Younger v Molesworth & Anor

The Claimant appeals, with the permission of Eady J, from the decision of Deputy Circuit Judge Thompson QC, dated 22 August 2005, in the Barnstaple County Court, sitting at Bodmin County Court.

The Deputy Judge summarily dismissed the claim against the Second Defendant and refused the Claimant permission to amend the claim to plead a different case.

The focus of the appeal has been on the proposed amendments. It was the Second Defendant’s case that they had no real prospect of success and should be (as they were) refused for that reason.

The Claimant (Mr Younger) has owned and occupied Little Cott House in Bude for many years. The First Defendant (against whom the claim has been discontinued), Mrs Molesworthy, owned and occupied Trevellyn, which adjoined Little Cott, until about November 2000, when she sold it to the Second Defendant, Mr Bellward. Mr Bellward sold Trevellyn to a Mr Morris in July 2004.

Part of the boundary of Trevellyn abuts a rear wall of Little Cott which includes a wall of the kitchen. The then owner of Trevellyn, at a date between 1977 and 1983, and before the Molesworthys owned the property, planted leylandii close to the boundary. In about June 2000 Mr Younger informed Mrs Molesworthy that the trees were thought to be causing damage to Little Cott through water entering the rear wall. In about July 2000, Mrs Molesworthy had the trees cut down to stumps of about 30 to 40 cms height above ground level. Shortly afterwards she sold Trevellyn to Mr Bellward.

The original Particulars of Claim were dated 14 July 2004. The claim was all directed at damage alleged to have been caused by the trees including the stumps and the roots. The claim alleged that Mr Younger had orally advised Mr Bellward in November 2000, and repeated the advice by a letter dated 23 October 2002, of “the damage that had been caused by the trees to Little Cott” and had asked for the tree stumps to be removed and “the soil to be excavated to a level below the boundary wall to prevent further damage”. The case against Mr Bellward was put in nuisance and negligence. Damage to Little Cott was alleged to have been caused as a result which was particularised as:

“(a)

A clay drain running from Trevellyn designed to remove surface water has been fractured by the trees.

(b)

A French drain behind the boundary wall dividing the properties has been clogged by the roots of the trees.

(c)

Branch action of the trees has caused physical damage to the roof and rainwater goods of Little Cott.

(d)

The rear wall of Little Cott has been damaged by the accumulation of water, the action of the roots of the trees and the increase in the levels of soil on the Trevellyn side of the boundary.

(e)

As a consequence of damage to the wall of Little Cott, water has entered the kitchen of the property and caused damage therein.”

Mr Bellward’s defence, dated 16 September 2004, alleged that any damage to Little Cott was caused by Mr Younger’s failure to maintain and neglect of the property and that the drains were not fractured or clogged but continued to perform their functions. It was denied that the tree stumps or height of the soil had any effect on Little Cott.

Joint reports from an engineer and arboriculturalist were ordered on 19 November 2004. Their reports, (Mr Cooper and Mr Rushforth), so far as the claim against Mr Bellward is concerned, exonerated the leylandii and the tree stumps from blame for water ingress to Little Cott either directly or by way of damage to the drains (in fact it is agreed that the clay drain and the French drain are the same drain). Mr Cooper also concluded that the “generally poor condition” of Little Cott “can more correctly be attributed to a lack of adequate maintenance over many years associated with poor construction details and inadequate damp proofing measures”.

Mr Cooper, in three paragraphs (5.9, 5.22 and 6.4) of his report “suggested” that the drain (assumed to be on land belonging to Trevellyn) might have been constructed at the time Trevellyn was built (end of the 1970s) to take water from the roofs of Little Cott and from the ground and so for the benefit of Little Cott.

Mr Cooper also concluded (paragraphs 6.12 and 6.14) in respect of the drain that:

“6.12

…. Clearly from the investigation undertaken the drain has become blocked, either because it was not laid with suitable rodding points, because it was not rodded regularly, or because it did not discharge cleanly to a suitable discharge point. In simple terms the drain was either not suitably installed or not properly maintained for its intended purpose.

6.14

…. The land drain clearly was not provided with adequate rodding points or if it was the drain was not rodded sufficiently to ensure that it was effective in draining water away from the area. Such a drain would clearly have a limited life and even in the most favourable circumstances would ultimately require lifting and relaying from time to time.”

In a letter dated 23 July 2005 in response to questions from Mr Younger’s solicitors, Mr Cooper also stated that the blockage of the drain was more correctly attributable to it not having been constructed properly to permit maintenance and that the blockage would have been a continual and gradual process since it had been laid but he would speculate that it had been completely blocked “for five years or maybe longer”.

It was the receipt of these reports which led to Mr Bellward seeking summary judgment on the claim. Mr Horner, for Mr Younger, accepts that the unamended claim cannot be sustained insofar as it is founded upon damage caused by the leylandii including the tree stumps. But Mr Younger applied to amend the claim to pursue Mr Cooper’s criticisms of the design and lack of maintenance of the drain.

The key allegation in the proposed Amended Claim (paragraph 7e) was that “the inadequate construction and maintenance of the drain constituted a nuisance which the Second Defendant adopted and continued following the purchase of Trevellyn”. The proposed amendment to the allegation of damage (see paragraph 6 above) omitting deletions and underlinings read:

“(a)

A drain running from Trevellyn designed to reduce water penetration into Little Cott had not been properly constructed.

(b)

The said drain behind the boundary dividing the properties has been clogged by soil and debris.

(c)

The said drain was either not laid with suitable rodding points or if it was, was not rodded sufficiently to ensure that it effectively drained water away from Little Cott.

(d)

As a result of the failure to either relay, rod or properly maintain the drain the rear wall of Little Cott has been damaged by the accumulation of water on the Trevellyn side of the boundary.

(e)

As a consequence of the accumulation of water and damage to the wall of Little Cott, water has entered the kitchen of the property and caused damage therein.”

The Deputy Judge (rightly in my judgment) said that the substratum of the case as originally pleaded had been destroyed, that many of the problems at Little Cott were due to the age and lack of maintenance of the property and that, paragraph 16:

“… bearing in mind that in so far as his drainage system was working for the benefit of Mr Younger’s house … when really it is running across the land of the Second Defendant. Presumably on a correct view of the matter one would have to regard Trevellyn as being the servient tenement and with the drainage pipe or system running across it requiring some sort of easement to enable that system to be there to provide drainage to carry water away from the side of Littlecot House. There is of course no obligation on anybody who is the owner of a servient tenement to maintain the subject of an easement. Of course he must not damage it or deliberately cause it to be damaged, or idly turn a blind eye to somebody who is damaging it, but that does not arise in this case.”

It is not in issue that the owner of a servient tenement is in law under no obligation to maintain the subject of an easement such as a drain. But the possible relevance of the law was a matter raised by the Judge and not by Mr Paton, counsel for Mr Bellward. The basis for addressing the issue was those passages in Mr Cooper’s Report which I have summarised in paragraph 9.

I, however, agree with Mr Horner that this is an inadequate basis on which to conclude on an application of this kind that a claimant has no real prospect of succeeding in a proposed claim. It is, as Mr Horner submitted, possible that the drain was constructed for the joint benefit of both properties or indeed for the benefit of Trevellyn to safeguard that property against claims from the owner of Little Cott. The matter, if alleged, would justify further investigation so far as possible.

Mr Paton is entitled to argue that the decision of the Judge can be upheld on the basis that the proposed amendments otherwise do not disclose a case which has a real prospect of success and therefore should not be permitted. That was the case he argued before the Judge and has been the battleground on the appeal. The way in which Mr Paton summarised his submission is well expressed in his grounds for upholding the Judge’s order filed on 8 March 2006:

“…. that considering the undisputed history of proceedings and the manner in which the Claimant’s case had only recently been fundamentally changed (from one of tree root damage, to an alleged failure to maintain the drain), the Claimant had no realistic prospects of establishing that the Second Defendant adopted or continued a nuisance during his ownership of his property between November 2000 and July 2004 by failing to alleviate a damage-causing hazard on his land of which he had sufficient knowledge.

The matters now relied upon by the Claimant, and the case advanced to the effect that the Second Defendant’s failure to rod or maintain a drain had caused damage to the Claimant’s property (rather than as argued and pleaded throughout, a failure to attend to trees, their stumps and roots as the continuing source of damage), only first occurred to theClaimant and his legal advisers in mid-2005 following the expert evidence in the proceedings, and were then reflected in their application to amend. There is therefore no realistic prospect of the Claimant establishing that the Second Defendant was on notice of such matters prior to July 2004 sufficient to make him liable in nuisance.

Both counsel referred me to the decision of the Court of Appeal in Holbeck Hall Hotel v Scarborough BC [2000] QB 836 as the authority in which the leading decisions on liability for a continuing nuisance were reviewed and applied. For my part, I do not find the decision an easy one to analyse. It does, however, support an argument that liability turns on a close analysis of the facts of the given case in terms of the knowledge and presumed knowledge of the defendant.

When a nuisance has allegedly arisen without the act or default of a defendant, liability can only be established if the defendant has “continued” the nuisance. In this case it is not alleged that Mr Bellward was responsible for constructing the drain or for its design. He can be liable for the nuisance only “if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring an end to it though he has had ample time to do so”: Sedleigh Denfield v O’Callaghan [1940] AC 880 per Viscount Maugham at page 894. As Stuart-Smith LJ put it in Holbeck, at page 856 letter G, “the defendant must know or be presumed to know of the defect or condition giving rise to the hazard and must, as a reasonable man, foresee that the defect or condition will, if not remedied, cause damage to the plaintiff’s land”. The degree of knowledge required and the nature of any remedial action or investigation raise potentially difficult questions of fact. Stuart-Smith LJ, at page 858 letter C, in a passage on which Mr Paton understandably relies, said that: “if the defect is latent, the landowner or occupier is not to be held liable simply because, if he had made further investigation, he would have discovered it”.

The difficulty, to my mind, arises in circumstances in which the alleged nuisance is just that: “alleged”. Does it suffice for “knowledge” that a claimant asserts there is a nuisance on the defendant’s land but the defendant reasonably denies it; does it suffice that there is known damage to the claimant’s property from water ingress, but the cause of it is, at least partially, wrongly identified?

Mr Horner directed me to paragraph 7 of his Skeleton Argument prepared in support of the application to amend made to the Judge. He there set out Mr Younger’s case that Mr Bellward “had knowledge of the ingress of water and the possibility of defective drains”.

In my summary, I think the evidence relied upon, if accepted, would establish that Mr Bellward was by October 2002 aware that there was serious water ingress to Little Cott; knew that Mr Younger blamed the leylandii, including the stumps and roots, and that Mr Younger believed, supported by a report from consulting engineers supplied by him to Mr Bellward, that the drain had been damaged by the trees causing the ingress of water. Mr Bellward himself obtained a report from a Chartered Surveyor in April 2003 which stated that the drain “does not appear satisfactory to prevent the build-up of hydrostatic pressure” in the wall of Little Cott. Whilst the damage to the drain was (wrongly, as is now accepted) attributed to the trees, as Mr Horner submitted a damaged drain was asserted to be the cause of the ingress of water.

There are a number of, to my mind, powerful points which can be made on behalf of Mr Bellward in relation to the case Mr Younger now seeks to make. Mr Bellward was right not to accept that the trees were responsible. He was aware of the neglected state of Little Cott. It may well be that once the evidence has been fully addressed it will be apparent that Mr Younger has failed to make out a case of sufficient knowledge and permitting the amendments will have done him no favours. But on a fairly fine balance, I do not think that it was right to shut Mr Younger out from seeking to make the case he sought to make. It was not contended that because of delay or any other prejudice to Mr Bellward, that it would be wrong to allow the amendment for any other reason.

I shall therefore allow the appeal and set aside the Order made by the Judge. I shall give permission to make the amendments to the claim, without prejudice to the Second Defendant seeking further particulars of them, if so advised. I will hear the parties on any further matters which cannot be agreed.