Younger v Molesworth
| Jurisdiction | England & Wales |
| Judge | THE HONORABLE MR JUSTICE LANGLEY,The Hon. Mr Justice Langley |
| Judgment Date | 07 December 2006 |
| Neutral Citation | [2006] EWHC 3088 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: CC/2006/APP/0024 |
| Date | 07 December 2006 |
[2006] EWHC 3088 (QB)
IN THE HIGH COURT OF JUSTICE
EXETER DISTRICT REGISTRY
ON APPEAL FROM THE BARNSTAPLE COUNTY COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Langley
Case No: CC/2006/APP/0024
Claim No 4BK05229
(1) Margaret S. Molesworth
(2) Alan Bellward
Mr R. Horner (instructed by Shoosmiths) for the Appellant
Mr E. Paton (instructed by Beachcroft LLP) for the Second Defendant/Respondent
Hearing date: 28 th November 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 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.
Introduction
The Claimant appeals, with the permission of Eady J, from the decision of Deputy Circuit Judge Thompson QC, dated 22 August 2005, in the Barnstaple County Court, sitting at Bodmin County Court.
The Deputy Judge summarily dismissed the claim against the Second Defendant and refused the Claimant permission to amend the claim to plead a different case.
The focus of the appeal has been on the proposed amendments. It was the Second Defendant's case that they had no real prospect of success and should be (as they were) refused for that reason.
Who's Who
The Claimant (Mr Younger) has owned and occupied Little Cott House in Bude for many years. The First Defendant (against whom the claim has been discontinued), Mrs Molesworthy, owned and occupied Trevellyn, which adjoined Little Cott, until about November 2000, when she sold it to the Second Defendant, Mr Bellward. Mr Bellward sold Trevellyn to a Mr Morris in July 2004.
The Facts
Part of the boundary of Trevellyn abuts a rear wall of Little Cott which includes a wall of the kitchen. The then owner of Trevellyn, at a date between 1977 and 1983, and before the Molesworthys owned the property, planted leylandii close to the boundary. In about June 2000 Mr Younger informed Mrs Molesworthy that the trees were thought to be causing damage to Little Cott through water entering the rear wall. In about July 2000, Mrs Molesworthy had the trees cut down to stumps of about 30 to 40 cms height above ground level. Shortly afterwards she sold Trevellyn to Mr Bellward.
The Original Claim
The original Particulars of Claim were dated 14 July 2004. The claim was all directed at damage alleged to have been caused by the trees including the stumps and the roots. The claim alleged that Mr Younger had orally advised Mr Bellward in November 2000, and repeated the advice by a letter dated 23 October 2002, of "the damage that had been caused by the trees to Little Cott" and had asked for the tree stumps to be removed and "the soil to be excavated to a level below the boundary wall to prevent further damage". The case against Mr Bellward was put in nuisance and negligence. Damage to Little Cott was alleged to have been caused as a result which was particularised as:
"(a) A clay drain running from Trevellyn designed to remove surface water has been fractured by the trees.
(b) A French drain behind the boundary wall dividing the properties has been clogged by the roots of the trees.
(c) Branch action of the trees has caused physical damage to the roof and rainwater goods of Little Cott.
(d) The rear wall of Little Cott has been damaged by the accumulation of water, the action of the roots of the trees and the increase in the levels of soil on the Trevellyn side of the boundary.
(e) As a consequence of damage to the wall of Little Cott, water has entered the kitchen of the property and caused damage therein."
The Defence
Mr Bellward's defence, dated 16 September 2004, alleged that any damage to Little Cott was caused by Mr Younger's failure to maintain and neglect of the property and that the drains were not fractured or clogged but continued to perform their functions. It was denied that the tree stumps or height of the soil had any effect on Little Cott.
The Joint Reports
Joint reports from an engineer and arboriculturalist were ordered on 19 November 2004. Their reports, (Mr Cooper and Mr Rushforth), so far as the claim against Mr Bellward is concerned, exonerated the leylandii and the tree stumps from blame for water ingress to Little Cott either directly or by way of damage to the drains (in fact it is agreed that the clay drain and the French drain are the same drain). Mr Cooper also concluded that the "generally poor condition" of Little Cott "can more correctly be attributed to a lack of adequate maintenance over many years associated with poor construction details and inadequate damp proofing measures".
Mr Cooper, in three paragraphs (5.9, 5.22 and 6.4) of his report "suggested" that the drain (assumed to be on land belonging to Trevellyn) might have been constructed at the time Trevellyn was built (end of the 1970s) to take water from the roofs of Little Cott and from the ground and so for the benefit of Little Cott.
Mr Cooper also concluded (paragraphs 6.12 and 6.14) in respect of the drain that:
"6.12 …. Clearly from the investigation undertaken the drain has become blocked, either because it was not laid with suitable rodding points, because it was not rodded regularly, or because it did not discharge cleanly to a suitable discharge point. In simple terms the drain was either not suitably installed or not properly maintained for its intended purpose.
6.14 …. The land drain clearly was not provided with adequate rodding points or if it was the drain was not rodded sufficiently to ensure that it was effective in draining water away from the area. Such a drain would clearly have a limited life and even in the most favourable circumstances would ultimately require lifting and relaying from time to time."
In a letter dated 23 July 2005 in response to questions from Mr Younger's solicitors, Mr Cooper also stated that the blockage of the drain was more correctly attributable to it not having been constructed properly to permit maintenance and that the blockage would have been a continual and gradual process since it had been laid but he would speculate that it had been completely blocked "for five years or maybe longer".
The Applications
It was the receipt of these reports which led to Mr Bellward seeking summary judgment on the claim. Mr Horner, for Mr Younger, accepts that the unamended claim cannot be sustained insofar as it is...
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