Roberts and Another v Bettany and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE LAWS |
| Judgment Date | 22 January 2001 |
| Neutral Citation | [2001] EWCA Civ 109 |
| Docket Number | IN THE SUPREME COURT OF JUDICATURE A1/00/2210{PRIVATE} |
| Date | 22 January 2001 |
| Court | Court of Appeal (Civil Division) |
[2001] EWCA Civ 109
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
(His Honour Judge MacKay)
Royal Courts of Justice
Strand
London WC2
Lord Justice Laws
Lord Justice Buxton
IN THE SUPREME COURT OF JUDICATURE A1/00/2210{PRIVATE}
MR. S. BOOTH (instructed by Messrs Norman Jones Grayston, Birkenhead, Merseyside) appeared on behalf of the Appellants/Claimants.
MR. M. WOOD (instructed by Messrs Dipp Lupton Alsop, Liverpool) appeared on behalf of the Respondents/Defendants.
The proceedings in which this appeal arises concern a dispute between two neighbours in an area of North Wales. The claimants, the appellants in this appeal, are Mr. and Mrs Roberts who occupy a property known as Sea Haze. Their neighbours are the defendants, Mr. and Bettany, who occupy and own a property called Grove House.
It will be convenient first to set out the background facts. Although there appear to have been a series of property transactions between the parties at a stage before the matters of which complaint is made arose, it will be convenient to start in 1990 when the defendants purchased Grove House. At the back of Grove House there is an embankment which in fact forms part of a colliery spoil heap, upon which the claimants' property, Sea Haze, is built. In September 1991 the defendants employed a gardener to clear and put into order part of the embankment on their property, in the course of which a number of bonfires were lit. Some two or three months thereafter fires were discovered underground and the Fire Brigade intervened, followed by inspection by representatives of British Coal.
In March 1992 the local authority, the Delyn Borough Council ("Delyn") served an abatement notice requiring the underground fire to be extinguished within 35 days, which they followed with a further notice. Quite what happened in response to that notice is not clear. I think probably nothing. In the event, in May 1992 Delyn itself intervened in order to undertake works to excavate the embankment and, having excavated it, fill the area from which the burning material had been removed with inert material. It is not disputed that, in so acting, Delyn were acting properly within the ambit of their statutory powers. Having done that and successfully extinguished the fire, Delyn then reinstated the properties and the area of the embankment.
Not long after that, in September 1992, cracking of garden walls appeared in the claimants' property and further damage to the property by ground movement was thereafter identified. It is in respect of the damage to their property from that movement of the ground that the claimants bring their action.
The proceedings were not issued, however, until August 1997. After that there was significant delay, it would appear principally on the part of the claimants. The judge who had conduct of the proceedings in the High Court in Liverpool, His Honour Judge MacKay, made various orders as to the production of evidence, both as to liability and as to damage, not all of which appear to have been complied with by the claimants. In the event, an application was taken out by the defendants in March 2000 for the proceedings in effect to be struck out. That was not precisely the nature of the application but it is accepted before us that that was its substance. That application was successful on the basis, as I shall explain in more detail shortly, that the action on the state of the evidence as it then was before the judge, the judge having determined that no further evidence should be permitted to be adduced, was bound to fail.
With that introduction, it is necessary to turn to the terms of the action and the grounds upon which the judge proceeded. The claimants' case is most conveniently summarised in one sentence of a reply to a request for further and better particulars, in which they were asked, effectively, to state the nature of their case. They replied as follows:
"It is the plaintiffs' case that the serious subsidence was caused by the excavation works which were a necessary consequence of the underground fires."
That is to say, the claimants said that the subsidence had not been immediately caused by the fire but it had been caused by the work done by Delyn and Delyn had been obliged so to work by the need that they or somebody should extinguish the underground fires. For the purposes of this appeal, but not otherwise, it is accepted that the underground fires were caused by the defendants or at least by someone for whom they were responsible. The issue, therefore, is whether the subsidence can be attributed in law to those fires.
The defendants relied before the judge upon expert evidence given by a Mr. Crowther. The judge held that Mr. Crowther's evidence had not been challenged by the claimants and further held that, in the light of the history of the matter, it was not open, at that stage of the process before him, for further evidence to be called seeking to rebut and differ from what Mr. Crowther said. For my part, I consider, in the light of the history which I have reviewed, that the judge was entitled to shut out further evidence at that stage. Mr. Crowther concluded in his summary of his report as follows:
"I have concluded that the excessive settlements experienced have been the direct result of the use of clay backfill, inadequately compacted, to reinstate the whole of the slope.
This and the resulting costs could have been avoided"
Then Mr Crowther goes on to say how in his view the work ought to have been done by Delyn so that the settlement would not have occurred.
In paragraph 5 of his report, headed "Criticism of Works Undertaken by the Council", he explains in more detail how in his view the matter ought to have been done, and says in paragraph 5.2.5 that the use of clay had caused the ground to be unstable and therefore vulnerable to excessive movement according to weather conditions. He went on to say:
"In my opinion this situation was avoidable such that the losses in issue would not have been incurred."
Based upon Mr. Crowther's report the defendants advance the defence of novus actus interveniens; that is to say, they say that the cause of or attribution of the damage was attributable to Delyn, and that what Delyn did or did not do was sufficient in law to break the...
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