Goodmans Autos Limited v Maverstone Properties Limited & Anor

This is an appeal by the claimant in the proceedings below, Goodmans Autos Limited (“GAL”), against an order made by HHJ Raeside KC (“the Judge”) dated 9 November 2022 (amended on 24 November 2022) (“the Order”). On 28 October 2022, which was the last day of a five-day trial, the Judge gave his reasons for making the Order in a detailed ex tempore judgment (“the Judgment”).

GAL appeals on the basis that the Judge was wrong to dismiss its claim for:

The Judge refers to this part of the claim as the “foundations claim” in the Judgment. There is no appeal of the Judge’s decisions on other issues that were decided by the Judge in relation to what he terms in the Judgment the “accessway claim”, the “amended scaffolding claim”, and the “fence claim”.

GAL is the registered leasehold owner of a site known as Land on the South-East side of Shenley Road, Borehamwood, registered title number HD 437764 (“the GAL Site”). It operates its business, namely, the repair, servicing, and testing of motor vehicles and related activities, from premises at the GAL Site.

MPL is the registered freehold owner and developer of the site known as Majestic House, 16-18 Shenley Road, Borehamwood WD6 1DL, registered title number 226952 (“the Majestic House Site”). The Majestic House Site is contiguous to the GAL Site.

MPL had secured planning permission from the local authority for the demolition of a building which was then on the Majestic House Site and the construction there of a four-storey detached building (“Majestic House”), intended for A1 retail use on the ground floor with residential units on the upper three floors, comprising 11 one-bedroom and three two-bedroom flats, and provision of a basement for commercial use. The demolition had occurred prior to the claim being issued.

BDL is a contractor engaged by MPL to carry out the development of the Majestic House Site.

During the course of the development of Majestic House, a fence on the GAL Site that had run along the line of the boundary with the Majestic House Site was taken down by JJ Waste, a sub-contractor for BDL, by agreement with GAL. In due course, a replacement fence was erected by GAL, although on GAL’s case it was forced to construct the fence further into its own site than it should have had to do, due to the manner and extent of the excavation on the Majestic House Site, which GAL alleged had involved removing up to six inches (about 150 mm) of earth from the GAL Site.

On 10 December 2021, GAL issued its claim for trespass, damage, nuisance, and breach of statutory duty and for injunctive relief. Its original Particulars of Claim are dated 30 March 2022. By consent, GAL was permitted by HHJ Monty QC to amend its Particulars of Claim. The Amended Particulars of Claim are dated 5 May 2022 (“the APoC”).

On 27 April 2022, MPL and BDL filed their Defence to the claim.

In the Judgment at paragraphs 5 and 16, the Judge refers to an application by GAL made during the trial to re-amend the APoC. The Judge subsequently refers in the Judgment on a number of occasions to the “Re Amended Particulars of Claim”, rather than simply to the APoC, as well as to the Amended Defence, which is dated 26 October 2022. My understanding is that the amendments to the APoC and to the Defence deal with the aspect of the claim that concerned alleged trespassing by scaffolding on the building under construction on the Majestic House site, which does not form part of this appeal.

For the appeal hearing, I was given the trial core bundle, which includes the APoC and the Defence (not the Re-Amended Particulars of Claim or the Amended Defence). I was taken by counsel for each party only to those documents in relation to the pleading of matters concerning GAL’s trespass claim as far as it concerns the foundations of Majestic House. Therefore, I have assumed for the purposes of this appeal that there is no relevant difference between the APoC and the Re-Amended Particulars of Claim or between the Defence and the Amended Defence in relation to the matters raised on this appeal.

One of the issues in dispute is whether GAL properly pleaded the basis on which it now pursues this appeal. As the relevant pleadings in the APoC and the Defence are short and set out much of the relevant factual background, I set out the relevant passages. I have included the whole of each of the relevant paragraphs, even though some of the issues dealt with do not arise on this appeal, so that the key passages, discussed later in this judgment, can be seen in context.

The foundations claim is pleaded by GAL in the APoC at paragraphs 15-19 as follows:

In response, MPL and BDL pleaded as follows in the Defence at paragraphs 15-19:

GAL did not file a Reply to the Defence.

The Judge summarised paragraphs 15-19 of the APoC in the Judgment at paragraphs 19-25 and paragraphs 15-19 of the Defence in the Judgment at paragraphs 43-47. In relation to paragraph 18 of each of the APoC and the Defence, by the time of the trial, each of the parties had permission to adduce expert evidence. See [23] below.

The procedural history of the claim prior to the trial is set out in the Judgment at paragraphs 10-14.

On 17 January 2023, GAL filed its Appellant’s Notice, together with a request for an extension of time, supported by a witness statement dated 1 February 2023 from Mr Ashley Bean, solicitor at Thirsk Winton LLP, the appellant’s solicitors, explaining that, due to a clerical error, the appeal had originally been filed with the Court of Appeal.

On 24 February 2023, Sir Stephen Stewart, sitting as a High Court Judge, granted the necessary extension of time, granted permission to appeal, and gave relevant directions.

The trial was listed for five days from 24-28 October 2022, with the first day reserved for judicial reading. The trial was heard remotely by MS Teams. No issue arises from the mode of hearing. GAL was represented at the trial by Mr David Mayall, as it is for this appeal. MPL and BDL were represented at the trial by Mr Stuart Frame.

For the trial, GAL relied on a witness statement of Mr Ian Neary, sole director of GAL, as well as witness statements from five further witnesses that concern only the accessway claim. MPL and BDL relied on a witness statement from Mr Vivek Mahan, sole director of MPL, and Mr Marwan Field, a director of BDL. Each of Mr Neary, Mr Mahan, and Mr Field provided oral evidence at the trial.

Each of the parties appointed a chartered building surveyor to provide relevant expert evidence, including evidence in relation to the precise position of the boundary line between the GAL Site and the Majestic House Site.

In the Judgment at paragraph 66, the Judge characterised the relief sought by GAL in relation to the foundations claim as:

In relation to the law relied on by GAL in support of the relief sought, the Judge summarised the position of GAL, as set out in its skeleton argument, as follows in the Judgment at paragraph 68:

At paragraphs 70 and 72 of the Judgment, the Judge noted that Mr Frame characterised the issue in relation to the foundations claim somewhat differently, namely, whether the newly built piled foundations and wall for Majestic House would encroach on the GAL Site, noting that this was a question of fact and a matter for expert evidence.

At paragraph 75 of the Judgment, the Judge characterised the issue before the court in relation to the foundations claim as follows:

At paragraph 76, the Judge noted that he needed to determine as a question of fact whether the piling foundations, capping beam, and wall now placed on them by BDL trespassed on the GAL Site, having regard to the evidence of the witnesses of fact, expert evidence, photographs, and trial pits that had been dug. If he found that there was a trespass, he needed to consider whether he should grant GAL a mandatory injunction or order damages in lieu.

In relation to the threshold factual question of where the boundary line lay between the GAL Site and the Majestic House Site, which the Judge discussed at paragraphs 101-104 of the Judgment, the Judge accepted the expert evidence of Mr French as to the position of the boundary. By the time of the trial, this was accepted by GAL. Having accepted this, GAL was also required to accept that, apart from the question of concrete overspill onto the GAL Site (which remained in dispute), the foundations, capping beam, and wall for Majestic House were all constructed within the boundary of the Majestic House Site.

At paragraph 107 of the Judgment, the Judge noted that GAL relied on several photographs to illustrate that excavations for the foundations of Majestic House went under the GAL Site to a distance of approximately six inches. He noted that “any objective viewer of those photographs is attempting to see whether this tiny alleged trespass can be seen”. He noted that photographs were taken before and after the excavation for the foundations, but not of the pouring of the piled foundation and capping beam. He commented further as follows:

It is not in dispute that when the concrete for the foundation was poured, there was wooden shuttering on the inner side of the excavation into which the concrete was poured but none on the outer side, meaning the earth was being used as shutter on the outer side. GAL relies on this fact and relies on what it says is unchallenged evidence that some earth was excavated from the GAL Site on that side up to about 150 mm (or about 6 inches) to support its contention that some of the concrete poured to create the capping beam trespassed (by overspill) onto its land.

Having reviewed the factual and expert evidence, the Judge found (at paragraph 117) that Mr Neary “did his best to tell the court what his understanding of the facts was”. As will be seen, however, the Judge considered that Mr Neary continued to assert that there was a trespass of the foundations of Majestic House in reliance on the expert evidence of Dr Antino, which involved a failure to appreciate the implications of Mr French’s correct delineation of the true boundary between the sites.

In relation to the factual evidence of Mr Mahan, the Judge found (at paragraph 121 of the Judgment) that he was not able to provide evidence in relation to the foundations. Mr Mahan was cross-examined as to the financial aspects of the development, which was relevant to the question of remedy by way of damages. The Judge found him to be a “straightforward witness of fact who had little or no knowledge of day-to-day events”, which was not surprising given that he was the developer, not the contractor.

As to the factual evidence from Mr Field, the Judge found (at paragraph 123 of the Judgment) that he was “a helpful and serious witness of fact”. The Judge accepted his evidence that the piled foundation and capping beam for Majestic House were on the Majestic House Site.

At paragraph 122(a) of the Judgment, the Judge quoted the following passages from paragraphs 24, 26, 27 and 29 of Mr Field’s amended second witness statement (which, in the transcript of the Judgment, is mistakenly referred to as his amended “first” witness statement):

The Judge considered and analysed the expert evidence in detail at paragraphs 124 to 145 of the Judgment. He made a number of criticisms of Dr Antino’s evidence. At paragraph 139 of the Judgment, he said that he was satisfied that he should exercise the greatest care before accepting the evidence of Dr Antino. The Judge noted that the experts’ joint statement reflected the fact that a number of areas of disagreement between the experts remained after the exchange of reports and their meeting. Overall, it is clear that the Judge preferred and accepted Mr French’s evidence: see, for example, paragraph 143 of the Judgment.

At paragraph 117 of the Judgement, the Judge found that Mr French’s evidence:

At paragraph 128 of the Judgment, the Judge indicated that he found paragraphs 9.2 and 10.1.4 of Mr French’s report dated 22 July 2022 to provide a convenient analysis and summary of his findings:

At paragraph 141 of the Judgment, the Judge noted that Mr French’s answers to questions put to him during his oral evidence “clarified his view on the existence of the small amounts of concrete around the fence posts that were used for support and thus [were] probably not overspill”. At paragraph 143, the Judge made the following findings based on Mr French’s evidence:

At paragraphs 162-167 of the Judgment, the Judge set out his conclusions on the foundations claim. The Judge noted that GAL’s pleaded case was that the foundations of Majestic House trespassed on the GAL Site. In the Judge’s view, that case was mistakenly put forward by Mr Neary and Dr Antino in their evidence at trial even after Dr Antino purported to accept Mr French’s determination of the true boundary line, based on an apparent misunderstanding of Mr French’s evidence. The Judge found as a fact that the correct boundary between the GAL Site and the Majestic House Site was the boundary determined by Mr French. At paragraph 163 of the Judgment, he continued:

At paragraph 164 of the Judgment, the Judge rejected the pleaded case that there were “six inches (or similar mm) of concrete foundations and pile cap on Goodmans Yard”. He rejected Mr Neary’s assertion that there had been a trespass on the GAL Site. He accepted the evidence of Mr French rejecting the proposition put to him by Mr Mayall that photographic evidence showed a trespass by six inches or, indeed, at all. Accordingly, the Judge rejected GAL’s pleaded case that the piled foundations extended underneath the GAL Site by up to six inches and that any wall built on those foundations would extend onto the GAL Site.

At paragraph 165, the Judge explained why he considered that the first trial pit, on the GAL Site, provided the most relevant evidence for determination of the foundations claim. He noted that Mr French, in his reported dated 22 July 2022 and in the experts’ joint statement, rejected the proposition that there was any concrete overspill onto the GAL Site evidenced by the first trial pit. The Judge found that the photographs in the trial bundle provided little or no support for GAL’s pleaded case.

At paragraph 166, the Judge set out his view that the second trial pit, although plainly relevant, was less compelling because it was done on the Majestic House Site. What it showed was “between 100 and 150 millimetres section of concrete”, which was plainly insufficient as a foundation and capping beam to support the wall of Majestic House and make it structurally stable. He preferred the evidence of Mr French that this was either overspill or a deliberately cast fence concrete base strip to support the fence on the GAL Site. The Judge then continued his conclusions as follows:

At paragraph 184 of the Judgment, the Judge found that there was no basis for the foundation claim. That part of the claim was, therefore, rejected.

As this is an appeal, having regard to CPR r 52.21, GAL needs to establish that the decision of the Judge was wrong. GAL does not submit that there was any serious procedural or other irregularity in the proceedings before the Judge. As the appeal does not concern any alleged error in the exercise of a discretion, the issue is whether, in reaching his decision to make the Order as it relates to the foundations claim, the Judge erred in law or erred in fact or both.

As to any alleged errors of fact by the Judge, the Supreme Court in McGraddie v McGraddie [2013] UKSC 58, [2013] 1 WLR 2477 at [1]-[6] and in Henderson v Foxworth Investments Ltd [2014] UKSC 41, [2014] 1 WLR 2600 at [58]-[68] has made it clear that an appellate court should not interfere with the trial judge’s conclusions on primary facts unless it is satisfied that the trial judge was “plainly wrong”. Although these are Scottish cases, it is clear that the same approach applies in England and Wales. See, for example, Re B (A Child) [2013] UKSC 33, [2013] 1 WLR 1911 (Lord Neuberger PSC) at [53]:

Mr Mayall submitted that the Judge was wrong to make a factual finding that there was no trespass by the foundation of Majestic House across the boundary line as determined by Mr French, for the following reasons:

Mr Mayall noted that Mr Field had accepted in his evidence that there was a concrete overspill into the GAL Site: see, for example, his second amended witness statement at paragraphs 26-27 (set out in quotation at [35] above). As the trespassing concrete was part of a single pour, it necessarily formed part of the foundations of Majestic House, which are therefore trespassing to that extent onto the GAL Site. The Judge did not find that the amount of concrete overspill was de minimis. Accordingly, the Judge was wrong to conclude that there was no trespass by concrete forming part of the foundation of Majestic House, whether or not described as “overspill”. It was wrong and unfair of the Judge to ignore the trespassing concrete, and he had no evidential basis for doing so.

In those circumstances, Mr Mayall submitted, the Judge should have concluded that GAL is entitled to a mandatory injunction that the trespassing foundation be removed. If the Judge had reached that conclusion, as he should have done, then if he considered that a mandatory injunction was too oppressive, he had a discretionary power to award damages. The Judge did not, however, have the option to do nothing in the face of this admitted trespass.

Mr Mayall submitted that the pleading point raised by the Judge is answered by the undisputed fact that the capping beam was formed by a single pour of concrete and the trespassing concrete, whether properly characterised as “overspill” or not, forms part of that single mass of concrete which constitutes part of the foundation of Majestic House. Accordingly, Mr Mayall submitted, the foundations claim, as pursued at the trial on the accepted basis of the boundary line determined by Mr French in relation to the overspilled concrete, is properly within the pleaded case.

In response, Mr Isaac first addressed GAL’s allegation that MPL and BDL had trespassed on the GAL Site by excavation. He submitted that, although the Judge did not deal expressly with this in the Judgment, it is clear that he was right to reject any such claim for the following reasons:

In relation to the allegation of trespass by concrete, Mr Isaac submitted that the pleaded allegation is that the “piled foundations extend underneath the Claimant’s Premises”. There was an allegation that any wall built on the capping beam was likely to extend onto the GAL Site, but there was no allegation that the capping beam itself trespassed on the GAL Site, nor that the concrete poured at the same time as the capping beam was formed had been poured onto the GAL Site, whether accidentally as overspill or deliberately to form the base for the fence. The Defence at paragraph 16.3 specifically denies that the piled foundations extend under the GAL Site and denies that any wall placed atop the capping beam would extend onto the GAL Site.

Mr Isaac noted that there were extensive exchanges between the Judge and Mr Mayall during the trial, quoted at length in Mr Mayall’s skeleton argument, which demonstrate that the Judge, in his analysis of the evidence, was making an entirely valid distinction between concrete forming the foundation for Majestic House and concrete that was merely overspill or had been poured to form a base for GAL’s fence.

Mr Isaac submitted that GAL pursued a different case on appeal than it had before the Judge. GAL’s original case was that the respondents had deliberately laid or poured foundations so as to encroach on the GAL Site, intending to build a wall along that side of the building that also encroached to the same extent. To remedy this trespass, GAL was seeking negotiating damages. GAL’s case at trial was quite different, namely, that the Judge should have held that there was a trespass by overspilled concrete poured by or on behalf of the respondents, such that GAL was entitled to a mandatory injunction for removal of the trespassing concrete or damages in lieu.

Mr Isaac submitted that Mr Field in his evidence acknowledged that BDL’s employees had been instructed to remove the “very limited amount of concrete overspill” identified by Mr French and had done so, save where there was insufficient space for that to be done between GAL’s fence and the wall of Majestic House.

Mr Isaac submitted that Mr Mayall had been wrong to submit that Mr French had “confirmed” a trespass that was “admitted” by Mr Field in his evidence. This was circular reasoning. The relevant evidence from Mr French is set out in the experts’ joint statement at the row designated “Ref No. 8” in the fourth column (under the heading “Defendants’ experts’ comments”), as follows:

Mr Isaac submitted that it was relevant that the fence was GAL’s fence and was erected by GAL’s contractors and that the Judge awarded GAL against the respondents the costs of erecting that fence. As such, whether the concrete was overspill or deliberately intended to form a base for the fence, it was adopted for the latter purpose by GAL’s contractors on GAL’s behalf. He submitted that it was not now open to GAL to assert that this concrete is a trespass requiring removal.

Finally, Mr Isaac submitted that the Judge’s findings of fact at paragraph 166 in relation to the concrete and his decision at paragraph 167 of the Judgement that GAL had not proven “its pleaded case on the foundations” were obviously correct on the basis of the evidence before him at the trial.

I do not accept Mr Mayall’s submission that the Judge had no evidential basis for rejecting Mr Neary’s evidence that six inches of earth from the GAL Site had been excavated. Although, as noted by Mr Isaac, the Judge did not set out an express conclusion on the pleaded trespass by excavation in the Judgment, it is clear from the Judgment read as a whole that he rejected that part of the claim, which was pleaded on a factual basis that was subsequently proven to be incorrect, namely, the boundary line as determined by Dr Antino.

As to Mr Neary’s evidence, the Judge appears to have found Mr Neary to be an honest witness, doing “his best to tell the court what his understanding of the facts was” (paragraph 117 of the Judgment). The Judge did, however, criticise Mr Neary for his “tendency to argue the pleaded case” and his confusion on “the real facts particularly on the concrete and the fence and foundations and demolition which are quite separate” (paragraph 114 of the Judgment). It is clear that the Judge found that Mr Neary’s evidence was too heavily reliant on Dr Antino’s evidence on the boundary and the foundations, which the Judge largely rejected where it differed from that of Mr French, in particular, of course, with regard to the boundary line (paragraph 117 of the Judgment).

Mr Mayall had submitted that the photographic evidence showed “conclusively” that there was excavation under the fence posts, which were on the GAL Site, into which trespassing concrete must have flowed from the single pour for the capping beam. The Judge made clear, however, that he considered that the photographs were not particularly helpful in determining whether the alleged trespass by concrete, which was “tiny” (having regard to the true boundary line), had occurred and that the two trial pits that were dug were a much better basis for making that determination (paragraph 107 of the Judgment).

As noted at [41] above, it is clear from paragraph 164 of the Judgment that the Judge did not find the photographic evidence of particular assistance in relation to the question of trespassing concrete. Reviewing the Judge’s assessment of the photographic evidence on an appellate basis, I am not able to say that there was any error in the Judge’s approach or assessment.

The trial pit dug on the GAL Site showed that no concrete from the foundation crossed the boundary line. The trial pit dug on the Majestic House Site was less conclusive (paragraph 166 of the Judgment), but the Judge agreed with Mr French’s conclusion that, to the extent the concrete crossed the true boundary line at that point (by between 100 and 150 mm), it made no difference whether that occurred accidentally or deliberately to form part of the concrete base of the fence. To the extent that it is a factual conclusion or a matter of expert opinion, Mr French was entitled to express a view on that point, and the Judge was not wrong to accept it. To the extent that it is a legal conclusion (namely, whether it constituted a trespass), then, of course, it was a matter solely for the Judge.

In my view, the Judge was not wrong to conclude that the possible extension of the concrete over the true boundary line by between 100 and 150 mm was not a trespass, whether it was accidental overspill or done deliberately to form a base for the fence. He was not wrong to have reached this conclusion on the evidence as a whole, including Mr French’s evidence that (i) there was always intended to be a concrete poured fence base below GAL’s fence posts, (ii) from a technical perspective it makes no difference that the concrete in question is connected to the capping beam, and (iii) it makes no difference that it was done as part of a single pour of concrete. It is a reasonable (indeed, compelling) inference from the evidence, although the Judge did not put it in these terms in the Judgment, that GAL’s contractors adopted the concrete on GAL’s behalf to form the base for the fence, as Mr Isaac submitted.

Finally, although it is not necessary to the foregoing conclusions, my view is that the Judge was not wrong to conclude that the case eventually pursued at trial by GAL regarding concrete trespassing by overspill was not within the APoC. Once the boundary as found by Mr French was found to be the true boundary, which by the time of the trial GAL had accepted, and the Judge found that the piled foundations, capping beam, and wall above it were (apart from a “tiny” concrete overspill, the extent of which was difficult to determine) entirely on the Majestic House Site, then it could not be said that the “piled foundations extend underneath the Claimant’s Premises” (paragraph 16 of the APoC) or that “the foundations” were on the GAL Site (paragraph 18 of APoC). The final sentence of paragraph 143 of the Judgment (which is set out at [39] above) makes clear the Judge’s view that this was a quite different claim. GAL could and should have sought to re-amend the APoC if it wished to pursue the trespass by overspill claim, which it did not do.

During the trial, there were extensive exchanges between Mr Mayall and the Judge regarding the appropriate remedy if the Judge were to find that the concrete overspill constituted a trespass. As he did not do so, and I have concluded that he did not err in fact or in law in reaching the conclusion that there was no trespass (and/or that the alleged trespass by overspilled concrete was not within GAL’s pleaded case), there is no need for me to deal here with those submissions.

The appeal is dismissed.