Rees and Another v Skerrett and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LLOYD,LORD JUSTICE WALLER |
| Judgment Date | 23 May 2001 |
| Neutral Citation | [2001] EWCA Civ 760 |
| Docket Number | Case No: B2/1999/0528 CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2001 |
[2001] EWCA Civ 760
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PLYMOUTH COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller and
Mr Justice Lloyd
Case No: B2/1999/0528 CCRTF
David Spens instructed by Elliotts for the Appellant
The First Respondent did not appear and was not represented
The appeal was not pursued against the Second Respondent
Mr Rees owns a property whose address is 14 Hastings Street, Plymouth. With his wife, who has died since the judgment below, he rented it first, and then bought it in 1983. At that time it was a terraced property, adjoined by another on each side. In February 1990, however, the property on one side, known as number 14A, was demolished. That is the origin of the litigation in which this appeal is brought.
Mr Rees claims to have suffered damage to his property as a result of the demolition. With his wife he sued Mr Skerrett, the First Defendant, who was the owner at the time of the demolition, and also Mr Solomon, who later became the owner, of 14A. In the county court they satisfied His Honour Judge Overend that they were entitled to a right of support from 14A, but not that they had suffered any damage as a result of the withdrawal of that support, nor that Mr Skerrett was liable in either negligence or nuisance apart from the withdrawal of support. They were awarded part of their costs against each Defendant, but no damages.
They brought this appeal against both Defendants, but as against the Second Defendant, Mr Solomon, the appeal has been compromised. Thus we are now only concerned with Mr Rees as Appellant and Mr Skerrett as Respondent. Mr Skerrett is a solicitor. He served a decidedly pugnacious Defence and Counterclaim, but he appeared at the trial only to ask for an adjournment on the grounds, we are told, of ill health. The judge refused that application and Mr Skerrett then withdrew and took no further part in the proceedings. He has not appeared nor been represented on the appeal.
The judge's conclusion that a right of support existed in favour of 14 over 14A has not been challenged. The questions on the appeal are whether the judge was right to hold that none of the damage which has been suffered is attributable to the withdrawal of the support to which Mr Rees has a legal right, and whether he was right to hold that Mr Skerrett was not otherwise liable in negligence or nuisance for that damage.
The facts
The precise circumstances in which the two adjoining properties were built are not clear and do not matter. Both had existed for around a hundred years by 1990. At the front, facing Hastings Street, number 14 is a 3 storey building (though a fourth floor has now been created out of the loft) as was 14A, effectively of the same height as 14. At the back, each of the two properties extended further back than some other houses in the terrace. Number 14 has a 2 storey extension at the back, with a conservatory on top. Number 14A had a substantial 3 storey building at the back, though the top storey was of wood. The dividing wall between the two properties was one common wall, though it had not been the subject of any party wall award or agreement. It seems to have been assumed that half of the wall belonged to each property. When the demolition took place the whole of the common wall was left in place.
Mr Skerrett bought 14A on 16 January 1990. A dangerous structure notice had been served by the local authority, and planning permission seems already to have been granted for a new building, consisting of flats, to be built on the site. On 18 January 1990 Plymouth City Council served a demolition order under the Housing Act 1957, together with a notice to the owner under the Building Act 1984. The latter notice required him, within 30 days after starting the demolition work, among other things, to shore up any adjoining building, and to weatherproof any surfaces of any adjacent building which were exposed by the demolition.
The demolition work was carried out during February 1990. The work seems to have been done in a thoroughly inconsiderate and unsatisfactory way, and the site was left in a poor state. Only token gestures were made as regards support for number 14 and weatherproofing the exposed wall. Nothing was done as regards implementing the planning permission for a new building, so the flank wall of number 14 remained exposed and, in effect, unsupported. Mr Rees later obtained a visual improvement grant from the local authority with which he was able to have some rendering done to the flank wall. This makes it look better, and may have had some beneficial effect, but Mr Rees' expert, Mr Cooper, did not consider that the work was very effective. Mr Skerrett sold 14A to a company which later went into liquidation. In 1994 the mortgagees sold 14A to Mr Solomon, the Second Defendant.
This action was started in 1995. In April 1996 Mr Rees got an expert report from a structural engineer, Mr Cooper. According to this report, the flank wall had suffered considerable damp penetration since the demolition of 14A, directly attributable to the inadequate precautions taken at the time of the demolition. Mr Cooper expressed the opinion that there had been some structural movement since the demolition, that the wall was by then not adequately supported, as it had been before the demolition, and that a scheme of remedial works was needed in order to redress the fact that the flank wall was not properly restrained as regards lateral movement, and to deal with, and prevent for the future, damp penetration. With this advice, Mr Rees amended his Particulars of Claim. Mr Skerrett had served a Defence and Counterclaim in October 1995. Apart from matters which are not now in issue, he denied negligence in the demolition and denied that number 14 was left unsupported or exposed. Mr Rees served a Reply and Defence to Counterclaim, but I do not need to mention any particular point from that pleading.
At the trial, evidence was given by Mr Cooper, and by another expert, Mr Hancock, for the Second Defendant. The judge preferred Mr Cooper's evidence where they were in conflict, but Counsel for the Second Defendant was able to cross-examine Mr Cooper in a way which led the judge to say this:
"Crack damage was observed by Mr Cooper. His view was that this damage was probably more likely to have been caused by the effect of wind, in particular suction to part of the gable wall, rather than by failure to provide lateral support. He agreed that the lateral support provided was minimal."
I will set out some of the material from Mr Cooper's second report which provided the basis for this, and which enables the point to be understood somewhat more fully. But before I do so, I should quote from Mr Cooper's first report as to the condition of the property, and in particular the flank wall. His opinion can be seen from three paragraphs, as follows:
"7.2 In addition to damp penetration problems it is also clear that the flank/gable wall has undergone some structural movement since the demolition of the adjoining property. The writer's investigation has revealed that the wall is effectively free-standing with no adequate restraint from any of the intermediate floors or the roof structure over the entire terraced section of the property.
7.3. Bearing in mind the substantial window and door openings in the front elevation immediately adjacent to the flank wall and the even larger opening in the rear elevation wall of the terraced section of the property which permits the passage of the staircase, the wall is effectively a 12m high by 11m long free-standing panel of masonry of approximately 550mm thickness. BS5628: Part 1: 1978, being the relevant British Standard Design Code of Practice for the masonry walls, in clause 36.3 limits the height of a free-standing wall to 12 times the thickness. The height of this wall is almost 22 times the thickness and without any lateral restraint it can only be described as unstable."
"7.5 Any competent engineer asked to advise on the demolition works is likely to have recommended that buttressing be provided to the wall prior to the demolition works being carried out and that this buttressing should have extended over the entire height of the building and been maintained in position until such time as alternative measures such as the redevelopment of the site were complete. Likewise the design for any redevelopment should have taken full account of the need to provide restraint to the existing wall and the new structure should have been designed to carry the loads required to ensure its stability."
His second report, dated 25 June 1997, was written in answer to a report from a Mr Bird, I assume prepared on behalf of the First Defendant, which we do not have, and whom the judge did not see. The contents of that report are therefore a matter of inference from Mr Cooper's comments. This is somewhat unsatisfactory, since we can understand the context only from what Mr Cooper does say by way of comment on, and prompted by, the other report. Clearly Mr Bird had commented on wind loading on the wall, and had done so in ways which suggested that this was not a serious factor. On this aspect, Mr Cooper said that Mr Bird had applied inappropriate factors, and that "the wind loading to be applied to the wall is significantly greater than Mr Bird has assumed". He went on:
"4.2.3 Furthermore, the wall is effectively partially buttressed against positive wind...
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