HT-2024-000285 - [2025] EWHC 2213 (TCC)

The Appellant says that the SJE had concluded that the Respondent was responsible for inadequate design and performance. He says that the SJE had concluded that this was the cause of the failure of the basement wall. The Appellant then says that the judge’s reasoning and conclusion at [28] – [37] were incompatible with the SJE’s analysis. It follows from that, the Appellant says, that in attributing the failure to the actions of the Appellant in refusing the Respondent access the judge either misunderstood the SJE’s report or impermissibly disregarded that report without having a proper basis for doing so and without explaining his reasons. Mr Khalid accepted that it would not be appropriate for this court to seek to substitute its own figures for the sums awarded by the judge because even on a correct (as the Appellant characterizes it) reading of the expert report there was no single demonstrably correct figure. Accordingly, if the appeal were to be allowed the matter would have to be remitted for rehearing.

The Appellant was not represented below and had presented his own case with the assistance of his wife. Before me Mr Khalid presented the Appellant’s case with care and skill and by making detailed reference to the documents. Ultimately, however, the Appellant has failed to show that the judge’s decision was wrong.

The parties were substantially agreed as to the approach to be taken to expert evidence and to the accuracy of the summary of the principles in the White Book at 35.8.6. In short, a judge is not bound by expert evidence, even the evidence of a single joint expert. However, a judge must have regard to such evidence in respect of issues to which it is relevant and if the judge is to differ from the view of the expert on such an issue, then an explanation of the reason for doing so must be given. However, findings of fact and the determination of legal responsibility are matters for the judge and not the expert. It may be the case that findings on one or both of those matters mean that the expert evidence is irrelevant to the findings which have to be made. In such a case a judge does not have to follow the ex hypothesi irrelevant expert evidence nor is it necessary to engage in the exercise of explaining in detail why that is not being done.

The Appellant accepted that it was open to the judge to find as a matter of fact that the parties’ joint intention had been that no 17 should be excavated as well as 17A. In that regard it is to be noted that the SJE report set out two alternative scenarios: one in which there was to be excavation of no 17 and the other in which there was not. The judge was entitled to proceed on the basis that the former reflected the parties’ intention. However, the Appellant does say that the judge had misunderstood the Respondent’s case. As pleaded that case was not that the basements would be excavated at the same time but that while 17A was being excavated there would be access to no 17 to carry out a partial excavation to release the underpinning from the lateral pressure (see paragraph 38(c) of the Defence and Counterclaim as quoted above). The Appellant says that the judge misunderstood that and approached matters on the basis that there had been an intention for both to be excavated simultaneously. If the judge had properly understood the case he would have realised that the absence of any plans for either a full or partial excavation, as shown by the SJE, meant that the Respondent’s case was untenable. In that regard the Appellant points to the fact that the judge quoted only part of paragraph 2.4 of the executive summary of the report.

The judge did not address the argument in quite those terms in either of his judgments. That is not surprising because it is clear that matters were not presented to him in that structured way by the Appellant. The focus was on the issue of whether there was to be excavation of the basement of no 17 in any event or whether that was dependent on obtaining planning permission. Before the judge the Appellant was saying that the Respondent was not entitled to access no 17 at all at the stage the Works had reached before the falling out. However, it is clear that the judge fully understood the nature of the Respondent’s case. At [31] of the second judgment the judge paraphrased paragraph 38(c) of the Defence and Counterclaim and said that he accepted the Respondent’s evidence in that regard. That was a finding the judge was entitled to make based on his assessment of the competing oral and documentary evidence as to the parties’ intentions as the outset. The finding was ultimately derived from the findings made after the first trial and based on the evidence given there. It did not amount to a failure to take proper account of the SJE report and the fact that the judge did not quote every element of the parts of that report which he did quote does not indicate to the contrary. If [30] of the second judgment had stood alone there might have been force in the argument that the case had been misunderstood but it does not stand alone and when it is read in context and in particular in the context of the immediately following paragraph it is clear that the judge fully understood that it was the Respondent’s case that there was to be excavation on the no 17 side of the flank wall to release the underpinning from the lateral pressure and that in due course there would be a full excavation of no 17.

Mr Khalid advanced a further argument. This depended on four propositions:

Based on those propositions Mr Khalid argued that it had not been open to the judge to attribute the movement to the Appellant’s denial of access. That, he says, followed the movement and cannot have caused it. In attributing responsibility to that denial the judge erred in respect of causation, not only by reference to timing but also because he failed to have proper regard to the conclusions in the SJE report as to the cause of the movement and the action which the Respondent should have taken.

The Appellant’s argument was not put in that structured and ordered way to the judge and so his judgment did not address matters in that way. Nonetheless, the judgment covered the relevant points in this regard and the conclusion the judge reached was entirely open to him as I will now explain.

The judgments are to be read together (see the second judgment at [15]).

It was clear that the judge understood the Respondent’s case as to the parties’ intentions (see above) and that he accepted that case as a consequence of his assessment of the oral evidence and the contractual exchanges. The Respondent’s case was that there should have been access to no 17 from the outset. Part of the purpose of that was to enable excavation of the basement flank wall to relieve the lateral pressure on the underpinning with that partial excavation later being incorporated in the excavation of the entirety of the basement.

The judge proceeded on the basis that from the outset the Respondent attempted to obtain access to no 17 and the Appellant resisted that attempt. Indeed, that was the Appellant’s pleaded case. At paragraph 25 of the Reply and Defence to Counterclaim the Appellant averred that the Respondent had sought access from the outset. The Appellant did not accept the Respondent’s case as to why access was being sought but did say, in terms, that the attempt was from the outset. The argument now being advanced is inconsistent with the Appellant’s pleaded case below. More significantly it is based on a misreading of the first judgment at [19]. That was not a finding that the requests for access only began on 7^th March 2012. It was the Appellant’s case on the pleadings that access had been sought from the outset and so the judge did not need to make a finding as to when the requests began. Instead, [19] is to be read in context. When that is done it is a finding that as matters became pressing so the requests for access were made in writing and in stronger terms.

In those circumstances the conclusions which culminated in the finding at [37] of the second judgment were open to the judge. They did not amount to a failure to take account of the SJE report and nor were they inconsistent with the SJE’s analysis. In paragraph 4.45 the expert does go on to say what the Respondent should, in the expert's opinion, have done. However, that was an expression of the SJE’s opinion as to what should have been done as a matter of good professional practice. As such it was subject to the judge’s assessment of the parties’ respective responsibilities under the terms of their agreement. That was a matter for the judge not the expert. In that regard the judge had found that the Appellant should have provided access to no 17 from the start. It is also to be noted that at paragraph 4.45 the SJE was approaching the position on the footing that the Respondent could not access no 17 but does not make any reference to the period or duration of the absence of access. The report seems to be predicated on a permanent and enduring denial of access. The position in light of the judge’s findings was rather different. There had been a denial of access but that was wrongful. The Respondent had been pressing for access from the outset and had been doing so with increasing force. The Appellant should have acceded to those demands and could have done so at any time. The SJE report, understandably, has no regard to those matters and the opinion of the SJE as to what good practice required in the abstract was of no assistance to the judge in determining what was required in those particular circumstances.

It follows that the judge’s findings were not inconsistent with the SJE report nor did they amount to a failure to take that report into account. They were findings on matters within the remit of the judge and on which the report did not impinge.

For completeness I should add that as a subsidiary point Mr Khalid pointed to the judge’s finding at the latter part of [40.1] and submitted that this was inconsistent with the approach at [37] and demonstrated that the finding at [37] was based on a misunderstanding and a failure to take proper account of the SJE report. I do not agree. The finding at [40.1] is arguably generous to the Appellant. It is entirely properly expressed in short terms and cannot undermine the earlier conclusion, based as that was on the thrust of the judgments when read as a whole and together.

This ground, therefore, fails.