FAILING TO PLEAD CASE FULLY CAN LEAD TO YOUR ACTION GOING DOWN THE DRAIN

The Court of Appeal decision today in the case  of Court -v- Van Dijk [2016] EWCA Civ 438  is the third case within a month where the courts have considered the adequacy of statements of case.  It is also has some observations about the costs that were incurred.

“Whilst it has no bearing on the issues which we have had to decide, it is a regrettable feature of this case that the litigation continues only because of the enormous sums in costs which are at stake. It is said that Mrs Court now faces a costs bill from the other parties of some £220,000. Mrs Court has herself expended very large sums on her own costs: we were told that they were some £89,000 . We do not know where the blame lies. Nevertheless, the adjective “disproportionate” is wholly inadequate to describe the combined expenditure on resolving the question of who pays a £4,000 bill.

THE CASE

The claimants brought an action alleging that  work done to their neighbour’s  had damaged their property. The allegation was that work done in 2007 had caused a blockage.  Examination of the drains by the experts in the period coming up to trial indicated that the blockage was caused by work carried out in 2000.

(LENGTH OF TIME BETWEEN THE TRIAL AND APPEAL

There is a consultation at present in relation to the work load of the Court of Appeal.  It is worth noting that the trial in this case took place in September 2013. The appeal was heard in May 2016. )

THE PLEADED CASE

“The Pleadings
  1. The Van Dijks’ original particulars of claim alleged that during the 2007 works the “private drain that served the Claimants’ property at 12A was ‘capped off’ and thus no longer had an outfall into the public sewer“. The action of Mrs Court’s contractors during the 2007 works in “capping off” the Van Dijks’ private drain “was a nuisance for which the [Van Dijks] hold [Mrs Court] liable for she instructed the contractors ‘to cap off 12a'”.
  2. Mrs Court’s defence was served on 12 August 2011. It was to the effect that the 2007 works had been done by the council, who had not at that time interfered with the private drain, but had merely blocked off the gully at 12B in order to prevent water from 12A discharging through her gully and onto her land. She contended that she was not liable for any act of the council, who were independent contractors.
  3. In their reply, dated 18 April 2012, the Van Dijks alleged that the 2007 works:
“served in fact to disconnect the drain from the public sewer with the effect that the foul and surface water discharge from both the Claimants [sic] and Defendant’s property that had formerly passed through the Defendant’s property and thence connected into the public sewer was blocked off with the inevitable back-up and flooding of the Claimants’ property.”
  1. In her claim for an indemnity against the council, which she made in November 2011, Mrs Court recounted the allegation made by the Van Dijks against her that the 2007 works had involved capping off a drain which served 12A such that it no longer had an outfall into a public sewer. If this was so, then Mrs Court sought an indemnity from the council in respect of any liability which she might have to the Van Dijks. The council responded that, in the 2007 works, they removed Mrs Court’s connection to the private drain, thereby preventing effluent from coming back up into the gully but contended that at no time did they interfere with or do anything to interfere with the flow of effluent through the private drain.
  2. The amended particulars of claim were served on 24 May 2013, pursuant to an order of HHJ Saffman dated the previous day. So far as the claim made against Mrs Court was concerned, the Van Dijks continued to assert that the 2007 works “resulted in effectively ‘capping off’ the Claimants’ private drain“. A case was now added directly against the council. It alleged that the council owed the Van Dijks a duty of care in the event that they had not been following Mrs Court’s express instructions to cap off the private drain. The work they carried out “had the immediate and foreseeable effect that the waste and water flowing down the drain from 12a (including 12b’s front roof surface water) was permanently ‘capped off’ in that it could no longer connect into the public sewer.” There was no reference to the hard blockage under 12B.
  3. In a response dated 26 June 2013 to a request made by the council under CPR part 18, the Van Dijks alleged that:
“in carrying out the works the [council] caused or permitted a combination of mud; cement and soil to enter into the private drain upstream from the former connection of the gully into the private drain so as effectively to block the private drain.”
  1. The Van Dijks gave more information about their claim, all of which made it plain that the allegation being made was that the council’s workmen had blocked the drain between 12A and 12B.
  2. Accordingly, as the case moved towards trial, and despite an opportunity to amend the pleadings in the immediate run-up to trial when the location and nature of the hard blockage were known, there was no reliance by the Van Dijks on the hard blockage or the 2000 works. Their case remained that the 2007 works had prevented 12A waste water from having an outfall to the public sewer.”

THE TRIAL

“The trial

  1. Counsel for the Van Dijks did not produce a skeleton argument for the trial. Counsel for Mrs Court sought clarification, before any evidence was called, as to the nature of the case against Mrs Court, and in particular whether it was stoppage of flow from 12A into 12B by the council’s work in capping off. Similar enquiries were made on behalf of the council. Counsel for the Van Dijks responded by pointing to the existing pleadings, including the allegations made against the council about capping off the private drain.
  2. Mrs Court’s counsel made his closing speech before counsel for the Van Dijks, referring to the fact that there was no pleaded reliance on the 2000 works. In his final speech, however, counsel for the Van Dijks put his case on the basis of the 2000 works in combination with the 2007 works.”

The Recorder found in favour of the claimants.

THE APPEAL: THE JUDGE  MADE A DECISION ON THE BASIS OF A CASE THAT WAS NOT PLEADED

“Discussion
  • Mr Walker submitted that it was not open to the judge on the state of the pleadings to find either of the two types of nuisance established. As to the first type, the only factual case pleaded against Mrs Court was one based on what the council did in 2007: the 2007 works. No other case was pleaded or opened at the trial. However, the 2007 works had not interfered with any right of drainage possessed by the Van Dijks. They had no easement of drainage via Mrs Court’s gully onto her land. Mrs Court, and the council, were involved in nothing more than restricting the outflow from 12A to prevent it coming onto her land through that gully. The only right which the Van Dijks had was to discharge water through the common private drain. By removing the connection to the gully and replacing it with a sleeve the council had not interfered in any way with that right. The judge should have accordingly dismissed the action.
  • Mr Walker submitted that the recorder’s decision to make findings on the basis of the 2000 works had resulted in procedural unfairness. It would have been possible for Mrs Court to call Mr Butt to explain the 2000 works, and to join him as a third party (as she had joined the council in respect of the 2007 works), and plead an independent contractor defence.
  • As to the second way of putting the case in nuisance, Mr Walker submitted that the judge had failed to ask whether the action taken by Mrs Court in 2007 was objectively reasonable. The judge had directed himself solely to the question of foreseeability of harm. Action which is objectively reasonable may nevertheless involve foreseeable harm. Mrs Court’s desire to prevent waste water flowing into her back yard was not objectively unreasonable, and the action taken on her behalf by the council in securing that end was also reasonable.
  • Mr Shaw for the Van Dijks submitted that the recorder had been justified in making findings on the basis which he did, for the reasons which he gave. The Van Dijks’ case had always been one in nuisance. Their case had never changed although the evidence in support of it had changed. It had not been necessary to amend the pleadings as Mrs Court had not suffered any unfairness. It would have been possible for her to have called Mr Butt, or to have joined him in the proceedings, or even to sue him after judgment had been given. As to the second species of nuisance, the judge had been entitled to find that Mrs Court’s user of her land was unreasonable.
  • I have no hesitation in preferring Mr Walker’s submissions on these issues. The case in nuisance pleaded against Mrs Court was not a general case in nuisance, as Mr Shaw submits, which left the Van Dijks free to put together any case which they chose on the basis of the evidence which emerged at the trial. It was a specific case of nuisance based on the intervention by the council in 2007. When it emerged in the period March to June 2013 that the private drain had, since 2000, been blocked, the pleaded factual case against Mrs Court based on obstruction of the drain by the 2007 works had to fail. Despite having the opportunity to amend their pleadings to rely on the 2000 works, the Van Dijks did not do so. Instead they continued to rely and rely only on the 2007 works.
  • Unlike the recorder, I do not regard the submission made by counsel for Mrs Court at the trial to this effect as unrealistic. On the contrary, I do not see the answer to it. The reality is that the case ultimately accepted by the recorder depended crucially on holding Mrs Court responsible for Mr Butt’s work in 2000. It is true that it had been suggested by Mr Stark that there was an undiagnosed blockage, downstream of both gullies. This does not, however, even begin to put Mrs Court on fair notice of a case against her based on the 2000 works, when no such case has been pleaded.
  • The recorder also considered that the 2000 works did not, and the 2007 works did, constitute the substantial interference with the Van Dijks’ right of drainage. I do not see how this can be so. The 2000 works were the only interference with the right of drainage. It may well be that no damage occurred as a result of that interference, as Mrs Court’s gully was functioning as a relief for the Van Dijks’ water. That does not turn the 2007 works into an interference with the drainage right. I do not think it helpful to say that cutting off the gully “renders toxic” the earlier latent nuisance. This is to recognise that the interference was caused by the 2000 works, which were never part of the pleaded case of interference.
  • I also do not think that the recorder’s findings can be justified on the basis that Mrs Court has suffered no unfairness by the failure of the Van Dijks to plead their case. Given the way in which the case was actually pleaded and opened, Mrs Court was entitled to assume that the case against her was based on the 2007 works. The Van Dijks were not seeking, by that case, to place responsibility for the 2000 works on Mrs Court. There was accordingly no reason for her to seek to pass on responsibility to Mr Butt, as she undoubtedly would have done in other circumstances. Given that Mrs Court had a perfectly satisfactory defence to the claim based on the 2007 works, I see no reason why she should have called Mr Butt or Mr Court, even if their evidence might have had some relevance on the existing pleaded case. The shift in the defendant’s case, of which Mrs Court had no proper warning, was what made their evidence essential.
  • I turn to the alternative way of putting the case in nuisance. The first task is to identify what is said to be the unreasonable use of Mrs Court’s land. Insofar as the recorder treated the unreasonable use as being the combination of the 2000 and 2007 works, his findings suffer from the same procedural flaw as affected the first way of putting the case. The pleaded case did not even mention the 2000 works.
  • It is conceivable that the recorder regarded the disconnecting of Mrs Court’s gully in 2007 as itself constituting an unreasonable use of her land which she could foresee would damage the Van Dijks. Such a case would not depend specifically on holding Mrs Court responsible for the 2000 works, although one needs to bear in mind that the disconnection occurred against the background that there was some probably some form of blockage affecting the flow in private drain somewhere downstream of 12B’s gully.
  • If this is indeed how the recorder saw as established the alternative case in nuisance against Mrs Court, I consider that he was wrong to do so. The disconnecting of Mrs Court’s gulley was a reasonable step to take to “pen back” the flow of water onto her land. That is the case whether or not, as the recorder held, it was foreseeable that the Van Dijks’ water would then remain on their land. They had no right to discharge their waste water through Mrs Court’s gully.
  • I also disagree with the recorder that the principles which he derived from Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339 should be disapplied to this aspect of the case because an easement was “in play”. It is obviously correct that where the servient landowner interferes with a right of drainage, he cannot claim that all he has done is reasonably to pen back the flow of water. The Van Dijks’ case on the second type of nuisance does not involve the penning back of water which is flowing along the private drain in exercise of the right of drainage. It involves instead the penning back of water which is flowing out of the drain, up the gully and onto Mrs Court’s land. There is no sense in which an easement is in play. I think that the recorder fell into error here, an error which led him to fail to take account of the fact that Mrs Court was doing no more than penning back the flow of water onto her land, which water she was under no obligation to receive.
  • In my judgment, once matters are analysed in this way, the 2007 works did not cause an actionable nuisance. Mrs Court was doing no more than penning back the water emerging from her gully. That use of her land was not unreasonable even if she knew, as she did, that the water would emerge in the Van Dijks’ back yard.

 

For these reasons I consider that the first ground of appeal succeeds.”

RELATED POSTS: THE IMPORTANCE OF PLEADINGS

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