Success For Phillip Coburn in Party Wall Act Dispute

Larken v Parkinson – Chester County Court 22^nd July 2022, before Deputy District Judge Kube

On 22^nd July 2022, Partner and Solicitor at MSB, Phillip Coburn, secured an excellent result for our client who was the Defendant in the above long running case. Although allocated to the Small Claims Track, the case contained complex legal issues, arguments, and authorities, and was contested over two days.

Background

The parties were neighbours, and respective owners of two substantial properties in Chester, with gardens backing on the banks of the River Dee. The gardens were divided by a party wall running the length of the garden, which became the subject of the dispute. The titles of the properties confirmed that this was to be treated and maintained as a party wall.

The wall leaned in different places, in to the Claimant’s garden in part, and in to the Defendant’s garden in another part. The Defendant’s property and garden were on higher ground meaning that the party wall functioned in a retaining nature in places.

Claimant’s Case

The Claimant alleged that in 2016 he notified the Defendant that they should discuss work which may be required on the wall in future. By March 2017, the Claimant alleged that there had been a change in the wall to the extent that urgent work was required on it as it was at serious risk of collapse.

The Claimant alleged he notified the Defendant that he intended to carry out work to the party wall prior to the work commencing.

Following completion of the work, the Claimant initially sought the entire cost of works, and this was robustly defended pre-action by Phillip on behalf of the Defendant. At the time of the Claimant issuing his claim much later in January 2021, the Claimant sought a one-half contribution for the cost of the work plus interest from the date of the work, alleging that the Defendant had been negligent regarding the upkeep of her side of the party wall.

Defendant’s Case

The Defendant denied that she was notified about any intended work and alleged that the Claimant carried out work to the party wall without providing any notice pursuant to the Party Wall etc. Act 1996 of intended works, therefore rendering the Claimant in breach of the Act, and depriving the Defendant of the opportunity of making investigations, appointing a surveyor jointly and following the dispute process provided for by the Act.

In the alternative, the Defendant argued that should any duty of care exist, then she had discharged that duty by carrying out maintenance to her side of the party wall, and therefore the Claimant had failed to establish a breach of duty.

Additionally, even if the Claimant could prove a breach of duty, he had failed to establish causation, and alleged documentation in support of the sums claimed to have been paid was not credible.

Phillip carried out the advocacy at the final hearing over two days for the Defendant, who gave very clear, consistent, and credible evidence.

A Single Joint Expert, being a structural engineer, was appointed who attended the site, examined the party wall and answered questions posed by both parties.

Judgment

Within the judgment, there were two issues for the Court to determine, those being:

1. Whether the application of the Party Wall Act, and Claimant’s failure to comply with it, precludes the Claimant from claiming any other remedies.
2. If not, did the Defendant owe a duty of care, and was it breached causing loss.

In his County Court Judgment, Deputy District Judge Kube dismissed the Claimant’s claim in its entirety, providing very detailed reasoning, including the following:

The Judge held that the burden of proof was on the Claimant to prove his case on balance of probabilities. The Defendant had chosen not to comply with the Party Wall Act; however, the Act does not expressly replace or remove common law, and that nothing in the Act deprived the Claimant form claiming other remedies, i.e., the Claimant had overcome the first hurdle raised as an issue by the Judge.

However, the Judge recognised that a failure to follow the Act should not put the Claimant in a better position as the Act was there to protect both parties. The Judge referred to the authorities relied on by the Defendant in Roadrunner Properties Limited v John Dean and Suffolk Essex Joinery Limited [2003] EWCA Civ 1816 and Ward and another v Cooope and another [2015] EWCA Civ 30.

The Judge held that the decision not to follow the Act had an impact on the evidence before the Court, and whatever safeguards or evidence could have been obtained were not there.

Applying the authority in Ward which itself referred to the decision in Holbeck, there was force in a measured duty of care applying here, but it was measured and not outright.

The Judge held that the Claimant must prove the wall was at risk of collapse in March 2017, and the risk arose which was properly attributable to a breach of duty by Defendant. There was significant difficulty as although the Single Joint Expert report showed the wall was leaning, it is difficult to say it was at immediate risk of collapse.

The difficulty with the SJE report was that the expert never quite stated what the condition of the wall was in 2017, and it was based on a 2022 inspection. The report did not address what may have prevented collapse and did not back up the costs claimed. The report was lacking in attributing fault to the Defendant and did not say what the Defendant had done wrong.

Applying the authority in Roadrunner, the Judge held that by the Claimant not following the Act, the Claimant had deprived the Defendant of getting evidence and using the prescribed dispute procedure and had put the court in a difficult position.

The Judge held that the Defendant was not liable to contribute or undertake the work herself on the Claimant’s adjoining land.

A measured duty of care applied but it mattered what the Defendant could reasonably do. She could do routine maintenance, deal with cracking, changes in the ground level, and it was a stretch to find the Defendant liable for what is going on at the Claimant’s side.

The claim was therefore dismissed.

The Claimant sought permission to appeal Claimant, which was opposed by Phillip, and refused by the Judge.

Comment

While this case is at County Court level and is not therefore binding, it does show that a County Court will adopt the three authorities of Roadrunner, Ward and Holbeck and can look past the Party Wall Act to consider a claim in negligence.

However, and duty may be measured and therefore limited in relation to what level of duty applies, and the court should be slow to accept expert evidence on causation over common sense.

The Claimant in this case had deprived the Defendant of carrying out structural investigations, which the expert stated would have been a modest cost and should have properly consulted with his neighbour before carrying out work.