enquiries ..."

"...

The adjoining owners hallway wall below the concrete car park level will have always suffered from penetrating damp despite the removal of the building due to the difference in the floor level, so therefore any weathering at the junction of the floor slab to the adjoining owners wall following the removal of the wall would not have stopped the penetrating damp. This wall requires tanking internally to significantly reduce the penetrating damp. I would also suggest that the damp proof course plastering would reduce the visual effects of the penetrating damp was some time before manifesting itself on the surface of the plaster.

In addition to this, the plaster finish under the staircase is also suffering from penetrating damp, and there is still a building which encloses upon the party wall in this location, therefore confirming that despite the removal of the building there is an area on the same wall ... which is ... suffering from penetrating damp.

With regards to the weathering of the party wall or re-pointing, I would suggest that it is 'adequately' pointed and also considering the age of the building ...

...

I suggest we also make it clear that they have no right to put anything on our land i.e. a French drain, as this will be beyond the face of the boundary wall and will be deemed to be trespass. Practically, if the yard is developed, then we could remove the drain without their knowledge.

We need to clarify to the adjoining owners that the membrane solution proposed is not required if an alternative solution is possible. We do confirm however that a French drain is not acceptable because this will be astride the boundary and will not resolve the problem technically and would easily be removed without our knowledge if/when the site is redeveloped. Please confirm an alternative solution which is in accordance with good building practices and therefore the advice of a chartered building surveyor or a member of the Property Care Associates (PCA) should be obtained."

In his oral evidence at trial Jonathan Cornes explained (DG/108) that, in that last sentence, he was endeavouring to set out the information which Graham Hulse should ask the claimants to obtain. Jonathan Cornes accepted that he had not expressed himself at all clearly in that regard, and that might well explain why Graham Hulse did not make this point to Anita Bridgland when he sent her his e-mail later that day.

"I am sorry if my e-mail sounded confrontational ... the confrontation seems to have come via your client's surveyor who is recommending works totally on his terms that could end up costing us a lot more. As he was so precise about the work allowed, and we do feel quite strongly that the damp is a direct result of the removal of the factory, that resulted in exposing the wall to the elements, we felt we were offering the best compromise to split costs and allow your client responsibility for carrying out the insertion of the membrane. Your clients surveyor indicated that he would not allow us vehicles or skips on the land, making it difficult for us to carry out the works."

Graham Hulse then replied (2/365):

"I can confirm that my client does not wish to prevent you from carrying out works to your property. I just want to ensure that the works do not cause any problems as a result of the works to my client. I understand that the membrane was a suggestion. It does not have to be done. Allowing your workmen access in itself does not present a problem.

However I have been advised the following by the building surveyor: (and he then set out some of the paragraphs in the e-mail of advice which he had just received from Jonathan Cornes, and then continued)

In essence I will be happy to recommend that you are allowed a licence for access to carry out works to your own building providing such works do not encroach on my client's land (therefore a French drain would not be acceptable). Furthermore, based on the surveyor's comments, I am not inclined to recommend my client contributes to the cost of the works. ..."

(1) While Jonathan Cornes indicated that either an external or internal tanking system would be an effective method of dealing with the damp from which 31 Trafalgar Street suffered, his focus and advice was that an internal tanking system was the appropriate and preferred remedial scheme. It is perhaps surprising that Anthony Bridgland did not refer to an internal form of tanking in his contemporaneous manuscript note. Jonathan Cornes did refer to both internal and an external form of tanking in his contemporaneous manuscript note; however, the fact that he did not refer to an external form of tanking in his long e-mail of advice to Graham Hulse is consistent with the fact - as I find - that his focus was throughout on an internal form of tanking.

(2) Although they discussed a method of digging a ditch along the bottom of the external face of the flank wall of 31 Trafalgar Street, and then inserting a bitumen membrane and then insulation board on the external face of the flank wall, and then backfilling with shingle, Jonathan Cornes made it clear that his client would not permit the claimants to carry out such works, in short that a French drain would not be permitted. That stance was repeated on 13 September 2010 by Graham Hulse.

(3) Jonathan Cornes advised Anthony Bridgland that an internal slurry render or cement system would not work, and that instead a tanking system was required.

(4) Jonathan Cornes also advised Anthony Bridgland that a dpc would not be effective to combat the damp from which 31 Trafalgar Street suffered.

It is to be noted that inserting a dpc was precisely what Jonathan Cornes had advised Anthony Bridgland would not be effective to combat the damp from which 31 Trafalgar Street suffered, and that insofar as 'Arctite' tanking mortar was a form of an internal slurry render or cement system, that also would be ineffective to combat the damp from which 31 Trafalgar Street suffered. When this was put to Anthony Bridgland in cross-examination, he stated (DG/60) that H&M had advised him that the 'Arctite' tanking mortar would work.

"Following the advice of your clients surveyor we have had an approved damp course company carry out work to include tanking to our property. However unfortunately the company have advised us that as water is penetrating directly from your clients car park, this work is insufficient to prevent long-term damage to our property and a drain on your clients property is the only solution. We have taken advice and have been advised by our insurance company and solicitor that in accordance with the party wall act it is the responsibility of your client to carry out the necessary work. We're very sorry that this may result in a legal case but we have been left with no option especially is this now affects the future insurance premiums on the property. Please will you let us know if you want our solicitor to deal directly with Louis Taylor or your client directly. We have been advised to allow your client 10 days to reply before we commence legal proceedings."

"...

The first time I became aware of any problem was when a member of my staff asked me if it was in order for you to have the key to my clients premises to carry out works on its land. You stated to my staff that this had been agreed or authorised? As this was not a matter of fact the case (as the only person or company that could have given such authority was either myself or my client) I advised that the key should not be released. I later advised you that under no circumstances should you enter onto my clients land and carry out any works on its land or property. Finally, I arranged my clients building surveyor to meet with you to discuss the issues you had raised at your cost if you wished. I understand that he made various suggestions, but that none affected my clients land ...

I am not in anyway wishing to be awkward but need to establish the facts. In particular, why you believe so strongly that you should have been allowed on my clients land to dig a drain without its explicit consent and why you now believe that in accordance with the party wall act it is my client's responsibility to carry out such works on your behalf?

My client is very reasonable. However as I am sure you will appreciate having started off by saying you had authority to enter onto its land and dig a drain when clearly you did not has not helped the situation. You now appear to be threatening legal proceedings against my client because it would not allow you to enter onto its land to dig a drain that it knew nothing about?

...

Once I fully understand the issues you have I will respond appropriately."

It is to be noted that in that e-mail Graham Hulse did not address any of the technical issues raised in Anita Bridgland's e-mail, in particular (a) whether water was "penetrating directly from (his) client's car park"; (b) whether the works which H&M had carried out would be "insufficient to prevent long-term damage" to 31 Trafalgar Street, and (c) whether "a drain on (the defendant's) property was the only solution", but instead directed much of his response to complaining about the way the claimants' had attempted previously to obtain access to the defendant's land.

"... Mr Bridgland complained that the damp problem is still as bad and stated that he had been told a drain was now needed to cure it for good and asked if I would install one on my land. I said I doubted whether a drain would have any effect. However, as a sign of good faith and to bring the matter to a close, I would arrange for a plastic drainage channel to be installed at the higher ground level along the gable wall of the house."

Andrew Wheeldon then asked Jonathan Cornes for his advice:

"Jonathan advised that it may impact on the future development of the site, but the impact could be limited if a small section of the concrete slab was cut out and a 4 inch or 6 inch plastic channel put in on the surface to remove any water which may have prompted by the gable wall."

Andrew Wheeldon then employed a builder, Karl Sharratt, to install such a drainage channel "at my cost". That work was carried out on 16 March 2011. That channel can be seen in photographs 5 and 7 in appendix C to Mr Moore's first report dated 28 January 2015, those photographs having been taken on 28 May 2013 (4/878 & 880).

"There are issues with damp penetration through the gable wall which have been addressed by the installation of a low level chemical DPC and rendering of the inner wall up to 1.0 m above floor level."

That would appear to be a reference to the works which had been carried out by H&M the previous October. In paragraph 4.3 of his report Mr Sercombe opined that:

"The difference in floor levels between the original workshop and the house has been overcome by the installation of a gutter."

That would appear to be a reference to the work which had been carried out by Karl Sharratt a little earlier in March 2011. Mr Sercombe was not called as a witness at the trial; in any event the evidence in the case, including the expert opinion of both and/or either Mr Moore and Mr Cornes, indicates that the damp from which number 31 Trafalgar Street suffered was certainly not "overcome by the installation of (this) gutter". Then in paragraph 4.4 of his report Mr Sercombe opined:

"To improve any dampness we would recommend the gable wall be rendered, probably 20mm of sand/cement render, and the wall insulated internally using concrete insulation blocks or insulation boarding. There are many systems available, particularly the different types of boarding."

"Investigate cause of the damp and remediate, remove all affected plasterwork back to bare brick, ensure the wall structure adequately dries. Re-plaster the wall ensuring a finish suitable for decorative finish."

"Unfortunately none of this has been sufficient; the damp problem has become so bad that the council housing standards officer has become involved. We have been unable to find a damp proof specialist prepared to carry out and guarantee work, as they feel the ground levels are a major problem and they advise a French drain on your land. An independent surveyor also advised a second skin is needed on the gable end in the form of cladding. The housing standards officer agrees that these are necessary works.

We hope you will agree to meet the major part of this cost as we feel you have created this problem by removing the adjacent building."

Her reference to the opinion of a damp proof specialist would appear to be a reference to the advice which H&M had given to the claimants back in 2010, to which Anita Bridgland had referred in her e-mail to Graham Hulse of 27 October 2010 (2/369): see paragraph 24 of her third witness statement (2/407). Her reference to the opinion of an independent surveyor would appear to be a reference to the advice which Mr Sercombe had given in his report dated 27 March 2011 (4/810).

D: Relevant history as regards the Trafalgar Works, and the defendant's position

"... immediately instructed Trevor Millward, a building contractor I had employed on many occasions over the previous four years, to check that the buildings were secure, to change locks where necessary, and to give his opinion on their condition, making recommendations where necessary."

It is to be noted that Trevor Millward was not a building surveyor, or any other type of professional person professionally qualified to give an opinion on the state or condition of a property. Trevor Millward inspected the site, and then wrote to Andrew Wheeldon by letter dated 6 August 2007 (2/332) as follows:

"As requested I have been to inspect all buildings on the Lower Bryan Street site while you were away. All buildings are watertight and secure except for the single-storey building at the rear that abuts the terraced properties.

It appears that some time ago the lead flashings and some of the "Staffordshire blue" tiles have been removed probably stolen. As a result over time the roofing timbers have rotted and some brickwork dislodged. The building is therefore unsafe and needs to be demolished as soon as possible.

The demolition is straightforward, extra care obviously taken where the building abuts the terraced house, and should take no more than a couple of days by hand and machinery.

If you can let me know by tomorrow I can arrange for the demolition to be done this weekend, remedial works will be carried out within the next 2 to 3 weeks."

In his evidence at trial Andrew Wheeldon explained that Trevor Millward would not do such demolition work himself; instead he worked as a "facilities manager" who would get appropriate subcontractors to do the various jobs which were required. Trevor Millward also sent the defendant an estimate (2/333) for the demolition works in the sum of £5,500, and for the following "Additional works post demolition" for the further sum of £2,000:

"1. Tidy and make presentable exterior of rear of Lower Bryan Street

2. Point, make good brickwork and render gable of terraced property to which building was abutted

3. Re-paint gable wall with white masonry paint to match existing

4. Infill steps with concrete to match existing

5. Lay coping stones to front wall."

Andrew Wheeldon accepted Trevor Millward's estimate, and the Trafalgar Works were demolished by subcontractors instructed by Trevor Millward on 11 and 12 August 2017.

"While I would not myself have contacted the adjoining owner, I would have expected professionals or contractors acting on behalf of the defendant to do so."

I find that the Trafalgar Works were demolished without any notification being given to the owner of the adjoining property, 31 Trafalgar Street. I also find that Andrew Wheeldon gave no instruction, either to Graham Hulse his managing agent, or to his "facilities manager" Trevor Millward, to contact and/or notify the adjoining owner. In my judgement, that was at least discourteous behaviour towards the adjoining owner, and could answer the description of "high-handed" behaviour.

"I told Graham Hulse to ask Jonathan Cornes to contact the claimant, make an appointment, and go and see what the problem was."

That was somewhat in contrast with the way Andrew Wheeldon had put it in his earlier evidence in chief at trial, when he said (DG/67):

"Graham Hulse told me of the e-mail he had received, so I asked him to contact Jonathan Cornes to see if he would be interested in going to the property, to help them with their damp problem at their cost."

In my judgement Andrew Wheeldon's explanation as stated in his witness statement and in cross-examination of the nature of the instruction which he gave to Graham Hulse is the more persuasive, and I find that - through the medium of Graham Hulse - he instructed Jonathan Cornes to attend 31 Trafalgar Street on behalf of the defendant, with the additional instruction that the claimants should pay for the cost of Jonathan Cornes attendance on that occasion.

E: The cause of damp

"TM is of the opinion that the damp ingress and damage to the claimants' wall below the level of the defendant's yard area is caused by damp penetrating through the gable wall travelling vertically down and then horizontally through. In addition, concurrent with this, would also have been surface water percolating through the defendant's yard area and adding to the damp penetration through the gable wall."

Those two mechanisms were referred to a trial as "mechanism 1" and "mechanism 2" respectively.

"My conclusions regarding the cause of the damp to the property together with damage to the wall of the hallway is that this is as a result of removal of the defendant's building, thus exposing the external wall to the elements."

He then listed the various matters which he had considered in coming to that conclusion. He repeated that opinion in more detail in section 8 of that report, where he set out a number of factors and then stated at page 4/1006:

"All of the above factors ... lead me to conclude that the removal of the defendant's property, Trafalgar Works, has exposed the gable wall of the claimant's property to weather conditions that were likely to give rise to penetrating damp and damage occurring thereof."

Then, having referred to a paper published by Elisabeth Laycock and Christopher Wood of Sheffield Hallam University on 'Understanding and controlling the ingress of driven rain through exposed solid wall masonry structures '(pages 4/1075 - 1121), he continued:

"(That paper) indicates that once rainwater has landed on the exterior surface of the building it will be induced towards the ground due to the force of gravity, as water will always follow the route that uses the least energy etc.

The paper indicates that there will be cycles of alternate penetration and evaporation of any water or moisture driven to the face of the gable wall.

This is ... one of the reasons why the penetration is more prevalent and has caused more damage to the lower section of the claimant's wall, in that it would not have been possible for it to have evaporated and then re-penetrated on a cyclical basis.

Once water had penetrated down in the vertical plane below the defendant's floor level it could not evaporate to the atmosphere, and therefore it follows could only have accumulated in the lower wall section over a period of time, to the point whereby it caused such physical damage to the inner face of the claimant's gable wall as was visually apparent."

"JC's opinion is that the primary cause of the damp to the wall is from ground moisture built up against the underground wall since the wall was historically backfilled during a change in the floor construction of the factory. The wall in dispute was backfilled without incorporating a suitable vertical waterproof membrane between the varying floor levels, leaving this wall unprotected to ground moisture before the demolition of the factory.

While it is agreed that the water table was at the foot of the foundations during the joint inspection, in JC's opinion the extent and degree of ground moisture will fluctuate because of it being situated on a sloping side, seasonal changes affecting the water table, weather conditions and surrounding topography ...

In addition, JC provides further clarification that the excavation trench during the remedial works was damp to touch throughout, but was not saturated from above ..."

"In summary the primary cause of the damp is lateral ground moisture which is affecting (sic) the underground wall on the left hand side flank wall. This wall in my opinion has always suffered from damp from the ground, albeit the severity and visual impact of that damage internally will be dependent on ground conditions, water table and time of year as well as the correct design, performance of the material and workmanship of the product applied to the underground wall. If the correct underground tanking specification had been installed at the time of original conversion there would be in my opinion no alleged damage."

""A: It is very difficult to give an accurate answer to that question, given more damp penetration is at the lower level.. But I think it would be the second mechanism ... I can't back that up with a technical explanation or scientific proof ..."

"(a) the experts agree that the concrete was in good condition ...

(b) the experts agree the concrete is reasonably, although not totally, impervious to damp ...

(c) the experts agree that the concrete is laid to falls, which are laid away from the property

(d) Mr Cornes' evidence shows that, even following a heavy shower, these falls meant that no significant water accumulated on the concrete ...

(e) the experts agree that at the time of their joint visit in September 2015 (i) there was no evidence of any damage to any part of the concrete which was consistent with degradation ...; and (ii) the fill material beneath the concrete was moist to touch, but not saturated and in particular (per Mr Cornes) was not particularly wet immediately beneath the concrete."

In my judgement there is force in all of those points. Further, in addition to the experts agreeing that the concrete was in good condition, Mr Moore himself accepted that the concrete was protected by a layer of screed, which had not been degraded (DG/129).

(1) Photograph 3/800 of the front elevation of the former Trafalgar Works shows a distinct area of dark staining, broadly triangular in shape, right across the lower portion of the brickwork, and widening in area as it progresses towards 31 Trafalgar Street. Such dark staining is also to be seen in the photographs which Mr Moore took on 28 May 2013 of the front elevation of 31 Trafalgar Street where it abuts the site of the former Trafalgar Works: see for example photographs 3 & 4 (4/1032-3), although the area of dark staining apparent in the front elevation of 31 Trafalgar Street (to the left-hand side of the front door) is at a lower level (i.e. approximately the bottom 4 courses of brickwork) than the area of dark staining apparent in the front retaining wall which now runs along the front boundary of the former Trafalgar Works (above which the new metal fence has been erected). That difference may well be accounted for by the insertion of the chemical damp proof course in about 2004. I accept Mr Cornes's opinion that such damp staining is evidence of "there being a volume of water or moisture within or underneath the ground floor slab of the former Trafalgar Works" (DG/120). I accept that evidence and find that, at all material times, there has been a volume or bulk of relatively moist or damp soil or other material underneath the ground floor slab abutting the lower portion of the flank wall of 31 Trafalgar Street. Further, until the recent remedial works were carried out, the lower portion of that flank wall had never been protected against lateral damp penetration.

(2) When Mr Cornes inspected 31 Trafalgar Street in September 2010 he took moisture readings. In paragraph 9.1.1.1 of his second report he stated (4/1131):

"Although there were moderate moisture readings to the left-hand side flank wall above the underground wall, no visible water penetrating damp was evident. The area of the wall which is underground to the hallway, under stairs and kitchen did record high moisture readings and showed visible damp, including hygroscopic salt contaminants, confirming the cause being from lateral penetrating damp from ground moisture or rising damp from within the wall rather than surface water."

He further explained the point in the joint statement (4/1250):

"... the underground wall has evidently suffered from hygroscopic salts which only occur in groundwater contamination ... surface water could contribute to this defect, but in this scenario it is not ... the primary cause ..."

I accept that opinion, and find that to a significant and/or material extent, the damp to the lower part of the flank wall was caused by penetration of lateral ground moisture coming from the soil or material underneath the ground floor slab of the former Trafalgar Works, rather than by "surface water" i.e. rain water penetrating the upper parts of the flank wall, and then percolating down inside the flank wall in the way which Mr Moore described as his 'mechanism 1'. I thus find that the hygroscopic salts which Mr Cornes observed inside 31 Trafalgar Street could only have been caused as a result of the mechanism for which he propounds, rather than as a result of 'mechanism 1' for which Mr Moore propounds.

F: Cause of action in nuisance: a measured duty of care

" ... a person is liable for a nuisance constituted by the state of his property (1) if he causes it; (2) if by the neglect of some duty he allowed it to arise; and (3) if, when it has arisen without his own act or default, he omits to remedy it within a reasonable time after he did ought to have become aware of it." ...

That decision was cited with approval by Megaw LJ in the Court of Appeal in Leakey v National Trust [1980] 1 QB 485: see his judgement at page 516 D-G. It follows that the first stage or element of such a cause of action arises out of, or involves, the state or condition of the property in question.

"The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready-made as it were, when he acquired the property, or the nuisance may be due to a latent defect, or to the act of the trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it."

H: The allegations of breach of the measured duty of care

"The defendant owed the claimants a duty to do what was reasonable in all the circumstances to reduce or alleviate any reasonably foreseeable risk that the demolition of the Trafalgar Works might increase water ingress into the gable wall or the wall below ground."

It is also to be implied from the references to the various e-mails and communications made by the claimants (in particular to Anita Bridgland's first e-mail of 7 September 2010) in their allegation of breach of duty in respect of the second period.

"... consult (sic) a surveyor, architect structural engineer or other professional as to the steps needed to protect the property against the ingress of damp. It would have been reasonable for the defendant to take this step rather than entrust the damp proofing to his contractors, since his contractors lacked specialist expertise."

The defendant's case is that it was reasonable for Mr Wheeldon simply to instruct a contractor, Mr Millward (who in turn instructed a demolition subcontractor) and not to instruct a professional, whether a structural engineer or otherwise. In his evidence Mr Wheeldon accepted that, but for his perceived need for speed, it would have been reasonable for him to instruct a professional (see paragraph 38 above). In my judgement it would always have been appropriate or reasonable for a person in Mr Wheeldon's position to take appropriate professional advice before demolishing a structure such as the former Trafalgar Works, in particular when such a structure joins or abuts another property owned by another party. The reasons for speed advanced by Mr Wheeldon were not sufficient, in my judgement, to alter that position.

"... discuss (sic) the proposed demolition of the Trafalgar Works with the claimants with a view to reaching a mutually satisfactory means to protect the property against damp. Initiating dialogue so as to reach an accommodation can be reasonably expected in circumstances where a party wishes to demolish a structure adjoining property belonging to another."

The defendant first construes that allegation by reference to the earlier allegations relating to a failure to serve a notice under the Party Wall Act, and submits that "the claimants cannot prove that any such notice ... would have come to their attention", and "... that if they had received a notice, (there was no evidence that) they would be likely to instruct a surveyor": see paragraphs 42 (a) and (b) of Mr Taylor's written closing submissions. Mr Taylor further submitted in paragraph 42 (c) that "there is no reason to suppose that the claimants would ... have identified a risk of ingress beneath the slab", observing that they did not identify such a risk when they first learned of the demolition.

" ... install (sic) an external tanking system together with a French drain to prevent the permeation of damp into the property. These works were reasonable works to undertake as they are an effective and proportionate way of addressing the damp issues created by the demolition of the Trafalgar Works and can be achieved without an imposition on the property."

Mr Wheeldon's evidence (DG/77) was that he foresaw there would be an increased amount of rainfall on the newly exposed gable wall following demolition. The defendant's case is that this allegation cannot be established on the evidence because, as at 2007, the defendant neither foresaw, nor was it reasonable for the defendant to foresee, that damp penetration was caused by long-standing lateral ground moisture. While I accept that submission insofar as what the defendant actually foresaw, I do not accept that submission insofar as what the defendant ought to have foreseen because, had the defendant taken advice in 2007 it would have been advised that the cause of damp penetration was long-standing lateral ground moisture from the ground beneath the floor slab. However, as I have already found, Mr Cornes would not have advised the defendant that it should install an external tanking system, because he would have regarded that as being inimical to the interests of his client; instead he would have advised in 2007 what he advised in 2010, namely that the better or preferred option was that of an internal tanking system, which the claimants could carry out their expense. Nor would Mr Cornes have advised that it was appropriate for the defendant to install a French drain on its property

"... facilitate (sic) alternative damp protection measures i.e. internal tanking ... by paying for such measures. Merely re-pointing exposed brickwork and filling in the stairs with concrete was not reasonable as the sole method of preventing the ingress of damp into brickwork and/or the concrete hard standing that has been exposed to the elements for the first time in decades ..."

Again, that allegation is based on the premise that the cause of damp was Mr Moore's 'mechanism 1' i.e. rain water penetrating the upper parts of the flank wall, and then percolating down inside the flank wall and accumulating towards the base. What the defendant foresaw or ought to have foreseen is to be considered in the light of the advice which the defendant received, or would have received at the time. As stated above, the advice which the defendant would have received from Mr Cornes was that the better or preferred option was that of an internal tanking system. But as also stated above, I find that Mr Cornes would not have advised the defendant that it should pay for the installation of such an internal tanking system at 31 Trafalgar Street.

"Given what the claimants already knew (based on Mr Cornes' advice) there was (a) no reason for the claimant to change its view that a French drain would not help the problem, but would impact on the defendant's land; and (b) there was no reason for the defendant to volunteer to pay for works, because Mr Cornes had advised that the damp was not caused by the demolition works."

While I accept the first of those submissions, I reject the second: there was good reason for the defendant to volunteer to pay for appropriate or reasonable remedial works, though not necessarily the installation of a French drain, because - as a result of the advice it had received from Jonathan Cornes - the defendant knew (a) that the volume of moist or damp soil underneath the ground floor slab abutting the flank wall of 31 Trafalgar Street was causing damp penetration and thus damage to the flank wall; and (b) at least an internal tanking system was an appropriate remedial scheme. Accordingly, I do not find Graham Hulse's response was reasonable or sufficient in the circumstances which by then obtained.

" ... since your client removed the attached building to our property we have had water laying against our wall that has caused a damp problem. We followed the advice of your client's surveyor and had a damp proof company carry out tanking to the inside. They have advised us that water is coming in from your client's car park that will cause long-term damage to our property and a land drain is needed. We no longer wish to go on to your client's land as we believe it is down to your client to put in the land drain in accordance with the party wall act."

That indicates the claimants still believed the cause of the damp was the demolition of the former Trafalgar Works; and the type of tanking they had carried out was that which Mr Cornes had advised would be inappropriate. But nevertheless, the underlying complaint remained, namely that something about the state or condition of the defendant's property was causing damage to 31 Trafalgar Street. As with her e-mail of 27 October 2010, this e-mail shows a change of tack on the part of the claimants: whereas they were initially asking permission to go onto the defendant's land to install a French drain, now they were asking the defendant to do that work itself. In my judgement the content of this e-mail adds little to what had already passed, and as a consequence the allegation in paragraph 6 (iii) adds little or nothing to those in paragraphs 6 (i) and/or (ii).

"offer (sic) to bear the cost of any proposed internal tanking arrangement at the property."

"Mr Cornes had recommended internal tanking. The claimants had flatly refused to do it, claiming that it would be too disruptive and that it would result in narrowing their hall. Throughout these proceedings and before they have insisted that only an external tanking system coupled with a French drain will do. Had the claimants obtained any formal professional advice in connection with an internal tanking system, or had they obtained any quotes and/or invited the defendant to contribute to the cost of an internal tanking system, they might be better placed to this allegation ...".

"... allow the claimants access to the site of the Trafalgar Works to install a French drain following the first claimant's request on 27 December 2012."

I read that as a reference to Anita Bridgland's letter of 17 December 2012 (2/397). As stated in that letter, the context at that time was that of the involvement of the Stoke-on-Trent housing standards officer: see paragraphs 32 and 33 above.

".. allow the claimants permission to access the site of the Trafalgar Works to carry out remedial works including a French drain following correspondence between the parties' solicitors on or around 21 November 2014."

The context here is that proceedings had begun on 18 November 2013, and by then solicitors were engaged by the parties; furthermore, the defendant's plans to sell the site including the former Trafalgar Works were well advanced.

I: Conclusions on cause of action in nuisance

(1) The nature of the duty is agreed, or largely agreed, between the parties. It is that of a measured duty of care to take reasonable steps to resolve or reduce hazards on the defendant's land, which the defendant either foresaw, or which the defendant ought reasonably to have foreseen. That such a liability is to be assessed by reference not only to what the defendant actually foresaw, but to what the defendant ought reasonably to have foreseen, is apparent from paragraph 35 of Lloyd J's judgement in Rees v Skerrett.

(2) Given the advice which Jonathan Cornes gave the defendant in his long and detailed e-mail of 13 September 2010 (set out in paragraph 21 above), in my judgement it is likely that the defendant either did foresee, or ought reasonably to have foreseen (a) that the state or condition of its property was causing damage to the adjoining property; and (b) that there was at least one reasonable remedial scheme (internal tanking) which it could carry out at its cost to remedy that damage (see paragraphs 81 & 86 above). However, it remains the case that damage by long-standing lateral ground moisture was not pleaded by the claimants, and thus the issue of what was, or should have been, foreseen in those circumstances was not considered at trial. Instead, the whole focus of the claimants' case was on what was foreseeable in the context of the demolition of the former Trafalgar Works. It is thus difficult, if not impossible, to know what issues on foreseeability might have arisen had the claimants pleaded an alternative case on causation, and consequentially on foreseeability

(3) As regards causation: I have found that the material cause of the damp to the lower part of the flank wall was penetration of the flank wall by lateral ground moisture coming from the soil or material underneath the ground floor slab of the former Trafalgar Works, rather than by "surface water" i.e. rain water penetrating the upper parts of the flank wall, and then percolating down inside the flank wall in the way which Mr Moore described as his 'mechanism 1' (see paragraph 51 above).

(4) As regards breach: I find that the defendant did not take steps to implement and/or pay for the remedial scheme which Jonathan Cornes had identified (internal tanking) which in my judgement was a reasonable remedial scheme for the defendant to have implemented in all the circumstances of the case.

(1) Given the findings made above, the claimants might feel a sense of injustice if the defendant was able to avoid liability because the claimants had failed to identify in their statements of case the correct cause of the damage to 31 Trafalgar Street, i.e. that it had always been caused by the state or condition of the defendant's property, viz by penetration of long-standing lateral ground moisture coming from the soil or material underneath the ground floor slab of the former Trafalgar Works, rather than by "surface water" i.e. rain water penetrating the upper parts of the flank wall, and then percolating down inside the flank wall in the way which Mr Moore described as his 'mechanism 1'.

.

(2) On the other side of the coin: given the way in which the claimants advanced their case through the medium of their statements of case, in particular the re-amended particulars of claim, the defendant might feel a sense of injustice if it was unable to submit that it had successfully defended the case on primary liability (in particular the elements of foreseeability and causation) which the claimants advanced at trial.

"Particulars of claim must include ... a concise statement of the facts on which the claimant relies;"

J: Limitation

K: Loss and damage

"I originally believed the property had been vacant for the period May to July 2009 but upon review of the statements I believe it had been vacant whilst being refurbished from July 2009 to August 2009."

In those circumstances, given the asserted reason for the property being vacant was that it was being refurbished, and not that it was in a condition unfit for letting, the claimants do not establish that they suffered a loss of rent during the three months from May to July 2009, or during the two months of July and August 2009.

"We had periods of time when we could not let the property out as we had to do works to try and repair the damage caused by the damp, but by 2012 it was apparent that it was becoming so bad as to be no longer fit for tenants."

"Investigate cause of the damp and remediate, remove all affected plasterwork back to bare brick, ensure the wall structure adequately dries. Re-plaster the wall ensuring a finish suitable for decorative finish."

Tom Amblin then met Anita Bridgland at the property, and wrote a further letter dated 14 January 2013 in which he stated:

"I am satisfied that you have demonstrated that you have taken a number of steps to remedy the damp issue on the gable wall and that you are pursuing other ways to remedy it. So, at this point, the council would not be pursuing its enforcement powers with regard to this matter.

However, the remaining works on the schedule ... will need to be completed by the end of January ..."

As regards the date for remedial works to be carried out in the hallway this was now described as being "ongoing"; and as regards the date for remedial works to be carried out in the kitchen, the original completion date of 7 January 2013 was replaced by a new completion date of 31 January 2013. There is in fact of manuscript note stating "to be done 28 January 2013", which I assume is in Anita Bridgland's handwriting.

"Mrs Bridgland asked Graham Hulse for permission to enter onto the land to install a French drain to assist with the damp problems. I instructed Graham to respond and say that I would be happy for her to go onto my property to do works providing ... they did not encroach on the land and that it would not cause any problems for future development or sale of the property. After consultation with Jonathan Cornes, I understand the Graham wrote to Mr and Mrs Bridgland to explain that the installation of a French drain was not acceptable because it would restrict future commercial development at the property as it would not be possible to build over the top of it."

That passage focuses on whether the claimants could install a French drain, which the defendant would not permit. In his second witness statement Andrew Wheeldon goes into considerable detail to explain the reasoning behind the defendant's refusal to permit the installation of a French drain on its land. In my judgement the whole tenor of the advice which both Jonathan Cornes and Graham Hulse gave Andrew Wheeldon was that the defendant should not give permission for work which would affect the defendant's use of its property. In those circumstances, neither advised Andrew Wheeldon that he should nevertheless permit the claimants to enter the defendant's land to install external tanking along the flank wall of 31 Trafalgar Street. Furthermore, I find that Andrew Wheeldon was not someone who would be naturally inclined or disposed to entertain such an overture, or to give permission for such work to be carried out. Such an inclination or disposition is consistent with his earlier failure (as I find) to notify the claimants of his original intention to demolish the former Trafalgar works. In those circumstances I reject the defendant's submission in the re-amended defence that it would have given permission for the installation of external tanking.

"Where the DPC was, there was a crack at about 900/1000mm. it went from the door to the staircase. And there was a mark where the old doorway came through. A lump of skirting had come off. These costs were incurred trying to remedy these problems. I had to fill the hole in, replace the skirting, and deal with the cracking all the way along: putting filler in etc."

Anthony Bridgland then estimated of the material costs involved in such work at about £40, and stated that he incurred other costs e.g. sand-papering and the use of his tools. I accept his evidence, and find that material costs incurred were of the order of £50.

"1. Remove all water from gable wall above the original demolished building roofline

2. Re-point all joints with waterproof mortar and allow to cure for 24 hours

3. Fill gap in-between step with waterproof mortar and allow to cure

4. Coat all of the gable wall in industrial silicon

5. Make good and tidy up."

In his cross-examination Anthony Bridgland accepted (DG/53) that the area of re-pointing and subsequent coating with silicon was all above that part of the gable wall originally enclosed by the triangular shaped roof of the Trafalgar Works. I have found that the cause of damp to the gable wall at 31 Trafalgar Street did not involve or implicate the upper section of the gable wall, and accordingly this was not work reasonably and/or necessarily carried out to deal with the state or condition of the property which the defendant had caused or permitted to come about and/or to continue. Accordingly the claimants would not be entitled to recover this item as a head of loss.

"Clive Trevor -- drain clearance and view property re damp. Visit 31 Trafalgar Street following concerns from Homesearch re damp. £80"

This therefore appears to be a claim for one day's loss of earnings on the part of Anthony Bridgland when attending the property on this occasion for that purpose. In paragraph 36 of her third witness statement Anita Bridgland stated (2/410):

"In May 2012, due to the drainage gutter installed by the defendant upon Mr Jonathan Cornes's advice being blocked, we instructed and paid for clearance work to be carried out by Mr Clive Trevor, which we did not get or have not retained a receipt for."

Neither Anita nor Anthony Bridgland stated what sum they paid Clive Trevor. Given the claimants confine their claim in respect of this item to £80, I find that either by reference to Anthony Bridgland's loss of earnings, or to a sum which they in fact paid to Clive Trevor, or to a combination of the two, they would be entitled to recover the sum of £80 in respect of this item.

"Trip to Hanley -- to meet with tradesmen per estimates re - new damp proofing £80, and loss of wages £80."

In his oral evidence (DG/60) Anthony Bridgland referred to the fact that it had proved difficult to get to agree to attend the property, and when they did attend, proved reluctant to carry out work. I accept that evidence. This thus appears to be a claim for two days loss of earnings which Anthony Bridgland suffered when he travelled to Stoke-on-Trent in November 2012. I find that such constituted a reasonable expense, or loss, incurred by the claimants in taking reasonable steps to deal with the state or condition of the property which the defendant had caused or permitted to come about and/or to continue. Accordingly the claimants would be entitled to recover two days net loss of earnings in the sum of £138 in respect of this item.

L: Conclusion

DG

21.04.16