[2025] EWHC 1859 (KB)

The judgment, between paragraphs 5 and 54, recites much of the chronology of the events of 2019 through to 2023 on the basis of extracts from relevant correspondence. Apart from in certain respects which are the subject of specific Grounds of Appeal, the majority of this section of the judgment is not the subject of any particular criticism. Given that it is drafted based on contemporaneous correspondence this is unsurprising.

In summary, key parts of the chronology leading to the determination of the Judge are as follows (with square bracket references to paragraphs of the Judgment):

The Judge explained at paragraph [52] that he considered the correspondence was the most reliable source of narrative in circumstances where he treated both sides’ oral evidence with caution. He found the Applicant’s assertion that there were no outstanding rent arrears as of January 2020 to be wholly inconsistent with her email and the reference to ‘Hang in There’. He was also unimpressed with the evidence of the Respondents about what they observed in February 2020.

At paragraphs [55]- [59], the Judge dealt with the evidence of the SJE. No reference was made to concerns raised by the Applicant in respect of the way in which the SJE process had been conducted, which had been formally raised at the outset of the trial. This relates to a specific ground of appeal and is considered further below.

The SJE report was principally focussed on the cause of flooding. As recorded by the Judge, the SJE accepted that it was not usual for storm water to be directed under the building, as it did, and that this was a flawed design. In respect of certain photographic evidence of flooding, he considered that this was more likely to have been the consequence of internal features as opposed to external flooding.

At [60], the Judge identified that the first issue to resolve was the Applicant’s claim for loss of damage arising from the allegation of breach of agreement “and/or negligence” on the part of the Respondents. At [62], the Judge recorded that the Applicant contended that the flooding and rodent infestation arose from a defect in the premises for which the Respondents were liable as owners. He records that Mrs Coombs claimed that the Respondents were aware of the defect and failed to remedy it promptly, leaving her effectively unable to trade. The Judge recorded that, insofar as the Applicant was able to point to a specific defect, she relied upon the holes in the wall adjacent to the area where the soil pipe entered the premises, as identified in various photographs. The Judge then identified that the defence was that the Applicant had not established that the flooding or rodent infestation were caused by the identified defects, and that in any event the loss of business claimed was not established as having been caused by the complaints made.

The key findings of the Judge in respect of liability were at paragraphs 64-66. These state:

“64.

In resolving this issue, I am mindful of the following. Firstly, the evidence from both sides establishes that there was no history of flooding or infestation in these premises in the years leading up to autumn 2019. Secondly, there is no evidence of a structural failure or material alteration in the premises prior to the events complained of, that readily explained their occurrence. The single joint expert's evidence in this regard is important. Thirdly, on the evidence available to me, I am able to conclude that the condition of the wall, namely the holes or gaps around the pipe, have been present for many years prior to the events and probably existed since the construction of the warehouse by, as I understand it, Mr Hayes' father. Fourthly, whilst the sort of arrangement that has existed whereby the soil pipe passed beneath the building slab might be regarded as a flaw, it is difficult to see how this could have caused the matters complained of by the claimant. Fifthly, notwithstanding the sale and refurbishment of the premises on the part of the buyers, the arrangement of the pipework in this area remains broadly as it was prior to the flooding and the infestation. However, finally, again on the evidence, I can readily conclude that whatever occurred at the end of 2019, the effect of that presented itself in early spring as a significant ingress into the property, as observed by Mr and Mrs Hayes. When the defendants visited the property, they were shocked by the condition and described in a contemporaneous email, the level of water penetration and damage. I reject any contention that what was observed was limited to a small amount of water.

65.

However, on the basis of the evidence presented to me, I am unable to conclude that such condition, as observed at that point, arose from any established defect in the condition of the premises for which the defendants were responsible. From a chronological point of view, the problems arose reasonably approximate to the time of Network Rail undertaking the electrification work to the line in this area. Certainly when it comes to infestation with mice, there was anecdotal evidence from witnesses of rodents being disturbed on the railway land and effectively relocating. It is simply not possible to identify how mice might have made their way inside the demised premises. In my judgment, it is not possible to explain infestation with mice by reference to the condition of those premises. There is no doubt that a pet store with food stuffs being stored would be an attractive prospect for a disturbed nest of rodents. Equally, physically rodent-proofing premises of this sort would be impossible, and mice will find a way into any property were food stuffs are readily available.

66. Even if I am wrong about this, there are other aspects of this element of the claim that presents significant obstacles for the claimant. Firstly, as a matter of admitted fact, there is no doubt that the claimant initially chose not to inform the defendants of the problem at the premises, but rather those to engage with Network Rail and focus complaints upon them. To some extent, this might be regarded as understandable. However, it is also indicative of how the claimant was thinking at the time. Plainly, she did not immediately think that her landlords had some responsibility for some issue with the premises. Rather, her actions seemed to be consistent with something done by Network Rail that rendered a hitherto acceptable situation to be a problem. The defendants were simply unaware of the initial problem for a couple of months.”

Causation of loss was then dealt with at paragraphs 68-70. These record:

“68.

In order to succeed in the claim for damages arising from a breach on the part of the defendants, the claimant would have to establish that the losses complained of were caused by the matters complained of. To that end, evidence would have to be adduced to establish the sort of financial loss the claimant has attempted to place in a schedule. Effectively, Ms Coombs contends that a profitable business was lost because of the events complained of. Whilst I quite understand how unpleasant it must have been for her, that, in my judgment, falls a long way short of the sort of calculation that the claimant suggests.

69.

Even if I were to be persuaded that some loss associated to her business could be recovered, there are further hurdles that the claimant would have to overcome. To begin with, the profitability of her business would have to be evidenced, as opposed to merely asserted. Secondly, the reduction of profit would have to be related to the problems complained of, as opposed to some other factor. It must be remembered that the problems occurred virtually simultaneously to the Covid pandemic. Lastly, some account would have to be taken of any earnings that the claimant had been able to make whilst undertaking some work from her home, either by obtaining or selling feed or providing holiday or similar care for exotic birds, etc.

70.

In my view, the evidence adduced falls a long way short of allowing such a calculation and the burden rests with the claimant. If I had been persuaded to look to an award of damages, I suspect I would have looked to the value of the demised premises to the claimant measured by virtue of the amount of rent paid.”

At [72] onwards, he dealt with the Respondents’ counterclaim for lost rent, which he allowed only up to the end of 2019. This was based on a finding that the Applicant was behind in rent at that point, but after that point the disrepair caused by the storm, to which the loss adjusters had referred, entitled the Applicant to a reduction in lost rent. The Counterclaim therefore succeeded to the extent of £4,300 only.