Stuart Drury v Umar Rafique
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] EWHC 1527 (Ch) |
| Court | Chancery Division |
| Date | 29 June 2018 |
| Docket Number | Appeal Ref CF009/2018 |
[2018] EWHC 1527 (Ch)
IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE CARDIFF
BUSINESS AND PROPERTY COURTS IN WALES
APPEALS (ChD)
ON APPEAL FROM THE COUNTY COURT AT CARDIFF
HHJ Jarman QC
Claim No. CF0CF057
Cardiff Civil Justice Centre
2 Park Street, Cardiff
CF10 1ET
THE HON. Mr Justice Birss
Appeal Ref CF009/2018
David Hughes (instructed by Rees Wood Terry) for the Appellant
Julian Reed (instructed by M & M Solicitors) for the Respondents
Hearing dates: 22nd May 2018
Judgment Approved
This is an appeal from the judgment of HHJ Milwyn Jarman QC in a boundary dispute between next door neighbours in Leven Close, Lakeside, Cardiff. The dispute started when the respondents commenced building works on their home to build an extension. The works started in March 2016. One of the issues was that the appellant considered that the works were likely to encroach on a gas flue outlet on his property.
The appellant sought an injunction. Directions were given on 15 th August for the matter to be heard on 31 st August 2016. At the hearing the respondents offered an undertaking pending trial, essentially not to build the existing extension higher than the appellant's gas flue. The terms of the undertaking did not prevent the respondents from carrying out other work on the extension. The appellant gave a cross-undertaking in damages and the parties agreed to nominate a single joint expert.
The expert decided there was no encroachment by the respondents' works and the respondents' undertaking was discharged on 8 th February 2017. The respondents sought damages on the cross-undertaking. The respondents' claim on the appellant's cross-undertaking was set out in their Defence and Counterclaim in July 2017. At the time of the undertaking the respondents had four young children. They contended that they had to move out of their home on 1 st September 2016 to the first respondent's mother's home and as a result had to pay rent for 11 months (at £850 per month). Their builder could not complete the work and as a result of the undertakings the costs of materials and costs of an alternative builder increased from £68,000 to £80,000. They also claimed the cost of having to store their possessions for 11 months, for having to protect exposed RSJs with weather resistant paint, having to cancel their Sky contract and the cost of driving and collecting their children from school since they could no longer walk. The damages were set out in the Counterclaim as follows:
| i) Additional cost of materials and builders | £12,000 |
| ii) Renting alternative property | £9,350 |
| iii) Off site storage | £1,650 |
| iv) Painting of exposed steel work | £250 |
| v) Cancelled Sky contract | £140 |
| vi) Costs of transporting children to school | £470 |
| Total | £23,860 |
The respondents were also concerned that the gas flue was too close to their boundary line and the counterclaim included a claim for an order that the appellant moved the flue to a location compliant with gas safe and building regulations.
The appellant accepted that in principle the respondents were entitled to damages but denied the damages claimed. In terms of the work itself the appellant's case was that the undertaking did not cause any delay and therefore any additional cost, contending that work had continued after the undertaking. The appellant denied the claim to rent, noting that it was unusual for a parent to charge their family £850 per month to reside with them. The appellant argued that the property was watertight and the respondents' belongings could have been left there. The respondents were put to strict proof of the other claims. One of the points made by the appellant was to draw attention to the lack of details and lack of substantiating documents in support of the respondents' claim.
Mr Newton the joint expert had been asked a series of questions to address the damages claim. He had answered them in a written report dated 18 th October 2017. He was not asked to quantify the claim and did not do so. Nevertheless his answers firmly supported the respondents' case. He gave two reasons why the project might have incurred additional costs in these circumstances. One was an increase in rates for material and labour over the period, for which he gave a range of 1.2% to 3%. The other was that in his opinion there is often a premium charged by a second contractor reflecting their reluctance to take over an unfinished job. He considered the effect of the undertaking and said that when he visited the site the work had ceased and he did not agree with the appellant that the respondents would have been able to continue the project in the circumstances. Although the undertaking was limited, its limitations had a significant knock on effect on all the other works. His view was that the undertaking did in practice prevent completion of the whole the external works. On the issue of delays, he said that there could be delays in trying to rearrange and coordinate subcontractors. On the issue of the family moving out he said that while if the works had been carried out in the summer months it may have been possible for them to remain in occupation, he considered the extent of the works on his site visit in October and the condition of the property and said it would have been very difficult for the family to occupy the property during the winter months. He also considered it would have been necessary for the family to remove their possessions. Finally he addressed the need to paint the RSJs confirming that once the work recommenced they would need to be rubbed down and painted. He also said that he would always recommend painting them even if they were not exposed.
The matter came on for trial before the judge on 24 th January 2018. The trial took a morning. In addition to the report of the expert Mr Newton, the court had witness statements from both sides. In his statement Mr Drury explained his view that other work could and did proceed despite the undertaking. He pointed to the lack of documentation to support the cost increase from £68,000 to £80,000. He accepted that the family might have needed to move out for a period but since the undertaking only ran for about 5 months he did not accept they had to move out for 11 months. The same point was made on storage. He also challenged the respondents on the other issues (RSJ, Sky and driving to school).
The respondents served two witness statements which each purported to be a joint statement of both of them although read as a statement by Mr Rafique. In the statements Mr Rafique maintained the respondents' case. He said that when the undertaking was given their builder moved on to other works and when it was lifted he contacted several builders but they were reluctant to do the work and since the works had been open to the elements for 5 months their prices included the cost of remedial works caused by the delay. The evidence exhibited various documents but, as the appellant pointed out below and before me, the documentation supporting the cost of building costs is confusing and thin.
The appellant's counsel cross-examined both the Mr and Mrs Rafique and the respondents' counsel cross-examined Mr Drury. During the re-examination of Mr Rafique a document was produced and admitted which showed a schedule of payments to IB Contractors, the builders who finished the works, from March 2017 to Sept 2017. The total paid was £80,000 (less a discount for delay).
The judge gave an oral judgment in the afternoon.
The judge found in favour of the respondents. He accepted Mr Rafique's evidence entirely, holding that he was a patently honest person. The judge ordered the appellant to pay damages assessed as £22,860. The reason for the difference between that sum and total claimed was because there had been a reduction off the £80,000 the respondents had paid to their builders to complete the work as a penalty for a two week delay. This was shown in the statement from IB Contractors.
At the hearing the judge awarded costs on the standard basis. In the post-judgment submissions the respondents asked the judge to deal with the issue of the location of the gas flue. In January 2017 the expert Mr Newton had expressed his opinion that the position of the gas flue did not conform to current gas safe and building regulations because it was less than 600mm from the boundary. The judge heard brief submissions from the parties and made an order requiring the appellant to reposition the flue to 600mm or more from the boundary. There were also points on issues on damages and interest under Part 36 because the outcome of the trial meant that the respondents had beaten a Part 36 offer they had made.
When the order came to be drafted the respondents' counsel raised with the judge two points on the terms of the order in a letter dated 26 th January 2018. One was about the recitals and the other was a point on the basis of assessing costs arising from the Part 36 issue since r36.17(4) applied. The appellant's counsel responded in writing by producing a marked up copy of counsel's letter. The judge decided to adopt the appellant's counsel's point on the recital but accepted the respondents' counsel's point on Part 36 and made an order for indemnity costs after the relevant date under r36.17(4).
The appellant appeals with permission given by Garnham J on 9 th March 2018. The appellant's main case on appeal was that the assessment of damages was flawed because judge failed to give any or any adequate reasons for his conclusions or to deal with all the areas of controversy and that he misunderstood the evidence. The appellant submits that none of the heads damages claimed should have been accepted. The respondents...
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