Roadrunner Properties Ltd v Dean

JurisdictionEngland & Wales
Judgment Date17 March 2004
Neutral Citation[2003] EWCA Civ 1816,[2004] EWCA Civ 376
Docket NumberB2/2003/0257
CourtCourt of Appeal (Civil Division)
Date17 March 2004

[2003] EWCA Civ 1816





Royal Courts of Justice


London, WC2


Lord Justice Chadwick

Lord Justice Sedley


Roadrunner Properties Limited
(1) John Dean
(2) Suffolk and Essex Joinery Limited

MR ALAN STEYNOR (instructed by Adam Cohen Partnership) appeared on behalf of the Appellant

MR VIKRAM SACHDEVA (instructed by Keoghs Solicitors (Bolton)) appeared on behalf of the Respondents


This is an appeal from an order made on 25th October 2002 by HHJ Cox sitting in the Mayor's and City of London County Court in proceedings brought by Roadrunner Properties Limited, as owner of a long lease of property known as 14 Molasses Row, Plantation Wharf, London SW11. That property is one of a terrace of what has been described as "atelier dwellings", built in the late 1980s as part of the redevelopment of the riverside area in Battersea. The dwellings each comprise a large open-plan ground floor area for use as an office or small work shop, with living accommodation over. The first and upper floors are configured in such a way that there is room for a conservatory and a paved terrace on the roof of part of the ground floor.


The claim in these proceedings is for damage, said to have been caused to number 14 Molasses Row (also described as number 14 Cinnamon Row) by works carried out by the defendants at the adjoining property, number 16.


Roadrunner Properties Ltd is a company controlled and managed by Mr Neil Morgan. The property was acquired by that company in September 2000 as an investment. Mr Morgan set about finding a tenant. On 27th October 2000 the property was visited by Mr Cliff Olsson, whose company was interested in taking a sublease. Mr Olsson looked round the property on that day and did not notice any damage or defects which appeared to him to be of any significance; but he decided to have a professional survey before proceeding further with the sublease. He visited the property again with his surveyor, Mr Roberts, at the end of November 2000. They found then that there was damage to the property which Mr Olsson thought had not been there previously. The most obvious damage identified on that visit were tiles which had become detached from the floor in the conservatory and had been pushed upwards into the form of a ridge; a skirting board which had become detached from the wall adjacent to number 16; and a number of cracks in the conservatory wall. None of these items had been noticed on the earlier visit.


Mr Olsson reported the damage to Mr Morgan; who himself came to view it. Mr Morgan then went next door to number 16. He discovered there that there had been some recent work to the party wall at first floor level. That work included the cutting of a chase, or channel, near to the bottom of the wall to take pipe work for radiators. The work had been done by contractors, Suffolk and Essex Joinery Ltd; but not by one of their own workmen, rather by an agency labourer who had been employed for that purpose. Mr Morgan discovered that the chase, or channel, had been cut by the use of a Kango 950 Combination Hammer Drill. That tool is described in sales literature, which we have seen, as "ideal for whenever heavy duty drilling or demolition work is to be undertaken." The Kango hammer has a powerful electrical motor, capable of delivering 2000 blows per minute at an energy of 14.3 joules. It weighs 11.4 kilogrammes and is capable of digging up a concrete roadway; for which purpose it is often used. It was said by Mr Morgan, in evidence, to be wholly unsuitable for the task of making a chase in a party wall. The illustration of the Kango 950 in the literature which we have seen bears out his view that it would be an unusual tool to use for that purpose.


It is not in dispute that the wall common to number 14 and number 16 Cinnamon Row is a party wall for the purposes of the Party Wall etc Act 1996. Nor is it suggested, now, that the works carried out at number 16 Cinnamon Row in October or November 2000 did not include works which fell within section 2(2) of that Act —see, in particular, subparagraph (f) of that section, which describes works within the section as including:

"… to cut into a party structure for any purpose which may be or include the purpose of inserting a damp proof course."

This was that kind of work. Section 2(5) of the Act provides:

"Any right falling within, inter alia, subsection (2)(f) is exercisable, subject to making good all damage occasioned by the work to the adjoining premises."

Section 7(2) provides:

"A building owner shall compensate any adjoining owner and any adjoining occupier for any loss or damage which may result to any of them by reason of any work executed in pursuance of this Act."

The question in this case, as in many other cases involving work carried out in respect of party walls, is whether the damage in respect of which the adjoining owner is claiming was "occasioned by" —or, put another way, "resulted from" —the work carried out. The question is one of causation.


The scheme of the 1996 Act is calculated to facilitate the resolution of questions of that nature. Section 3(1) requires that before exercising any right conferred on him by section 2 —which, as I have said, includes a right to cut into a party wall under subparagraph (f) —a building owner shall serve on any adjoining owner a notice stating, amongst other things, the nature and particulars of the proposed work and the date on which the proposed work will begin. That notice is to be served at least two months before the date on which the work is to begin —section 3(2)(a). Where such a notice has been served, then, unless the owner on whom it has been served indicates his consent to the works described in the notice, a dispute is deemed to have arisen. That brings into effect, as between the parties, the dispute resolution provisions in section 10 of the Act. That section provides for the appointment of a surveyor or surveyors with power to make an award binding on the parties.


The importance of the Party Wall Act procedures, in the context of the present appeal, is that a surveyor appointed under section 10 of the Act has the opportunity and the right to enter upon the premises of both the building owner and the adjoining owner "for the purposes of carrying out the object for which he is appointed or selected": see section 8(5) of the Act. In practice, therefore, the scope for disputes as to causation in relation to works done to party walls is reduced by the ability of both owners, through the surveyor or surveyors appointed or selected under section 10, to monitor the works as they are carried out. In particular —and as an obvious step in that process —there is an opportunity for inspection or survey of the adjoining premises immediately before the works are carried out.


In the present case, the owner of number 16, Mr John Dean —who was the building owner in this context —had served no notice under section 3 of the 1996 Act. Those advising Mr Morgan on behalf of Roadrunner clearly took the view that, in those circumstances, Roadrunner could not invoke the provisions of the 1996 Act. They thought that Roadrunner had to sue in the County Court; and had to rely on the common law.


The proceedings were brought in the County Court for damages at common law, alleging nuisance and negligence. It is unnecessary to decide in the present case whether the claimant would also have had a claim for breach of statutory duty under section 2(5) or section 7(2) of the 1996 Act. It has not been suggested that, in a case where notice has not been served under section 3 of the Act, the effect of the statutory scheme is to exclude a common law remedy. Such a submission could not be advanced in the light of the decision of this court in Louis and Another v Sadiq (1996) 74 P&CR 325 at 333. Nor, in the present case, would a claim for breach of statutory duty add anything to a claim in common law negligence or nuisance. That is because it is not suggested in the present case (and could not be suggested) that damage to adjoining premises from the use of a Kango 950 hammer on a party wall was not foreseeable. Foresight is not the issue. The issue in the present case is causation. The issue would be the same whether the claim were brought at common law or for breach of statutory duty.


The claim —as originally brought in the Mayor's and City of London County Court —against Mr Dean, as the owner, and Suffolk and Essex Joinery, as the building contractors, was quantified at £6,707. That was the amount sought in respect of four items of damage, described as follows: "(1) invoice dated 19th February 2001 from AA Building Services, to repair/remedy the aforesaid damage, £1,840; (2) invoice dated 19th December 2000 from Spire Associates, Civil and Structural Consulting Engineers, for visiting the claimant's property and offering verbal advice regarding the movement/cracks evident to the floor tiles in the conservatory, £141; (3) invoice dated 31st January 2001 from Spire Associates, Civil and Structural Consulting Engineers, for providing a written report relating to their visit to the claimant's property regarding the aforesaid damage, £105.75; and (4) managerial and supervisory expenses incurred by work personally undertaken by Mr Neil Morgan, including the time incurred therewith, mileage travelled and other associated expenses, £4,620.25." It can be seen that, out of that total of £6,707 odd, the...

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6 cases
  • Ken Power v Raheel Shah
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 7 March 2023 recover damages at common law, the measure of damages being what a surveyor would have awarded under the Act (see also Roadrunner Properties Ltd v Dean [2003] EWCA Civ 1816, [2004] 1 EGLR 73 at [9]). That may or may not be right (see Hough v Annear (2007) 119 Con LR 57, which took a di......
  • Jackson James Ireland v Secretary of State for Health (Sued as South Tyneside NHS Foundation Trust)
    • United Kingdom
    • Queen's Bench Division
    • 11 February 2016
    ...143 I accept that in cases of this sort the court should be "prepared to take a reasonably robust approach to causation": see Roadrunner v Dean [2003] EWCA Civ. 1816 per Chadwick LJ at paragraph 29. I have also considered the other authorities referred to in Mr Grime QC's final submissions ......
  • Drake v Harbour and another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 January 2008
    ...of the work which the defendants have been carrying out, a court should (as Chadwick LJ said in the slightly different context of Roadrunner v Dean [2003] EWCA Civ 1816 para 29) “… be prepared to take a reasonably robust approach to causation.” That is just what HHJ Wilcox did in the case. ......
  • Hough and another v Annear and another
    • United Kingdom
    • County Court
    • Invalid date
  • Request a trial to view additional results

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