Roadrunner Properties Ltd v Dean & Anor

Factual and Procedural Background

The appeal arises from an order dated 25th October 2002 by HHJ Cox in the Mayor's and City of London County Court concerning damage to a property known as number 14 Molasses Row, part of a terrace of atelier dwellings in a riverside redevelopment area. The property is owned by Company A, which acquired it as an investment in September 2000. Damage was alleged to have been caused by works carried out at the adjoining property, number 16, by the defendants.

The defendants undertook works to the party wall between the two properties without serving the required notice under the Party Wall etc. Act 1996. The works involved cutting a chase in the party wall using a heavy-duty Kango 950 Combination Hammer Drill, which was argued to be unsuitable for such work. The claim was brought for damages at common law, alleging nuisance and negligence, including damage to floor tiles, conservatory walls, and other parts of the property.

The case proceeded to trial with expert evidence from both parties, but no joint expert was appointed. The trial judge preferred the defendants’ expert evidence and dismissed parts of the claimant’s case. The appeal challenges the trial judge’s findings on causation and the application of the Party Wall etc. Act 1996.

Legal Issues Presented

1. Whether the damage to the adjoining property was caused by the defendants’ works to the party wall.
2. Whether the failure to serve a party wall notice under the Party Wall etc. Act 1996 affects the evidentiary burden or the approach to causation.
3. The extent to which expert evidence should be relied upon in determining causation in the context of party wall damage.
4. The recoverability of managerial and supervisory expenses incurred by the claimant’s director as damages.
5. The appropriate assessment and allocation of costs following the appeal.

Arguments of the Parties

Appellant's Arguments

• The use of a heavy-duty Kango hammer drill to cut a chase in the party wall was wholly unsuitable and caused foreseeable damage to the adjoining property.
• The timing of the damage, occurring shortly after the works, supports causation by the defendants’ actions rather than exceptional climatic conditions.
• The defendants’ failure to serve the statutory party wall notice deprived the claimant of the opportunity to obtain pre-works survey evidence, justifying a robust approach to causation in favour of the claimant.
• The managerial and supervisory expenses incurred by the claimant’s director should be recoverable as damages under established precedent.
• The trial judge erred in preferring the defendants’ expert evidence, which relied on speculative and unsupported theories.
• The appeal should result in recognition of damages for repair of the conservatory floor and walls, and costs should be awarded accordingly.

Respondents' Arguments

• The damage to the floor tiles was caused by expansion due to absorption of moisture under exceptional climatic conditions, not by the works to the party wall.
• The coincidence in timing of the damage and works is insufficient to establish causation; coincidence is not a forensic tool.
• The absence of a party wall notice does not exclude the possibility that the damage was caused by other factors unrelated to the works.
• The claim for managerial and supervisory expenses is not supported by authority and should be limited or disallowed.
• The amendment increasing the claim value was misguided and unsupported by expert evidence.
• Costs should be carefully considered, and reductions may be appropriate given the partial success of the appellant.
• An offer to remedy the damage was made early on but was refused by the claimant, which should be taken into account.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the causation issue by comparing the expert evidence and the factual circumstances. It found that the trial judge erred in preferring the defendants’ expert, whose theory of exceptional climatic conditions causing the damage was unsupported by evidence such as meteorological data. The court emphasized that the temporal proximity of the damage to the use of the Kango hammer drill on the party wall was a relevant and proper factor in drawing an inference of causation.

The court further held that the defendants’ failure to serve the statutory party wall notice deprived the claimant of the opportunity to gather more direct evidence through pre-works surveys and monitoring, and that this failure should not allow the defendants to gain a forensic advantage. Thus, the court advocated a robust approach to causation, relying on common sense and the nature of the works carried out.

Regarding expert evidence, the court criticized the procedural history that led to separate experts being appointed rather than a single joint expert, which would have simplified and clarified the issues. The court noted that the defendants’ expert improperly usurped the judge’s role in determining probabilities.

On damages, the court accepted that the claim for repair of the conservatory floor and walls was justified, but found insufficient evidence to link other claimed damages to the works. The court also considered the claim for managerial and supervisory expenses, acknowledging precedent but expressing skepticism about the quantum claimed given the company’s structure and the director’s remuneration arrangement.

On costs, the court recognized that the litigation was largely avoidable had the defendants complied with statutory requirements and engaged constructively early on. The court allowed the appellant’s costs of the appeal and trial but noted the modest success on damages and the implications for cost recovery.

Holding and Implications

The court ALLOWED THE APPEAL IN PART, reversing the trial judge’s decision on causation in relation to the damage to the conservatory floor tiles and cracks in the conservatory walls. The appellant was entitled to damages quantified at £1,740 for these repairs. Other claimed damages were not supported by sufficient evidence and were not awarded.

The court held that failure to comply with the Party Wall etc. Act 1996 notice requirements should not enable the building owner to avoid liability or gain a forensic advantage. It emphasized the importance of statutory procedures in resolving disputes and the need for courts to adopt a common sense approach to causation when evidence is limited due to statutory non-compliance.

Costs of the appeal and the trial were awarded to the appellant, reflecting the defendants’ failure to comply with statutory safeguards and the avoidable nature of the litigation. However, the limited success on the quantum of damages tempered the overall recovery. The decision underscores the importance of compliance with party wall procedures and the careful management of expert evidence.