Lyons v Gardner

This is an application for permission to appeal renewed and adjourned on notice arising out of a judgment of HHJ Charles Harris QC given in the Oxford County Court on 5 May 2006. It arises out of a dispute between two neighbours, a Mr Lyons, the claimant, and Mr Gardner and his wife, the defendant, who are the respective owners of two parts of a single house, an Edwardian building in Nightingale Lane, Chalfont St Giles, a single residence which at some time was divided into two. The larger southern arm became known as Tile House -- that is Mr Lyons’ home -- and the smaller northern part became Little Tile House -- that is the home of the Gardners. The Gardners had been in Little Tile House since 1976. Mr Lyons has been in Tile House since 1988.

There has been a problem in the courtyard which is formed by the angle of their respective homes. This is a rectangular courtyard formed by a longer wall of Tile House, Mr Lyons’ home, known as the northern wall, lying on the southern perimeter of the courtyard, and the shorter wall at right angles of Little Tile House, which runs to the west of the courtyard. There has been a problem in that courtyard, the history and severity of which was in dispute between the litigants of water accumulating or “ponding” as the expression has been used in this case, against or in the region of the northern wall of Mr Lyons’ house.

Mr Lyons brought his claim in nuisance against the Gardners as a result, he alleged, of drainage works performed by the Gardners in 1995, the purpose of which was, as we are told, essentially to seek to overcome some previous difficulty or dispute between the neighbours relating to septic tanks, so that the Gardners sought, by creating their own septic tank, to separate the systems of the two houses, and in the course of which new drainage works and pipes and gullies were created in an attempt to improve the drainage of the courtyard away from the northern wall, where gullies were formed ,and by means of a pipe laid in the diagonal across the courtyard to drain the water away from the house to a borehole which was newly created in the northeast corner of the courtyard.

So the essence of Mr Lyons’ claim was that it was these works and defects in them -- and it was common ground that there were certain defects in these works -- which had caused a new or at any rate materially-enhanced problem of ponding against the wall of Mr Lyons’ house, which had in turn led to damp in three rooms along Mr Lyons’ northern wall. Those three rooms are the kitchen, the breakfast room and the cloakroom. They are not the only rooms along the northern wall. I should explain that beginning at its eastern end, that is the end away from the angle created by the two homes, the north wall is constructed of brick and contains behind its elevation a utility room or scullery area, as it has been variously called, over the years. No complaint is made of dampness in that brick area caused by the 1995 works, but to the west of that along the rest of the northern wall, in an area which is rendered over the underlying brick, are to be found the three rooms where dampness is complained about. In order running from east to west there is the kitchen with two windows, a breakfast room with a single third window and then right in the corner of the two houses without a window looking onto the courtyard, the cloakroom.

For the purposes of determining this dispute the judge had to consider a number of factors, but first and foremost he had to consider whether the problem of ponding against the northern wall was indeed either a new consequence of the 1995 works, or at any rate it had existed in times past before 1995 and was a problem which had been materially enhanced by any difficulties with the 1995 works, because Mr Lyons’ case essentially was that before 1995 he had had no problems with the damp in those rooms, but after 1995 and as direct result of new ponding problem of lying water in the courtyard, he had experienced damp in those rooms which he ascribed to the 1995 works, and the damp complained of, it was alleged, was not due to the ordinary ground percolation of water into a building but was caused by the lateral movement of lying water above ground water into the western part of the north wall, as I have sought to explain.

The judge therefore had various things to consider. He had the allegation that this was a new damp problem following 1995. He had to consider what were agreed imperfections of the 1995 works. There were various imperfections caused by inadequacies of the relationship between the septic tank and the borehole which meant that the borehole failed to drain away at its base into the chalk beneath as efficiently as it should have done by reason of contamination of waste from the septic tank. It was accepted that the gradient of the pipes lying across the courtyard into the borehole was not as steep as perhaps it might have been, but the imperfection which was of greatest materiality to the complaint was that the top of the borehole chamber was, speaking from memory, some ten centimetres or so above the gullies along the northern wall, so that if the borehole filled to the very top there was a danger of water going up the gradient of the pipe and out of the gullies. That this could happen was shown by a test which was witnessed by the Gardners’ expert but was organised by Mr Lyons’ expert whereby a water tanker, a bowser full of 250 gallons of water, was emptied within just over a minute into the borehole, with a result that the borehole filled to the top and sent a back surge of water up the pipe and out of the gullies on the other side of the courtyard by the northern wall.

It was submitted at the trial that this test illustrated the mechanism by which the ponding -- the post-1995 ponding -- had been created. There was also conflicting expert evidence of some complexity considering the question of whether the damp experienced in the relevant rooms was caused by salted water, water with salts in it, which would suggest that it came out of the ground by percolation or was water without salts in it, thereby indicating that it was standing or ponding water moving laterally across the top of the surface of the courtyard into the rendered wall of Mr Lyons’ house.

Reliance was also placed by Mr Lyons on some earlier surveys, in particular the survey which he had commissioned when he bought his house; also a title survey, which was commissioned at the time when the Gardners had bought their house; and also some mortgage valuation surveys which Mr Lyons had commissioned in 1989, 1990 and 1991 for the purposes of raising a mortgage, and it was submitted by Mr Lyons that these surveys showed that there had been no previous problem with damp in the relevant walls of Mr Lyons’ house. Indeed on behalf of Mr Lyons today, Mr Loveday has submitted that it was the reliance on these documents which was at the forefront of Mr Lyons’ case.

So there were those earlier surveys; there was the expert’s evidence; there was the borehole test, part of the expert’s work; but above all and something which I have not stressed so far, the judge had before him the conflicting evidence of Mr Lyons and Mr Gardner as to what had occurred in the courtyard both before and after 1995. That was in truth the only direct evidence which the judge had about the conditions in the courtyard in relation to ponding and as to whether it had been a problem which had existed before 1995, and if it had existed before 1995 whether it was a wholly different order of problem after the 1995 works. There are no other direct witnesses, I think. No one spoke to the earlier survey reports; the 1995 builders did not give evidence; the essential direct evidence, the eye witness testimony of the ponding problem in the courtyard was down to Mr Lyons and Mr Gardner. Their evidence was in conflict and the judge had above all to consider what he made of that evidence.

The judge pointed out in setting the scene for his review of the litigant’s evidence that it was common ground that even before 1995, from Mr Lyons’ appearance on the scene in 1988 down to 1995, rain would sometimes collect in the courtyard after heavy rain. In paragraph 5 of his judgment the judge cited the opening skeleton put forward on behalf of Mr Lyons to that effect. However, Mr Lyons’ evidence was that that ponding was in the middle of the courtyard and not against the northern wall. He said that it was only since the 1995 works that rainwater had regularly accumulated against the northern wall.

The judge then introduced his review of the evidence of Mr Lyons and Mr Gardner with this comment at paragraph 11:

“The only evidence there is about whether and to what extent there is any difference in the accumulation of water [I interpose as between before 1995 and 1995 that is the difference the judge had in mind] came from the claimant and defendant. Their evidence does not agree it is therefore necessary to record my views about these witnesses having heard and seen both of them.”

The judge then went on to speak about the claimant. The judge first cited his evidence that before the works in September 1995 his property did not suffer from any damp damage. He had he said never seen any water congregating against his northern wall before that time. His first statement said only:

“When the defendant relaid the driveway it was relaid with an incline towards my property and was finished off with shingle; as result whenever there’ a reasonable downpour of rain this runs down the driveway and accumulates against the rear external wall of my property, causing damage.”

I should have said that amongst the complaints about the 1995 works was an important complaint, perhaps as important as any other, namely that the incline of the courtyard had been affected and that was the primary cause of the run off causing ponding against the northern wall.

The judge then commented upon Mr Lyons’ original evidence that he had never before 1995 seen any water against his northern wall. The judge pointed out that at trial or even before trial, in Mr Lyons’ second witness statement, Mr Lyons sought considerably to magnify and diversify his earlier evidence saying -- and I quote from paragraph 12 of the judge’s judgment:

“… that before 1995 heavy rain would occasionally cause puddling but always in the middle of the courtyard and not up against the wall of Tile House. However, in evidence he conceded that before 1995 water sometimes got within a foot or so of his wall”.

The judge commented:

“It is not clear what would have held it there.”

The judge then referred to the defendant’s evidence. The defendant sought to explain that as well as the new septic tank, two new gulleys with drainage to the new borehole were put in as part of the 1995 works, with the effect of improving drainage of the yard. Mr Gardner also said that the situation thereafter had been better than it was before 1995. He stated that he had employed local contractors with a good reputation who had no reason or remit to alter the ground level and he did not accept that it had been altered. Mr Gardner also expressed the opinion that significant source of any dampness to Mr Lyons’ house was water coming off its roof by inadequate or unmaintained guttering. He said that he had frequently seen that happen. The judge then said this at paragraph 14:

“14.

I found the defendant a much more credible and attractive witness than the claimant. The latter often appeared disconcerted, angry and aggressive, and sometimes contradicted himself. For example when asked about litigation involving a company of his called ECL Entertainments, he said ‘I was not a party, I had sold the shares’ however a moment or two later he said ‘I was involved in the litigation, I was a party’. He had been going to build a £150,000 extension and a garage but for some reason was able to commence this litigation on legal aid. His protestations about regular cleaning out of the gutter were unconvincing. He made at one stage a claim for a very expensive replacement kitchen, but has now largely abandoned that. His fundamental assertion that before 1995 there had been no damp problems at all was rather undermined by the fact that during the works in September 1995 he wrote to the defendant:

‘I would also like to know how you intend to deal with the rainwater that runs into the joint drains alongside our house … as you know, we still suffer from dampness along that side of the house due to your rainwater being trapped after a heavy fall.’

“This was, it seems to me a clear indication of earlier problems, notwithstanding an unconvincing attempt to explain it as a reference to ‘some algae caused by water a foot from my wall.’ The claimant’s own surveyor, Mr Bailey, concedes that it is probable there had always been minor moisture problems at the foot of the north wall of the Tile House as a result of a combination of factors including the general state of the site and the relative internal and external levels. He said,

‘I believe these were recognised and controlled in the traditional manner by the insertion of the external vertical slate damp proof course and the use of internal plastic skirting in place of timber.’

“It was also the case of the horizontal damp proof course, assuming that there was one was bridged by render. Furthermore a survey of 1988 had reported siphon tubes having been fitted in the walls of the utility area ‘in an attempt to reduce dampness and ventilate the room” and recorded the need to reduce ground level “to increase the chances of success of the existing damp proof course’. The claimant, it should also be recorded took an extremely long time to get his solicitor to make his complaints, the first letter not being sent until June 1999, nearly four years after the deterioration complained of.”

The judge then continued at paragraph 15:

“15.

The defendant on the other hand impressed me as a quiet, measured, precise, careful and seemingly truthful witness, who had not enjoyed his years as a neighbour to the claimant, whom he felt to be litigious, and against whom he said he had in the past had to defend himself. I accept his evidence about there being no change for the worse in the condition of the yard, and reject that of the claimant that there has been.

“16.

On the case as pleaded I therefore find that the claimant has failed to establish his basic factual premise. The position in the yard is no worse than it was in 1995 and in particular it is not established that anything the defendant has done on his land has made it any worse. The claimant therefore fails to establish the fundamental allegation in his pleading.”

Now on this application Mr Loveday, who has made his submissions on behalf of Mr Lyons in a concise and attractive manner, for which we are grateful, has made essentially one complaint, although it has been split up into what has been referred to as three grounds, which are essentially different aspects of the same complaint. His essential complaint is that before the judge should have come to that conclusion in adjudicating between the respective evidence of the two neighbours as eyewitnesses to what had happened on the ground in the courtyard, the judge should have considered other aspects of the evidence before him. Thus Mr Loveday complains that the judge was wrong to say that “the only evidence” there was as to the extent of any difference in the accumulation of water came from the two neighbours. Mr Loveday submits that the other evidence to which I have referred toward the start of this judgment, albeit not being direct evidence and therefore perhaps not having the same force as the eyewitness evidence of the two neighbours, was nevertheless evidence from which the judge was entitled to draw inferences and to raise the important question, Mr Loveday submits, as to whether it was a pure coincidence or not that Mr Lyons only began to suffer damp damage in those rooms in his house after 1995. The evidence to which Mr Loveday draws attention are the earlier reports to which I have referred, in particular the 1998 survey report to which I will return, but also the borehole test and also the lack of evidence of any complaints by Mr Lyons or his predecessors about water in the yard and the fact that I have already mentioned of the coincidence of post-1995 damage.

In connection with the documentary evidence which I have already said Mr Loveday said he put at the very forefront of his arguments of the house at trial, Mr Loveday draws particular attention to the 1988 report inasmuch as it states that there was no obvious signs of plaster damage in the kitchen and no apparent signs of plaster damage in the breakfast room or cloakroom, and that readings in the last two rooms indicated no dampness. That could be contrasted with other areas of the house such as the drawing room and dining room, where high levels of damp were registered. However, it is the fact that the judge did refer, in passages to which I have already cited of his judgment, to the 1988 first report and he also did not accept that there had been no problem with damp in the house. He had referred to the evidence of Mr Lyons’ own surveyor expert, Mr Bailey, who had conceded that there had been what he described as minor moisture problems at the foot of the north wall in times past as a matter of probability, and that one of the signs of that was the use of internal plastic skirting in place of timber. Although the judge does not mention it in his judgment, it has been pointed out to us this afternoon that there was unchallenged evidence before the judge that not only was plastic skirting in place of timber a sign of a damp problem which the plastic skirting was used to control and alleviate, but there was also evidence that a damp reading on plastic skirting would not register any moisture.

So far as the other reports are concerned, the title report and the mortgage reports, it seems to me that they are neither here nor there and I can quite understand the judge’s failure to mention them. The title report -- and it is a report on title and not on condition -- merely records that the 1975 vendor stated that the storm water drain in the southern stall of the courtyard did not always work satisfactorily. The mortgage and valuation reports are essentially concerned with a limited description of the house in terms which are relevant to a standard form of valuation report, albeit the last of the three does refer to some rot to external timberwork, as an illustration that the report had gone a little further than a pure valuation report might otherwise go. It seems to me, however, that that material is neither here nor there.

So far as the alleged coincidence and the borehole test and the other evidence of the experts, for instance relating to the salt content of the dampness experienced by Mr Lyons, the judge in later parts of his judgment did go on to deal with them. One of Mr Loveday’s complaints is that he dealt with the defects to the borehole system and the borehole test in very brief terms. That is paragraph 17 of the judgment, which I will read:

“It should be stated in fairness to the claimant’s case that there are evidently some aspects in which the design or construction of the bore hole was less than wholly satisfactory, and the fall of the pipe work leading to it from the wall side of the yard is not as steep as it should be. The bore hole was in fact redrilled in 2005. But I do not find that these imperfections, unsatisfactory though they may be, have led to any more water puddling against the walls of the claimant’s house than it did before. A test carried out by pouring water directly out of a bowser into the top of the bore hole drain which provoked an overflow was not, in my judgment, realistic.”

Mr Loveday complains about the brevity of the judge’s reference there to the lack of realism of the borehole drain test. However, I for myself would sympathise with the judge. I would not consider a 250-gallon discharge down a borehole with empty pipes leading to the borehole, that is to say not an otherwise dynamic draining condition, as being a realistic test. In any event it tells us nothing about what would happen in relation to heavy rainfall. It tells us nothing about the effect of inadequate gutters on water accumulating at the foot of the northern wall. It tells us nothing, and so far as submissions before us this afternoon are concerned there was no evidence, that during rainfall the gullies at the foot of the northern wall backed up in the way demonstrated by the borehole test. If the gullies had backed up, that would have been a matter for the eyewitnesses to speak of. Therefore I can find nothing inadequate in the reasoning of the judge at paragraph 17.

But the judge did not leave the matter there and he went on to consider in some detail the expert’s respective cases about whether the dampness in question could be found to demonstrate mineral salts of the walls of Mr Lyons’ house. I will explain the relevance of that issue. However, the judge was left unpersuaded by the case sought to be made that on the balance of probabilities the majority or significant cause of dampness was unsalted rainwater moving laterally from surface puddles.

The judge then went on to give further reasons as to why he had rejected Mr Lyons’ case; this is paragraph 21 of his judgment. Immediately after dealing with the experts on the quality of the water dampness, he said this:

“It is to be noted in particular a) that the internal floor level appears to be below the external ground level, sketches by Mr Harrington illustrate this; b) There has been no comprehensive investigation of the dpc [that is the damp proof course] and it is likely that any horizontal dpc is bridged by the external render; c) The paved part of the yard nearest to the junction of the two properties was quite clearly not altered; d) There is evidence to suggest that the areas apparently most affected by puddling do not coincide very precisely with the areas of internal dampness; e) It is likely that for many years water had tended to run, drain or percolate down the gradient towards the north side of the claimant’s house.”

Some of the judge’s references there can be readily understood if one looks at the photographs which Mr Lyons put in evidence as illustrative of typical ponding in the post-1995 period. These photographs show that there is general ponding of a great part of the courtyard, when it occurs, not only against the western part of the northern wall where the dampness to the three rooms in question is to be found but also against the eastern part of the northern wall, that is to say where there is no rendering, and indeed other photographs show that as the ponding dries out it is against the eastern part of the northern wall, that is to say the area of the unrendered brick, that the ponded water lasts longest. It is therefore counter-intuitive to find -- and the judge was in my judgment perfectly entitled to comment on this -- that the ponding was the cause of the dampness in the rendered part of Mr Lyons’ northern wall.

In sum it seems to me that although it may be said that the judge could have referred to the other surveys which he did not do, or could have referred expressly to that part of the 1988 survey upon which Mr Loveday has made his report, or could have expressed his rejection of the borehole test in lengthier reasoning, nevertheless it seems to me that the judge was perfectly entitled to find against the background of this other evidence, which it seems to me is fairly considered in the judge’s judgment taken as a whole, but the critical test for him was as to the conditions in the courtyard as seen by the eyewitnesses who were living there day-in, day-out over the years from 1988 down to the trial in 2006 and to find in their evidence, and his rejection of Mr Lyons’ evidence and his acceptance of Mr Gardner’s evidence, the real test of where the truth of the matter in this trial lay.

It seems to me therefore, to conclude this judgment, that, although having heard fairly full argument this afternoon, I would for myself give permission to appeal. Nevertheless, it is not shown that the judge’s reasoning was inadequate or in error or that the judge was wrong or that there are in a word such defects in the judge’s judgment as to require it to be said that his judgment must be set aside and retrial ordered.

I would therefore dismiss this appeal.

I agree that we should give permission to appeal but for the reasons expressed by my Lord, Lord Justice Rix, with which I agree, I too agree that the appeal should be dismissed.