Georgina Partakis-Stevens v Baljit Sihan
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 05 May 2023 |
| Neutral Citation | [2023] EWHC 1051 (TCC) |
| Docket Number | Case no: HT-2020-MAN-000057 |
| Court | Queen's Bench Division (Technology and Construction Court) |
and
[2023] EWHC 1051 (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: 20–21 April 2023
Date draft judgment circulated: 25 April 2023
APPROVED JUDGMENT ON CONSEQUENTIAL MATTERS
Remote hand-down: This judgment was handed down remotely at 10:00am on 5 May 2023 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 | 1 – 3 |
| B | The Stevens' costs of the main action as against the Sihans and the Romeros | 4 – 31 |
| C | The Romeros' costs against the Sihans | 32 – 66 |
A. Introduction and decision
After 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 when all trial counsel were available to deal with the number of outstanding matters, a 2 day hearing took place on 20–21 April 2023 after which I now provide this judgment on consequential issues to resolve the remaining disputed issues.
I refer any interested readers to the summary in the main judgment at paragraph 5, where I said that:
(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: (i) the costs incurred in complying with the injunction; (ii) 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 (iii) the reasonable and reasonably incurred costs of defending the claim. These claims will be assessed at a future hearing if not agreed.
There is little disagreement as to (a) and (b), save for a very substantial disagreement between the Stevens and the Sihans (and to a lesser extent between the Stevens and the Romeros) as to what consequential costs order is appropriate. As to (c), the Sihans and the Romeros are agreed as to the way forwards as regards the assessment of the compliance costs claims (i) and (ii) but, following the exchange of written submissions for this hearing, it became apparent that there is a substantial disagreement as to the legal costs claim (iii). There were various other matters canvassed which are dealt with in the draft order which I am circulating with this draft judgment but which do not require written reasons beyond the following:
(1) I accept that the Stevens are entitled to interest on their judgment at 3% p.a. from the date of their letter of claim on the basis that by this date at the latest they had suffered a relevant loss, namely damage which required remedial works to remedy, regardless of the fact that by such date they had not undertaken or incurred all of the losses the subject of the award.
(2) I accept that both the Stevens and the Romeros are entitled to interest on costs paid at 3% pa.
B The Stevens' costs of the main action as against the Sihans and the Romeros
I am dealing with these costs solely in accordance with the costs jurisdiction under s.51 Senior Courts Act 1981 (“SCA 1981”) and Part 44 Civil Procedure Rules (“ CPR Part 44”).
It is acknowledged by the Sihans and the Romeros and, insofar as not accepted, it is plain and obvious and I so find that the Stevens are the successful party, so that the starting point under 44.2(2)(a) is that the Sihans and the Romeros should pay the Stevens' costs.
However, the argument in this case, as in so many cases, is whether and if so to what extent the court should depart from this starting point when regard is had – as is required by CPR 44.2(4) — to all of the circumstances including the conduct of the parties, success or failure on parts of their respective cases (including the reasonableness, manner of pursuit of, and any exaggeration of, those parts), and admissible offers outside CPR Part 36.
I have been referred to what might conveniently and without disrespect be described as the “usual” authorities on the starting point and the 44.2(4) factors and to the detailed and helpful commentary in the notes to 44.2 in the current (2023) edition of the White Book. There is no need for me to prolong this judgment by citation or reference. This case, like most others, involves the application of these well-known principles to the particular facts of the case.
The obvious starting point is the extent to which the Stevens failed on parts of their case and the reasonableness and manner of pursuit of their case overall and these particular aspects of their case.
Three features were rightly emphasised by Mr Darton KC in particular: (a) the unsuccessful pursuit of the claim for an injunction requiring the Romeros to reduce at their own expense the levels of the no 17 rear garden to the original pre-works levels; (b) the unsuccessful pursuit of the alternative claim for an injunction requiring the Romeros to install at their own expense an extensive drainage system to the no 17 rear garden; (c) the largely unsuccessful pursuit of the claim for consequential damages, including the very substantial claim for residual diminution in value assuming no levels reduction was ordered and a substantial claim for damage to the Stevens' swimming pool. He contrasts this with the judgment, under which the Stevens obtained an order for a far more limited remedial works scheme comprising remedial works at no 15 of £40,000 plus VAT and a limited slot drainage scheme to the paved areas to two sides of the no 17 house at a cost which at trial was thought to be only £7,250 plus VAT (although the revised quote is now said to be £30,230 plus VAT). They obtained nothing for diminution in value or for the swimming pool and modest consequential damages amounting to under £20,000.
It cannot be disputed that there was a substantial difference between the value and significance of these claims as advanced and the end result. It cannot sensibly be disputed that if the claim had been pleaded from the outset on the basis of the eventual outcome: (a) the parties ought – acting sensibly – to have approached the claim in a far more constructive way and, probably, resolved it without the need for a trial; and (b) the court would have been far more ready to cut down the directions and the allowable budgeted costs to a level commensurate with the real value and significance of the case.
However, it is also true, as Ms Atkins submits, that the actual time and cost of these unsuccessful claims was relatively limited compared to the time and cost of investigation of all of the issues in the case, including the significant issues which were vigorously contested and on which the Stevens succeeded, namely breach and causation. The victory was far from pyrrhic in that the Stevens have achieved a judgment of real benefit to them.
When it comes to consider the reasonableness of pursuit of the claim as advanced, the position is not entirely straightforward. Points in favour of the Stevens include that: (a) whilst the claim for levels reduction was not supported by their liability expert, the original works were undertaken in breach of planning permission and have been the subject of an enforcement notice; (b) the claim for substantial drainage works to no 17 was supported by their (competent and experienced) liability expert, as was the claim for the swimming pool; (c) the claim for diminution in value was supported by their (also competent and experienced) valuation expert.
However, in my view the Stevens' determined pursuit of these claims had something of the nature of a crusade. It was not until cross-examination at trial that they accepted for the first time that: (a) their rear garden had suffered from occasional waterlogging (judgment, paragraph 206–207) or that the situation had much improved as a result of the remedial works already undertaken by them to no 15 (main judgment, paragraphs 244–245, 260 and 278). This was a key factor in my raising with the experts (main judgment, paragraphs 299, 302) whether or not a more limited remedial scheme, involving further works at no 15 and no 17, would restore the...
To continue reading
Request your trial