Ken Power & Anor. v Raheel Shah
[2023] EWCA Civ 239
Robert Taylor v Peter Jones & Anor
28 February 2024
[2024] EWCA Civ 170
Court of Appeal
Mr. Taylor's garden work damaged his neighbors' houses. A court said he must pay for the damage he caused, but not for old problems made worse by his work. Even though he got the compensation lowered, the court said his neighbors won because they had to prove everything all over again in a second trial.
Key Facts
- •Mr. Taylor carried out work in his garden, causing damage to neighboring properties owned by the Joneses and Mr. Spriggs.
- •A surveyor awarded substantial compensation to the neighbors under the Party Wall etc. Act 1996.
- •Mr. Taylor appealed, successfully reducing the compensation amount but was ordered to pay 75% of the respondents' costs.
- •The damage included pre-existing defects in the neighbors' properties, which were exacerbated by Mr. Taylor's work.
- •The central dispute was whether Mr. Taylor should pay for repairing the pre-existing damage, not caused by his work.
Legal Principles
Party Wall etc. Act 1996: Building owners must compensate adjoining owners for loss or damage resulting from work executed under the Act.
Party Wall etc. Act 1996, s. 7(2)
Causation: The 'but for' test applies to determine whether Mr. Taylor's works caused the damage.
Judge's findings
Compensation assessment: While the Act is a statutory code, common law principles of fairness and reasonableness apply in assessing compensation.
Lee Valley Developments Ltd v Derbyshire [2017] EWHC 1353 (TCC)
Betterment: Deductions for betterment are made only if the claimant had a choice in the matter and chose a more expensive mitigation route. A deduction is made if the claimant received a monetary benefit from improvements; not if the benefit is non-pecuniary.
Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447; Sartex Quilts & Textiles Ltd v Endurance Corporate Capital Ltd [2020] EWCA Civ 308; Lagden v O’Connor [2003] UKHL 64
Costs on appeal: In cases solely about money, the party who ends up paying less is generally the successful party. However, this can be modified on appeal where the appeal is a rehearing, shifting the burden of proof to the respondent.
CPR r 44.2; Zissis v Lukomski [2006] EWCA Civ 341; Multiplex Constructions (UK) v Cleveland Bridge [2008] EWHC 2280 (TCC)
Outcomes
Appeal allowed on Ground 2 (liability for pre-existing damage).
Mr. Taylor is not liable for the cost of underpinning the rear wall because, while necessary, it wasn't needed to repair the damage *caused* by his works. The underpinning addressed pre-existing defects.
Appeal dismissed on Ground 1 (costs).
Despite reducing the compensation amount, the respondents were deemed the successful parties because the appeal was a rehearing where they bore the burden of proof on all issues, effectively making it a new trial. They successfully defended the central issue of causation.
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