[2023] UKUT 00282 (LC)

In light of the events we have summarised it will be clear that this reference to the Tribunal arises from the claimants’ concerns about the condition of their property, both house and garden, and the repeated flooding between December 2014 and January 2019. As we have said, their case is that water levels in the ground have been raised and that this has damaged the house and will damage it further. As to the extra-high tidal inflows, as we shall see the expert witnesses on hydrology agree that these inflows will recur when river levels exceed about 3.1m AOD; the claimants say that this will put their property further at risk.

The claim therefore turns on expert evidence about the condition of the building and the effect of the respondent’s works.

For the claimants Mr Lewis KC has mounted a number of arguments in an endeavour to persuade the Tribunal to adopt a different approach.

First, in opening and closing he invited the Tribunal to approach the claim on the basis that the facts speak for themselves, regardless of the scientific evidence: the house has deteriorated since the works began, and the only available cause is the works. Nothing else has happened in between. The thing speaks for itself, he said.

The difficulty with that argument is that it is not true that nothing else has happened in between. The other thing that has happened is that time has passed.

The King’s Lodging is hundreds of years old. It was already exhibiting cracks before the works took place. If more cracks have appeared, or the existing cracks widened, after the commencement of the works that may simply be a continuation of the existing ageing process of the building. We noticed a number of cracks in the house that we were told were not relevant to the proceedings. With a building of this age it is not feasible to say, on the present facts, that the works are the only available cause of deterioration, when deterioration had taken place before the works and where the claimants do not seek to attribute all the visible deterioration to the works.

Accordingly we reject Mr Lewis KC’s suggestion as to the approach the Tribunal should take and we decide the claim on the basis of the factual and scientific evidence.

Next the claimants have alleged bad faith on the part of the respondents. In his closing address Mr Lewis KC said:

“there seems to have been a mindset on the Respondent’s part that there was not anything in the Claimants’ claims and that whatever was done for them would not be enough to satisfy them.”

We see no evidence of such a mindset. The respondent made repeated efforts to solve the problems of water ingress at The Kings Lodging, and made valiant and no doubt very expensive attempts to put things right. We were struck by Mr Nunn’s conscientiousness and his determination not to abandon the problem at a time when a colleague was, understandably, wondering if the respondent had done all it was obliged to do. It is true that no further remedial work has been possible since the water ingress in January 2019, but we think that that is largely due to the deterioration in the relationship between the claimants and the respondent which perhaps by that stage was unsurprising. But we do not find any fault with the respondent’s approach to the claim. As a public authority it is not in a position to make concessions and its case is that the works have not raised the water table and have not damaged the house. It has not acted improperly or unkindly in making that case.

We are equally unpersuaded by the claimants’ endeavours to show that the respondent’s work was negligent. Mr Lewis KC in cross-examining Mr Nunn strove to establish that the works were not properly designed in the first place. Essentially this argument is irrelevant. We imagine that it was put forward in order to advance the claimants’ case under the “speaks for itself” approach; but as we have said, the facts do not speak for themselves and causation can only be decided on the basis of the evidence. As we shall see, the crucial issue is whether the works have raised the groundwater levels in the garden. If they have, then whether or not the works were properly designed is irrelevant; causation will be established. If they have not, then even if the works were poorly designed causation is not proved.

But in fairness to the respondent since its plans have been criticised we observe that the claimants have not shown that the work was poorly designed. CH2M were aware throughout of the need to take care with groundwater levels, as we know from the correspondence and from their calculations of the expected re-charge into the garden (when the worry was whether the work would dry the garden out). Clearly something went wrong – whether avoidably or not we do not know – with the work at the corner of the dock so that water flowed in at high tides. But there is no evidence whatsoever that the design of the work was negligent. We accept that there has been no demonstration that the contractor was expressly required to ensure that the garden of The King’s Lodging did not flood, but we think as a matter of common sense that as Mr Nunn said the instruction was implicit in the design. CH2M did not need to be told not to execute the work in such a way that the garden would flood; and as we have seen (paragraph 30 above) CH2M was well aware of the need to put a stop to the flooding.

Whether the remedial work, rather than the original design, was competently executed it is not possible to say. The claimants have been critical of the respondent’s efforts. They have pointed out that they warned the respondent about the danger of compromising the ancient foundations of the dock return wall, yet they say those warnings have been ignored. But considerable further technical evidence would have been required to prove that the respondent’s remedial work was not competently carried out. The statutory cause of action on which the claimants rely does not require proof of negligence and the claimants have not proved negligence. This preliminary issue is about whether the respondent’s works – whether negligent or not – have caused and will cause damage to the claimants’ property.

And so we turn to the expert evidence.