Abbahall Ltd (Claimants/Appellants) v Elizabeth Smee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE WARD |
| Judgment Date | 24 January 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0124-1 |
| Date | 24 January 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTI 1999/0976/B3 |
[2000] EWCA Civ J0124-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) CCRTI 1999/1277/B1
ON APPEAL FROM WEST LONDON COUNTY COURT
(HIS HONOUR JUDGE COWELL)
Royal Courts of Justice
Strand
London WC2
Lord Justice Simon Brown
Lord Justice Ward
CCRTI 1999/0976/B3
MR O TICCIATI (Instructed by Wilmot & Co, 38 Castle Street, Cirencester, Glos) appeared on behalf of the Appellant
MISS J MAY (Instructed by A J Bond & Co, Universal House, 1 Walters Yard, High Street, Bromley) appeared on behalf of the Respondent
th Monday January 2000
: This is the claimant's appeal from the order of His Honour Judge Cowell in the West London County Court on 11th June 1999 striking out two actions against the defendant, the first because it disclosed no reasonable grounds for bringing the claim, the second because it was an abuse of process to start again a case which had been struck out consequent upon a previous unappealed judgment of the court.
Shorn of most of the details (which for present purposes are immaterial), the facts of the appeal can be briefly stated. Miss Smee, the respondent, is the freehold owner of the first and second floors of a property at 38 Queens Gate Mews, London SW7 by right of adverse possession, confirmed by order of the High Court on 15th May 1987, upheld on 28th June 1988 by the Court of Appeal. I shall refer to the respondent's property as "the flat". The appellant's successors in title, Mountcarmel Investments Ltd ("MCI") and more recently Abbahall Ltd (both companies being owned and managed by a Mr Pattinson) are the freehold owners of the ground floor of the property, which consists of a second-hand car showroom leased or licensed to Nicholas Mee & Co Ltd. I shall refer to the appellant's property as "the ground floor". It was in proceedings brought by MCI against the respondent for possession that she established her title to the flat by adverse possession.
The present dispute between the parties arises because of ingress of water from the flat to the ground floor. There is, I should observe, no dispute but that the ground floor as the dominant tenement enjoys, by way of easement against the flat as the servient tenement, the right to have water discharged away from it by way of the flat's roof, guttering and downpipes. So much for the background to this appeal.
The first of the two actions the subject of this appeal was commenced by the applicants and MCI jointly in November 1994 when they applied for an injunction requiring Miss Smee to permit them to enter on to her premises for the purpose of repairing the roof guttering and downpipe so as to prevent water entering the ground floor. The injunction was granted by Judge Phelan and the repairs were carried out, after which the action was amended so as to bring a claim, amongst other things, for an indemnity against the costs of the repairs —£9,987. Negligence and nuisance were at that stage alleged, although they were later deleted upon re-amendment in 1995. A proposed re-re-amendment then sought to reintroduce these claims in 1997. Those amendments were disallowed by District Judge Madge in July 1997 and again on appeal to Judge Pillay on 9th September 1998. There was no appeal against that judgment.
The amendments were disallowed on two separate grounds. First, because, as Judge Pillay put it at paragraph 17 of his admirable judgment:
"… the Plaintiffs are guilty of inordinate and inexcusable delay, in attempting some three years after the proceedings first commenced, to seek to again comprehensively reformulate their claim against this Defendant and to do so by attempting to resurrect causes of action previously abandoned. The Plaintiffs amended their particulars of claim in July 1995. It was incumbent upon them at that stage, to formulate their cause of action comprehensively and with certainty, especially when such amendments were undertaken with the assistance of counsel and solicitors.
The original claim was limited to damages in negligence and/or nuisance and/or trespass. The Amended Particular of Claim abandoned these heads of claim and sought instead damages equalling the cost of repairs in the sum of £9,987.37; although the Order made by His Honour Judge Phelan was of course silent upon this point. The presently proposed amendment seeks to claim in negligence and/or nuisance and/or an indemnity, for sums in excess of £47,000 plus VAT. This in my view, represents a substantially different claim to that postulated in November 1994 when these proceedings first commenced."
The judge's second ground for refusing to allow the reamendment was that the five additional paragraphs alleging negligence and nuisance in any event failed to disclose a reasonable cause of action. That indeed had been the principal ground given by the district judge for the order.
That amendment having been refused, the respondent then issued a further application to the court, seeking to have the action struck out on the grounds that once the claim in negligence and/or nuisance was disallowed, there was no remaining cause of action to underpin the claim for relief. Prompted by that application, and before it came to be heard, the appellants on 22nd April 1999 commenced a second action,...
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