Kirk & Ors v London Borough of Brent

LORD JUSTICE PILL: Lord Justice Lloyd will give the first judgment.

LORD JUSTICE LLOYD: This is an appeal against an order of His Honour Judge Dean QC in the Central London County Court on 6th December 2004, by which he struck out a claim by the first three of six claimants for damages for nuisance in respect of encroachment by tree roots from a tree belonging to the defendant council (which I will call "tree 1") on to the claimants' property, 42 Brondesbury Villas, which is in the area of the defendant council. The proceedings also included a claim by the fourth to sixth defendants in respect of damage caused by another tree (which has been referred to as tree 2) to their adjoining property, No 44 Brondesbury Villas. That claim has not been struck out and no doubt continues in the County Court.

Tree 1 was in the highway, no doubt on the pavement, some 6 metres from the front of No 42 Brondesbury Villas, until it was felled by the defendant in March 2001. The claimants allege that roots from tree 1 extended under the foundations at the front of No 42, that they have, since the summer of 1997, undermined the foundations of No 42 and/or withdrawn the moisture from the soil under those foundations. They allege that damage is said to have been discovered at No 42 in 1997. In response to that and in an attempt to remedy it and to deal with the problem for the future, they say that they had underpinning done in 1999, although it is further alleged in paragraph 7 of the particulars of claim that further damage was discovered to the house in September 2000.

In paragraph 18 of the particulars of claim, it is alleged that at all material times it was or should have been reasonably foreseeable to the defendant that there was a risk of damage occurring to No 42, as well as to No 44, by reason of six factors. I will read the six sub-paragraphs:

On the basis of those allegations and that the defendants knew or ought to have foreseen the risk of damage, it is alleged that the operations of the tree roots and their effect on No 42 is a nuisance caused or permitted by the defendants, and further or alternatively that the damage was caused by the negligence of the defendants. There is, I think it is accepted, no practical difference between the content and features of the torts of nuisance and negligence in this area.

The defendants sought further information as to the particulars of claim, but not under paragraph 18. They did seek to tie the claimants down as to when it was said the defendants were first notified that No 42 was suffering from damage. The answer given to that was a letter of 12th February 2003, long after the underpinning had been done. In that further information the claimants went on to say that they would allege that the defendants should have been aware of the potential damage to No 42 by reason of the knowledge they had or should have had of the damage to Nos 40, 44 and 46 Brondesbury Villas, as well as the matters pleaded in paragraph 18 of the particulars of claim.

In the defence the particular point taken is at paragraph 5 as follows:

At paragraph 17, responding to paragraph 18 of the particulars of claim, the defence is as follows:

It seems to me that if the question of whether or not the defendants are liable or not depends upon the adequacy of steps taken by the defendants as highway authority in respect of the trees, that is a matter that has to go to trial. Likewise, if it is sufficient for the claimants to raise the question whether the defendants foresaw, or should have foreseen, that the roots of tree 1 might cause damage to No 42, that too, in principle, is a question which ought to go to trial.

The evidence on the application included the letter to which a cross-reference was made in paragraph 18 of the particulars of claim, which is a letter dated 16th March 1998 from Messrs Woodgate & Clark, who were loss adjusters instructed on behalf of the defendant council, addressed to loss adjusters instructed on behalf of the owners of No 44. That letter includes these two paragraphs:

So what is said on behalf of the claimants, putting flesh on the allegation in paragraph 18(3), is that Brent knew that roots from tree 2 had encroached upon the foundations to the front of No 44 and that it was possible, at least, that these might have contributed to movement that had occurred at the front of that property. Tree 2 stands at approximately the same distance from the front of No 44 as does tree 1 from property No 42. So it is said on behalf of the claimants that that provides the basis, or part of the basis, for a case that the defendants ought to have known, if they did not in fact know, that there was a risk of encroachment by tree roots from tree 1 affecting No 42, and this therefore was a specific basis for saying that they ought to have been aware of this risk over and above that which might follow from the presence of a mature plane tree at a given distance from the foundations of a London terrace house, built on London clay.

The defendants, however, point to the fact, which is indeed somewhat striking, that the underpinning was done at substantial expense in 1999, but they were not notified in express terms until February 2003, to say that that is a knock-out point which makes it plain that the claim in respect of No 42 could not succeed at trial.

The defendants rely above all on two cases, a decision of this court in Solloway v Hampshire County Council (1981) 79 LGR 449 and the recent decision of the House of Lords in Delaware Mansions v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321.

The judge in the Central London County Court considered that there was no prospect that the claimants would be able to establish liability, not having told the defendant council about the problem until 2003, long after the main work had been done, for costs of this sort to be recovered by way of damages. Mr Howard Palmer QC, for the claimants, submits that that reading of the law was too narrow, and that in respect of the facts Judge Dean failed to have regard to the full width of the facts that the claimants would rely on to show that the defendants ought to have been aware of the problem at a much earlier stage.

Solloway v Hampshire County Council concerned tree root damage occurring following two successive very hot and dry summers in 1975 and 1976, in an area where the subsoil was almost all gravel but where, as it happened, under the plaintiff's house there were pockets of clay. The judge, Stocker J, had given judgment for the plaintiff for the sum claimed, being the agreed cost of underpinning. The Court of Appeal allowed the defendants' appeal on the basis that the judge was wrong to have held that damage to the plaintiff's house from the tree roots was a reasonably foreseeable risk. They said that the existence of clay pockets under a house such that of the plaintiff was no more than an outside chance, and that balancing that risk with the steps that would have been necessary for the defendants to have dealt with the risk, there was no breach of duty on the part of the defendant council in that case.

Mr Makey, for the respondent council (the defendant below) relies on the court having said that the duty in respect of the nuisance created by roots arises if the encroachment of those roots is known, or ought to be known, to the person responsible for the tree if the encroachment is such as to give rise to a reasonably foreseeable risk that it will cause damage.

Mr Palmer, for the appellants, has no quarrel with that proposition. The question turns thus on the ambit of the proposition that the risk is known, or ought to have been known, to the person responsible for the tree, and the question whether the claimants have a reasonable prospect of succeeding on that point at trial.

A number of other cases about tree roots were cited to the judge below and in the skeleton arguments. However, in argument before us Mr Palmer and Mr Makey have rightly focused on Delaware Mansions v Westminster City Council.

In that case the question at issue arose in a rather different way, because it was clear that there had been damage to the property from encroachment by the roots of a particular tree, but in the course of time and after some structural damage had occurred, ownership of the property in question changed hands. There was a change of ownership between what seems to have been regarded as the appearance of the last physical cracks and the undertaking of the remedial works. The question was whether the purchaser, who did the work and sued to recover the cost of it, had a cause of action. The judge, Mr Derek Wood QC sitting as a Recorder on Official Referees' business, had held that there was no liability. The Court of Appeal reversed that (judgment given by my Lord, Lord Justice Pill), and the House of Lords affirmed the decision of the Court of Appeal. The House of Lords thus held that there was a continuing nuisance, causing continuing damage, enduring after the change of ownership, for which the claimant was entitled to sue. The passage at the heart of Mr Makey's submissions is paragraph 34 of the speech of Lord Cooke. Before reading that I will read a short passage from paragraph 33. He said:

The significance of that is that the cracking occurred before the change of ownership, and so Lord Cooke is acknowledging that the previous owner may well have had a cause of action immediately.

However, Lord Cooke goes on in paragraph 34 to say this, on which Mr Makey places substantially the whole reliance for his argument to the effect that the judge was right. It is as follows:

Contrast, so Mr Makey says, the present case, where no notice was given until several years after the work had been done and the council therefore had no opportunity to consider the position, either as regards what other remedies there might have been or indeed as regards the work that was actually undertaken before it was undertaken. So Mr Makey submits that this defendant did not have notice or a reasonable opportunity of abatement, and therefore, he says, no liability for remedial expenditure can arise.

It is right also to read paragraph 38, at the end of Lord Cooke's speech, as follows:

In that case, as I say, the defendant council had been given the engineers' report before the work was done, they chose not to remove the tree, which would have been an economical alternative in financial terms, and there was no doubt that they were on notice.

In the present case the claimants cannot and do not rely on notice of that kind, and it will be for argument precisely what the effect of Lord Cooke's speech is if and when the matter comes to trial. I can quite see that the defendants will have forceful forensic points for saying that the cost of the underpinning work, which is no doubt a large part of the damages that would be sought to be recovered, is precisely the sort of large bill that Lord Cooke was talking about in his speech, and that accordingly there is a very good argument for saying that Brent cannot be landed with that bill in a straightforward way.

But it does not seem to me that in paragraph 34 of Lord Cooke's speech he is saying, as a straightforward proposition at any rate, that unless there is notice before the remedial works are undertaken, there is no cause of action for recovery of any damages at all. Indeed, that proposition would seem to me to be inconsistent with his paragraph 38, where he speaks of a continuing nuisance of which the defendant knew or ought to have known, and of the recovery of reasonable remedial expenditure. That proposition is inconsistent with the idea that there has to be actual formal notification before the work is done. As Mr Palmer submitted, it seems to me that there is some scope for debate as to the ambit and effect of what Lord Cooke said in his speech in relation to facts such as those which appear to be present in this case.

In order to make good their cause of action the claimants do not, and of course cannot, rely on formal notification, such as was given to Westminster before the very large expenditures undertaken in that case. They have to rely on other circumstances and they do, as indicated in paragraph 18 of the particulars of claim, amplified a little by the further information that I have quoted. In particular, Mr Palmer relies on the letter of 16th March 1998, from which I have quoted.

It is fair to say that the judge in his judgment focused largely on the relevance of Solloway and Delaware Mansions. He understandably referred to the sequence of events and the striking fact that notice was not given until February 2003, when the major works were carried out in 1999. But having dealt with that point, he did consider the alternative proposition: that of liability based on the proposition that the defendants ought to have known of the risk of damage to No 42 at a much earlier stage. In so doing, although in the early part of his judgment he had quoted a reference to the 16th March 1998 letter, he did not address the possible relevance of that letter. It seems to me that he may have overlooked that. He referred to a formal notice that was given in 2000 to the defendants of damage to No 44, but he made the point that that was too late because that came after the underpinning. He understandably gives no further attention to that proposition. However, he does not deal with the question of what implications might be drawn from the acceptance by the loss adjusters that there was encroachment by the tree roots from tree 2 to No 44 in March 1998, which was at a time when damage had occurred to No 42 and before the underpinning works were done.

I see the force of Mr Makey's submission, which commended themselves understandably to the judge, that you cannot say that simply because here is a mature plane tree, in London, on London clay, whose height is greater than its distance from a neighbouring property, therefore you are on notice that there is a risk that the roots may have encroached upon the foundations of the neighbouring property and you are therefore liable in nuisance. That would be arguably an argument that is far too wide and would, as the judge said, amount almost to strict liability. But it seems to me that the judge has not dealt, and indeed has not attempted to deal, with the particular facts relied on by the claimants for putting the defendants on, as it were, constructive notice of the risk, in particular the March 1998 letter.

There is, as it seems to me, no answer to that in the judgment, because the judge seems to have overlooked it, nor, so far as I can see, in Mr Makey's submissions. Of course it may be that at trial the judge would take the view that knowledge that was established in respect of the position as regards tree 2 and No 44 in March 1998 was not sufficient to put the defendant on notice of a similar risk in respect of No 42. But that is not a question which can be decided on an application for summary judgment under Part 24, such as this was. There may well be a question whether the claimants can recover the full costs of the underpinning, not having given notice, as Lord Cooke said was appropriate in Delaware. But it does not follow from that they cannot recover any damages, especially since it seems that some further damage occurred after the underpinning.

Mr Makey submitted in the alternative that if the whole claim is not to be struck out, then at least the claim in respect of the cost of underpinning should be struck out. But it seems to me that that would be an inappropriate course to take in the present circumstances. That is a question which it seems to me will to have to wait for trial.

It is fair to say that although the defendants' application notice did not tie itself down as to the basis for the striking-out application, the witness statement in support of it was specific in terms of its reliance on the Delaware Mansions point, i.e. that there had been no notice before the work was done. In the defendants' skeleton argument for the application to the judge, the point was also taken that the defendant could not be regarded as having constructive notice of the encroachment or of the risk of damage. It seems to me that that was a point which was open to be taken on the application, although a more difficult point in so far as it was likely to be dependent on facts which could not be assumed in favour of the defendants at the stage of the striking-out application.

It seems to me, therefore, that the Delaware Mansions point is not an adequate basis for striking out the claim, or indeed for striking out any aspect of the particulars of claim. Although it was open to the judge to consider whether, on the facts alleged by the claimants, they had a reasonable prospect of being able to prove foreseeability based on constructive notice, it seems to me that he has addressed that question on an incomplete basis, particularly by not dealing with the letter of 16th March 1998.

Moreover, the references in the further information that I read earlier to knowledge of matters relating to Nos 40 and 46, as well as No 44, bring in a wider ambit of circumstances which may be relevant in support of the claimants' claim.

For those reasons, it seems to me that this was not a claim which the judge could properly have regarded as bound to fail or, to put it more technically, having no reasonable prospects of success, and that it ought therefore not to have been struck out. I would accordingly allow the claimants' appeal.

LORD JUSTICE WALL: I agree.

LORD JUSTICE PILL: I also agree, and for the reasons given by Lord Justice Lloyd. I do not accept the proposition advanced by Mr Makey, in seeking to uphold the striking out of the action by the judge, that, as a matter of law, where nuisance is created by tree roots there is no liability for resulting damage, unless and until damage has been notified to the tortfeasor. In my judgment, that proposition does not emerge from Delaware Mansions. Thereafter, what can be recovered by an injured landowner is a different question, and it was that question which was considered in Delaware.

I do not minimise the difficulties faced by the claimants in this case. They proceeded to spend substantial sums of money on remedial work without having been in communication with the alleged tortfeasor. There are, however, legitimate issues for trial. First, whether the defendants are liable for damage to No 42. That includes consideration of the foreseeability of damage. Secondly, if so, what damages (if any) are recoverable?

I too would allow this appeal.

Are there any applications?

MR PALMER: My Lords, I ask therefore for the appeal to be dismissed with costs here and below. My Lords, there are schedules of costs, but --

LORD JUSTICE WALL: I think you meant "allowed".

MR PALMER: Did I say "dismissed"? I am much obliged for that correction.

LORD JUSTICE LLOYD: I have seen a schedule of costs from the side, but not from you Mr Palmer.

MR PALMER: There are from our side. We would for our part be content to have them subject to detailed assessment, because it seems that this is a matter which is completely self-contained.

LORD JUSTICE PILL: But is there not a duty on you, and a duty on the court, to make summary assessment?

MR PALMER: Yes, my Lord. Well we have the schedules here, if I can put them before you.

LORD JUSTICE PILL: Yes. (Handed)

Mr Makey have you seen the --

MR MAKEY: My Lord, I have seen the schedule.

MR PALMER: My Lords --

LORD JUSTICE PILL: Mr Makey, first on the issue of whether the appellants are entitled to their costs, do you have any submissions on that, here and below?

MR MAKEY: My Lord, I think the only argument that I can seek to mount is this, that costs should be reserved for the final action on this basis -- and this is the only basis that I put forward -- that these were works that were undertaken in the knowledge that the defendants had not been notified and the defendants were not notified thereafter for another three years, and it would be appropriate therefore for there to be consideration at the trial as to whether or not the claimants are entitled to their costs.

LORD JUSTICE PILL: Yes, thank you. (The Bench conferred)

We will consider your schedule, Mr Palmer.

LORD JUSTICE LLOYD: The order below, of course, was that, because the action was struck out, your clients had to pay the whole costs of the action.

MR PALMER: My Lord, yes, but that does not --

LORD JUSTICE LLOYD: There was not any assessment of any particular costs.

MR PALMER: Not least because the remainder of the action remained.

LORD JUSTICE PILL: All we would be reversing is the costs of and incidental to the striking-out application.

MR PALMER: Obviously your Lordships' order in allowing the appeal will also reverse the order that costs be paid of the action, but that is completely out of the equation here.

My Lords, the first two pages -- and these are summarised on the front sheet -- relate to Mr Feakes' preparation and attendance for the hearing against Mr Makey before His Honour Judge Dean.

My Lords, item two is for the appearance and hearing before Pitchers J. Item three is for the hearing of this appeal. Item four gathers together costs of general preparation, which would include the application for permission to appeal, which was originally dismissed in writing by Morison J, and other incidental preparatory costs not directly related to specific hearings but related generally to the appeal.

So, my Lord, the total figure comes to £34,209.

MR MAKEY: My Lord, the only statement of costs that I have been provided with I suspect is a discrete statement in respect of today's costs, which totals --

LORD JUSTICE LLOYD: £17,000-odd.

MR MAKEY: £17,689.81. Whereas I have some comments to make on that, I am afraid if other costs are being sought I have at the moment no instructions from my instructing solicitors as to any arguments that can be mounted. If the totality of the costs are being sought, perhaps it might be right in those circumstances that the matters were put back, albeit I fully understand that courts are of course encouraged to deal with the question of costs on a summary basis.

LORD JUSTICE LLOYD: Mr Palmer?

MR PALMER: My instructions are that these have all been delivered to the defendants' solicitors. I understand that, for instance, the first instance schedule was served at the time of the first instance hearing, and they have been delivered as they have accrued. So it may be that my learned friend has only received the one that relates to today's hearing for that reason, but I am instructed --

LORD JUSTICE PILL: You say that those instructing him cannot have been taken by surprise by the other schedules because they are duplicates.

MR PALMER: Yes.

LORD JUSTICE LLOYD: The fourth is also new, the miscellaneous one.

MR PALMER: I am instructed that that was served yesterday.

LORD JUSTICE LLOYD: It would be surprising if it had not been served at the same time as the third, which is also the same date.

LORD JUSTICE PILL: It is unusual to have the three and four separated. Why has that happened?

MR PALMER: My Lord, it is because -- it is a way of isolating the costs.

LORD JUSTICE LLOYD: Mr Makey, I gather you have only got the one schedule.

MR MAKEY: I only have the one schedule. Is there a spare?

MR PALMER: I am not sure we have got another copy in court.

LORD JUSTICE LLOYD: In that case there is going to be some difficulty in Mr Makey dealing with it.

MR PALMER: My Lord, I can obviously lend Mr Makey mine, but I have not then got one for myself and my instructing solicitor does not have a duplicate, so I apologise.

LORD JUSTICE PILL: Explain to me -- we of course bear in mind that point -- the differences between the solicitors' expenses under item three and those under item four. (Pause)

MR PALMER: My Lords, obviously the solicitors' fees include for preparing the appeal, and of course we had a complete hearing in front of Pitchers J, in which preparation had to be conducted, which the defendants were able to ignore at that stage because it was only --

LORD JUSTICE LLOYD: I thought you said it was to that that schedule two --

MR PALMER: Schedule two relates to that, and schedule four relates both to the preparatory work done for that hearing and for the bundling for that hearing, as well as for this hearing.

LORD JUSTICE LLOYD: And for the original paper application?

MR PALMER: And for the original paper application, yes, my Lord.

LORD JUSTICE PILL: But the solicitors also claim £5,189 under schedule three.

MR PALMER: My Lord, yes. My Lord, I have no further breakdown on --

LORD JUSTICE PILL: I am not asking for a breakdown. In this situation one normally has a statement of the costs, not two schedules, one apparently showing costs of today, but that includes £5,000 and all kinds of attendances, and then a separate one showing the preparatory work. Is there an explanation for that?

MR PALMER: Can I take some instructions on that? (Pause)

My Lord, the item two, which is the £5,189 of solicitors' costs -- sorry, item three, relates to the preparation specifically for this hearing from the time --

LORD JUSTICE PILL: Yes, that is what appeals are for. What does the --

MR PALMER: But it is from the date when Pitchers J gave permission to appeal. After that date the work which is directly related to this appeal, preparing the bundles and liaising with the court over where the appeal should be heard, and liaising with the other side and with myself, and preparing for today is what is included in that £5,189.

LORD JUSTICE LLOYD: So the difference between two and three is the moment in time when you got permission to appeal?

MR PALMER: My Lord, two relates to those costs which are exclusively related to the hearing before Pitchers J. Then four picks up other costs, such as the original preparation, liaison with myself, taking advice on appeal and so forth, which pre-dated the immediacy, as it were, of the hearing before Pitchers J.

LORD JUSTICE WALL: So two and four really are chronologically in the wrong place? Rather, four is in the wrong place chronologically?

MR PALMER: My Lord, that may well be right.

LORD JUSTICE LLOYD: So you are saying that four does not include any costs incurred after you got permission to appeal?

MR PALMER: Yes.

LORD JUSTICE LLOYD: And the difference between two and four is that two relates directly and closely to the hearing, and four is everything else?

MR PALMER: Yes, my Lord.

LORD JUSTICE PILL: Yes, well there it is. (The Bench conferred)

Mr Palmer, Mr Makey, we are minded to let this go for detailed assessment.

But Mr Makey, do you have any further points to make? As I understood it you have not had schedule four?

MR MAKEY: My Lord, I have not had schedule four. Whether or not my instructing solicitor had it or not, I know not.

LORD JUSTICE LLOYD: And you have not seen schedules one or two either.

LORD JUSTICE PILL: It is quite easy to assume that they were disclosed at an earlier stage, but I do not know.

Anything further Mr Palmer?

MR PALMER: My Lord, if your Lordships were to order a detailed assessment, which I would be content with, might I ask for an order for costs on account in the sum --

LORD JUSTICE PILL: We will turn to that.

We consider you should have your costs, both here and the costs of the striking-out application below. We propose to refer the assessment to the costs judge but with the comment -- because it may be relevant on the costs hearing itself, apart from anything else -- that we are surprised at the appearances of several schedules, we usually see a single schedule or, at the most, two schedules where there has been a permission application, and also to alert him to the issue which has arisen, it seems, as to what disclosure there has been. So we would direct that he be informed of those two points, and we refer the matter to him.

Now you want an interim order.

MR PALMER: My Lord, yes.

LORD JUSTICE PILL: How much?

MR PALMER: I would invite your Lordships to make an interim order for £20,000, which is a proportion of the £34,000 which is claimed, which is a reasonable proportion I would respectfully submit, and it does quite neatly accumulate the costs below of Mr Feakes in front of His Honour Judge Dean and the costs of the appeal which are in the third schedule that is before you.

LORD JUSTICE PILL: Yes.

Mr Makey?

MR MAKEY: My Lord, I do not think I can oppose the application for an interim order. I would invite the court to consider whether perhaps a slightly lower figure, and the figure I would put forward would be that £15,000 would be appropriate. That is on the basis that at this stage there has been no real opportunity to go through the figures and determine what those figures are.

LORD JUSTICE PILL: Yes. (The Bench conferred)

We make an interim order in the sum of £15,000.

MR PALMER: I am much obliged.

LORD JUSTICE PILL: Does anything else arise?

28 days Mr Makey?

MR MAKEY: My Lord, yes.

LORD JUSTICE LLOYD: It should be 14.

MR PALMER: My Lord, we are very generous.

LORD JUSTICE LLOYD: Your insurers are being generous to the others.

So formally we allow the appeal, we discharge paragraphs 1 and 4, I think it is, of the order below. We make the orders for costs that my Lord has stated. You will just have to make an application in the County Court to see how it is continued. I do not think we need to refer to that, do we? Permission to apply --

LORD JUSTICE WALL: What has happened to the other action? Has it gone ahead?

MR PALMER: It has been stayed, my Lord, pending this appeal. I was just looking at the order to see whether there was in fact an order staying it here, but I do not think there was.

LORD JUSTICE LLOYD: We have lost the trial window.

MR PALMER: Yes. But I am sure that that is right, that the only parts of the order that your Lordships need to reverse are paragraphs 1 and 4 --

LORD JUSTICE LLOYD: Yes.

MR PALMER: -- and of course the costs order which you have dealt with.

LORD JUSTICE PILL: Yes.