Gary Pickett v David Balkind
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 August 2022 |
| Neutral Citation | [2022] EWHC 2226 (TCC) |
| Docket Number | Case No: HT-2021-BRS-000002 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 2226 (TCC)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: HT-2021-BRS-000002
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Daniel Crowley (instructed by Womble Bond Dickinson LLP) for the Claimant
Suzanne Chalmers (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 29 July 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment will be handed down by the Judge remotely by circulation to the parties or representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30 am on Thursday 25 August 2022.
Introduction
This is my judgment on applications brought under two application notices. The first in time is dated 14 June 2022, and was issued by the claimant against the defendant. The other is dated 8 July 2022, and was issued by the defendant against the claimant. It is in fact in two parts, so that in total I have three applications to resolve. There is also a third application notice, dated 20 July 2022, also issued by the claimant against the defendant. However, this application has not so far been argued before me, as I decided that I would give judgment on the other applications first, in case that judgment significantly changed the situation in which the last application arose, or made it redundant.
These applications arise in the context of a claim commenced by claim form issued on 23 February 2021. This claims damages for nuisance and negligence arising out of damage to the claimant's residential property at 10 Oak Close, Sutton, Surrey, said to have been caused by the roots of an oak tree growing in the garden of the defendant's property, 12 Oak Close. In other words, this is a tree root subsidence claim. The schedule of loss attached to the particulars of claim, dated 18 May 2021, claims some £356, 279.61. The two properties at 10 and 12 Oak Close are not in fact contiguous. A curious feature of the case is that the intermediate property, known as 11 Oak Close, appears not to have suffered any damage.
An amended defence was served on 18 August 2021. Each side made a request for further information of the other, the defendant's response being served on 18 August 2021 and the claimants on 9 December 2021. On 22 October 2021 HHJ Russen QC held a costs and case management conference at which he gave directions to trial. These included a direction giving permission for expert evidence on each side into separate fields, from an arboriculturist and a structural engineer. In accordance with CPR rule 35.12(3), joint statements of the parties' respective experts were to be filed by 25 April 2022, and individual final reports by 16 May 2022. The trial itself was directed to begin on the first available date after 1 July 2022, with a time estimate of four days. It was later fixed to begin on 11 July 2022. In fact, as will be seen, it was later adjourned, and is due to take place in the autumn.
The expert evidence
Expert evidence was duly obtained on both sides. The joint statement of the expert structural engineers retained by the parties (Gerry Cutting for the claimant and Timothy Pither for the defendant) is in fact dated 18 May 2022. That of the parties' expert arboriculturists (Simon Pryce for the claimant and Kieron Hart for the defendant) is dated 19 May 2022. The claimant served an expert arboricultural report dated 12 June 2022 from Mr Pryce, and an expert structural engineering report dated 9 June 2022 from Mr Cutting. It is relevant to note that Mr Cutting's firm is called “Prior Associates”. The defendant served an expert arboricultural report dated 13 June 2022 from Mr Hart, and an expert structural engineering report dated 13 June 2022 from Mr Pither.
For the purposes of this judgment I need to set out a number of passages from the expert evidence. First there is paragraph 9.6 of the joint statement of Mr Pryce and Mr Hart dated 19 May 2022. This is as follows:
“ Mr Pryce notes that the size of the Defendant's Oak and distance from no.10 indicated that damage was reasonably foreseeable from the start and this was confirmed by the finding in 2011 that the foundations were much shallower than current requirements for building that distance from an Oak. At the time the absence of damage in no.11, between no.10 and the Oak, was evidently given more weight than it warranted, despite there being no firm information to suggest that the foundations were deep enough to prevent root spread towards no.10. The Prior Associates report comments at 4.7.3.2 that a sand layer found in one of the bore holes (BH1, March 2012) could be extensive enough to provide bearing for the foundation closer to the tree.”
Secondly, there is paragraph 3.9(2) of Mr Pryce's report dated 12 June 2022:
“If no.11 had not been underpinned the original foundation, presumably similar in depth to that of no.10, would offer little resistance to root spread. In that event no.11 would also be vulnerable to the effects of the Defendant's tree, but the site investigation found variations in soil conditions which would make that less likely. The Prior Associates report comments at 4.7.3.2 that the sand layer found in BH1 of March 2012 could be extensive enough to provide bearing for the foundation closer to the tree. That comment referred to no.10, but the borehole concerned was close to the boundary between the properties so, if the layer extends under no.11 as well, that would make it more resistant to movement. Sand does not shrink and swell like clay, although the soil sample from 0.8m in BH1 had a plasticity index of 46% indicating high shrinkage potential and 100% of it passed through a 425 micron sieve, indicating pure clay. However I have known cases where localised layers of sand in clay reduced the incidence and severity of damage significantly.”
Thirdly, Mr Cutting's Report relevantly provides as follows:
“1.2. This report considers the evidence produced by others and additional evidence gathered by me to give an opinion on expert engineering issues that arise in this case.
[ … ]
1.4. My instructions are from Womble Bond Dickinson LLP acting for Mr Gary Pickett and his insurers Lloyds Banking Group. These instructions are in connection with a dispute with Mr David Balkind relating to damage, including whether an Oak tree previously owned by Mr Balkind is responsible for damage to Mr Pickett's property. The Oak is referred to as T13 throughout the report and in evidence produced by others.
1.5. On the 7 th March 2022, I had a virtual meeting with Tim Pither, the structural engineer for the Defendant, and we subsequently agreed a joint statement dated 18 May 2022.
[ … ]
2.1. My instructions are to give an opinion on the expert engineering issues that arise in this case.
3.1. The property was visited by me … on the 23 rd June 2018.
3.2. I have reviewed the relevant disclosure given by the parties in the case and the lay witness statements that have been exchanged by the parties.
3.3 The British Geological Survey records available online had been reviewed by me, and I have considered the interpretation for foundation depths given by the current edition of NHBC Chapter 4.2 …
4. [Basic facts concerning the damaged property and the trees surrounding it]
5. [Details of damage to the property and repairs]
6. [Details of site investigations and ground conditions]
7. [Details of tree roots and DNA testing]
8. [Details of crack and level monitoring]
9.1. A report was prepared on behalf of a previous owners of No 12 by Martin Dobson Associates dated 24 th September 2012. [Further details of this report.]
[ … ]”
Fourthly, Mr Pither's Report relevantly provides as follows:
“2.1. This report follows the written instruction by DAC Beachcroft solicitors to prepare a report for litigation purposes, compliant with Part 35 of the Civil Procedure Rules (CPR) and Practice Direction 35 on the engineering aspects of this claim.
3.1. I inspected the property on 17th September 2019.
3.2. [Details of inspection.]
3.3. [Details of inspection.]
[ … ]
3.6. I confirm that I have been provided with various pleadings, witness statements and a number of papers containing various reports, correspondence and schedules of works relating to this matter and to assist my understanding of the case. Various papers will be referred to within the report and where relevant a copy included within the Appendices.
4–9. [Chronological abstract, referring to subs net UK investigations in 2012, soil analysis results marital Thompson arboriculture report May 2012, crack monitoring and level monitoring, site investigations October 2015, further arboriculture report July 2016 bore holes dug June 2018]
[ … ]”
Relevant procedural rules
CPR rule 31.14 provides as follows:
“(1) A party may inspect a document mentioned in –
(a) a statement of case;
(b) a witness statement;
(c) a witness summary; or
(d) an affidavit.
[ … ]
(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.
(Rule 35.10(4) makes provision in relation to instructions referred to in an expert's report)”
CPR rule 35.2 provides as follows:
“(1) It is the duty of experts to help the court on matters within their expertise.
(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.”
CPR rule 35.10 provides as follows:
“(1) An expert's report must...
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