[2025] EWHC 1859 (KB)

The Applicant says that she was excluded from the expert inspection, which had been arranged unilaterally by the Respondents on the same day she was attending the Pre-Trial Review. She also alleges that the expert’s report relied upon misinformation about the extent of the Premises taken up by the Aquarium, leading to an erroneous assumption that internal features caused some of the flooding. The Applicant argues that the Judge was wrong to reject the expert’s conclusion that excessive water could have accumulated and passed up the walls or into the slab.

It is reasonably arguable that the Applicant’s exclusion from the expert inspection was unfair. It is also reasonably arguable that, on account of the SJE’s instructions and/or approach to the extent to which the premises was used as an aquarium, the SJE was under a misapprehension which he may not have been had the Applicant attended the site inspection. To this extent, it is reasonably arguable that there existed a procedural irregularity. The Single Judge was not aware that these complaints were in fact raised by the Applicant.

Notwithstanding, it is necessary to consider how serious the irregularity was, and whether it has the result that, for the purposes of this application, the outcome of the trial was arguably unjust.

The Judge did not rely in any material way upon a misunderstanding that the entirety of the Premises was an aquarium. Moreover, he specifically noted (at [56]) the expert’s view that storm water being directed under the building was a design flaw; and (at [59]) that the presence of staining to the outside were consistent with the presence of water. Importantly, the only part of the SJE evidence which the Judge relied upon substantively was the absence of any structural alternations which may have explained the onset of problems in 2019: see [64]. This finding of itself is entirely unobjectionable on the basis of all the evidence placed before the Judge, and, moreover, did not form any part of the Applicant’s complaints about the Judge’s findings.

Therefore, whilst the Applicant has a right to be aggrieved that she had not been present when the SJE inspected her property, and it would have been appropriate for the Judge to deal with this complaint, which had been raised specifically by the Applicant at the start of the trial, expressly as part of his judgment, it is not arguable that this irregularity in fact caused any injustice on the facts of the case. The very limited respects in which the conclusions of the SJE featured in the analysis of liability and causation determined by the Judge means that, in reality, her absence and the SJE’s inspection did not impact the overall justice of the case. This ground of appeal is not reasonably arguable.