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United Kingdom Upper Tribunal (Lands Chamber)

You are here: BAILII >> Databases >> United Kingdom Upper Tribunal (Lands Chamber) >> Newbold & Ors v The Coal Authority [2012] UKUT 20 (LC) (16 February 2012)
URL: http://www.bailii.org/uk/cases/UKUT/LC/2012/LCA_290_2010.html
Cite as: [2012] UKUT 20 (LC)
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UPPER TRIBUNAL (LANDS CHAMBER)

 

 

UT Neutral citation number: [2012] UKUT 20 (LC)

UTLC Case Number: LCA/290/2010

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

COMPENSATION – mining subsidence – preliminary issue – damage notices – validity – whether given by owner – whether invalidated through lack of required particulars – held notices valid – Coal Mining Subsidence Act 1991 s 3, Coal Mining Subsidence (Notices and Claims) Regulations 1991 Sch 1

 

IN THE MATTER OF A NOTICE OF REFERENCE

 

BETWEEN (1) PAUL HENRY RICHARD JAMES NEWBOLD Claimants

(2) MARCUS CLIFFORD THOMAS JOHN NEWBOLD

(3)GILES RAYMAN WILLIAMSON JAMES NEWBOLD

 

and

THE COAL AUTHORITY Respondent

 

Re: Land and premises

Wentworth Woodhouse

South Yorkshire S62 7TQ

 

 

Before:The President

 

 

Sitting at 43-45 Bedford Square, London WC1B 3AS

on 19-22 July and 26 August 2011

 

Michael Barnes QC and Eian Caws instructed by David Cooper & Co for the claimants

Nicholas Baatz QC and Alan Johns instructed by DLA Piper UK PLC, Sheffield, for the respondent

 

The following cases are referred to in this decision:

 

R v. Home Secretary, ex p Jeyeanthan [2000] 1 WLR 354.

Burman v Mount Cook Land Ltd [2002] 1 EGLR 61

Morrow v Nadeem [1986] 1 WLR 1381

Pearson v Alyo ([1990] 1 EGLR 114

London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182

Speedwell Estates Ltd v Dalziel [2002] 1 EGLR 55

R v. Soneji [2006] 1 AC 340

York v Casey [1998] 2 EGLR 25

R (Reprotech Ltd) v East Sussex CC  [2003] 1 WLR 348

Secretary of State for Employment v Globe Elastic Thread Co Ltd [1980] AC 506

 

 

The following further cases were referred to in argument:

 

Midgulf International v Groupe Chimique Tunisien [2010] EWCA Civ 66

Republic of India v India Steamship Company (No. 2) [1998] AC 878

Proudfoot v Hart (1890) 2 QBD 42

In re Viola’s Indenture of Lease

Hammersmith LBC v Monk [1992] 1 AC 478

International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644

Tennant v London County Council (1957) 12 JP 478

Skinner v Stocks (1821) 4 B & Ald 437

Epps v Rothnie [1945] 1 KB 562

Danziger v Thompson [1944] 1 KB 654

Teheran-Europe Co Ltd v St Belton (Tractors) Ltd [1968] 2 QB 545

Siu v Eastern Insurance Co Ltd [1994] 2 AC 199

Garnac v Faure & Fairclough Ltd [1968] AC 1130

Watson v Threlkend (1798) 2 Esp 637

Heatons Transport v Transport and General Workers Union [1973] AC 15

Lesschke v Jeffs [1955] Queensland Weekly Notes 67

Liverpool Borough Council v Turner (1861) 2 De GF & J 507

Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850

South Buckinghamshire District Council v Porter [2004] 1 WLR 1953

Amalgamated Property Company v Texas Bank [1982] 2 QB 84

The Captain Gregos (No. 2) [1990] 2 Lloyd’s Rep 395

The Vistafjord [1988] 2 Lloyd’s Rep 346

PW & Co v Milton Gate Investments Ltd [2004] Ch 196

National Westminster Finance v National Bank of New Zealand [1996] 1 NZLR 548

Gillett v Holt [2001] Ch 210

Taylor’s Fashions Ltd v Liverpool Victoria Trustee Co [1982] QB 133n

Plimmer v Mayor of Wellington (1884) 9 App Cas 699

Oakglade Investments Ltd v Greater Manchester Passenger Transport Executive [2009] RVR 339

Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623

Thrasyvoulou v Secretary of State [1990] 2 AC 273 (HL)

Porter v Secretary of State for Transport [1996] 3 All ER 6

Northern Roller Milling Co Ltd v Commerce Commission [1994] 2 NZLR 747

R v North and East Devon Health Authority, ex p Coughlan [1999] COD 340

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

R v Home Secretary, ex p Ahmed [1999] COD 69

Prudential Assurance Co Ltd v Exel Ltd [2010] 1 P & CR 90

Lemmerbell Ltd v Britannia LAS Direct Ltd [1998] 3 EGLR 67

Garnac Grain Co. Inc v Faure & Fairclough [1968] AC 1130

HIH Casualty & General Insurance Ltd v Axa Corporate Solutions [2002] All ER Comm 1053

R v Secretary of State for Education ex p Begbie [2000] 1 WLR 1115

Ridge v Baldwin [1960] AC 40

Harmond Properties v Gajdzis [1968] 1 WLR 1858

Saloman v Saloman [1897] AC 22

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500

North Somerset District Council v Honda and Chevrolet [2010] EWHC 1505

Head v Eastbourne Borough Council [2009] UKUT 271 (LC)

New Zealand Institute of Agricultural Science v Ellesmere County [1976] 1 NZLR 630

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Yeoman’s Row Management Ltd v Cobbe [2008] 1 WLR 1752

Alghussein Establishment v Eton College [1988] 1 WLR 587

Fores v Johnes (1802) 4 Esp 97

Duke of Norfolk v Worthy (1808) 1 Camp 337

Low v Bouverie [1891] 3 Ch 82

Morton-Jones v R V and J R Knight Ltd [1992] 3 NZLR 582

Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387

Central London Properties Trust Ltd v High Trees House Ltd [1947] KB 130

Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions [2002] RVR 368

 

 

DECISION

Introduction

1.           The claimants, who are brothers, seek compensation “Likely to be in excess of £100m”, as it is put in the notice of reference, under the Coal Mining Subsidence Act 1991 for the costs of remedial works to the mansion house and ancillary buildings at Wentworth Woodhouse, of which they are the freehold owners as tenants in common.  Notice of reference was given following the service under section 3 of the Act of two damage notices, one dated 1 February 2007 and the other dated 3 August 2009, and their rejection by the Coal Authority.  The Authority, the respondents, say that neither damage notice was valid; firstly because each was given by the first claimant, Paul Newbold, alone, rather than by the three brothers as owners of the property; and secondly because in four respects it failed to give particulars prescribed for such purposes by Regulations made under the Act.  The claimants deny that the notices are invalid.  They say that they were validly given by Paul Newbold as agent for himself and his brothers; or alternatively that they were given by the brothers; that any failure to give prescribed particulars has not rendered the notices invalid; and that in any event the Authority are estopped from contending that the notices are invalid or alternatively debarred from so contending under the doctrine of legitimate expectation.  I ordered that the issue of whether either or both of the notices were valid damage notices should be determined as a preliminary issue.

2.           Wentworth Woodhouse is a mansion built on a vast scale in the mid-18th century with a number of substantial buildings and structures in its grounds.  It is in a sadly dilapidated condition.  It was owned and occupied for many years by the Earls Fitwilliam but during the second world war and afterwards it was occupied mainly by the military and then by various public bodies.  It was acquired in 1988 by a person called Wensley Haydon-Baillie.  Mr Haydon-Baillie got into financial difficulties, and on 4 June 1999 the property was acquired from his mortgagee, Bank Julius Baer, by Macaw Properties Ltd (Macaw), a company ultimately owned and controlled by the three Newbold brothers.  The freehold was transferred by Macaw to the Newbold brothers on 2 December 2005, subject to the grant of a lease for 20 years from 1 December 2005 in favour of a company, SW1 Nominees Ltd, which held the lease on trust for Macaw.  Small parts of the property were held under sub-leases

3.           Extensive coal mining took place in this part of Yorkshire in the vicinity of the Wentworth Estate from the 19th century up to about 30 years ago.  Deep mining was carried out by private coal owners and then by the National Coal Board beneath the property from 1922 to 1962 and in the vicinity of the Wentworth Estate from 1922 to 1979.  In addition opencast mining was carried out very near to the mansion in the late 1940s.  On occasions in the past the Coal Authority or their predecessors accepted claims in respect of damage to the property caused by mining subsidence.

4.           The claimants contend that extensive subsidence damage has occurred over the past decade to Wentworth Woodhouse.  The two damage notices that were given were rejected by the Coal Authority (on 24 December 2008 and 14 September 2009) on the ground that any damage to the property which had occurred within the relevant period prior to the giving of the notice was not caused by coal mining operations and so was not subsidence damage for which they had any liability under the Act.  Notice of reference to the Tribunal was given on behalf of Macaw on 22 December 2009 by their solicitors, David Cooper and Co, and a further notice of reference was given on behalf of the Newbold brothers on 20 January 2010.  A statement of case in relation to both references was filed on 27 January 2010, and the Authority’s reply was filed on 9 April 2010.  The reply asserted that the claims were invalid.  On 11 June 2010 I ordered that the issue of the validity of the notices should be determined as a preliminary issue and that a statement of case and a reply should be filed in relation to the issue.  On 18 March 2011 I consented to an application made on behalf of Macaw that Macaw’s case be withdrawn.

Statutory provisions

5.           Section 2(1) of the 1991 Act creates a duty to take remedial action in respect of subsidence damage.  Under section 43(1) of the Coal Industry Act 1994 the duty is that of the person responsible for mining subsidence in the area; and section 43(3) provides that the holder of a licence under Part II of the Act to carry out coal-mining operations is the person responsible for mining subsidence within the area of his responsibility; otherwise the person responsible is the Coal Authority.  Here it is the Coal Authority, and for convenience, therefore, I will set out and refer to relevant provisions of the 1991 Act as though they referred expressly to the Authority.  Subsections (1) and (2) of section 2 provide:

“(1) Subject to and in accordance with the provisions of this Part, it shall be the duty of the [Authority] to take in respect of subsidence damage to any property remedial action of one or more of the kinds mentioned in subsection (2) below.

(2) The kinds of remedial action referred to in subsection (1) above are–

(a) the execution of remedial works in accordance with section 7 below;

(b) the making of payments in accordance with section 8 or 9 below in respect of the cost of remedial works executed by some other person; and

(c) the making of a payment in accordance with section 10 or 11 below in respect of the depreciation in the value of the damaged property.”

6.           Section 3 includes these provisions:

“(1) The [Authority] shall not be required under section 2(1) or (4) above to take any remedial action or make any payment in respect of the cost of emergency works, unless the owner of the property or some other person who is liable to make good the damage in whole or in part–

(a)   has given to the [Authority] the required notice with respect to the damage within the period allowed by this section; and

(b)  has afforded the [Authority] reasonable facilities to inspect the property, so far as he was in a position to do so.

(2) The required notice with respect to any subsidence damage is a notice stating that the damage has occurred and containing such particulars as may be prescribed; and references in this Act, in relation to subsidence damage, to a damage notice are references to such notice with respect to the damage given within the period allowed by this section.

(3) The period allowed by this section for giving a damage notice with respect to any subsidence damage is the period of six years beginning with the first date on which any person entitled to give the notice had the knowledge required for founding a claim in respect of the damage.”

Subsections (4) and (5) say what knowledge is required for founding a claim, and included in subsection (6) is this definition:

“‘the claimant’, in relation to any subsidence damage, means the person who gave or, as the case may be, was the first person to give a damage notice to the [Authority] in respect of the damage, and includes any successor in title of his.”

Section 52(1) defines “owner” (in relation to property not held by a lessee under a ground lease) as the owner of the fee simple.

7.           It is to be noted that section 3(3) imposes the same period of limitation as would apply under section 9 of the Limitation Act 1980, which prescribes the time limit for sums recoverable by statute.  It is thus a conventional limitation, specifically included no doubt because the remedies provided under the 1991 Act are not confined to money payments and because of subsections (4) or (5), which deal with the knowledge required for founding a claim. 

8.           Section 4(1) provides that as soon as practicable after receiving a damage notice the Authority must give to the claimant, and to any other person interested, a notice indicating whether or not they agree that they have a remedial obligation in respect of the whole or any part of the damage specified in the damage notice.  (Section 3(6) defines “any other person interested” to mean a person other than the claimant who has given notice in respect of the damage.)  Section 40(1) provides that “any question arising under this Act” shall, in default of agreement, be referred to the Upper Tribunal.  Thus where, as here, the Authority have given notice that they do not agree that they have a repairing obligation, the question whether they do have such an obligation may be referred to the Tribunal for decision.  Under section 44(2) reference to the Tribunal must be made within three years of the date on which the Authority are in breach of their remedial obligation.  Where a damage notice has been served this date, by reason of section 3(1), is the date on which the notice was given.

9.           Regulation 2 of the Coal Mining Subsidence (Notices and Claims) Regulations 1991 requires that a notice given under section 3(1)(a) of the Act “shall contain the particulars set out in Schedule 1 to these Regulations”.  The particulars set out include the following:

“1. The name and address of the claimant and of any person acting on his behalf…

5. Particulars of the legal interest of the claimant in the property.

6. The names and addresses (if known) of any other persons having a legal interest in the property (including mortgagees…) and the nature of their interest…

10. Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report.”

The notices

10.        The first damage notice was given on 1 February 2007 and the second on 3 August 2009.  Each of the notices used the standard form of notice created for this purpose by the Department of Trade and Industry (the department responsible for coal mining at the time of the first notice).  In section 1 “Claimant’s Name” was given as Paul Newbold and the address as Wentworth Woodhouse.  A side note on the form said “If you are representing the claimant and completing this form on his or her behalf, please give your name and address”.  Mr Robert Talby, who completed the 2007 form, and Mr James Harbord, who completed the 2009 form, complied with this instruction, each giving his own name and the address of his firm, Ove Arup and Partners Ltd, the engineering consultants.  In answer to the question “Are you a professional agent authorised to represent the claimant?” each ticked the “Yes” box.

11.        Question 10 in section 4 of the form was: “Particulars of the claimant’s legal interest in the damaged property”; and it contained two questions, each with a “Yes” box and a “No” box opposite them.  The first question was “Are you the owner of the freehold?” and in each form the “Yes” box was ticked.  The second question was “Are you a tenant and liable for repairs?” again with a “Yes” box and a “No” box.  Neither the “Yes” box nor the “No” box was ticked in answer to this second question.  A further option was also included: “Other, please give details”; and in response these words were added: “See attached note on ownership of site.”  Question 11 “Give full particulars of any other persons having an interest in the property eg Landlord, Tenant, Building Society or other provider of a mortgage” was left blank.  The attached note said this:

“Macaw Properties Ltd owned the freehold of the site until December 2005, at which time the freehold was bought by the Newbold brothers with Macaw Properties Ltd retaining a 20 year lease of the vast majority of the site.  The remainder being a small apartment within the house held by the Newbold Brothers on a 20 year lease.”

12.        Question 16 was: “Prior to the property being damaged, did the claimant pay to have an independent surveyor carry out a pre-mining survey?” and brief details were requested, including the date of the report and who prepared it, if the answer was yes.  Here the following statement was made:

“A survey of the Estate was prepared in 1999 by Martin Stancliffe Architects/ Gifford Consulting Engineers on behalf of English Heritage.  The report was presented to the current owners as part of the sale of the estate.”

13.        The 2007 and the 2009 damage notices differed materially only in relation to the damage specified.  The 2007 notice stated in response to Question 8 (Date when damage was first recognised) and Question 9 (Brief description of damage):

“8. By the present owners 2005

9. Evidence of recent cracking and movement to the main house and stableblock building, settlement and disturbance of walls, settlement of grounds and roads, including recently re-levelled road surfaces.”

The 2009 notice stated:

“8. 2009.  (Damage notice dated 2007 detailed damage noticed from 2005)

9. Movement of the north tower has displaced roof timbers, further damage to ceiling plasterwork, further movement and damage to terrace wall and cracking to the underground drainage system.”

The first notice was signed by Giles Newbold, and the second was signed by Mr Harbord.

The legal interests in Wentworth Woodhouse

14.        Certain of the witness statements that had been filed purported to describe the various legal interests in Wentworth Woodhouse, but they did so inaccurately until the second witness statement of Mr David Cooper, whose firm, David Cooper & Co, acts for Macaw Properties Ltd and the Newbold brothers. As set out in Mr Cooper’s statement the sequence of events was as follows:

(a)         On 4 June 1999 the freehold was acquired by Macaw Properties Ltd, and on the same day Macaw entered into a legal charge with St Ledger Investments Ltd.  The freehold was subject to rights of way and sewerage on the part of a neighbouring landowner.

(b)        On 2 December 2005 the following events took place:

(i) Macaw Properties Ltd entered into an assured shorthold tenancy agreement with Clifford and Dorothy Newbold, the parents of the brothers, for the letting of a suite of rooms in the mansion for a term on one year less one day from 1 December 2005.

(ii) Macaw Properties Ltd granted a lease of the property to SW1 Nominees Ltd for 20 years at a peppercorn rent.

(iii)          SW1 Nominees Ltd entered into a trust deed to hold the head leasehold of the property on trust for Macaw Properties Ltd.

(iv)          A further suite of rooms was sublet by SW1 Nominees Ltd to Macaw Properties Ltd.  This suite was and continues to be occupied by the brothers.

(v)            The freehold title was transferred by Macaw Properties Ltd to Paul, Marcus and Giles Newbold as legal joint tenants on trust for themselves as tenants in common.

(c)         On 7 November 2007 the head leasehold interest in the property was transferred by SW1 Nominees to Macaw Properties Ltd.

15.        Thus at the date of the first damage notice (1 February 2007) the freehold was vested in the three brothers and SW1 Nominees Ltd held a 20-year leasehold interest on trust for Macaw Properties Ltd subject to an underlease to Macaw of the brothers’ suite of rooms.  At the date of the second damage notice (3 August 2009) the freehold remained vested in the brothers but the headlease had been transferred to Macaw (and, it would appear, the underlease of the brothers’ suite would have merged with it).  In terms of the Act, therefore, at the date of the first notice the brothers were owners of the property and SW1 Nominees Ltd was a person who was liable to make good such damage as the property might have suffered through mining subsidence.  At the date of the second notice the owners were the brothers and Macaw was a person who was liable to make good such damage.  These were the persons who respectively at those dates were entitled to serve damage notices.

16.        The note on ownership of the site attached to each damage notice was correct only to the extent that it implied that the freehold was vested in the brothers.  It was inaccurate in stating that Macaw had from December 2005 “retained” a 20 year lease “of the vast majority of the site”.  From 2 December 2005 to 1 February 2007 the 20-year headlease, which was of the whole property, was vested in SW1 Nominees Ltd, and from the latter date it was vested in Macaw.  The note was inaccurate also in stating that “a small apartment within the house [is] held by the Newbold Brothers on a 20 year lease.”  The 8-bedroom apartment was not leased to the brothers but to Macaw.

How the damage notices were dealt with

17.        Following the 2007 notice, between February 2007 and December 2008, some nine meetings were held between the Newbolds’ representative, Arup, and representatives of the Coal Authority.  Arup had been advising the Newbolds in relation to mining subsidence at Wentworth Woodhouse since September 2005.  (Whether in this capacity Arup had authority to act for the claimants or whether their authority was confined to Macaw Properties Ltd, as the respondent asserts, is a matter that I shall address later.)  Those actively engaged in Arup’s work were Mr Robert Talby, Mr David Scholey and Mr James Harbord, all associates of the firm.  Mr Talby was responsible for preparing the 2007 damage notice and Mr Harbord was responsible for preparing the later 2009 damage notice.  The meetings took place either at Wentworth Woodhouse or at Arup’s offices in Sheffield.  Paul Newbold was present at two of those meetings, Marcus at three, and Giles at eight.  Their father Clifford was also present on one occasion. 

18.        The purpose of the meetings was to discuss the subject-matter of the damage notice and in particular the mechanisms by which mining subsidence could recently have occurred despite the fact that mining in the area had ceased in 1964.  The Authority had engaged consultants to advise them, White Young Green Environment Planning and Transport Ltd, on geological and geotechnical matters, and Alan Baxter & Associates, structural engineers.  A representative of White Young Green was present at three of the meetings and a representative of Alan Baxter & Associates at one.  The Authority’s representatives were principally Mr Cammack, a senior subsidence inspector, who attended on seven occasions, and Mr Reed, who was at the time Head of Public Safety and Subsidence, attended five of the meetings.  On one occasion, on 9 October 2008, the Authority’s Chief Executive Mr Philip Lawrence was present, and Mr Lawrence subsequently visited the property together with non-executive members of his board.

19.        On 24 December 2008, three weeks after the ninth of those meetings, Mr Reed, the Authority’s Head of Public Safety and Subsidence, wrote to Paul Newbold referring to “the claim you have made”.  The letter said that the Authority were not minded to accept that they had a remedial obligation to undertake remedial works and it set out the reasons for this.  Although no reference was made to section 4(1) of the Act it is agreed that this letter constituted notice for the purposes of that provision in relation to the first damage notice.

20.        During the meetings reference had been made to damage said to have occurred more recently than that which had been the subject of the 2007 notice, and the Authority had said that they could not consider this without a fresh damage notice.  The second notice was therefore given in August 2009.  Following this there was a further meeting on 1 September 2009 between Arup and the Authority, at which Giles and Clifford Newbold were also present.  On 14 September 2009 Mr Cammack, as the Authority’s Senior Project Manager, wrote to Arup (“For the attention of Mr J Harbord”) stating that the Authority remained of the opinion that the damage was the result of movement not attributable to further coal mining subsidence “for reasons previously set out in our correspondence dated 24 December 2008”; and accordingly that the letter constituted notice under section 4(1) that the Authority did not agree that they had a remedial obligation.

21.        On 22 December 2009 notice of reference to this Tribunal was given by the solicitors David Cooper and Co on behalf of Macaw Properties Ltd, whose status was given as “Property owner”.  It described the claim as being for the costs of remedial works or alternatively damages for the failure of the Authority to meet its obligations under the Coal Mining (Subsidence) Act 1957 and the 1991 Act in respect of the damage notices that had been served.  It said that the amount of the claim was likely to be in excess of £1 million.  Four weeks later, on 20 January 2010, a further notice of reference was given by David Cooper and Co, in identical terms to the first one, except that the claimants were stated to be Paul, Marcus and Giles Newbold, their status being given as “Property owners”.

22.        The Authority’s reply of 9 April 2010 to the claimants’ statement of case asserted that the claims were invalid.  No such assertion had previously been made by the Authority.  It was because of this assertion in the reply that I ordered that the issue of the validity of the notices should be determined as a preliminary issue and that a statement of case and a reply should be filed in relation to the issue.  The pleadings, directed to the effect of a two-page form, were extensive.  The hearing of the preliminary issue took five days.  There were (relatively short) witness statements from six witnesses and a substantial amount of documentation.  The claimants’ skeleton argument ran to 91 pages and their written closing submissions to 162 pages.  Over 60 authorities were referred to.

The parties’ cases summarised

23.        The Authority said that each notice was invalid because it had been given by Paul Newbold alone, and he was not the owner of the property under section 3(1), and because it failed to give particulars that were required under the Regulations (specifically, particulars 1, identifying the claimant; 5 and 6 (details of legal interests in the property) and 10, which requires the claimant to state whether he has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report). 

24.        The claimants agreed that a damage notice on behalf of the owner of property had to be given by or on behalf of all co-owners and could not be given by one alone.  Their case was that both damage notices were given by Paul Newbold as agent for himself and his brothers.  The agency was an implied agency arising from the way in which the three brothers had conducted their property and other affairs over a number of years, and Paul, it was said, was the undisclosed principal.  The Authority said that there was on the facts no such agency: that Paul did not act as agent; and that no implied agency existed.  They said also that there was no room under the statutory provision for applying the law of undisclosed principals.  As far as the alleged irregularities were concerned, the claimants said that none of them invalidated the notices, either because there had been substantial compliance with particulars, or because the non-compliance had been waived and no significant prejudice had been caused to the Authority by the irregularity, or because the irregularity was not one that invalidated the notices.

25.        If their arguments on agency and non-compliance with the Regulations failed, the claimants sought to rely on estoppel.  They said that from the date of the service of each notice the parties had shared the assumption that the notices were valid notices, and that this was demonstrated by the many actions carried out by them over a period in excess of three years, including the expenditure by both of substantial sums of money.  The assumption that the notices were valid in law gave rise to an estoppel by convention.  Alternatively, if estoppel was, as the Authority asserted, inapplicable because the Authority was a statutory body exercising statutory functions, the claimants relied on the same facts as giving rise to a legitimate expectation.  The Authority said that no estoppel or legitimate expectation arose on the facts.

26.        During his opening I asked Mr Barnes whether a contention that the damage notices on their face showed that they were being given on behalf of the three Newbold brothers formed any part of his case.  Such a contention seemed to me possible in view of the references in each notice and the note attached to each notice to the “owners” and to the Newbold brothers.  Mr Barnes said that he did not put his case in that way.  In closing, however, Mr Barnes, advanced the argument that any reasonable person in the position of the Authority would have known that the insertion of Paul’s name as the claimant was an error and would have known clearly what was intended, and that on those facts the notices were saved from invalidity.  He called this his Fifth Submission.  I will consider it, and what flows from it, first.

Mr Barnes’s Fifth Submission

27.        Mr Barnes’s submission was founded on a short passage in the judgment of Nicholls LJ in Morrow v Nadeem [1986] 1 WLR 1381, a case about a notice under section 25 of the Landlord and Tenant Act 1954 that the Court of Appeal held to be invalid.  The passage relied on (at 1387) is this:

“There might perhaps be an exceptional case in which, notwithstanding the inadvertent mis-statement or omission of the name of the landlord, any reasonable tenant would have known that that was a mistake and known clearly what was intended.  But that is not this case.”

That observation was quoted with approval by Nourse LJ in another case in which a section 25 notice was held to be invalid, Pearson v Alyo [1990] 1 EGLR 114 (at 115M-116A). 

28.        Mr Barnes suggested that the Authority, in the person of Mr Cammack, had indeed understood that the notices had been given on behalf of the three brothers.  Writing a memorandum following his inspection of the property on 27 February 2007 Mr Cammack said that “the property has been owned by the Newbold brothers for the last 8/10 years”; and in writing to Mr Talby on 12 July 2007 he said: “I understand that the Newbold family have submitted a claim for damages to the entire Estate…”  In cross-examination he said that the reference to the owners was to “Paul, Giles and Marcus as well”; that “the owners” were the Newbold family; and that by “the owners I meant Paul, Marcus and Giles (or perhaps Clifford).”  Mr Barnes said that the notices ought accordingly to be construed as having been given by the brothers as owners of the property.

29.        The question, in my judgment, is indeed simply one of construction.  What Nicholls LJ was saying in the short passage relied on was that a reasonable tenant would, in the exceptional case he had in mind, have understood from the notice what was intended, so that the notice was to be construed in that way.  How, then, are the notices in the present case to be construed?

30.        Under section 3(1) of the Act a damage notice may be given either by the owner of the property or by some other person who is liable to make good the damage in whole or in part.  Indeed a notice can only be given by such a person, and the Authority’s duty under section 2(1) to take remedial action does not arise unless it is so given.  Whether a notice, purportedly given under this provision, has been given by the owner or by some other person who is liable to make good the damage or by neither of these must indeed be a question of construction of the notice.  The question is: on a proper construction of the notice, was it given by the owner? or by some other person who is liable to make good the damage? or by neither of these?  Of course, if the notice was purportedly given by a person who said that he was acting on behalf of the owner or some other person who is liable to make good the damage, it will not have been given by the owner or that other person unless the person said to be acting on his behalf had authority to do so.  That, however, is a separate question.  In addition “the required notice” must state such particulars as are prescribed, and prescribed Particular 1 is the name and address of the owner; but again it is a separate question whether that particular has been given and, if it has not, whether the failure renders the notice invalid.

31.        There is no doubt, in my judgment, looking at each notice, that it was a notice that purported to have been given by the owner rather than by some other person who was liable to make good the damage or by neither of these.  This is clear because the answer given to the question “Are you the owner of the freehold?” was “Yes” and the question “Are you a tenant and liable for repairs?” was left unanswered.  Moreover it is also apparent that, despite a single name being entered in the “Claimant’s Name” box, the owner on behalf of whom the notice was given was in fact plural.  That appears from the note on ownership attached to the notice which stated that the freehold became vested in “the Newbold brothers” in December 2005; by the answer to question 16, which said that the Martin Stancliffe report of 1999 was presented to “the current owners” as part of the sale of the estate; and, in the 2007 notice, by the answer to question 8, which said that the damage had first been recognised “by the current owners” in 2005. 

32.        As a matter of construction of the notices in relation to section 3(1), therefore, they purported to be given by the owners and not just by one of them.  That is what a reasonable recipient would have understood; and indeed the evidence shows that Mr Cammack for one did understand this, and there is nothing to suggest that anyone else in the Coal Authority understood it otherwise.  Whether the notices were in fact given by the owners accordingly depends on whether Arup (Mr Talby in relation to the 2007 notice and Mr Harbord in relation to the 2009 notice) had the authority of the owners to give the notice. 

The authority of Arup

33.        Arup, in the person of Mr David Scholey, an associate of the firm, first met Clifford and Giles Newbold at a meeting on 9 September 2005, and, following the meeting, Mr Scholey wrote to Giles stating his understanding that “you would like us to review the deep and surface mining that has taken place in the vicinity of the House and gardens, with the intention of submitting a claim against the Coal Authority for mining subsidence damage.”  The letter contained proposals for a Desk Study and other work that Arup would do.  On 19 September 2005 Giles replied on Macaw Properties Ltd notepaper (the letter being signed by Paul on his behalf) confirming that they would like Arup “to carry out the first phase of the claim.”  On 2 June 2006 Mr Scholey wrote to Giles proposing an extension of Arup’s appointment in order to cover the carrying out of a visual inspection, and on 11 October 2006 Paul wrote on Wentworth Woodhouse notepaper confirming that “we would like you to carry out” the survey. 

34.        The Authority’s contention, advanced by Mr Baatz, was that it was Macaw that throughout was the client of Arup, whose fees the company paid, and that Arup had no authority to act on behalf of the three brothers.  Mr Talby was cross-examined at length on the matter, and Marcus and Giles were also cross-examined about it.  Mr Baatz sought to place reliance on particular answers that they gave.  Thus Mr Talby accepted that the original appointment was by Macaw and the further appointment was an extension of it.  He agreed that the Desk Study was carried out on behalf of Macaw, that the 2007 report was for Macaw, and that when the form was done it was done for a client, Macaw.  However, the substance of Mr Talby’s understanding of Arup’s authority was made clear by other answers that he gave.  He said in particular that the client was the three brothers, who were Macaw Properties: “I made no distinction between them.”  Giles’s evidence was to the same effect.  As he put it in cross-examination: “Macaw is the three brothers.”  It is also significant that the Desk Study of August 2006 recorded Arup’s instructions as follows:

“Ove Arup and Partners Ltd (Arup) have been commissioned by Macaw Properties and Newbolds (referred to in this report as Macaw Properties) to provide geotechnical and structural engineering services in relation to the investigation of the potential causes of reported recent observed movement of Wentworth Woodhouse, and associated grounds and buildings.”

35.        It is clear also that in preparing the 2007 notice Mr Talby regarded Arup’s authority as extending to both Macaw and the brothers.  On 10 October 2006 he sent to Giles two uncompleted copies of the form of damage notice issued by the Coal Authority.  In his letter to Giles Mr Talby wrote:

“We have spoken to the Coal Authority who will not accept receipt of our geotechnical desk study report until a claim for damage notice has been submitted. Please find attached two copies of the claims damage notice which should be completed by the Newbold Family and your lawyers.  We recommend the wording of this claim is agreed between the Newbold Family and your lawyers, with technical input provided by us.”

36.        Then on 17 January 2007 Mr Talby wrote to Giles:

“As requested, please find attached our draft of the completed Coal Authority Damage Notice form for the Wentworth Woodhouse Estate…

We would be grateful if you could review our draft version of this claim form to ensure the details are correct, and provide any comments if required. We recommend the final signature is from a member of your family as you are the owners of the property.”

37.        On 23 January 2007 Giles sent an email to Mr Talby (it said: “From: G Newbold, Macaw Properties Ltd, Wentworth Woodhouse”) with the note about ownership that Mr Talby attached to the notice, and on 31 January Mr Talby sent the completed form to Giles and asked him to sign it and send it to the Coal Authority.

38.        The assertion of all three brothers was that Mr Talby prepared the form on behalf of all of them, and I see no reason to conclude that he did not have the authority that he claimed on the form to have.  The fact that it was Macaw that engaged Arup for the purpose of preparing the reports and that it was Macaw that paid for them is not inconsistent with Arup having such authority.  Similarly I see no reason in the light of the evidence to doubt that Mr Harbord, who prepared and signed the 2009 notice, did have the authority that he said that he had.  On the evidence I find, therefore, that both Arup, in the persons of Mr Talby and Mr Harbord, had the authority stated on each notice to give the notice on behalf of the brothers as owners.

39.        I would add that Mr Baatz sought to derive support for his contention that throughout it was the intention that Macaw rather than the brothers that should be the claimant from the evidence given by Mr Cooper, the claimants’ solicitor, about the notices of reference to the Tribunal that he was responsible for making in December 2009 and January 2010, but this does not in my view shed any light on Arup’s authority to give the damage notices in February 2007 and August 2009.  Mr Cooper, who said that before giving the notices of reference he had read only the DTI guidance and not the Act, stated that he intended to make references on behalf both of Macaw and the brothers before Christmas but ran out of time.  Although both notices of reference were in virtually identical terms, his office was extremely busy at the time.  He could not say why, in view of the urgency, the second notice was not given until 27 January 2010.  Mr Baatz pointed out that he was consulting counsel between 7 and 12 January.  I find that Mr Cooper’s recollection was at fault, and that when he made the first reference he did not have in mind a further reference by the brothers.  But this does not, as I have said, shed any light on Arup’s authority to give the damage notices.

40.        Since the notices were, as I have concluded, given on behalf of the owners by their agents, who had authority to do this, the remaining question is whether the notices are rendered invalid by failures to comply with the prescribed particulars, and I now turn to this.

Failure to give prescribed particulars: the test of invalidity

41.        The Authority claimed that each of the notices was invalidated by failures to give particulars prescribed by the Regulations.  Specifically the failures were in respect of Particular 1 (the name of the claimants), Particular 5 (particulars of the claimant’s legal interest in the property), Particular 6 (the names and addresses, if known, of other persons having a legal interest in the property) and Particular 10 (whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report).  The claimants contended that none of the failures, or the alleged failures, to give the particulars required had the effect of invalidating the notices.

42.        Mr Barnes submitted that, save in a few exceptional circumstances, a failure to comply with a procedural requirement in relation to something such as the content of a notice will not invalidate the notice if either (a) the non-compliance is insubstantial so that there has been substantial compliance with the requirement or (b) the non-compliance has been waived or (c) the non-compliance does not result in any significant detriment to the other party.  He relied for this submission on R v. Home Secretary, ex p Jeyeanthan [2000] 1 WLR 354.  Mr Baatz said that Jeyeanthan did not provide the right test, because it was concerned with a failure to comply with a statutory procedural requirement and not, as here, a failure going to jurisdiction.  The correct approach in relation to statutory notices in respect of property was that set out by the Court of Appeal in the later decision of Burman v Mount Cook Land Ltd [2002] 1 EGLR 61.  This simply required asking two questions: what does the statute require? and does the notice fulfil those requirements?

43.        The 1991 Act, said Mr Baatz, was definitive.  It set out clear, bright criteria for validity.  There was a purpose served by this clarity: the statutory scheme established by Parliament would be subverted if there were imported into the scheme open-ended considerations of “insubstantiality” or “lack of significant detriment”.  This was a case in which the recipients of the notice needed to know where they stood at the time the notice was given, which could not be the case if the notice could be saved by reference to such considerations.  There was no need to strain to save invalid notices since the Act provided a generous “limitation” period of six years from knowledge (by section 3(3)).  That was more generous than the common law limitation period which runs from the date of damage.  But the question, in the light of authority, was simply whether the requirements were met, not whether any prejudice was caused to the Authority by any failure on the claimants’ part.

44.        In Jeyeanthan, a decision of the Court of Appeal, the issue was the consequence, if any, of the Secretary of State for the Home Department failing to use the prescribed form for applying for leave to appeal to the Immigration Appeal Tribunal from a decision of a Special Adjudicator in an asylum case.  Although the prescribed form was not used it was accepted that that the only practical omission was the absence of a declaration of truth.  Did that render the decision of the IAT a nullity?  In holding that it did not Lord Woolf MR, with whom Judge and May LJJ agreed, drew on a passage in the opinion of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 188-190 that warned against over-dependence on words such as “mandatory”, “directory”, “void”, “voidable” and “nullity” when seeking to determine the effect of a defect in the exercise of a statutory power.  At [2000] 1 WLR 354, 262C-F Lord Woolf said:

“Bearing in mind Lord Hailsham’s helpful guidance I suggest that the right approach is to regard the question of whether a requirement is directory or mandatory as only at most a first step.  In the majority of cases there are other questions which have to be asked which are more likely to be of greater assistance than the application of the mandatory/directory test.  The questions which are likely to arise are as follows :

(a) Is the statutory requirement fulfilled if there has been substantial compliance with the requirement and, if so, has there been substantial compliance in the case in issue even though there has not been strict compliance?  (The substantial compliance question.)

(b) Is the non-compliance capable of being waived, and if so, has it, or can it and should it be waived in this particular case?  (The discretionary question.)  I treat the grant of an extension of time for compliance as a waiver.

(c) If it is not capable of being waived or is not waived then what is the consequence of the non-compliance?  (The consequences question.)

Which questions arise will depend upon the facts of the case and the nature of the particular requirement.  The advantage of focusing on these questions is that they should avoid the unjust and unintended consequences which can flow from an approach solely dependant on dividing requirements into mandatory ones, which oust jurisdiction, or directory, which do not.  If the result of non-compliance goes to jurisdiction it will be said jurisdiction cannot be conferred where it does not otherwise exist by consent or waiver.”

45.        Mr Baatz, as I have said, sought to distinguish Jeyeanthan on the basis that it was a case of a failure to comply with a statutory procedural requirement, whereas the failure in the present case went to jurisdiction.  The distinction, expressed in these terms, does not seem to me, however, to be a real one: the contention of the asylum-seeker in Jeyeanthan was that the IAT had no jurisdiction because of the failure to use the prescribed form and to give a declaration of truth.  Mr Baatz went on to say that the particular provision with which Jeyeanthan was concerned was not, as here, an Act of Parliament but statutory rules made by the Lord Chancellor under powers conferred on him by statute.  But this too, in my view, is not a real distinction since a statutory instrument has the same force in law as a statute, and in any event the dispute arises here in relation to regulations made by the Secretary of State for Energy under powers contained in the 1991 Act.

46.        The authority on which Mr Baatz for his part principally relied was the Court of Appeal decision in Burman v Mount Cook Land Ltd [2002] Ch 256, which concerned the validity of a counter-notice under section 45 of the Leasehold Reform, Housing and Urban Development Act 1993, following a claim by a tenant of a flat to acquire a new long lease under the Act.  Under section 45(2) the counter-notice had to comply with certain specified requirements, one of which was to state that the landlord admitted that the tenant had on the relevant date the right to acquire a new lease of his flat.  If that requirement was complied with, subsection (3) required in addition that the counter-notice must state which if any of the proposals in the tenant’s notice were accepted and which not, and to specify, in relation to each proposal which was not accepted, the landlord’s counter-proposal.  The question in the case was whether a notice which did not state, in terms, that the landlord did, or did not, admit that the tenant had on the relevant date the right to acquire a new lease – and which did not state, in terms, which (if any) of the proposals contained in the tenant’s notice were accepted by the landlord – was a valid notice under the Act.  Chadwick LJ, with whom Sir Murray Stuart-Smith agreed, said that the correct approach was encapsulated “succinctly and accurately” in the following passage of the judgment of Rimer J in Speedwell Estates Ltd v Dalziel [2002] 1 EGLR 55 at paragraph 22:

“…I consider that the better approach is to look at the particular statutory provisions pursuant to which the notice is given and identify what its requirements are.  Having done so, it should then be possible to arrive at a conclusion as to whether or not the notice served under it adequately complies with those requirements.  If anything in the notice contains what appears to be an error on its face, then it may be that there will be scope for the application of the Mannai approach, although this may depend on the particular statutory provisions in question.  The key question will always be: is the notice a valid one for the purpose of satisfying the relevant statutory provisions?”

47.        Mr Baatz also referred to Pearson v Alyo.  There a hotel had been bought by a husband but on advice it had been registered with him and his wife as joint proprietors.  The section 25 notice failed to mention the wife in giving the name of the landlord.  The Court of Appeal held that the notice was invalid, despite the fact, as Bingham LJ put it ([1990] 1 EGLR 114 at 116K) that the point taken by the tenant was “one of extreme technicality”.  The tenants said that the respondents had not in fact been misled by the naming of the wrong person in the notice and so they had not in the event been disadvantaged.  Nourse LJ described these considerations as very persuasive but continued, in a passage relied on by Mr Batz (at 116G):

“If they could be detached from the material provisions of the Act and the authorities which have preceded us, they might well be conclusive.  But it must be emphasised that the validity of a section 25 notice is to be judged and judged objectively, at the date at which it is given.  The question is not whether the inaccuracy actually prejudices the particular person to whom the notice is given but whether it is capable of prejudicing a reasonable tenant in the position of that person.”

48.        Mr Barnes said that, if there was a divergence of the law between those cases in which the statutory notice was one in a private law context, such as between landlord and tenant, and one in a public law context, it was the latter that should apply in the present case.  The Coal Authority was a public authority, and the present case was obviously a public law case within the dichotomy.  This does not seem to me to be a proper basis for choosing, if a choice has to be made, between the two lines of authority.  As I have noted above (see paragraph 5) it is not only the Coal Authority that may be subject to the duty to take remedial action under section 2(1).  The Authority is only the person responsible for mining subsidence if there is no person who holds a licence under Part II of the Act to carry out coal-mining operations in the area.  If there is such a licensed operator it is that person that has the duty to take remedial action under section 2(1).  Thus the provisions of the 1991 Act that are in question here apply as much to a private operator as to the Authority, and there is no scope for applying the provisions differently where the person responsible is the Authority rather than a private operator.

49.        It is certainly the case that the two lines of authority on which counsel respectively rely have developed without regard for one another.  Jeyeanthan was not referred to either in the judgments or in argument in Burman v Mount Cook; and in the later House of Lords asylum case of R v. Soneji [2006] 1 AC 340, in which Jeyeanthan was cited with implied approval (see the opinion of Lord Steyn at paragraph 19), Burman v Mount Cook was not referred to in the opinions or in argument.  No doubt the reason for that is the very great difference in the subject-matter and the nature of the proceedings.  There is no reason, in my judgment, to regard them as in conflict with each other.  In considering the applicability of the different authorities in the present case, three things, it seems to me, have to be noted.  The first is that requirements in a statute do not necessarily have the effect of requiring strict compliance or rendering an act invalid in the event of non-compliance.  That is the effect of Jeyeanthan (and Soneji).  Whether those are the effects must be determined in the light of the particular statutory provision, therefore.  Secondly, in all cases, even where in the light of authority “substantial” compliance is not the test, the compliance has to be “adequate”; and adequacy must necessarily be determined by reference to the particular statutory provision.  Thirdly, in the cases relied on by each of the parties, as well as in the present case, the statute did not state the consequences of failure to comply, or to comply fully, with the requirements.  That indeed is often the case with statutory requirements.  Again, it is to the particular statutory provisions that regard must be had in order to determine the consequences.

50.        It is therefore of decisive importance to understand the nature and purpose of the statutory provisions that apply in the particular case.  Here we are concerned with the 1991 Act and the Regulations made pursuant to the powers contained in the Act.  I will take the Act itself first.  The provisions start off with the duty imposed on the Authority: to take in respect of subsidence damage to any property remedial action of one or more of the kinds mentioned (section 2(1)).  The duty does not arise unless the pre-conditions contained in section 3(1) are satisfied.  It is not a duty owed to the claimant, although the claimant is able to take steps to enforce it, in particular by applying to the Tribunal to determine any question arising under the Act (section 40(1)).  The duty is the statutory duty to take remedial action.  The action is either to execute remedial works (section 7) or to make payments in lieu for the carrying out of remedial works (sections 8 and 9) or to make a depreciation payment (sections 10 and 11).  What remedial works are to be carried out, the amount of any payment in lieu and the recipients of such payments are not limited or conditioned by who is the claimant or other person who has given a damage notice or by the extent of his potential loss or liability if the work is not carried out (see section 13).  Nor is it only the claimant or some other person who has given a damage notice who may be the recipient of a depreciation payment (see section 15).

51.        Under section 3(1) there are two pre-conditions that need to be satisfied before the Authority’s duty to take remedial action arises.  Both require action on the part either of the owner of the property or of some other person who is liable to make good the damage.  No person other than either of these can satisfy the two pre-conditions.  The two actions required are to give to the Authority the required notice with respect to the damage and to afford the Authority reasonable facilities to inspect the property.  The duty does not arise when the required notice has been given, but only when the notice has been given and in addition reasonable facilities to inspect the property have been afforded.  Subsection (2) says what the required notice is.  It is a notice stating that the damage has occurred and containing such particulars as may be prescribed.

52.        The prescribed particulars are set out in Schedule 1 to the Regulations.  In order to understand the function of the provisions relating to the contents of damage notices it is, I believe, necessary to have regard to the full list of particulars.  The list is as follows:

“1. The name and address of the claimant and of any person acting on his behalf.

2. The address of the damaged property.

3. The type of property, including–

(a) if a house, whether detached, semi-detached or terraced; or

(b) if a flat or other part of a building used as a private-dwelling, whether purpose-built or a conversion.

4. If the property is not used exclusively for residential purposes, a brief description of its use.

5. Particulars of the legal interest of the claimant in the property.

6. The names and addresses (if known) of any other persons having a legal interest in the property (including mortgagees or, in Scotland, creditors under the heritable security) and the nature of their interest.

7. The approximate date of construction of each damaged part of the property.

8. Brief particulars of the damage.

9. The date, or approximate date, when the claimant first noticed the damage.

10. Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report.

11. The days and times of the day when the property may be inspected.

12. Whether the property is ecclesiastical property or is otherwise held for religious purposes.

13. Whether the property is of a kind mentioned in section 19(1) of the Act (ancient monuments and listed buildings).”

53.        Set out in this way it is clear that the statutory context in which a damage notice operates is very different from that of notices given under section 45 of the Leasehold Reform, Housing and Urban Development Act 1993, which was the provision considered in Burman v Mount Cook, or paragraph 6 in Part II of Schedule 3 to the Leasehold Reform Act 1967 (as considered in Speedwell Estates), or section 25 of the Landlord and Tenant Act 1954, considered in Pearson v Alyo and Morrow v Nadeem, or section 20 of the Housing Act 1988 (considered in York v Casey [1998] 2 EGLR 25 and other cases referred to in Burman v Mount Cook).  All those concerned statutory provisions which imposed precise requirements and where the effect of a valid notice was to create new rights for or change the existing rights of the landlord or the tenant under a contractual tenancy.  Here the statutory provisions are of a different nature.  The duty created by section 2(1) is not a contractual one.  It is a duty to take remedial action in respect of the damage, and its fulfilment may give benefit to and create entitlements for persons with an interest in the land other than the claimant.  It is imposed on the person responsible for mining subsidence in the area, who may be a mining operator or the Coal Authority.  It has no basis in some pre-existing legal relationship between that person and the claimant or other persons interested in the land.  The requirements in the Regulations reflect this difference.

54.        It is clear, as I have said above, that before the duty to take remedial action can arise a damage notice must have been served either by the owner or by some other person who is liable to make good the damage.  The function of the requirement to provide particulars is, on the one hand, to show that the notice is indeed served by the owner or by some other person who is liable to make good the damage and, on the other, to give to the Authority information that will assist them in deciding whether they have a remedial duty in relation to the damage referred to and, if so, determining the remedial action.  Thus the Authority must be told by whom the notice is given (and here they were told that it was given by the Newbold brothers, through the agency of Mr Talby and then Mr Harbord) and whether the person giving it is the owner or some other person liable to repair the damage.  They will, however, be assisted in dealing with the claim if other details are provided – the nature and age of the property, when the damage was first recognised and a brief description of it, when the property may be inspected, whether there is a condition survey, and so forth.  Some of the details (the address of the property, the claimant’s interest, for example) are precise factual matters, but others (description of the damage, approximate date of construction) are not.  The purpose of the provision of such information is to assist the Authority in deciding whether they have a remedial duty and, if so, determining the remedial action.  I say “assist” because the notice by itself does not give rise to the duty nor is it capable of establishing whether the duty will arise.  Before giving notice under section 4(1), either accepting or denying that they have a remedial duty, the Authority will need to carry out an inspection and consult mining records.  Before determining under section 5(1) what remedial action to take they will need, at least, to carry out a full survey and estimate the cost of repairs.  And they will no doubt enter into discussions with the claimant or his representative.

55.        It is to be noted that the wording of the damage notice form does not follow in all respects that of Schedule 1 to the Regulations.  For instance Particular 8 is “Brief particulars of the damage”; but box 9 says: “Brief description of damage (e.g. walls cracked, windows jammed etc.).”  There is also a question in the form (box 7) that has no counterpart in the Particulars.  It says: “Will the repair of the damage fall within a Statutory Duty in connection with the maintenance of Public Services imposed on a Government Department, Local Authority, or Statutory Undertaker?”  (For some reason, which is not apparent, the “Yes” box was ticked in answer to this question in both damage notices in the present case.)  Another difference is in relation to Particular 7 “The approximate date of construction of each damaged part of the property”.  The form says at box 12: “Please give approximate dates of construction of the property or if constructed at different times, the dates for each part of the property (if known).”  The most important difference, however, certainly for present purposes is the difference between Particular 13 “Whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report”, and box 16, which says: “Prior to the property being damaged, did the claimant pay to have an independent surveyor carry out a full pre-mining survey?  If YES, please give details including the date of the report and who prepared it.”

56.        These differences of wording are a reflection of the function of the requirement that the notice should contain the specified particulars.  The function, as I have said, is to provide the Authority with information that will assist them in deciding whether they have a remedial duty and, if so, determining the remedial action.  Thus examples are given of the sort of description of the damage that will assist the Authority (“walls cracked, windows jammed”).  The person filling in the form is allowed to say that he does not know the date of construction of the property or various parts of it, although Particular 7 does not provide for this option.  And, most significant of all, although Particular 13 covers any report on the condition of the property, pre- or post-mining, provided it was obtained with a view to a possible claim, the form only asks about a pre-mining survey (and one that was carried out by an independent surveyor and paid for).  The reason for the last request is obvious: the Authority will wish to inspect the property as it is, but it will be particularly assisted in determining what if any damage is due to mining subsidence by comparing its existing state to that recorded pre-mining.

57.        The conclusions that I draw from this consideration of the statutory provisions are that, given the purpose of the prescribed particulars and the terms in which they are expressed, there is, certainly in relation to some of them, potential for them to be satisfied if there is no more than substantial compliance with what is required.  Secondly, since the purpose is to assist the Authority in dealing with the claim, it is obviously open to the Authority to waive compliance in relation to any particular if they feel that they do not need the information in order to deal with the claim.  Thirdly, failure to provide a required piece of information will not necessarily mean that the notice is invalid.  These are the Jeyeanthan matters, and they are relevant here because of what this Act and these Regulations provide.

58.        I would also add this.  In considering whether there has been a failure to provide any of the prescribed particulars and whether such failure invalidates the notices it is in my view manifestly material to have regard to the way in which the Authority have dealt with the claim – whether, for instance, they have asked for information that was inadequately particularised in the notice or whether they appear to have felt themselves able to proceed without it.  Such conduct may clearly be relevant to the question of whether there has been substantial compliance, to waiver, and to whether any particular failure to comply is to be treated as rendering the notice invalid.  With this in mind I turn to the four respects in which the Authority say that the notices failed to comply with the requirements and the consequences of non-compliance.

Failure to give prescribed particulars: the four alleged failures

59.        The submission of Mr Barnes in relation to Particular 1 (the name of the claimants) was that describing Paul as the claimant was not an irregularity since he acted as the agent on behalf of himself and his brothers and it was sufficient if the agent, as the person giving the notice, was described as the claimant.  In any event the irregularity, if it existed, was immaterial and never caused any prejudice to the Authority who, in the note which accompanied the notices, were informed that the three brothers together owned the property.  In addition the conduct of the Authority in dealing for years with the notices, including a plethora of meetings, discussions, reports, inspections, etc., was a waiver of any irregularity that existed.

60.        The notices, as I have concluded, were owners’ notices, given on behalf of the owners by Mr Talby and Mr Harbord respectively.  They were not given by Paul as agent.  They did not comply with Particular 1 because the name of only one of the owners, Paul, was given.  Giles signed the form, but this has no relevance that I can see; and Marcus was not mentioned at all.  What the notice told the authority was that it was served on behalf of the owners of the property, who were brothers, and it gave the name of one of them.  In the light of this information the Authority had no difficulty in dealing with the claim.  Mr Cammack accepted in cross-examination that he was not prejudiced in dealing with the claim by the fact that only Paul’s name had been inserted in the notices.  The Authority saw no need formally to establish the names of the other brothers.  They attended meetings with Arup, the brothers’ agents in serving the notices, and with the brothers themselves.  In consequence the claimants continued to incur costs in the pursuit of their claim.  In these circumstances, in my judgment, the Authority must be deemed to have waived the failure to comply with Particular 1.  I think moreover that, quite apart from waiver, the effect of the failure would not be sufficient to render the notice invalid.  Since the purpose of the prescribed particulars (apart from establishing that the claim is a claim by an owner or some other person liable for the repair for the property) is to enable the Authority to deal with the claim, the fact is that they were able to deal with the claim on the basis of the information with which they were provided.  The point taken on the failure to state the names of all the owners is the same as that described by Bingham LJ in Pearson v Alyo as one of extreme technicality.  In this wholly different statutory context there is no reason why it should succeed.

61.        In relation to both Particulars 5 and 6 (particulars of the claimant’s legal interest in the property and the names and addresses of other persons having a legal interest in the property) Mr Barnes agreed that in these instances there was not strict compliance with the Regulations, but he submitted that in accordance with the general principle that he relied on any technical irregularities were insubstantial and had no adverse consequences for the Authority, so that the deficiencies did not render the notices invalid.  Mr Baatz said that the legal interests would determine who would be the proper recipient of any depreciation payment made under section 15 of the Act.  For example, if there was a full repairing lease which was not disclosed the payment would be made to the owner when it ought to have been made to the leaseholder.  Moreover, legal interests were relevant to the amount of any depreciation payment, paragraph 2(1) of Schedule 1 providing that easements and other rights for the benefit of other land must be taken into account; and the existence of a mortgage would also affect the destination of any depreciation payment, paragraph 1(1) of Schedule 2 providing for payment to the mortgagee.

62.        It is the case that the notice failed to provide the names and addresses of other persons having a legal interest in the property.  There was thus no compliance, substantial or otherwise, with Particular 6.  On the form box 11 “Give full particulars of any other persons having an interest in the property eg Landlord, Tenant, Building Society or other provider of a mortgage” was left blank.  The note attached to the form said that Macaw had a 20-year lease of the vast majority of the site (in 2007 it did not: the lessee was SW1 Nominees) and that the remainder was a small apartment within the house held by the Newbold brothers on a 20-year lease (which was wrong: the Newbold brothers’ flat was leased to Macaw).  No mention was made of Clifford and Dorothy Newbold’s assured shorthold tenancy of a suite of rooms in the house, St Ledger Investments Ltd’s legal charge or the neighbouring landowner’s rights of way and sewerage.  The question is whether these omissions and inaccuracies render the notices invalid.  In my judgment they do not, for the following reasons.

63.        The reason advanced by Mr Baatz for saying that the Authority required the information about legal interests related to the identification of the person or persons who might be entitled under section 15 to be the recipient of a depreciation payment.  Indeed this was the only justification that he advanced for the need.  It is a consideration that might also be contended to arise in relation to Particular 1 also.  However, what has to be borne in mind, in my judgment, is that a depreciation payment in the present case would only fall to be made as a discretionary payment under section 10(2), that is to say “where the aggregate amount of the costs specified in the schedule of remedial works exceed the depreciation [in the value of the property caused by the damage] by at least 20 per cent”.  Before any question of identifying who should be the recipient of such a payment the Authority would have to survey the damage, prepare a schedule of remedial works under section 6 and assess the depreciation in the value of the property caused by the damage.  The primary duty is to carry out remedial works or to make a payment in lieu, and in many, possibly the great majority, of cases no question of a depreciation payment would ever arise.  Unless it did arise it is unlikely that the Authority would need to know the names and addresses of all those with legal interests in the property or the name and address of any mortgagee.  It was the evidence of Mr Reed in cross-examination that the Authority only sought to investigate the interests in the property when the question of a depreciation payment arose.  This is understandable, and it demonstrates in my view that the requirement to provide those details in the damage notice is not to be regarded of such importance that the failure to comply with it renders the notice invalid.

64.        In relation to Particular 10 (whether the claimant has obtained a report on the condition of the property with a view to the possible preparation and prosecution of a damage notice and, if so, brief particulars of that report) Mr Baatz said that the notices failed to comply with this requirement because they failed to mention two reports.  The first was a report by a firm of local surveyors, Hinchcliffes of Barnsley, dated 8 August 2005.  The second report was a Desk Study on geological and geophysical matters prepared by Arup and dated 6 September 2006.

65.        Mr Barnes referred to the question posed in box 16: “Prior to the property being damaged, did the claimants pay to have an independent surveyor carry out a full pre-mining survey?”  The fact was, Mr Barnes said, that the claimant did not obtain (or pay for) any such survey.  Therefore there could not have been an irregularity when the answer given.  The true answer, was “no”.  The person who drafted the notices, a representative of Arup, did refer to reports from an architect and an engineer which had been obtained for English Heritage at the time when the property was acquired in 1999 by the Newbold family, although there was no need to refer to these documents.

66.        Mr Baatz contended that the claimants were not able to avoid their failure to comply with Particular 10 by pointing to the terms of the form prepared and made available by the DTI.  Validity must, he said, be tested by reference to the statutory requirements, not the terms of the printed form, which had no statutory basis.  Furthermore, there was nothing in the point as a matter of merit, given that it was not the Authority’s form.  I do not, think, however, that the requirement that appears on the form can be so readily dismissed.  The form, as Mr Barnes asserted in closing (without challenge from Mr Baatz), is the one that the Authority promulgate to the public for use in subsidence claims (and it is there on the Authority’s website for this purpose).  It has evidently been in use for this purpose for a number of years, and it will have been used to make most, if not all, subsidence claims received by the Authority.  It is my view unthinkable that the Authority, receiving a completed form that answers the question posed in box 16, should later be able to say that the claim is invalid because the particulars provided are not those that Particular 10 requires.

67.        The Hinchcliffe report was very short.  It consisted of one full page and four half pages of text, and a schedule of mine workings, stating their position relative to the property and their date, and four hand-drawn plans to illustrate them.  The report recorded in section 1 Mr Hinchcliffe’s instructions, as follows:

“We are invited to carry out an inspection of the mine workings relative to the above property to consider whether it would be feasible to establish a claim for mining subsidence damage.

To assist in these deliberations we made a brief visit to the property 21 July 2005 simply to establish its orientation and take a view of the damaged areas.”

Section 2 was entitled “Situation and description”, and it contained five short paragraphs, including the following:

“The main points of interest were the cracking to the ceiling of the state dining room, the fracture and distorted section of the window to the library with similar distortion showing to the double doors behind.

The Southerly retaining wall had several fractured and distorted areas with bowing, cracking to stonework, fractured and twisted stonework adjacent to the buttress pillars.

The annex to the rear is currently under refurbishment but generally showed a tendency to tilt dropping on the approximate Southern elevation.”

68.        The principal part of the report was section 3, which was headed “Mining report”.  Then followed section 4 “Legal position” and finally section 5 “Conclusions”, which were these:

“The first conclusion is to say it is our opinion mining subsidence damage has been caused to the property due to coal extraction but that it is likely the damage took place more than thirty years ago, probably in the 1950s or 60s. It is also evident repairs have been undertaken at some time which suggests a claim has already been made.

With these thoughts in mind it is my opinion if a claim were to be lodged at this time it could be frustrated firstly on the grounds it would be out of time, secondly it is quite likely the argument could be presented a claim was made at the appropriate time and repairs were carried out with the agreement of the then owners.  Damage of recent origin would be considered attributable to other causes.”

69.        Mr Baatz said that the report was clearly prepared with a view to the possible preparation and prosecution of a damage notice.  Marcus Newbold had agreed in cross-examination that that was so.  It was clearly concerned with the condition of the property.  Mr Talby had accepted in cross-examination that anyone considering allegations of subsidence would have wished to see it, and he agreed that Mr Hinchcliffe was very experienced and respected in the area and that his view would have been of considerable interest to the Authority.

70.        Mr Barnes referred to the question posed in box 16: “Prior to the property being damaged, did the claimants pay to have an independent surveyor carry out a full pre-mining survey?”  The fact was, Mr Barnes said, that the Claimant did not obtain (or pay for) any such survey.  Therefore there could not have been an irregularity when the answer given.  The true answer, was “no”.  The person who drafted the notices, a representative of Arup, did refer to reports from an architect and an engineer which had been obtained for English Heritage at the time when the property was acquired in 1999 by the Newbold family, although there was no need to refer to these documents.

71.        As far as the Hinchcliffe report, or “letter” as he referred to it, was concerned, Mr Barnes said that this was not a report on the condition of the property.  It could hardly be suggested, he said, that the short reference to what was observed on Mr Hinchcliffe’s brief visit to the property translated the report from its stated purpose and made it a report on the condition of the property.  That the report might have been of interest to the Authority was nothing to the point.  Its interest to them would only have been Mr Hinchcliffe’s views on the cause or timing of the damage, not the few words that related to the condition of the property.

72.        I agree with Mr Barnes on this.  The report did not purport to be a report on the condition of the property, and the few words about its condition did not make it such a report.  The failure to refer to it in the damage notice (whatever considerations might arise in other contexts in relation to the failure to bring it to the Authority’s attention) did not therefore constitute a failure to comply with the prescribed particulars.  In any event, question 16 in the damage notice form related solely to any pre-mining survey carried out prior to the property being damaged, and the report clearly was not this.  If the Authority considered that the question in the standard form was too narrowly framed and that they should be told about any condition report, whenever prepared, they could have said this, but they did not.  In the circumstances I find it impossible to conclude that a failure to refer in the damage notice to a report that was not a pre-mining survey would constitute a breach that rendered the notice invalid.  I would add that Mr Talby’s acceptance that anyone considering allegations of subsidence would have wished to see it and that Mr Hinchcliffe’s view would have been of considerable interest to the Authority was, as I understood him, related to the conclusions in the report and not to the short references in it to the condition of the property.

73.        The second report that, Mr Baatz said, ought to have been identified in the damage notice but was not was the Arup Desk Study, dated 6 September 2006.  It was not given to the Authority, and Mr Talby had agreed in cross-examination that there was a deliberate decision not to do so.  Mr Talby had agreed also that any person concerned to consider the question of mining subsidence would have been materially assisted by the report.  The particular part of the report that, Mr Baatz said, made the report itself a report on the condition of the property was section 2.3 that was headed “Reported Recent Movements”.  The section began with these words:

“Arup were contacted by Mr Newbold of Macaw Properties in August 2005 with regard to concerns over recently observed movements of Wentworth Woodhouse, and associated grounds and buildings, and in particular the Terrace Walk.

During the site walkover and at meetings, Mr Newbold reported the following recently observed movements:…”

There were then set out the cracking of walls and other matters which Mr Newbold had drawn to Arup’s attention.  The section of the report went on to refer to investigations carried out by a firm called Ashton Mairs, described as loss adjusters appointed by Mr Newbold’s insurers, to investigate and monitor recent movements.  Ashton Mairs had installed a series of demec studs along frontages of the main house to record any movements, and they had reported to Mr Newbold that the results did not indicate that any movement was occurring.  It was said that Arup had requested further details and had stated that the number of monitoring points was insufficient.

74.         The Desk Study identified 12 mechanisms to explain “the reported recent movements of the buildings and grounds”, and it concluded:

“Based on the above, it is considered that the recent damage to the structures, and settlement of the grounds, within the Estate is due to mining subsidence.  The recently reported movement may be attributed to one or more of;

-        the reactivation of the geological fault

-        inundation settlement of the worked coal seams and geological fault due to the rising minewaters

-        settlement of the pillar and stall workings due to recent groundwater abstraction.”

The report recommended that a series of survey works should be carried out to refine the suggested mechanisms.

75.        Mr Barnes said that this Arup Desk Study was known to the Authority and had been offered to them prior to the giving of the 2007 notice but they themselves refused to receive it prior to the notice.  It was plainly not a report on the condition of Wentworth Woodhouse, he said, as appeared in paragraph 1.1:

“Arup recommended a phased approach be made into the investigation of potential causes of observed movements of Wentworth Woodhouse, and associated grounds and buildings. It was recommended that the first phase of work comprise a Geotechnical Desk Study, to investigate possible causes of movement related to ground issues for the site. For this report the site is defined by the site boundary in Figure 3, which approximately corresponds to the boundary of the Wentworth Woodhouse Estate.

The aim of this Desk Study report was detailed in Arup’s correspondence dated 16 and 27 September 2005, and comprised the following elements:-

To confirm the history and past uses of the site.

Understand the geology and hydrogeology in the vicinity of Wentworth Woodhouse Estate, including details on recorded faults, and abstraction wells.

To identify and confirm the past mining events, and review information held by the Coal Authority and Public Libraries.

Consider a number of potential causes for movement of the buildings and ground, and discuss their likelihood of occurrence at the site.

Provide recommendations for further investigation and survey works, where considered necessary, to determine the magnitude, extent and nature of the reported movement of Wentworth Woodhouse, and associated grounds and buildings. Accordingly, no visual inspection, or cracks condition survey, or investigations have been carried out by Arup of the existing buildings, structures, grounds, utilities, ground conditions etc. within the Wentworth Woodhouse Estate.”

76.        Again, I agree with Mr Barnes that this report was not a report on the condition of the property.  It did not purport to be such a report.  The reference to cracking and other matters to which Mr Newbold had drawn Arup’s attention did not make it such a report.  Nor do I think that the monitoring carried out by the insurers’ loss adjusters did so; and Mr Baatz did not contend that the Ashton Mairs report itself was a report on the condition of the property.  In any event because the Desk Study was not a pre-mining survey, I conclude that the failure to refer to it in the damage notices does not have the effect of rendering the notices invalid.

77.        I have no doubt, as Mr Talby accepted, that anyone concerned with the question of mining subsidence at the property would have been interested in the Hinchcliffe report and the Desk Study (and indeed the June 2006 draft of the Desk Study, provided with other reports on disclosure, that differed from the September version in terms of its conclusions).  That is because of the conclusions that are expressed in them, however, and not because of anything they say about the condition of the property.  The Authority may have a justified complaint that the failure to disclose the Hinchcliffe report and to provide the Desk Study was unhelpful.  But in relation to the question whether the damage notices are invalid for failure to comply with the requirements of the Regulations, these matters do not arise.  I am satisfied, for the reasons I have given, that the notices are not invalid.

The result of these conclusions

78.        For the above reasons I conclude that the Authority’s contention that the notices were invalid must fail.  Each damage notice was an owner’s notice, given on the owners’ behalf by their agents, Arup; and the particulars required by the Regulations were either sufficiently provided to or waived by the Authority or, to the extent that they were not provided or waived, such non-compliance does not invalidate the notices.  That is sufficient to dispose of the Authority’s case.  The greater part of the claimants’ case, however, and almost all the evidence, was concerned with the contentions that each notice was given by Paul Newbold as agent for himself and his brothers and, in the alternative, if it was not so given, that the Authority are estopped from asserting that it is invalid or are prevented from doing so by the doctrine of legitimate expectation.  I have considered how far in the circumstances it is necessary for me to deal with these contentions.  I think I must do so because of the possibility that the conclusions I have so far reached may be challenged on appeal, and I therefore turn to them.

Agency: introduction

79.        The case for the claimants was that Paul Newbold gave each damage notice, as agent under an implied general agency, for himself and his two brothers as undisclosed principals.  The agency was said to have arisen from the way in which the brothers had chosen to conduct their property and other affairs over the years.  The case for the Authority was threefold: that there was no scope under the statutory provisions for an agent to give a damage notice on behalf of undisclosed principals; that on the facts Paul did nothing that constituted the act of an agent; and that, on the facts also, he did not have the general implied agency claimed.  It is most convenient if I address the issues by reference to these three contentions of the Authority

Agency: to what extent does the law of agency apply, if at all?

80.        Agency is a concept of the common law.  The entitlement to make a claim against the Coal Authority in respect of mining subsidence is statutory.  I raised with the parties the question of the extent to which the law of agency can apply in these circumstances, and counsel addressed this question in their closing submissions.  There was agreement between them that the rules of agency are only to be applied in relation to a claim made under the Act to the extent that they are not incompatible with the statutory provisions. 

81.        Mr Baatz submitted that there is no room under the provisions for applying the law of undisclosed principals.  He said that the point was put beyond any doubt in respect of damage notices by section 3 of the Act.  Section 3(6) defined “the claimant” as the giver of the notice.  Section 3(2) together with particular 1 of Schedule 1 to the 1991 Regulations required that the notice state the name and address of the claimant.  The particulars were prescribed in mandatory and specific terms at Regulation 2.  Section 3(2) defined a damage notice as a notice containing the prescribed particulars.  Particular 1 required that the notice must contain not only the name and address the claimant but also the name and address “of any person acting on his behalf”.  It was clear, therefore, that “the claimant” could not be construed so as to extend to the agent for the person entitled to give a notice because, if it could, the actual claimant would not be named, whereas it was an obvious purpose of particular 1 that the claimant should be named.

82.        The law of agency, Mr Barnes said, was a part of our general law and was something which was of general application.  As such, like other general areas of the law, it applied to all transactions unless excluded in some way.  There was nothing express in the 1991 Act or in the 1991 Regulations which prevented a damage notice being given by an agent, nor was there anything implicit in the Act or in the 1991 Regulations which had that effect.  There was certainly nothing in the nature of giving damage notices which prevented an agent from giving a notice on behalf of his principal.  The combined effect of paragraph 1 of Schedule 1 to the Regulations and section 3(6) of the Act was that Paul was the claimant as defined because it was he that had given the notice.  But when it came to section 3(1)(a) it was the three brothers who were taken to have given the notice on the principle that the actions of an agent had the same consequences for a principal as if the principal had himself carried out those actions.  There was no inconsistency, Mr Barnes said, between Paul being the claimant for the purposes of the Act, as the person who had given the notice, and the three brothers being taken to be the persons who had given the notice. 

83.        There is, in my judgment, no scope under the statutory provisions for a damage notice to be given by an agent on behalf of undisclosed principals.  This is so for two reasons.  Firstly, under section 3(1) a damage notice can be given only by the owner of the property or some other person who is liable to make good the damage; and under section 3(6) “the claimant”, in relation to any subsidence damage, is defined as the person who gave or first gave a damage notice.  The claimant accordingly must be the owner of the property or some other person who is liable to make good the damage.  An agent for such a person is not and cannot be the claimant.  Secondly, under section 3(2) a damage notice is a notice that contains the prescribed particulars; and Particular 1 in Schedule 1 to the Regulations is “The name and address of the claimant and of any person acting on his behalf.”  It is necessarily implicit in this that the notice may be given by an agent but that his principal must be disclosed in the notice; and that the agent giving the notice is not himself the claimant.

84.        This conclusion disposes of the claimants’ case on agency.  In case it is wrong, however, I need to consider the two factual questions: whether Paul acted as agent and whether he had authority to act under an implied general agency.  This requires a consideration of the evidence.

Agency: evidence

85.        There were witness statements by each of the three brothers covering their dealings with each other in property and other matters, instructions to Arup in relation to the investigation of the damage and the giving of the notices; by Mr Talby and Mr Harbord of Arup, who had been responsible for preparing each of the damage notices and had acted in relation to the investigation of the damage; and by David Cooper, the claimant’s solicitor, who made the references to the Tribunal.  All except Paul Newbold, who was medically unfit to give evidence, were called. 

86.        Marcus Newbold, who was called first, said in his witness statement that he confirmed what was said in his brothers’ witness statements.  It was he rather than his brothers who had given instructions to their solicitor and counsel in relation to the claim.  He had done this without any formal or express authorisation on his brothers’ part because they had been content for him to do so.  He had done the same in relation to the Haydon-Baillie litigation.  He said that he had attended several meetings at which the Authority’s representatives were present, and the Authority were well aware of his interest in the property and that the claim was being pursued by all three brothers.  Although it was Giles who had been directly instrumental in asking Arup to submit the 2007 damage notice, Paul and he were well aware that a claim was going to be made.  He was quite happy to let Giles deal with the claim on his behalf.  It seemed quite likely, he said, that Paul’s name was given as claimant on the form because Arup’s initial instructions had been given by Paul and they regarded him as having overall supervision of the progress of the matter.

87.        In cross-examination Marcus agreed that Paul’s name had been put on the form by people who had not spoken to him (Paul) about it.  When it was put to him that there was no evidence that Paul even knew about the second notice he said that he had no information either way.  As to the way in which the brothers arranged their affairs he said that if one brother in taking action made a mistake it was forgiven.

88.        In his witness statement Giles Newbold said that he and his brothers were the shareholders in a company called St Ledger Investments Ltd, Paul and Marcus being directors and he the secretary.  The company had interests in a number of properties that were either owned directly by it or were held through a holding company, St Ledger Properties Ltd, by wholly owned subsidiary companies.  One of the wholly-owned subsidiary companies was Macaw Properties Ltd, a company that had been bought off the shelf for the purpose of purchasing Wentworth Woodhouse.  The directors of Macaw were himself, Paul and his father Clifford Newbold.

89.        The sale of Wentworth Woodhouse to Macaw took place on 4 June 1999.  It was bought from Bank Julius Baer & Co Ltd and it was Paul who undertook the detailed business of the transaction, instructing lawyers and signing the paperwork.  On 2 December 2005 the freehold of the premises was transferred to himself and his brothers.  At the same time, Giles said, a lease of the whole property for 20 years from 1 December 2005 was granted to Macaw.  Macaw then granted to his brothers and himself an underlease of an apartment in the mansion.  Although small by comparison with the mansion itself the apartment had about eight bedrooms.  Quite a lot of his time was spent living there, and both Paul and Marcus had rooms there and stayed there when they chose to do so.  It was he that dealt with the day-to-day running of the Wentworth Woodhouse apartment on behalf of himself and his brothers. 

90.        Giles said that he was authorised by Macaw to act as the company’s agent in managing the whole property, and in September 2005 he instructed Arup on behalf of Macaw to investigate ground movements that were taking place in and about the mansion.  A recently reconstructed roadway in the grounds had subsided again, and a timber in one of the ceilings of the house had failed with a very loud and alarming crack, and they had become concerned about the stability of the building.  Arup were initially instructed to carry out an investigation of the potential causes of the movement, and their findings were reported in their desk study, which was issued on 2 June 2006.

91.        Arup recommended that a full visual survey of the cracking subsidence should take place, and after some discussion between his brothers and himself they decided to commission Arup to do this work.  Paul therefore wrote to Arup on 11 October 2006 asking them to carry out a visual survey.  Although it was Paul who gave the instructions, Giles said that it was he that had most contact with Arup’s representatives because he was on site for most of the time. 

92.        Arup’s further inspections resulted in the Visual Inspection Structural Report, the final version of which was issued in July 2007.  In the light of their investigations Arup recommended the submission of a damage notice to the Coal Authority.  The 2007 notice, Giles said, was drafted by Mr Talby on behalf of himself and his brothers, and Mr Talby sent him the initial draft for approval.  After suggesting two amendments to the draft (a correction to a postcode and to a boundary line on the plan), he signed the final version.  He did not seek specific authority from his brothers to do so because he was confident that, given the way they had always handled their affairs, he already had such authority.  Paul’s name had been given as the claimant, and Giles said that he assumed that that had been done as he was the eldest brother and it had been he that had written the letter of instruction to Arup on 11 October 2006.  The 2009 damage notice, which followed very closely the way in which the 2007 notice had been prepared, was submitted by Mr Harbord, who had sent to him a draft that he, Giles, checked.  He then issued instructions to Mr Harbord on behalf of himself and his brothers to submit the notice.

93.        There were many examples, Giles said, of himself or either of his brothers acting as individuals on behalf of each other.  They were, he said, a close-knit family and in many respects their lives were interlinked.  They had a number of business, personal and property interests in common, and it was not at all unusual for one or other of them to act on the brothers’ behalf without any particular reference to or express permission from the others.  For instance he himself dealt with all the household affairs in connection with the running of the Wentworth Woodhouse apartment, even though all three brothers were tenants of it; and Paul did the same for the London house, 13 Broadlands Road, of which they were all co-owners.  At the time of the sale to them of the freehold in Wentworth Woodhouse Paul conducted negotiations with the Inland Revenue to satisfy them that the sale by Macaw was an arms-length transaction.  It was Marcus who had dealt on behalf of them all with the extensive litigation that the former owner had instituted against them and a large number of others.  He, Giles, was authorised to act on Macaw’s behalf in relation to the running and upkeep of the property, but he acted on behalf of himself and his brothers in connection with their instructions to Arup and in particular their dealings with the authority and the completion and service of the damage notices.

94.        In cross-examination Giles said, in relation to the second notice, that it was possible that Paul was ignorant of it since he was not working at the time and was in quite a bad way.  He also said that the invoices for the professional fees that were to form part of the claim were sent to Macaw because it was they that had a 20-year lease.  He agreed that Arup’s work in 2006 and 2007 was a continuation of their original appointment, which had been by Macaw.  In relation to the meetings with the Authority he agreed that it was never said that any part of the claim was accepted.

95.        Paul Newbold in his witness statement said that he confirmed that the facts set out in the witness statement of Giles were correct.  He said that, being so much older than his two brothers, it had often been he who had acted on behalf of them all when any formal or official action had been taken.  Thus he had been the one who dealt with the tax authorities over the purchase of Wentworth Woodhouse and with the complex legal arrangements involved in the purchase.  Similarly, following the initial instructions from Macaw to Arup in September 2005 (a letter that he had signed “pp” for Giles, who managed the property for Macaw), it was he that wrote to Arup on 11 October 2006 instructing them to proceed with the visual structural inspection.  That was because it was the brothers who had the primary interest in maintaining the property.  All fees and other outgoings in relation to the property were paid by Macaw at the direction of the directors of Macaw (himself, Giles and Clifford Newbold).  The reason for that was that Macaw held a 20-year lease of the property and had covenanted to keep it in repair, which meant that it had an immediate interest in securing that remedial works were carried out by the Coal authority.

96.        As far as the 2007 damage notice was concerned, Paul said that he regarded Giles as entitled to sign it on his behalf.  They were both aware that the claim was going to be made.  He said that he did not know why his name alone was given as the claimant, but he surmised that it was because it was he who had issued the instructions to Arup in October 2006.

97.        Paul said that he had no doubt whatsoever that everyone with whom the Newbolds were dealing in the Coal Authority was fully aware that the property was owned by him and his two brothers and that the claim had been made on behalf of all three of them.  There had never been any suggestion at any of the numerous meetings with the Coal Authority that the damage notices were invalid.  Indeed they acted throughout as if the claim had been validly made by the brothers.

98.        Mr Talby in his witness statement said that he gave Paul’s name as the claimant on the notice because he regarded him, as the eldest brother, as being in charge, and he had been taking the lead in progressing the claim.  It was Paul who had signed the letter of instruction given to Arup in October 2006, and although Paul was happy to let Giles deal with the day-to-day matters connected with Arup’s work it was Paul that Arup regarded as the commercial manager and the one who oversaw the money side of things.  Nevertheless Mr Talby said that it was perfectly clear to him that Paul was acting on behalf of all the Newbold brothers.  It was for this reason that he thought it was appropriate to put Paul’s name on the form but that it could properly be signed by any of the brothers.

99.        Mr Harbord in his witness statement said that he was responsible for filling in the 2009 notice and submitting it to the Authority.  He had used the standard form made available by the Authority for this purpose and he had filled it in following the 2007 notice but giving his own name rather than that of Mr Talby as the professional agent.  He entered Paul’s name as the claimant because his name had been given in the 2007 notice and it was he that had given the instructions to Arup to proceed with the Visual Structural Inspection report in October 2006.  Prior to submitting the form he had sent it to Giles for him to check, and Giles indicated that he was happy that he, Mr Harbord, should sign it.  He accordingly signed the form, and he understood and believed that he had the authority to do this on behalf of Paul and the Newbold brothers.

Agency: did Paul act as agent in relation to the giving of the notices?

100.    Mr Baatz contended that there was no evidence that Paul did anything in relation to the giving of the notices that amounted to the act of the agent.  On the contrary on the evidence, he said, Paul did nothing.  I accept this.  In his evidence Paul did not claim to have issued instructions that the claim be made.  He said no more in relation to the first notice than that he was aware that a claim was going to be made, and he said that he was not aware of why his name was given as the claimant.  There is no evidence that he was even aware of the second notice.  I conclude that Paul was not, as the claimants submit, the agent for himself and his brothers in giving the notice because he did nothing that was the act of an agent in relation to the giving of the notices.

Agency: did Paul have authority to act as agent?

101.    The final question is the one to which a major part of the evidence, the extensive documentation and the lengthy argument was directed: whether, as Mr Barnes submitted, Paul had authority to act as agent in relation to the claim.  It is a question that, in the light of my conclusions so far, is a number of steps away from being an active question in the determination of the preliminary issue.

102.    The case advanced was that the three brothers so conducted their business affairs that any one of them at any time had the authority to act so as to bind the others.  It was put as follows in the claimants’ re-amended statement of case on the preliminary issue:

“36. The overall nature of the relationship between the brothers is that in connection with their property and commercial affairs, including matters concerning Wentworth Woodhouse, one brother did not always act on behalf of himself or on behalf of himself and the other two brothers but rather the brother who acted in any particular instance was the one for whom it was most convenient to act in relation to any particular event or matter or transaction.  Formal and legal matters such as the giving of formal notices tended to be carried out by Paul Newbold as the eldest brother on behalf of the other brothers but there was no inflexible rule to this effect. It is therefore not a question of one of the brothers always acting as the agent of the others.  The brother who acted was that person for whom it was most convenient to act at any particular time in relation to any particular matters, and this course of conduct depended on the unusually close and trusting relationship which existed between the brothers in relation to the conduct of the whole of their property and business affairs.”

103.    The re-amended statement of case relied on some sixteen matters as showing the existence of the agency:

(a)         The brothers carried on their property and business affairs through the medium of companies of which they or some of them were the directors and officers and shareholders or through wholly owned subsidiary companies.

(b)        Paul and Giles occupied a house in London that they co-owned.

(c)         The three of them shared the occupation of part of Wentworth Woodhouse that they co-own as leasehold owners.

(d)        They acted by Macaw in acquiring Wentworth Woodhouse.

(e)         Giles is managing agent for Macaw.

(f)          Giles instructed Arup on behalf of Macaw.  Instructions to Arup to carry out the full visual survey were both given by Paul Newbold.

(g)         Paul Newbold is the eldest brother.

(h)         Each of the three attended some of the meetings with the Authority.

(i)          Giles issued the instructions to Arup in respect of the second notice.

(j)          Giles dealt with the household affairs of the apartments at Wentworth Woodhouse.

(k)         Paul dealt with the household affairs of the house in London.

(l)          Paul transferred sums of money to and from Giles’s bank account.

(m)       Paul communicated with HM Revenue and Customs to satisfy them that the sale of Wentworth Woodhouse was an arms’ length transaction.

(n)         Marcus dealt with the conduct of litigation brought against Macaw by Mr Haydon-Baillie.

(o)        Giles purchased furniture for Wentworth Woodhouse.

104.    The factual accuracy of certain of these matters was disputed by Mr Baatz, but there is no need to deal with this.  The fact is, in my judgment, that none of the matters, individually or collectively, amount to evidence that establishes the unusual agency that is claimed to exist on the part of each brother.  As a list they reflect no more than a conventional way in which three brothers might arrange their affairs.  Nor is the existence of such an agency established by the descriptions of the brothers’ relationship contained in the evidence.  The nature of the brothers’ working relationship was not one of agency.  Rather, because of the trust and common-thinking between them each brother felt himself able to act on his own initiative in affairs that concerned them all, confident that his actions would subsequently be accepted by the other two or forgiven if an error had been made.  I accordingly reject Mr Barnes’s contention that Paul Newbold had authority to act on behalf of himself and his brothers in the giving of the damage notices.

Estoppel and legitimate expectation

105.    Mr Barnes contended that, if his argument on agency failed, the Authority were nevertheless estopped from denying that the notices were valid notices.  There was, he said, an estoppel by convention.  The parties shared the common assumption that the notices were valid, and it would be unconscionable to allow the Authority to go back on this assumption.

106.    Mr Barnes relied on the following matters as showing that the parties shared a common assumption that the notices were valid.  No query was ever raised by the Authority as to any aspect of the formal validity of the notices until a pleading in these proceedings in April 2010.  In particular a series of ten meetings was held during the relevant period, attended by representatives of the Authority and by representatives of Arup and by various of the claimants, which discussed many aspects of the claim and at which no query or doubt as to any aspect of the formal validity of the notices was ever mentioned.  The parties over the relevant period communicated with each other orally and in writing, through their representatives, without any suggestion by anybody that the damage notices which alone could initiate a claim against the Authority were invalid.  The claimants instructed Arup and, generally through Arup, other expert advisers to prosecute the claim on their behalf, something which was unintelligible unless the notices were regarded by them as valid.  The Authority also instructed expert professional advisers, including two firms of engineers, at a substantial cost in order to deal with the damage notices given to them, conduct which was inexplicable (and indeed reprehensible in a public body) unless they regarded the damage notices as valid in formal terms and so as containing claims which had to be dealt with on a detailed and expert basis.  Disclosure had shown that there was no record that the Authority even internally ever questioned the validity of the notices, or sought legal advice from their own internal solicitor on them, or sought legal advice from any outside source.  If the Authority had done anything except consistently assume that the notices were valid they would have been bound to have sought such advice.  The Authority formally rejected the claims for technical engineering reasons which they explained.  They had experience in dealing with claims relating to mining subsidence and in receiving and evaluating damage notices.  It was scarcely credible that the Authority would have waited for over three years, and expended the money which they did, unless during that period they had proceeded on the basis, ie made the plain assumption, that the damage notices which initiated the claims and initiated their duties to deal with the claims were valid.

107.    As far as unconscionability was concerned, Mr Barnes relied on the following matters as establishing that it would be unfair for the Authority to go back on the assumption that the notices were valid.  The claimants expended a wealth of time, effort and money over a period of more than three years on the footing that the notices were formally valid.  Over the same period the Authority never gave any indication of any sort that they queried any aspect of the formal validity of the notices.  The Authority refused even to consider the desk study of Arup in support of the claim or to provide a full copy of their claim file for Wentworth Woodhouse until they had received a damage notice.  They encouraged the giving of a second damage notice when they were told that further damage had been noticed.  The ownership of the property by the Newbold brothers as tenants in common, the main matter which is urged as bringing about the invalidity of the two notices, was known to the Authority from the moment of the receipt of the 2007 notice, if not before.  By reason of their statutory duties and the experience of their employees the Authority must be taken to be familiar with the exact requirements of a valid damage notice, yet they raised no query of any sort as to the technical legal matters first put forward in April 2010 as the reason for saying that both notices were invalid.  The prosecution of a claim under the 1991 Act was heavily dependent on the six year time limit imposed by section 3 of the 1991 Act, so that because the Authority waited for over three years before querying the validity of the notices the claimants could not now rectify their position by serving a new notice.  

108.    I can deal shortly with these submissions.  I accept that all the matters that Mr Barnes relies on are or may be relevant to the question whether there is an estoppel that binds the Authority.  What I cannot accept is the subject-matter of the estoppel for which Mr Barnes contends.  His contention is that the Authority are estopped from denying that notices given, as he contends that they were given, by Paul Newbold as claimant are valid notices.  The effect of this would be to make Paul the claimant for the purposes of the Act.  But he could not be a claimant under the Act since he is neither the owner nor a person liable to repair the property.  Estoppel could not operate so as to confer on him, a person lacking the interest required by the Act, a statutory right that he did not have or to require this Tribunal to give effect to the Act as though he did have that right: see Secretary of State for Employment v Globe Elastic Thread Co Ltd. [1980] AC 506.  In any event the claimants in these proceedings are the three brothers as owners of the property and not Paul Newbold alone.

109.    The matters Mr Barnes relies on, however, are or could be relevant to issues of waiver arising in relation to the requirements of the Regulations.  The nature of the waiver relied on is that of an estoppel, and I have accepted that in certain respects the Authority are to be taken as having waived the requirements.  It is in that way and no other, in my judgment, that the Authority are estopped.

110.    Mr Baatz contended that no question of estoppel could arise because estoppel does not apply in the public sphere (and it was with this contention in mind that Mr Barnes relied in the alternative on the doctrine of legitimate expectation).  Mr Baatz’s contention was based on the statement of Lord Hoffman in R (Reprotech Ltd) v East Sussex CC  [2003] 1 WLR 348 at 358E that “public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet.”  There is no need for me to explore the circumstances in which a public body may be subject to estoppel, however.  It is sufficient to refer again to the fact that the statutory provisions that apply here apply equally to the Authority and to private mining operators.  There can be no question, in my judgment, of subjecting the exercise of the Authority’s functions under the Act to different legal tests from those that would apply in relation to any other person responsible for mining subsidence.  The question of legitimate expectation does not arise, therefore.

Determination

111.    I have concluded that each of the notices was an owners’ notice (paragraphs 27-32 above) given by agents, Arup, who had authority to do so (paragraphs 33-40), and that neither was rendered invalid through failures to comply with requirements of the Regulations (paragraphs 59 to 77).  I determine, therefore that each notice was a valid damage notice within the meaning of section 3 of the Act.

112.    The parties are now invited to make submissions on costs, and a notice about this accompanies this decision, which will take effect when the question of costs has been determined.

Dated 23 January 2012

 

George Bartlett QC, President

 

Addendum on Costs

113.    I have received from each of the parties submissions on costs and replies to those submissions.  The claimants ask for the whole of their costs and say that these should be paid on an indemnity basis.  The Authority says that, on the contrary, the claimants should pay the whole of their costs.  In a little more detail the bases of these extreme positions are as follows.

114.    The claimants say that they have wholly succeeded on the preliminary issue, and the general rule is that costs follow the event.  They should be awarded their costs unless there are some special reasons for some different order.  The validity issue, which was raised by the Authority, is entirely self-contained and is of no relevance to the substantive issues.  The Tribunal should have regard to the general merits, the Authority’s position being wholly unmeritorious in that they raised points on validity, which were of a technical nature, after years of discussion and expenditure of money when validity had not been raised at all.  The position of the claimants, whose claim arises through the effect of mining on their right of support, is analogous to that of a claimant whose land has been compulsorily acquired; and the principle in such a case as stated in Purfleet Farms Ltd v Secretary of State for Transport, Local Government and the Regions [2002] RVR 368 is that the costs of assessing his claim are part of the loss that he suffers, so that he is entitled to those costs unless he has behaved unreasonably.

115.    The claimants go on to say that there is no justification for a partial award of costs.  There was one issue, and they have succeeded on it.  There were four issues of fact and law – Mr Barnes’s fifth submission, the Jeyeanthan principle, agency and estoppel – and these were closely intertwined.  Either all, or at least by far the greater part, of the evidence would have been needed just to examine the matters on which the claimants succeeded; and the only part of the proceedings that could have been wholly avoided was the legal argument on the doctrine of the undisclosed principal.  The insistence of the Authority on disclosure, resulting in thousands of pages of documentation, and the general merits of the case were also arguments against a partial award of costs.

116.    The claimants say that the fifth submission was not inconsistent with their fundamental case, which was that the notices had been given on their behalf as joint owners, and it required the evidence of the three brothers and Mr Talby and Mr Harbord to establish this.  Reliance on the fifth submission would not have been fully tenable without the evidence given by Mr Cammack in cross-examination, recorded in paragraph 28 of the decision.  No amendment to any pleading and no adjournment had been required to enable the submission to be dealt with.

117.    The basis for an award of indemnity costs, the claimants say, is the unreasonable conduct of the Authority.  A considerable time had been taken up in dealing with points of extreme technicality on the particulars.  The Authority had even suggested that the notices were invalid despite complying with what was requested on the form.  They were never able to show significant prejudice from the deficiencies in the notices.  It was not until over three years after receipt of the first notice and after many meetings and the incurring of substantial expense that the Authority first raised the issue of invalidity.  The proper function of the Authority, as a public body with statutory duties, was to deal with claims in a fair and proper manner, rather than to take technical points to frustrate a claim in the way that a private person or commercial company might do.

118.    In saying that the costs of the Authority should be paid by the claimants the Authority rely on the general principle that, where a new case is raised late, and without such new case the claim would fail, the other party is entitled to its costs down to the change of case.  The claimants’ pleaded case, that the notices were valid because they were given by Paul Newbold as agent was defeated on all three bases that had been advanced.  Not only was the fifth submission only raised for the first time in closing, after all the costs of the preliminary issue had been incurred, but it was inconsistent with the claimants’ case as previously conducted and had been expressly disavowed in opening.  While it is accepted that the Authority did not succeed on all issues, in particular in relation to the prescribed particulars, it is submitted that the Tribunal ought not to reduce the costs awarded to them on that account since it would be difficult to quantify any extent to which the overall costs were increased by such issues.  Furthermore the Tribunal should have regard to the disproportionate manner in which the claimants had conducted the litigation.  The way in which the question of the validity of a 2-page notice was conducted by the claimants required the Authority to respond to a 4-page re-amended statement of case, a 91-page skeleton and 163 pages of closing submissions, as well as to prepare for a trial involving a bundle made up of 17 volumes.

119.    The approach to the award of costs is set out in the Lands Chamber of the Upper Tribunal Practice Directions.  The general rule, which applies to a claim for compensation such as the present, is that the successful party ought to receive its costs (paragraph 12.3).  In exercising its discretion on costs, however, the Tribunal will have regard to all the circumstances, including the conduct of the parties and whether a party has succeeded on part of its case, even if it has not been wholly successful (paragraph 12.2); and material to the conduct of a party is its conduct during and before the proceedings and the question whether it has acted reasonably in pursuing or contesting an issue (ibid). 

120.    In relation to the general rule Mr Barnes sought to rely on the rather stronger principle that applies in compulsory purchase compensation cases.  In such cases the claimant’s costs in determining compensation are seen as part of the loss imposed on him by the acquisition, so that he should be entitled to the totality of his costs unless he has behaved unreasonably: see Purfleet Farms.  The owners of Wentworth Woodhouse, he said, had a right of support from the subjacent soil, and this right had been affected by lawful coal mining.  This, however, does not in my view put them in a position comparable with that of a person whose land has been acquired compulsorily.  The withdrawal of support does not give rise to a claim for the deprivation of a proprietory right.  A claim for compensation arises only if damage is caused.

121.    The starting point, therefore, is the general rule that the successful party should have its costs; and on this basis, the claimants, having been successful, should have their costs.  However, they have succeeded on an argument that was raised for the first time in closing.  Nevertheless this is not to be equated, as the Authority suggest, to the introduction of a new case.  It was a different way of putting the claimants’ case that the notices were served on their behalf.  Moreover the other elements of the claimants’ success, the agency of Mr Talby and Mr Harbord and the effect of the Regulations, formed part of their case throughout.  What is relevant, in my view, is that the primary way in which the claimants put their case that the notices were given on their behalf, the agency of Paul Newbold, failed.  Pursuit of that contention led to voluminous disclosure and the preparation of evidence and its oral examination, which accounted for much of the time of the hearing.  Very much less disclosure, documentation and evidence would have been required if the claimants’ contentions had been confined to matters on which they were successful.  I consider that the agency argument was one that, on the facts and on the law, stood very little chance of success.  It was an artificial construct that bore no relation to the realities.  The claimants also failed on their alternative contention on estoppel (although I bear in mind that factual matters relating to estoppel had relevance to the issue of non-compliance with the Regulations).  Agency and estoppel accounted for nearly half of the very lengthy submissions and for half the cases cited.  There is no reason, in my judgment, why the claimants should have the costs that they incurred in pursuing these contentions.  Taking all the above matters into consideration, I think that they should have half of their costs only.

122.    The question then arises whether the Authority should have any of their costs in relation to those matters on which the claimants failed.  I do not think that they should.  Their case was without merit.  As a public body with the statutory duty to take remedial action in respect of mining subsidence they had given serious consideration over a period of almost two years to the first damage notice before concluding that they did not have a remedial obligation.  They instructed consultants to advise them, and over the two-year period their officers, and on one occasion their chief executive, discussed the claim with the claimants and their advisers.  They clearly did not consider that either notice was so deficient in its content as to disable them from considering the claims or that the claims did not merit serious consideration.  The invalidity point was taken for the first time in their formal reply in these proceedings.  It was not part of their case that they had been prejudiced by any defects in the notices.  Their position was that the damage notices were invalid for what were purely technical reasons and that they were thus able to ride free of any obligations that they might otherwise have under the statute.  In view of the failure of this unmeritorious case I see no reason why they should have any of their costs.  I do not take the view, however, that their conduct is such as to justify the award of indemnity costs against them.

123.    There is no justification for making any order for costs contingent on the final outcome of the reference.  The preliminary issue has no bearing on the substantive issues in the case, and the lack of merit in the Authority’s claim of invalidity makes it appropriate in my judgment that the costs should become payable without delay.  The Authority must pay one-half of the claimants’ costs of the preliminary issue, such costs if not agreed to be the subject of detailed assessment by the Registrar.

Dated 16 February 2012

 

George Bartlett QC, President

 

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