Georgina Partakis-Stevens v Baljit Sihan
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 19 December 2022 |
| Neutral Citation | [2022] EWHC 3249 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case no: HT-2020-MAN-000057 |
and
[2022] EWHC 3249 (TCC)
His Honour Judge Stephen Davies sitting as a High Court Judge
Case no: HT-2020-MAN-000057
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (KB)
Manchester Civil Justice Centre
Ms Nicola Atkins (instructed by CEL Solicitors, Liverpool L3) for the Claimants
Mr Clifford Darton KC (instructed by Avisons Solicitors, Leeds LS1) for the First and Second Defendants
Mr Brad Pomfret (instructed by Eversheds Sutherland (International) LLP, Salford M3) for the Third and Fourth Defendants
Hearing dates: 17, 18, 19, 20, 21, 24, 25, 27, 28 October 2022
Date draft judgment circulated: 7 December 2022
APPROVED JUDGMENT
Remote hand-down: This judgment was handed down remotely at 10:00am on 19 December 2022 by circulation to the parties or their representatives by email and by release to The National Archives.
I direct that pursuant to CPR PD 39A paragraph 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.
His Honour Judge Stephen Davies
| Section | Paragraphs | |
| A | Introduction and summary of decision | 5 |
| B | Witnesses and other evidential issues | 6 – 35 |
| C | Relevant facts | 36 – 135 |
| D | Pleaded cases | 136 – 147 |
| E | Relevant legal principles | 148 – 196 |
| F | The cause(s) of the flooding allegedly experienced by no 15 | |
| F.1 | The rival positions of the experts summarised | 197 – 204 |
| F.2 | The position before the works to no 17 | 205 – 231 |
| F.3 | The works undertaken by the Sihans and subsequently | 232 – 260 |
| F.4 | Discussion and conclusions on causation | 261 – 278 |
| G | The principal claim against the Sihans | 279 – 292 |
| H | Remedial works – scope of works — injunction or damages? | 293 – 314 |
| I | Damages awarded against the Sihans | 315 – 328 |
| J | The principal claim against the Romeros | 329 – 334 |
| K | The contribution claims by the Romeros against the Sihans | 335 – 393 |
| L | Postscript – impact of this judgment upon the enforcement notice | 394 – 399 |
A. Introduction and decision
The primary claim in this case is a claim brought by the claimants (“the Stevens”), as owners of a substantial detached house and gardens 15 Fletsand Road, Wilmslow (“no 15”), against: (a) the first and second defendants (“the Sihans”), as former owners of the adjacent, equally substantial, house and gardens 17 Fletsand Road (“no 17”), and (b) the second and third defendants, Mr Romero and Ms Guercio (“the Romeros”), as current owners of no 17, alleging nuisance and/or negligence in relation to alleged water ingress from the rear garden area of no 17 onto the rear garden area of no 15, allegedly causing flooding of no 15's rear garden area.
In addition to this primary claim there are separate claims brought by the Sihans against the Romeros and vice versa, seeking contribution under the Civil Liability (Contribution) Act 1978. There is also a more substantial claim by the Romeros against the Sihans seeking damages for breach of the terms of the sale contract, for alleged misrepresentation and for breach of an alleged indemnity, all arising out of the purchase by the Romeros from the Sihans of no 17.
The case was heard over two weeks with all of the factual and expert evidence and closing submissions being concluded over that period. I am very grateful to all counsel for keeping to a tight timetable in clear and focussed cross-examination and submissions so as to ensure that the case could be concluded in that period.
In summary, my decision is as follows:
(a) The Stevens succeed in their claim in nuisance against the Sihans, with damages being awarded in the sum of £59,500.
(b) The Stevens succeed in their claim in nuisance against the Romeros, in that the court will order the Romeros to undertake limited remedial works to no 17 comprising the construction of slot drains around the outside perimeter of the paved areas to the rear and to the no 15 side of the house at no 17, such drains to be connected into the existing public drainage system. There is no separate award of damages against the Romeros.
(c) The Romeros are entitled to damages for misrepresentation and breach of contract and to contribution under the Civil Liability (Contribution) Act 1978 against the Sihans, amounting to an indemnity against the costs incurred in complying with the injunction, the costs incurred in complying with the enforcement notice issued by the local planning authority (to the extent that they are required to do so), and the reasonable and reasonably incurred costs of defending the claim. These claims will be assessed at a future hearing if not agreed.
My reasons appear from the following sections.
B Witnesses and other evidential issues
(i) Factual witnesses for the Stevens
The Stevens are a retired couple who achieved success and wealth in their previous business enterprises. They are a houseproud couple and Mrs Partakis-Stevens, in particular, is very attached to and proud of the rear garden at no 15 and the pleasures it has afforded for private life with their family with its well-tended lawn, well-stocked borders and adjoining swimming pool and patio. They believe very strongly that if it had not been for the Sihans using the clay spoil from their excavations to raise the ground levels of the rear garden at no 17 they would not have experienced the flooding of which they complain.
I do not doubt their essential honesty and, in particular, I reject the suggestion by Mr Darton that they had deliberately withheld documents provided to them by Bartlett Tree Experts (“Bartlett”) on the basis that they knew that those documents did not support their case. It is quite clear that the more prosaic explanation is that Mr Stevens was the email addressee but, because he was not particularly involved in the discussions with Bartlett, simply printed out the relevant documents and passed them on to Mrs Partakis-Stevens, who disposed of them once she had dealt with them. Apart from anything else, the documents produced by Bartlett did not come anywhere close to flatly contradicting their essential case, such as would have provided a strong motive for such conduct.
Nonetheless, Mrs Partakis-Stevens in particular came across to me as strong-willed and determined and, having become convinced that the flooding was the result of the Sihans' actions as above, has been unable or unwilling to countenance any different explanation. Mr Stevens, it seems to me, has largely followed her lead in this respect. There were some significant discrepancies in their evidence. They were willing to ask third parties to provide documents or to amend documents to support their case, albeit not in a dishonest way. For all of these reasons I have had to treat their evidence with some caution and do not feel able to accept their uncorroborated evidence uncritically. I have therefore looked for corroboration from other reliable sources of evidence.
Importantly, therefore, their evidence as to the causal connection between the Sihans' works and the onset of serious and sustained flooding was supported by the evidence of Mrs Gibbons, a retired teacher who lives in a house opposite no 17. She has been friendly with the Stevens for many years and was friendly with the previous owners of no 17. She seemed to me to be a careful and a fair-minded witness, with a reasonably good recollection of events. She was very clear on the one hand about the causal connection between the Sihans' works and the onset of serious and sustained flooding to the rear garden of no 15 and she did not appear to have any particular axe to grind against the Sihans.
However, as regards that evidence (and that of the other corroborative witnesses called by the Stevens to support their case that before the development of no 17 there was no widespread or persistent problem with flooding in the rear garden of no 15 whereas afterwards there was), I must remind myself of the risk that these witnesses, who were all either family, friendly neighbours or persons who had worked for them, may have persuaded themselves to recall events to support the Stevens' case. There is therefore, notwithstanding their honesty and apparent reliability, always room for doubt about the reliability of uncorroborated oral recollection of this kind, comparing the relative frequency and intensity of flooding before, during and after the works to no 17. I must, therefore, look carefully at the contemporaneous documentary evidence and also consider with care whether their oral recollections sits easily with the expert evidence as to the presence or absence of any causal connection between the works to no 17 and the problems at no 15.
That applies to Mr Peter Wordingham's evidence, who also supported the causal connection between the Sihans' works and the onset of serious and sustained waterlogging. He had been the Stevens' gardener (as well as the gardener at no 17, no 18 Torkington Road and no 20 Torkington Road) for many years, until around March 2017 when he moved away from gardening to set up a landscaping business. He seemed to me to be a careful and fair minded witness with a reasonably good recollection of events, especially – as might be expected — those relating to the gardens and the trees and plants in them.
It also applies to Mr Neil Montaldo's evidence. He is the son-in-law of the Stevens who, together with his wife, their daughter, lives in 18 Torkington Road...
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Georgina Partakis-Stevens v Baljit Sihan
...a 2 week trial I handed down a written judgment on 19 December 2022 which can be accessed on The National Archive and elsewhere at [2022] EWHC 3249 (TCC) (“the main judgment”). The parties were unable to agree on consequential matters and, after a protracted delay due to finding a date whe......