Money down the drain

Court v Van Dijk & Anor [2016] EWCA Civ 483

Nuisance cases are tricky. There is a lot to establish for causation, for liability and for loss. This case is perhaps a cautionary tale about the need to be constantly alert to changes in the facts and expert opinion as they emerge over the course of the case. It is also an object example of litigation between neighbours that got completely, astonishingly, out of hand in relation to the initial objectives.

Ms Court and Mr & Mrs Van Dijk were neighbours at 12B and 12A respectively. These were terraced houses. Originally waste water from each house ran down a drain in the garden to a cross drain running through all the gardens to the river Ouse. A public sewer was constructed parallel to the river in 1890 and it appears that the cross drain then discharged into that.

In 2000, after buying 12B, Ms Court moved her kitchen and had works to the drains carried out by a private contractor, so that her kitchen waste discharged through new drain directly into the sewer. Her rainwater discharged into the private cross drain, which was now in a tube and, for unclear reasons, capped off by the contractor at the west (river/public sewer) end. This, however, did not become clear until after proceedings were underway.

In 2005 Mr & Mrs D bought 12A. They remodelled their kitchen so that all the waste water from their kitchen, and rain water, discharged into the private drain.

In 2006, Ms C noticed water flowing out of the top of the private gulley in her garden. She asked York Council to investigate. As a result, works were undertaken in 2007 by York Council, as private contractors. This apparently included capping off the private drain between 12A and 12B on Ms C’s instructions. It later turned out that this had not happened. Instead, Ms C’s gulley had been capped where it joined the private drain, so that the private drain did not flood into her garden.

In 2007, to 2010, 12A had flooding in their garden from the private drain. In 2010 works rerouted 12A’s drain to the public sewer and thereafter all was well. Mr & Mrs D, however, brought a claim in nuisance for the cost of those works, £4227 (remember this).

The particulars of claim alleged that the private drain was capped off by Ms C during the 2007 works, so preventing the drain from discharging into the public sewer and causing flooding to the land of 12A. Ms C defended and added a Part 20 claim against the council for not carrying out the 2007 works properly, in case.

Over the course of the claim, the actual history of works and what was done slowly became clear, across several experts’ reports and investigations. Three months before trial it became clear that the problem was a blockage in the private drain stopping it discharging into the public sewer, so that Ms C preventing flooding onto her land in 2007 had caused the backup onto the land of 12A. Both claimant and defendant were granted permission to amend at that stage, but the claimants didn’t amend the particulars of claim.

So, by trial, the claimant’s particulars still relied solely on the 2007 works as the cause of the nuisance. Counsel for Mr & Mrs D did not submit a skeleton argument before trial either.

Despite this, at first instance, Mr & Mrs D were successful, the Judge finding:

The recorder considered that there were two species of nuisance relevant to the present case. The first was where there was a substantial interference with an easement of drainage. The second was where there was a use of land which foreseeably caused damage to a neighbour’s land. He accepted however that there was no liability in nuisance where reasonable user of a person’s land causes flooding to adjacent land. The owner of the adjacent land is not obliged to receive the water and may erect barriers or pen it back, provided that in doing so his user of his land is reasonable, objectively speaking. These propositions were derived from the decision of Piers Ashworth QC sitting as a deputy High Court judge in Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339. None of the parties to this appeal challenged these propositions. However the recorder held that these propositions did not apply in a case in which an easement “is in play”.

The recorder held that the direction of flow in the private drain was, as the Van Dijks contended, from west to east. Dealing with the first species of nuisance, he dismissed as unrealistic an objection by Mrs Court that the pleaded case against her did not rely on the 2000 works. The works relied on, the 2007 works, were performed against a factual background of a suspected pre-existing blockage downstream of both 12A’s and 12B’s gully. He held that the substantial interference occurred in 2007. Until then, the interference with the private drain was not substantial. The substantial interference occurred in 2007 when the gully was blocked off. The Recorder rejected the suggestion that the failure to amend the pleadings when the exact nature of the blockage was discovered had led to any unfairness to Mrs Court. Mr Butt had been a material witness as had Mr Court, Mrs Court’s ex-husband. He said:
“… the works done in October 2007 rendered toxic the work done by Mr Butt in 2000, making patent the already latent blockage of the private drain under 12B.”

The recorder also found that the second species of nuisance was made out. He found that Mrs Court ought to have known that the consequence of the 2007 works was likely to cause flooding to the Van Dijks’ property. It was no answer to say that she did not think about this at the time. The ultimate cause of the flooding was the contractor’s work in 2000.

Ms C appealed. The primary ground was

Ground 1, procedural irregularity: the recorder ought not to have permitted the Van Dijks to rely on the 2000 works.

(there were 3 other grounds but these were not really considered).

The Court of Appeal allowed the appeal.

The pleaded case against Ms C was not a general claim in nuisance, it was specifically on the 2007 works. That claim had to fail when it turned out that the drain had been blocked by the 2000 works. Ms C had not been put on fair notice of any case against her based on the works carried out by the contractor in 2000. The Claimants had not amended the particulars even when it became clear that the 2000 works were probably the cause of the blockage to the private drain.

While the 2000 works might have interfered with the right of drainage (an easement) no nuisance was caused to 12A because the water was discharging into the land of 12B. It was only in 2007 when Ms C prevent the discharge from the private drain onto her land that any issue was caused to 12A, but this was  reasonable step, even if it was foreseeable that it would cause flooding to 12A, because Mr & Mrs D could have no right to discharge their waste water onto Ms C’s land through her gulley and this could not be considered to be connected to their easement for drainage through the private drain.

Appeal allowed on the first ground. The other grounds not addressed.

Comment

Why didn’t the claimants amend their pleadings? OK, there would have been substantial cost implications, but not as bad as they are now after the court of appeal…

The Court of Appeal decision has to be right. When a specific action is pleaded as giving rise to a nuisance, that is that. it can’t be broadened out into a general accusation of nuisance that could encompass, say, works seven years earlier. In addition, the conclusion on Ms C’s right to prevent the flooding to her land and gulley where it joined the private drain has to be right. That could not form part of any easement for Mr & Mrs D and they could not claim a right to discharge their waste water onto Ms C’s land.

But oh my, the costs. The eye watering costs. The costs estimates at the court of appeal were £220,000 for Mr & Mrs D and some £89,000 for Ms C.  For a dispute over a £4227 works bill. Realistically, this is a matter that should have been settled at a pre action stage, and if not settled, possibly abandoned as a claim.  I’ve seen a suggestion that there may have been an insurer involved in pushing the claim, though I do not know if this is the case, but my guess is that the case had some time ago reached a point where winning or losing was about costs entirely, not about the original claim.

Now I am hardly going to argue that a successful party is not entitled to their reasonable costs, particularly when (if this was indeed the case) there were no offers involved. In fact Ms C’s costs don’t seem that extraordinary for what appears to be a defence including a detailed trial and then a trip to the court of appeal, but the idea that costs of £310,000 between both parties could be racked up over such a dispute is mind boggling. It is cases like this that promote the idea of fixed costs regimes and thus make a mess of bringing or defending cases properly for the rest of us.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London.
You can find him on Linkedin and on
Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.

Posted in Housing law - All, Nuisance and tagged .

2 Comments

  1. I agree with all of this. I have some knowledge of the case; what the bald facts (and the entirely correct bewailing of the costs) don’t reflect is that the claimants’ solicitors argued at the first CMC that it should be a small claim – it was the defendant’s solicitors who said it was multi-track. And there was a pre-issue offer of ‘we’d settle for £2,000’ from the claimants. Nobody comes out of it with any credit, I’m afraid.

  2. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO RECENT ARTICLES AND POST | Civil Litigation Brief

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