Herelle v South London Family Housing Association Ltd, CC/2009/PTA/0737 (High Court Chancery Division) 20 July 2010 [Not reported elsewhere]
We are informed that Ms Herelle initially appealed that judgment to the High Court on, amongst other grounds, the basis that:
i) the Judge was wrong to consider that the disrepair was localised to specific areas in the flat and had not exacerbated condensation throughout the flat
ii) the Judge had ignored the expert’s evidence on the exacerbation of condensation throughout the flat
iii) the Judge was thereby wrong to exclude the Claimant’s special damages because the items were kept in areas of the flat not immediately affected by the damp penetration, but were affected by condensation.
iv) the costs award of two thirds of the Claimant’s costs, made on the basis of the failure of her claim for special damages, was therefore wrong.
One of the areas of the flat concerned was the bedroom, where the expert had suggested possible damp penetration but accepted in cross examination that he could not state, on the balance of probabilities, that there was damp penetration, at least without further investigation. Accordingly, the Judge had held that damp penetration to the bedroom was not proven.
Permission to appeal on the initial grounds was refused on the papers. The Appellant renewed the application for oral hearing. In the meantime, the Defendant/Respondent sought a further inspection by the expert, with some destructive investigatory works carried out, purportedly in response to the order for works made at trial but apparently because the Respondent remained of the view that the works were not required and sought the expert’s confirmation of this.
The expert’s resulting report confirmed the earlier findings of damp penetration and further identified as being certain the presence of damp penetration to the bedroom.
The appellant applied for permission to amend the grounds of appeal to include an appeal on the basis of new evidence. The respondent opposed the application.
The application and permission hearing were heard together.
The appellant argued that the expert’s recent report constituted new evidence that would satisfy the test for new evidence post-judgement set out in Ladd v Marshall  1 WLR 1489, in that:
i) the evidence could not have been obtained with reasonable diligence for use at trial
ii) the evidence would probably have an important influence on the result of the case
iii) the evidence was credible (though it need not be incontrovertible).
On i) the appellant argued that the Defendant/Respondent had changed its position a month before trial, refusing to do works and rejecting the findings of the single joint expert. The expert’s previous reports had stated that further exploratory works were required. These had not been pursued while the respondent was stating that works would be carried out. The change of position left no time before trial and, in any event, the destructive works required the respondent’s consent and participation, which was not forthcoming in the month before trial. The respondent has sought to attack the expert’s findings at trial.
On ii) the evidence went to what was a contested issue at trial, and to an issue that had been found against the claimant/appellant because the expert had not been able to be certain in the absence of destructive investigations. The issue was important to the Judge’s findings on damage and special damages and therefore also to costs.
On iii) the Judge had the benefit of cross-examination of the expert by the respondent at trial. He had found that the expert was an honest and reliable witness.
The respondent argued that:
i) there had been no obstacle to further investigations, which could have taken place before trial. The respondents’ position prior to trial had been that the expert’s findings were not reliable and further investigation required. They had sought an adjournment on those grounds, which was refused. It had therefore been entirely possible for the evidence to be available at trial, and it was only the positions taken by the appellant that had prevented it being so.
ii) the issue of the bedroom was not significant and in any event, the new report did not establish large scale damp penetration so could not have an important influence on the result of the case.
iii) the respondent had no confidence in the hitherto single joint expert and did not accept that the evidence was to be taken as credible per se.
Stadlen J accepted the appellant’s argument. It was clear from the respondent’s position at the hearing that it did not accept the expert’s opinion. Having changed position a month prior to trial and then rejecting the expert’s conclusions, it was apparent that the respondent would not have consented to the destructive investigations prior to trial even if there had been time for them to take place. The respondent could not rely on its argument for an adjournment on the basis of its own late change in position.
Given that the disrepair to the bedroom was pleaded by the appellant in the claim and that the Judge at first instance had found it not proven, it could well have an important influence on the result of the case.
The Judge at first instance had the benefit of cross examination of the expert and found his evidence reliable. It could not be said that the evidence was not credible, whatever the respondent’s views. It would be open to respondent to challenge it at retrial.
Application to amend grounds of appeal allowed and permission to appeal on the amended ground given. The remaining grounds of appeal, which were not heard, adjourned.
Stadlen J proposed to dispose of the appeal at the hearing by ordering a retrial. The respondent sought permission to appeal his decision to allow the ground of new evidence to the Court of Appeal, which was refused, and insisted that the matter go to a full appeal hearing. Costs of the application and permission hearing to the Claimant so long as she succeeded in appeal and retrial.
We are informed that the respondent has subsequently conceded the appeal on the amended ground, save for the issue of costs, but not conceded or settled the overall case. There is now a High Court order setting aside the trial judgment and remitting the matter for retrial at Lambeth County Court.
This looks like it is turning into an epic…