Phillips & Davy v Dalby (2025) The County Court at The Mayors and City of London Court

Following the handing down of HHJ Parfitt’s decision in Phillips & Perry v Dalby, I am now able to report on the circumstances and in particular Mr Lee Kyson AssocRICS www.lkbc.co.uk conduct in this case.

 

HHJ Parfitt found for the Claimants on all points. 

 

Mr Dalby started building works which involved the considerable demolition of a bungalow attached to the Claimants property in Upminster, Essex to construct a rear extension, loft conversion and complete internal reconfiguration.

 

All of this was done without service of notice under the Party Wall Act in respect of s.6(1), s.2(2) (f) (g) (j) (k) & (n).

 

Dr Philip Antino www.apaproperty.com was appointed for the Claimants and advised that an injunction for the breach of the Party wall etc. Act 1996 and the consequential damage and trespass caused to the Claimants property.  An injunction was obtained.

 

Furthermore on the rear of the original bungalows was a shared downpipe positioned within the Defendants property but nonetheless shared.  The Defendant cut that off and left rainwater flowing down the outside of the building.

 

The Defendants contractors installed a steel beam along the underside of the original rear elevation eaves and then removed the whole rear wall.  Their contractors  had measured the length of the beam and found it to be too long.  So they just decided to cut into the party wall and project it across the centre of the party wall line.

 

During one of Mr Kyson’s site visits he was video recorded with audio discussing the situation with his client and advised his client that there was an encroachment.   However, Mr Kyson  in all correspondence and his expert reports and including the single joint experts statement produced on HHJ Parfitt’s directions maintained that there was no trespass !!!!!!!!

 

When it came to the point of disclosure of evidence, the video effectively exposed Mr Kyson’s advice to his client that there was an encroachment (trespass). When giving evidence under oath Mr Kyson’s tried to dismiss the trespass as a minor issue of 97 mm.

Astonishing conduct.

 

To say otherwise in his expert reports was lacking in integrity, and not in line with his overriding duty to assist the court or the RICS rules of conduct.

 

HHJ Parfitt expressed his feelings towards the credibility of both the Defendant Mr Dalby and his expert Mr Kyson stating at paragraph 5 “Mr Mayall counsel for the Claimants addressed in particular the overall credibility of the various witnesses who were called.  In short summary I consider that both the Defendant and the Defendants expert Mr Lee Kyson were defensive and argumentative when giving their evidence.  In neither case was I given the impression  of witnesses who were doing their best to give honest recollection, or in Mr Kyson’s case balanced objective opinions regarding the expert issues that had arisen.  For both and their written witness statements/expert reports also contained the same failings”.

 

Indeed HHJ Parfitt goes further stating that “it appeared that being asked questions was an opportunity to raise unrelated complaints about the Claimants or Dr Antino, either in an attempt to suggest some false equivalence (as a tuo quoque or whataboutery) or to deflect from having to answer the question or both”.

 

All experts know  their obligation is always to assist the Court.  When giving evidence and under cross examination the Defendant accepted Dr Antino’s evidence contrary to his own and Mr Kysons’ position for several years.

 

Mr Kyson appeared throughout the whole process was non-fussed about the trespassing steel beam as recorded at paragraph 13 “Mr Kyson’s evidence, from the Defendants own views expressed in his oral evidence, was that it was of no particular difficulty to jack up the roof, dormer structure of No. 26 and create a space at the other end of the beam so that the beam could be slid away from the party wall altogether.  It could then be shortened (presumably) and reset on the internal piers”.

 

At paragraph 20 HHJ Parfitt expresses his concern regarding Mr Kyson’s suggestion “what I am less certain about is whether the Claimant and Mr Kyson are correct, that freeing the steel beam to be removed is straightforward and involves no danger to the existing structure of No. 24 or, presumably, No. 26, given the likely knock-on consequences for No. 24 since the original bungalows are semi-detached”.

 

When he was questioned about the interference with the Claimants flashings and damage caused, he tried to blame Dr Antino (see paragraphs 31 – 33 of judgment).

 

When asked about the downpipe and the shared use he said that that did not exist, yet the Claimants had a homebuyers report which commented on the shared downpipe in that report. Tat report was carried out many years prior to the litigation and supported with photographs.

 

Mr Kyson also claimed that by the Claimants having created a loft conversion on their bungalow before the Defendants had started their works that they had increased the water volume of the roof and therefore trespassed and/or went beyond any easement to use the shared down-pipe. Dismissed by Dr Antino and indeed by HHJ Parfitt.

 

However, of particular concern despite having written statements contrary to his personal acknowledgment of encroachment (trespass). Shockingly, Mr Kysons conduct fell far below the acceptable standard of any expert and indeed the obligations under his RICS membership to act with integrity.

 

On  the day before Dr Antino was due to give evidence Mr Kyson presented to the Court another report, without any direction from the court.

 

HHJ Parfitt was quite rightly concerned, rejected the report and commented upon this in paragraph 34 : -

 

 “There was an unnecessary purported “gotcha” issued raised by the Defendant and Mr Kyson about Dr Antino having interfered with this flashing in the joint inspection in September (sic) 2013[1] and leaving it in a negligent state (i.e., one where water ingress became more likely after rather than before).  Except for an unparticularised and very poor reference to the Claimants expert in the amended defence, this was not raised until a couple of days before the trial when Mr Kyson, without permission produced a new report and then on the day set aside for expert evidence a new witness statement.  Remarkably even though Mr Kyson was present in September (sic) 2013 while Dr Antino was moving the Defendants installed flashing to demonstrate how poorly it was dressed and to see what was below, Mr Kyson did not say anything then or later until just before trial some 2 years on about his apparent belief that the flashing was left in an unfit condition following the joint inspection (nor more practically did he simply take steps to rectify the issue…”

 

One of the significant issues arising out of the Defendants poor workmanship was the fact that there was water ingress occurring to the Claimants property.  At paragraph 60 HHJ Parfitt reiterates Mr Noble (counsel for the Defendant) argument that there were a number of potential causes and that there was a dispute between the experts. 

 

Shockingly, Mr Kyson contested the reliability and/or inferences of damp meter readings recorded by Dr Antino during a joint inspection. He refused to accept that damp was recorded.

 

Mr Noble (Counsel for the Defendant) argued that the Claimants cannot satisfy the burden on them of proving damp ingress.

 

HHJ Parfitt records at paragraph 61 “I recognise that there are a number of potential causes, but these are all related to the Defendants works.  I accept the inference drawn by Dr Antino that there was evidence of damp and that such is consistent with a causal link with the works carried out by the Defendants.   I have already referred to the evidences of the first Claimant”.

 

Continuing at paragraph 62 “there is no persuasive evidence from the Defendants side of any competing cause.  Taking into account such limited extent as is appropriate the possibility of competing causes but that is little weight in these particular circumstances”. 

 

Finality  on this point at paragraph 63 HHJ Parfitt records “on the balance of probabilities I find that the Defendants trespassing works are one way or another the cause of damp which is present and manifesting itself by bubbling and starting cracking (as explained by Dr Antino).  I have reminded myself of the approach endorsed by the Court of Appeal in Drake v Harbour [2008] EWCA Civ 25 [15] – [16]”.

 

There was also an allegation of noise nuisance levied against the Defendant his evidence did not persuade HHJ Parfitt and nor should it have done given the involvement of police issuing of harassment orders etc. specifically at paragraph 70 having heard the purported defence to this noise nuisance claim HHJ Parfitt states “I paid careful attention to this explanation, and it lacks any credibility.  I have no doubt that the Defendant is lying to the court in his explanation.”

 

HHJ Parfitt found for the Claimants on all points. 

[1] Typo error in Court transcript should be 2023