Abbahall Ltd v Smee
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby,Lord Justice Chadwick |
| Judgment Date | 19 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1831 |
| Docket Number | Case No: 2002/0397/B2 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2002 |
[2002] EWCA Civ 1831
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
His Honour Judge COTRAN
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Chadwick and
Mr Justice Munby
Case No: 2002/0397/B2
Mr Oliver Ticciati (instructed by Wilmot & Co) for the appellant (claimant)
Miss Juliet May (instructed by A J Bond & Co) for the respondent (defendant)
Mr Justice Munby (giving the first judgment at the invitation of Lord Justice Chadwick):
This is an appeal against a judgment and order of His Honour Judge Cotran sitting in the West London County Court on 15 January 2002. It concerns a mews property in Queensgate Place Mews in London SW7. The property is on three floors, though the second floor is simply a living space created in the attic in the roof space. The ground floor consists of commercial premises occupied by Round About Chelsea Limited. The upper two floors consist of residential premises occupied by the defendant, Miss Smee.
The claimant, Abbahall Limited, is the freehold owner of the ground floor, which is let to a Mr Pattinson who has in turn sub-let to the occupier. The defendant, Miss Smee, is the freehold owner of the first and second floors and the roof ("the Flat"), by right of adverse possession, confirmed by the High Court on 15 May 1987 and upheld by the Court of Appeal on 28 June 1988.
The Flat accordingly comprises a 'flying freehold'. It is common ground that, no doubt because of the circumstances in which Miss Smee came to acquire her freehold, there are no covenants of any sort regulating the relationship between the two freeholders. That relationship is regulated by the law of easements and by the law of nuisance and negligence. I might add that even if there were covenants they would be unlikely to avail the parties given the rule that the burden of positive covenants does not run with freehold land: see Rhone v Stephens [1994] 2 AC 310 (itself a case involving a flying freehold).
Miss Smee has allowed parts of the Flat—the roof in particular—to fall into disrepair with the consequence that water leaks into the ground floor and there is a danger of masonry falling onto visitors to the ground floor. Two chartered surveyors in a report dated 2 January 2002 jointly commissioned by the parties comment that the brickwork to the parapet corbelling is in need of "immediate attention" otherwise sections will "inevitably" fall onto the public thoroughfare.
On 1 November 1994 Abbahall obtained from the County Court an injunctive order enabling it to enter the Flat "for the purposes of carrying out all repairs and/or works necessary to render the … roof, guttering, cornices and front elevation safe sound and watertight". That order was silent as to who was to bear the cost of the repairs. The work was carried out at a cost of £7,255 by Abbahall's contractors. Abbahall then commenced further proceedings in the County Court seeking to recover from Miss Smee (i) the sum of £7,255 already expended on the repairs and (ii) the cost of further necessary works which it claimed would cost, in accordance with the joint experts' assessment, a further £23,617.50.
The trial of the action took place in January 2002. Abbahall claimed that Miss Smee owed it a duty of care which entitled it to recover from her the whole of the cost of the repairs. Miss Smee disputed the claim on a number of grounds:
i) that she owed no duty to Abbahall because it was a mere reversioner;
ii) that in any event she owed no duty because this was a sin of omission and not of commission; and
iii) that even if in principle she did owe Abbahall some duty of care there was in the circumstances no duty at all.
Judge Cotran found against Miss Smee on each of these points. But he also held, contrary to Abbahall's case, that she was under a duty to contribute only one quarter of the costs of the past and future repairs. He gave judgment for Abbahall in the sum of £1,296 "by way of damages"—there had been a dispute as to the proper cost of the repairs—and made a detailed order providing for the carrying out, in accordance with a detailed specification to be prepared by a jointly appointed surveyor, of further works estimated by the joint experts to cost a further £13,800. His order further provided that Miss Smee "shall be liable" for one quarter and Abbahall for three quarters of the cost of the works and the fees of the surveyor.
Abbahall now appeals to this court, seeking to recover the full cost of the repairs. There is no respondent's notice. Miss Smee accepts that she owes Abbahall a duty of care but seeks to maintain the learned judge's assessment of that duty as one exposing her to only one quarter of the cost of the repairs.
Time was when the claim would have been thought to be concluded against Abbahall by the observations in this court of Sir Wilfrid Greene MR in Bond v Nottingham Corporation [1940] Ch 429 and of Lord Denning MR in Phipps v Pears [1965] 1 QB 76. Nowadays, however, matters have been transformed by the developments in the law of nuisance and negligence heralded by the decision of the Judicial Committee of the Privy Council in Goldman v Hargrave [1967] 1 AC 645—developments subsequently adopted and elucidated in the decisions of this court in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836, Bybrook Barn Centre Ltd v Kent County Council [2001] BLR 55 and Rees v Skerrett [2001] EWCA Civ 760, [2001] 1 WLR 1541.
The Holbeck Hall case disposes of any obstacle that might otherwise have been presented by Bond v Nottingham Corporation. The Rees case has performed a similar service in relation to Phipps v Pears. Those two cases remain, no doubt, good authorities in relation to the law of easements; but they tell us nothing about the proper content of the modern law of nuisance and negligence. It is to those causes of action that I now turn. The law of easements may provide Abbahall with no remedy but the modern law of nuisance and negligence does.
The facts of Goldman v Hargrave are too well known to need repetition. Lord Wilberforce, giving the advice of the Privy Council on an appeal from the High Court of Australia, found in the cases, and in particular in the decision of the House of Lords in Sedleigh-Denfield v O'Callaghan [1940] AC 880, authority for what he described at p 661G as
"the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made."
In Leakey this court held that the law as explained by Lord Wilberforce in Goldman v Hargrave is indeed part of the law of England. It also made clear that it matters not whether the action is regarded as lying in nuisance or in negligence, since the ingredients would be the same.
Now it is true that none of the cases which have followed Leakey is precisely on all fours with the facts of this case. All the other reported cases to which our attention has been drawn relate to horizontally adjacent properties, whereas the present case involves a 'flying freehold' where one property stands on top of the other. But neither this difference, nor any other difference there may be between this and other cases, can affect the existence of the general duty identified by Lord Wilberforce. Indeed the point is not contested. It could not be. Miss Juliet May on behalf of Miss Smee now accepts that her client owed, and continues to owe, a duty of care to Abbahall.
The issue in the present case goes not to the existence of the duty but rather to its content and scope.
Before us, as before Judge Cotran, Mr Oliver Ticciati, on behalf of Abbahall, contended that Miss Smee owed his client a duty:
"to keep the Flat in such a state of repair as to prevent damage being caused to the ground floor or those occupying it by water penetration or falling masonry, guttering, etc."
Miss May, for her part, submitted that the relevant duty was:
"to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable to prevent or minimise the known risk of damage or injury to one's neighbour or to his property."
She supplemented that submission by asserting that Miss Smee is quite entitled not to repair her own property. She is only in breach of her duty to her neighbour insofar as she has failed to do "that which is reasonable in all the circumstances."
On this point I agree with Miss May. Her formulation of the relevant duty accords with the authorities: indeed it is, as we shall see, derived directly from certain observations of Megaw LJ in Leakey.
I go first to the way in which Lord Wilberforce dealt with this issue in Goldman v Hargrave at p 663A:
"So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be "reasonable,"since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with...
To continue reading
Request your trial
-
Peer International Corpn v Termidor Music Publishers Ltd
...Jerez." 41 To similar effect were statements in the speeches in Société Eram Shipping Co. Ltd v Compagnie Internationale de Navigation [2003] All ER 465. Lord Hoffman said: "54. My Lords, so far I have been considering the matter, as almost all the authorities have done, as one of fairness ......
-
University College Cork v Electricity Supply Board (ESB)
...done to mitigate the nuisance. And even in respect of small property owners, the latitude allowed is limited. In Abbahall v. Smee [2003] 1 All E.R. 465, Munby J. stated, at para. 61, that neither Goldman nor Leakey "assert that the defendant's financial resources were determinative." Here, ......
-
Coope and Others v Ward and Another
...trial judge had rightly recognised that in the light of Leakey's case the statement in Bond v Nottingham was no longer good law. 33 In Abbahall Ltd v Smee [2003] 1 WLR 1472 the defendant was the owner of a flying freehold which she had acquired by adverse possession and which comprised the ......
-
Panagopoulos and another v Earl Cadogan and another
...enforceability of positive covenants. But such freeholds, although relatively rare, do exist and they are not a new phenomenon: see eg Abbahall Ltd v Smee [2002] EWCA Civ 1831, [2003] 1 WLR 1472. I can see no warrant to curtail the provisions in section 153 and disapply the section 205(1) ......
-
Apartment Ownership: The English Version Needs Reforming
...precedent se e M Vitoria “New Sq uare Lincol n’s Inn and its Flying Fr eeholds” (1977) 41 Conveyancer 11 13-14 In Abb ahall Ltd v Smee [2002] EWCA Civ 1831 recourse was h ad to a “measured du ty of care” (para 22) based o n tort, taking i nto account the circ umstances of the defe ndant, wh......