Why fight a party wall claim for damages? Court of Appeal (Civil Division) on appeal from the County Court at Central London CA-2023-000624 and CA-2023-000626. 

Building Owners liability for damages

The moral of the story is

Where there is a liability to pay for damage as a consequence of notifiable works it is foolhardy at best to argue the liability and/or the costs involved.  It is more pragmatic for the building owner to simply file a claim through his insurers, let them take on the hassle, the stress, the financial costs and commitments.

That is the advice that barristers and solicitors should give building owners when they are exposed to damage claims.

Fighting a lost cause is ridiculous.

Notably, it could be argued that the adjoining owners would equally be sensible to notify their insurers make a claim against their policy and let their insurers pursue a third-party claim (by subrogation) against the building owner.

Why get involved and exposed to all of these costs and risks? It makes no sense.

In the Court of Appeal (Civil Division) on appeal from the County Court at Central London CA-2023-000624 and CA-2023-000626.  The judgments of Lady Justice Macur, Lord Justice Bean and Lord Justice Nugee.

The case related to (in simple terms) a dispute over the quantum of liability as a consequence of the building owners works (Robert Taylor) and adjoining owners (Peter & Linda Jones and Peter Spriggs) who own separate properties both of which adjoined onto the building owners land.

The judgment handed down on the 28.02.24 relating to the hearing date of the 28.11.23 is helpful.  It has to be said that the damages in this matter awarded by the third surveyor in the first instance are not inconsiderable being £215,316.28 and £165,873.54 (all inclusive of VAT) in the case of Mr & Mrs Jones and Mr Spriggs respectively.

The appeals were heard by Her Honour Backhouse notably their Lord and Ladyships were notably impressed with Her Honour Backhouse’s “lucid and careful statement of the facts, supplemented by very useful joint statement prepared for the proceedings in the County Court by the parties engineer experts”.

The third surveyor in respect of both Awards was the same surveyor.  On a referral over quantum of liability he found that Mr Taylor (the Appellant) was responsible for the subsidence to both adjoining owners’ properties and awarded the sums as referred to above.

Surprisingly for a relatively straightforward matter in the County Court there were six experts before HHJ Backhouse for consideration.  HHJ Backhouse reduced the sums awarded by the third surveyor to £166,374.19 and £135,085.80 respectively (including VAT) respectively.

She also gave an unreserved judgment on costs on the 07.03.23 and ordered that Mr Taylor was to pay 75% of each of the Respondents costs.

I cannot imagine Mr Taylor seeing much change from £500,000.00 after all Mr Isaac KC does not offer his services for peanuts.

This is where it gets a bit ridiculous, and I do have to raise the question – was it sensible to fight the case? 

Mr Taylor wanted to appeal HHJ Backhouse’s first judgment on two points being

1)    The decision of the Judge to award the Respondents 75% of their costs of the appeal below was wrong in principle and/or irrational.

2)    The Judge erred in holding Mr Taylor for the cost of repairing pre-existing damage to the Respondents properties.

Mr Taylor having instructed Mr Nicholas Isaac KC who appeared with Mr Richard Miller for Mr & Mrs Jones.

Now, to cut a long story short Mr Isaac’s arguments were simply that because there was some pre-existing damage to the adjoining owners structure, that it was fundamentally wrong that the building owner should have to pay for all of the remedial works and therefore as a consequence costs in the appeals etc. should all be proportionally adjusted.

In essence Mr Isaac’s central submission was that the compensation payable by Mr Taylor was subject to what he (Mr Isaac) called the overriding principle of reasonableness, (in my opinion not something generally associated with Mr Isaac) and that it was not reasonable for Mr Taylor to have to pay for the costs of making good damage which he had not caused.  Not a ridiculous argument but the costs involved in rolling the dice!!!!

Dr Antino was not privy to Mr Isaac KC advice to Mr Taylor but has Mr Isaac/Mr Taylor overlooked a fundamental issue/opportunity.  The building owner would have been insured whether directly for the building works or through his house policy for third party liability for damage caused to an adjoining property as a consequence of his works.

The builders would also have had an insurance policy.

So why go to the expense of more appeals which do nothing other than incur the Courts time further and run up considerable further potential liabilities for Mr Taylor when the most sensible and pragmatic advice to Mr Taylor would simply be to: -

SUBMIT A CLAIM WITH HIS INSURERS AND LET THEM FIGHT IF THEY DEEM IT NECESSARY

 

That would have been the sensible thing to do, why would anyone want to advise their client to take on this potentially risky liability (and all litigation has a risk) even more so in the Court of Appeal.  Any barrister or solicitor that tells their client there is no risk is giving bad advice.  I am not suggesting that Mr Isaac did not warn Mr Taylor of the risk, but Mr Taylor should have been looking to his insures, after all that’s why one pays for insurance.

In brief Their Lord and Ladyships in the Court of Appeal considered the case in minute detail.  It was upheld that HHJ Backhouse was right or at the very least entitled to regard the Respondents as the successful party.

They succeeded in establishing that Mr Taylor’s works had caused the damage to their properties in the face of a sustained attempt by Mr Taylor to persuade the Court that the real cause was tree roots.

Accordingly, Nick Isaac KC lost ground 2 of his appeal which is the important bit regarding the costs and therefore Mr Taylor was exposed to even greater costs in these subsequent appeals (see the moral at the beginning of this blog).