ABBAHALL LIMITED v ELIZABETH SMEE [2002] EWCA Civ 1831

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
His Honour Judge COTRAN
[2002] EWCA Civ 1831Case No Case No: 2002/0397/B2Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
ABBAHALL LIMITEDAppellantELIZABETH SMEERespondent
Before
Lord Justice ChadwickMr Justice MunbyMr Oliver Ticciati (instructed by Wilmot & Co) for the appellant (claimant)Miss Juliet May (instructed by A J Bond & Co) for the respondent (defendant)Date 19 December 2002
[1]Mr Justice Munby (giving the first judgment at the invitation of Lord Justice Chadwick) : This is an appeal against a judgment and order of His Honour Judge Cotran sitting in the West London County Court on 15 January 2002. It concerns a mews property in Queensgate Place Mews in London SW7. The property is on three floors, though the second floor is simply a living space created in the attic in the roof space. The ground floor consists of commercial premises occupied by Round About Chelsea Limited. The upper two floors consist of residential premises occupied by the defendant, Miss Smee.[2]The claimant, Abbahall Limited, is the freehold owner of the ground floor, which is let to a Mr Pattinson who has in turn sub-let to the occupier. The defendant, Miss Smee, is the freehold owner of the first and second floors and the roof ("the Flat"), by right of adverse possession, confirmed by the High Court on 15 May 1987 and upheld by the Court of Appeal on 28 June 1988.[3]The Flat accordingly comprises a 'flying freehold'. It is common ground that, no doubt because of the circumstances in which Miss Smee came to acquire her freehold, there are no covenants of any sort regulating the relationship between the two freeholders. That relationship is regulated by the law of easements and by the law of nuisance and negligence. I might add that even if there were covenants they would be unlikely to avail the parties given the rule that the burden of positive covenants does not run with freehold land: see Rhone v Stephens [1994] 2 AC 310 (itself a case involving a flying freehold).[4]Miss Smee has allowed parts of the Flat – the roof in particular – to fall into disrepair with the consequence that water leaks into the ground floor and there is a danger of masonry falling onto visitors to the ground floor. Two chartered surveyors in a report dated 2 January 2002 jointly commissioned by the parties comment that the brickwork to the parapet corbelling is in need of "immediate attention" otherwise sections will "inevitably" fall onto the public thoroughfare.[5]On 1 November 1994 Abbahall obtained from the County Court an injunctive order enabling it to enter the Flat "for the purposes of carrying out all repairs and/or works necessary to render the roof, guttering, cornices and front elevation safe sound and watertight". That order was silent as to who was to bear the cost of the repairs. The work was carried out at a cost of £7,255 by Abbahall's contractors. Abbahall then commenced further proceedings in the County Court seeking to recover from Miss Smee(i) the sum of £7,255 already expended on the repairs and(ii) the cost of further necessary works which it claimed would cost, in accordance with the joint experts' assessment, a further £23,617.50.[6]The trial of the action took place in January 2002. Abbahall claimed that Miss Smee owed it a duty of care which entitled it to recover from her the whole of the cost of the repairs. Miss Smee disputed the claim on a number of grounds: i) that she owed no duty to Abbahall because it was a mere reversioner; ii) that in any event she owed no duty because this was a sin of omission and not of commission; and iii) that even if in principle she did owe Abbahall some duty of care there was in the circumstances no duty at all.[7]Judge Cotran found against Miss Smee on each of these points. But he also held, contrary to Abbahall's case, that she was under a duty to contribute only one quarter of the costs of the past and future repairs. He gave judgment for Abbahall in the sum of £1,296 "by way of damages" – there had been a dispute as to the proper cost of the repairs – and made a detailed order providing for the carrying out, in accordance with a detailed specification to be prepared by a jointly appointed surveyor, of further works estimated by the joint experts to cost a further £13,800. His order further provided that Miss Smee "shall be liable" for one quarter and Abbahall for three quarters of the cost of the works and the fees of the surveyor.[8]Abbahall now appeals to this court, seeking to recover the full cost of the repairs. There is no respondent's notice. Miss Smee accepts that she owes Abbahall a duty of care but seeks to maintain the learned judge's assessment of that duty as one exposing her to only one quarter of the cost of the repairs.[9]Time was when the claim would have been thought to be concluded against Abbahall by the observations in this court of Sir Wilfrid Greene MR in Bond v Nottingham Corporation [1940] Ch 429 and of Lord Denning MR in Phipps v Pears [1965] 1 QB 76 . Nowadays, however, matters have been transformed by the developments in the law of nuisance and negligence heralded by the decision of the Judicial Committee of the Privy Council in Goldman v Hargrave [1967] 1 AC 645 – developments subsequently adopted and elucidated in the decisions of this court in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 , Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 , Bybrook Barn Centre Ltd v Kent County Council [2001] BLR 55 and Rees v Skerrett [2001] EWCA Civ 760 , [2001] 1 WLR 1541 .[10]The Holbeck Hall case disposes of any obstacle that might otherwise have been presented by Bond v Nottingham Corporation . The Rees case has performed a similar service in relation to Phipps v Pears . Those two cases remain, no doubt, good authorities in relation to the law of easements; but they tell us nothing about the proper content of the modern law of nuisance and negligence. It is to those causes of action that I now turn. The law of easements may provide Abbahall with no remedy but the modern law of nuisance and negligence does.[11]The facts of Goldman v Hargrave are too well known to need repetition. Lord Wilberforce, giving the advice of the Privy Council on an appeal from the High Court of Australia, found in the cases, and in particular in the decision of the House of Lords in Sedleigh-Denfield v O'Callaghan [1940] AC 880 , authority for what he described at p 661G as "the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made."[12]In Leakey this court held that the law as explained by Lord Wilberforce in Goldman v Hargrave is indeed part of the law of England. It also made clear that it matters not whether the action is regarded as lying in nuisance or in negligence, since the ingredients would be the same.[13]Now it is true that none of the cases which have followed Leakey is precisely on all fours with the facts of this case. All the other reported cases to which our attention has been drawn relate to horizontally adjacent properties, whereas the present case involves a 'flying freehold' where one property stands on top of the other. But neither this difference, nor any other difference there may be between this and other cases, can affect the existence of the general duty identified by Lord Wilberforce. Indeed the point is not contested. It could not be. Miss Juliet May on behalf of Miss Smee now accepts that her client owed, and continues to owe, a duty of care to Abbahall.[14]The issue in the present case goes not to the existence of the duty but rather to its content and scope.[15]Before us, as before Judge Cotran, Mr Oliver Ticciati, on behalf of Abbahall, contended that Miss Smee owed his client a duty:
"to keep the Flat in such a state of repair as to prevent damage being caused to the ground floor or those occupying it by water penetration or falling masonry, guttering, etc."
[16]Miss May, for her part, submitted that the relevant duty was:
"to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable to prevent or minimise the known risk of damage or injury to one's neighbour or to his property."
[17]She supplemented that submission by asserting that Miss Smee is quite entitled not to repair her own property. She is only in breach of her duty to her neighbour insofar as she has failed to do "that which is reasonable in all the circumstances."[18]On this point I agree with Miss May. Her formulation of the relevant duty accords with the authorities: indeed it is, as we shall see, derived directly from certain observations of Megaw LJ in Leakey .[19]I go first to the way in which Lord Wilberforce dealt with this issue in Goldman v Hargrave at p 663A:
"So far it has been possible to consider the existence of a duty, in general terms. But the matter cannot be left there without some definition of the scope of his duty. How far does it go? What is the standard of the effort required? What is the position as regards expenditure? It is not enough to say merely that these must be "reasonable," since what is reasonable to one man may be very unreasonable, and indeed ruinous, to another: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it. And in many cases, as, for example, in Scrutton LJ's hypothetical case of stamping out a fire, or the present case, where the hazard could have been removed with little effort and no expenditure, no problem arises. But other cases may not be so simple. In such situations the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances. Thus, less must be expected of the infirm than of the able-bodied: the owner of a small property where a hazard arises which threatens a neighbour with substantial interests should not have to do so much as one with larger interests of his own at stake and greater resources to protect them: if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty: he should not be liable unless it is clearly proved that he could, and reasonably in his individual circumstance should, have done more."
[20]The point was next considered in Leakey . At p 524E Megaw LJ said this:
"The duty is a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property. The considerations with which the law is familiar are all to be taken into account in deciding whether there has been a breach of duty, and, if so, what that breach is, and whether it is causative of the damage in respect of which the claim is made. Thus, there will fall to be considered the extent of the risk; what, so far as reasonably can be foreseen, are the chances that anything untoward will happen or that any damage will be caused? What is to be foreseen as to the possible extent of the damage if the risk becomes a reality? Is it practicable to prevent, or to minimise, the happening of any damage? If it is practicable, how simple or how difficult are the measures which could be taken, how much and how lengthy work do they involve, and what is the probable cost of such works? Was there sufficient time for preventive action to have been taken, by persons acting reasonably in relation to the known risk, between the time when it became known to, or should have been realised by, the defendant, and the time when the damage occurred? Factors such as these, so far as they apply in a particular case, fall to be weighed in deciding whether the defendant's duty of care requires, or required, him to do anything, and, if so, what."
[21]Having been pressed with what were said to be the unfortunate consequences of applying Lord Wilberforce's approach, Megaw LJ continued at p 526B:
"If I thought that that sort of result would be likely to follow - or to follow in a substantial number or proportion of cases where this duty comes in question - I should, at least, hesitate long before accepting that this factor could be regarded as a proper factor in deciding whether the duty had or had not been broken in a particular case. But I do not think that anything of that sort is contemplated by Goldman v Hargrave [1967] 1 AC 645 , any more than the decision of the House of Lords in Herrington v British Railways Board [1972] AC 877 contemplated, or leads to the possibility of, a detailed examination of the financial position of the defendant landowner or occupier who is sued for damages by a trespasser who has been injured while on the defendant's land. The extent of the defendant's duty, and the question whether he has or has not fulfilled that duty, may, it is clear as a matter of English law, depend on the defendant's financial resources: see the speech of Lord Reid [1972] AC 877 , 898H. I do not believe that there was any contemplation that in such a case there would be discovery of the defendant's bank account or any detailed examination of his financial resources. So here. The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant. Take, by way of example, the hypothetical instance which I gave earlier: the landowner through whose land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours. If the risk is one which can readily be overcome or lessened - for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does nothing or does too little. But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "
You have my permission to come on to my land and to do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense." In deciding whether the landowner had discharged his duty of care - if the question were thereafter to come before the courts - I do not think that, except perhaps in a most unusual case, there would be any question of discovery as to means of the plaintiff or the defendant, or evidence as to their respective resources. The question of reasonableness of what had been done or offered would fall to be decided on a broad basis, in which, on some occasions, there might be included an element of obvious discrepancy of financial resources. It may be that in some cases the introduction of this factor may give rise to difficulties to litigants and to their advisers and to the courts. But I believe that the difficulties are likely to turn out to be more theoretical than practical."[22]So the scope of the duty is restricted. It is what Stuart-Smith LJ in Holbeck Hall at para [46] called "a measured duty of care". Having referred to the passages in Goldman and Leakey which I have just set out he continued at para [49]:
"I do not think either judge was purporting to give an exhaustive list of relevant considerations. While I agree with Megaw LJ (see p 524B) that it would be a grievous blot on our law if there was no liability on the defendants in those cases, I do not think justice requires that a defendant should be held liable for damage which, albeit of the same type, was vastly more extensive than that which was foreseen or could have been foreseen without extensive further geological investigation; and this is particularly so where the defect existed just as much on the plaintiffs' land as on their own. In considering the scope of the measured duty of care, the courts are still in relatively uncharted waters. But I can find nothing in the two cases where it has been considered, namely Goldman case [1967] 1 AC 645 and Leakey's case [1980] QB 485 to prevent the court reaching a just result."
[23]He continued at para [51]:
" Goldman's case [1967] 1 AC 645 and Leakey's case [1980] QB 485 were decided before the decision of the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605 , in which the three-stage test for the existence of a duty of care was laid down, namely foreseeability, proximity and the need for it to be fair, just and reasonable. In Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211 it was held that the three-stage Caparo test was appropriate whatever the nature of the damage: see per Lord Steyn, at p 235, approving a dictum of Saville LJ. The requirement that it must be fair, just and reasonable is a limiting condition where foreseeability and proximity are established. In my judgment very similar considerations arise whether the court is determining the scope of a measured duty of care or whether it is fair, just and reasonable to impose a duty or the extent of that duty. And for my part I do not think it is just and reasonable in a case like the present to impose liability for damage which is greater in extent than anything that was foreseen or foreseeable (without further geological investigation), especially where the defect and danger existed as much on the plaintiffs' land as Scarborough's."
[24]Put shortly, therefore, the duty is that described by Lord Wilberforce:
"the standard ought to be to require of the occupier what it is reasonable to expect of him in his individual circumstances."
[25]Or, as Megaw LJ put it, the duty is:
"a duty to do that which is reasonable in all the circumstances, and no more than what, if anything, is reasonable, to prevent or minimise the known risk of damage or injury to one's neighbour or to his property."
[26]That, as we have seen, is precisely the duty for which Miss May contends. In short the duty is not, as Mr Ticciati would have it, an absolute duty to prevent the ingress of water: it is a restricted duty to do what is reasonable in all the circumstances.[27]In the present case, and faced with Miss Smee's obstinate refusal to co-operate in any way, Abbahall has obtained from the court, in the form of an appropriate injunction, the means of obtaining access to her property so as to enable it to take steps – partial thus far – to abate a nuisance. What Abbahall seeks by way of its claim for damages is reimbursement of the expenditure already incurred, and hereafter to be incurred, in abating the nuisance. Are such damages recoverable?[28]Until recently the point was both difficult and controversial: see the discussion in Clerk & Lindsell on Torts (ed 18) para 31-25. Be that as it may, the position is now clear following the decision of the House of Lords in Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55 , [2002] 1 AC 321 . Where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure can be recovered by the owner who has been required to incur it in the course of abating the nuisance.[29]The leading speech is that of Lord Cooke of Thorndon. He said (paras [28]-[29]):
"[28] It seems to me therefore that any decision which your Lordships may give in this case must to some extent break new ground in English law. One point at least is clear. Double recovery could not be permitted. But there is no question of that in the present case [29] Beyond that I think that the answer to the issue falls to be found by applying the concepts of reasonableness between neighbours (real or figurative) and reasonable foreseeability which underlie much modern tort law and, more particularly, the law of nuisance. The great cases in nuisance decided in our time have these concepts at their heart."
[30]Having considered Sedleigh-Denfield and Goldman v Hargrave as well as Overseas Tankship (UK) Ltd v Miller Steamship Co Pty [1967] 1 AC 617 , the second Wagon Mound case, Lord Cooke continued at para [31]:
"In both the second Wagon Mound case and Goldman v Hargrave the judgments, which repay full rereading, are directed to what a reasonable person in the shoes of the defendant would have done. The label nuisance or negligence is treated as of no real significance. In this field, I think, the concern of the common law lies in working out the fair and just content and incidents of a neighbour's duty rather than affixing a label and inferring the extent of the duty from it."
[31]In para [34] he made it clear that: "reasonableness between neighbours is the key to the solution of problems in this field".[32]Once Mr Ticciati's formulation of the duty as absolute and unqualified has been rejected, as in my judgment it must be, the way is open to the possibility that in the particular circumstances of this type of case the cost is one which ought, in principle, to be shared.[33]That there may be circumstances in which the cost should be shared is plainly recognised in the authorities. Megaw LJ, in a passage which Judge Cotran rightly treated as important, recognised as we have seen that there might be circumstances in which the landowner would discharge his duty by inviting his neighbour to enter and do agreed works "on the basis of a fair sharing of expense."[34]Lord Wilberforce, as it seems to me, had much the same idea in mind when he suggested that: "if the small owner does what he can and promptly calls on his neighbour to provide additional resources, he may be held to have done his duty".[35]The point also emerged in the Holbeck Hall case where as we have seen the defect and danger existed as much on the plaintiffs' land as on the defendant's. Although in the event the point did not arise for decision, in the course of discussing how damages might be assessed Stuart-Smith LJ commented at para [55] that "in theory" the damages awarded to the plaintiffs "should be subject to a deduction for a contribution from the plaintiffs towards the cost of any remedial works".[36]In my judgment there are therefore three broad principles which emerge from the authorities: i) First, the duty on Miss Smee was, as Megaw LJ expressed it, to do what was reasonable in all the circumstances. ii) Secondly, in determining how the burden of meeting the cost of the repairs is to be borne by or as between Miss Smee and Abbahall, the court must strive to reach a result which is fair, just and reasonable. Lord Wilberforce, after all, was pointing to the need to achieve the just outcome when he commented that a rule which required of the defendant "an excessive expenditure of money" would be "unjust". In the same way, Megaw LJ focussed on "reasonableness" as the governing criterion and referred, as we have seen, to "a fair sharing of expense". Stuart-Smith LJ in the Holbeck Hall case identified the court's duty as being to reach "a just result" and expressly adopted in this context the Caparo test of what is "fair, just and reasonable". iii) Thirdly, in determining what is reasonable, or what is fair just and reasonable, the key to the solution is Lord Cooke of Thorndon's concept of "reasonableness between neighbours".[37]How then are these principles properly to be applied in the case of a flying freehold?[38]In a case such as this, where the roof serves equally to protect both the claimant's premises and the defendant's premises, common sense, common justice and reasonableness as between neighbours surely all suggest that those who are to take the benefit of the works ought also to shoulder the burden of paying for them. In principle, in a case such as this, it is, in my judgment, fair, just and reasonable to require that those who will share the benefit of the works should also share the burden of paying for them. To throw the entire burden either onto the claimant or onto the defendant would be unjust, unfair and unreasonable. It would also be unneighbourly.[39]In principle, therefore, the burden of meeting the cost of the necessary works in a case such as this – I say nothing about other types of case arising in different topographical circumstances – ought to be shared between those who will benefit from the works. Accordingly I agree with Miss May when she submits that if the fact is that the whole of the building benefits from the roof and the guttering it is only fair and reasonable that both parties contribute to its upkeep.[40]On what basis ought the costs to be shared? It seems to me that, other things being equal, the costs should be shared equally. As Vaisey J said in Jones v Maynard [1951] Ch 572 at p 575:
"I think that the principle which applies here is Plato's definition of equality as a "sort of justice": if you cannot find any other, equality is the proper basis."
[41]So, if the claimant and the defendant will derive equal benefit from the works they should each, other things being equal, contribute equally to the cost. If they will derive unequal benefit from the works then, as it seems to me, they should each contribute to the cost in the same proportion as they will each derive benefit.[42]How one evaluates the various benefits will, of course, depend upon the particular circumstances of the individual case. But in a case of the present type, it would not be unreasonable to apportion the benefits to be derived from the repair of the common roof amongst the various owners having regard to a comparison of the space which each owns – measured either in terms of the number of floors under the common roof which each owns or, perhaps, by reference to floor areas. The apportionment is to be decided on what Megaw LJ called "a broad basis" and by "a broad, and not a detailed, assessment". Fine calculations are not appropriate in this branch of the law. The test as identified by Lord Wilberforce and Megaw LJ is clearly broad and impressionistic.[43]Having got to this point in the analysis one can now correctly identify the true nature of the duty owed by the owner of a flying freehold in Miss Smee's position. It is not, as I have already said, a duty to prevent the ingress of water into the claimant's property. It is not a duty to repair the roof. It is not even a duty to pay the claimant a sum equal to the defendant's share of the cost of the work. It is, in my judgment, a duty to make the appropriate contribution to the cost of the appropriate works, always assuming, that is, that the works are actually carried out.[44]Let us assume that the case is one where the fair, just and reasonable apportionment as between the parties is that the claimant should contribute four-fifths and the defendant one-fifth of the £50,000 which the repairs are going to cost. The defendant is under no duty to spend £50,000 carrying out the works. Nor is he liable as such to pay the claimant £10,000. Indeed, the defendant, as against the claimant, is, in my judgment, under no duty to do anything at all unless the claimant is prepared either: i) to pay his contribution of £40,000 – in which case the defendant is in principle under a duty either to carry out the works or to contribute £10,000 to the cost of having the works carried out; or ii) to carry out the works – in which case the defendant is in principle under an obligation sounding in damages to pay the claimant £10,000.[45]Put shortly, there can be no breach of duty by the defendant, because the defendant owes the claimant no duty, if the claimant is not prepared to make his own proper contribution to the cost of the repairs.[46]This, as it seems to me, reflects the basis upon which the court can grant injunctive relief of the type which Abbahall obtained on 1 November 1994. A claimant in Abbahall's position can in principle seek injunctive relief in two alternative forms: i) The claimant can seek a mandatory injunction requiring the defendant to carry out the appropriate repairs. But – and this is the important point – such an injunction, in my judgment, can only be obtained on terms that the claimant pays, or gives an undertaking to the court that he will pay, his proper share of the cost. For otherwise the grant of such an injunction would be to require the defendant to do more than he is under a duty to do. ii) Alternatively, and as Abbahall actually did in the present case, the claimant can seek an injunction giving him access to the defendant's property. In such a case the claimant can then recover from the defendant by way of damages the amount of the defendant's proper contribution to the works the claimant has carried out.[47]As a matter of principle the grant of injunctive relief against the defendant can be justified only on the footing that the defendant is in breach of a duty owed to the claimant. But if the defendant's duty is subject, as in my judgment it is in this type of case, to the claimant either carrying out the works or making an appropriate contribution, then no injunction can properly be granted unless it secures that, one way or another, the claimant contributes his proper share of the cost. Conversely, if, as in the present case, an injunction has been granted enabling the claimant to carry out works he is willing to undertake, this will be because the defendant is in breach of his duty – and in relation to that breach of duty the claimant will be able to recover damages, in particular damages representing the defendant's unpaid contribution to the cost of the works.[48]In the present case Miss Smee owns two floors and Abbahall only one. But one of the floors she owns is, albeit habitable, little more than the roof space. And she owns the first and second floors whilst Abbahall owns the ground floor. Taking everything into account – and in this respect we are in as good a position as was Judge Cotran to come to a view – it seems to me that in principle, and other things being equal, the fair, just and reasonable basis of apportionment in this case is half and half.[49]On behalf of Abbahall Mr Ticciati submits that Miss Smee should contribute more: not merely more than the one quarter which Judge Cotran fixed but also more than the one half which, other things being equal, is in my judgment appropriate. Indeed, he says that she should pay the whole of the cost. He points to four matters.[50]First, he points out that the roof belongs to Miss Smee. He submits that the duty alleged against her is to do no more than any ordinary householder would ordinarily do without compulsion. Heavy rain and wearing masonry are not (to adopt Lord Wilberforce's words) hazards thrust upon her through no seeking or fault of her own: they are, he says, an inevitable corollary of owning any property exposed to the English climate. This may be so (though I do not agree with Mr Ticciati's reading of Lord Wilberforce's words) but it does not meet the point. The claimant cannot normally compel the defendant to maintain his (the defendant's) land. And if, as here, the claimant seeks to compel the defendant to repair her own land for his benefit then fairness, justice and reasonableness between neighbours demands, as I have said, that those who seek to enjoy the benefit should also contribute to the burden.[51]Secondly, Mr Ticciati suggests that there is an analogy with cases of public nuisance, where it is axiomatic that the defendant is liable for the whole of the damage. I do not agree. In the first place this is not a claim in public nuisance: it is a claim in private nuisance and negligence. Moreover, the measure of damages in this type of case – the cost of the repairs – is not the same as in cases of public nuisance. There is not for present purposes any useful analogy with cases of public nuisance.[52]Next, Mr Ticciati suggests that it is only fair that Miss Smee should be solely responsible for repairing her roof because the value of the Flat – and therefore the price which she notionally paid for it – is less than would otherwise be the case, precisely because she has to maintain the roof. Quite apart from the fact that there is simply no evidence to support this assertion, it merely begs the question. Moreover the point could equally well be made in relation to the ground floor. The dispute in the present case arises because of the ingress of water from above through a defective roof. Precisely the same type of dispute could arise because of the ingress of water from below in the form of rising damp through defective foundations, in which case Miss Smee would be pointing to Abbahall's obligation to repair the damp-proof course.[53]Finally Mr Ticciati submits that Miss Smee acquired her title by means of prolonged trespass and that, having acquired the Flat for nothing, she has not only refused to keep it in repair but has systematically obstructed the efforts of Abbahall to do so. All this, no doubt, is entirely true, but with all respect to Mr Ticciati I simply cannot see how it has anything to do with the point in issue. No doubt it is all very galling for Abbahall, but the matter here relied upon – Miss Smee's acquisition of a squatter's title – has nothing whatever to do with the duties she may or may not owe in tort to the successor in title of the dispossessed owner. As Miss May correctly says, Miss Smee is the owner of the Flat: how she became such is immaterial.[54]In my judgment the matters relied on by Mr Ticciati do not suffice, even when taken together, to justify any increase in Miss Smee's contribution. He has wholly failed to show why Miss Smee should pay more than one half of the cost of the repairs.[55]Miss May, for her part, however, points to other circumstances which, she says, justify a reduction in Miss Smee's contribution from one half down to the one quarter share fixed by Judge Cotran. I do not agree. Essentially Miss May's submission is based on what she says is the contrast between Miss Smee's "poverty" and Abbahall's "relative wealth". Pointing to what was said by both Lord Wilberforce and Megaw LJ she says that these are highly material matters. Both Lord Wilberforce and Megaw LJ, as we have seen, contemplated that the extent of the defendant's duty might be related to his financial and other circumstances. That, of course, I entirely accept. But in my judgment it does not assist Miss May at all in a case such as this.[56]There would, as Mr Ticciati says, be something extremely odd in a situation such as this if the proportions in which the various owners of a building are required to contribute to the common task of maintaining the roof should depend upon – and so fluctuate with – their respective financial means. Why should the claimant's share depend upon whether the defendant is an idle drone who has long-since squandered his inheritance or a hard-working upwardly mobile professional with a large income and carefully garnered savings? Why should the claimant's share suddenly be increased – as on Miss May's approach it would be – if the yuppie moves out and the drone moves in? Why should the irresponsible drone be able for that very reason to get away with contributing less to the common good than the hard-working yuppie? Can it really be suggested that Miss Smee's liability should be increased – and if so to what percentage? – if she were to win the lottery jackpot tomorrow?[57]Mr Ticciati submits, and I agree, that the nature of the duties governing neighbours in a case such as this simply cannot depend on such transient matters as their means. Such a rule would, in my judgment, be wrong in principle. It would be neither fair nor just nor reasonable. It would not serve the interests of good neighbourliness. Quite the contrary. It would in my judgment be unjust to the point of absurdity.[58]Moreover, and as Mr Ticciati also points out, the approach for which Miss May contends is not merely wrong in principle: it is highly inconvenient in practice, for the respective liabilities to contribute would be unpredictable, difficult to assess and liable to change every time any owner either left or suffered some marked change in his economic fortunes.[59]The fact is that in a case such as this the obligation to contribute to the common task of maintaining the roof is simply an ordinary incident of the ownership of property, albeit that for largely historical and technical reasons the liability is regulated not by the law of property but by the law of tort.[60]In my judgment it is simply not reasonable as between neighbours for Miss Smee to say that because of her poverty her only obligation is to allow Abbahall entry to her property to carry out the repairs at its sole expense. Reasonableness between neighbours who choose to live together in the same building, sharing the same roof, requires that all share – and share equally – the cost of repairing and maintaining the roof. The reality, assuming that Miss Smee really does not have the money to pay her appropriate share of the cost, is that she is choosing to live in a property she cannot afford. In this context there is, as it seems to me, force in Mr Ticciati's comment that Miss Smee is being asked to do no more than any ordinary householder would ordinarily do without compulsion. If she cannot afford to do so, then I can see no reason why her poverty should throw the burden, or an increased burden, on her neighbour. If she cannot afford to maintain the Flat she should move to a property which she can afford. If she chooses not to move she should not be enabled in effect to off-load her liability onto her more solvent neighbour. In the final analysis, in my judgment, it is simply not reasonable as between neighbours for Miss Smee to go on living in a leaking property which is damaging her neighbour's property, all the time doing nothing to contribute to the cost of remedying things because she chooses to live in a property she cannot afford to maintain.[61]I should add that there is nothing in any way inconsistent here with what Lord Wilberforce and Megaw LJ were saying. The types of case they were considering were far removed from a case such as this. And neither went so far as to assert that the defendant's financial resources are always relevant, let alone determinative. In many cases, no doubt, they will be relevant – as, indeed, in the types of case they were considering. But not in every case. And not in a case such as this.[62]Lord Wilberforce, after all, suggested that the standard is:
"what it is reasonable to expect of him in his individual circumstances."
[63]With respect I entirely agree. But the relevant circumstance in a case such as this is not the fact that Miss Smee is poor: it is the fact that she chooses to live in the Flat under a roof which protects not only her but also her neighbour.[64]Megaw LJ recognised that:
"The extent of the defendant's duty may depend on the defendant's financial resources ... the defendant's capacity to find the money is relevant."
[65]He was careful to use the word "may", and his words were also cautious, and no doubt carefully chosen, when he went on to observe that:
"The question of reasonableness of what had been done or offered would fall to be decided on a broad basis, in which, on some occasions , there might be included an element of obvious discrepancy of financial resources."
(emphasis added)[66]So, in my judgment, Miss May's submission is wrong in principle. In a case such as this there is, in my judgment, no room for any adjustment, on the grounds of relative poverty or wealthy, to the respective shares of the liability which would otherwise attach to the claimant and the defendant.[67]I should add that there is in any event only limited factual support for the premise which underlies this part of Miss May's argument. The facts – and these are really the only facts we have – are that: i) Miss Smee depends on state benefits and has no other sources of income. ii) Abbahall receives an annual rent from Mr Pattinson for the ground floor of £16,000.[68]There are no findings by Judge Cotran, and no evidence, as to Abbahall's liabilities or other assets (if any). Miss May seeks to argue that there is no realistic prospect of Miss Smee being able to raise money on the security of the Flat because she would not be able to service the loan and in any event no lender would be prepared to accept a flying freehold as security. The fact is that there is simply no evidence, nor any finding by the Judge, to support this assertion. It may be the case; but not necessarily.[69]I agree entirely with Megaw LJ that even in a case where the parties' means are relevant the enquiry should be broad and need not involve a detailed examination of their respective resources. But allowing all of that, something more than the exiguous evidence adduced in this case is necessary if the kind of factual case Miss May seeks to make out is to be made good.[70]I conclude, therefore, that in all the circumstances the fair, just and reasonable basis of apportionment in this case is half and half.[71]Judge Cotran came to a different conclusion. His reasoning is to be found in this part of his judgment:
"What do we have here? We have here a lady who is 57 years old, who has, on any view, refused to co-operate in doing anything to the roof which plainly needs attention to stop ingress of water to the claimants property on the ground floor; and a situation in which she has refused access; and has refused to contribute towards the cost of putting it right. That she had known of the hazard is obvious, and she has known it for a long time. She has been the owner of that roof for a very long time, and the hazard of the ingress of water has been there for a long time [The claimants] have been active, they have been complaining, and it is this lady that refuses to do anything. Miss May says that the measured duty in the circumstances of this case should involve no sharing at all, as suggested by Megaw LJ, of the respective responsibilities. I disagree. It is quite true that [Miss Smee] is on social security, as she says in her written statement. She did not come to give evidence, but her witness statement is there and I accept as true what she says in the last paragraph of her witness statement: "
I live alone. I am a single person. Presently I depend upon state benefits for support. I have no other source of income." Compared with Mr [Pattinson] and the claimant, Abbahall Limited, certainly her resources to eliminate the danger are very limited. But that I do not think eliminates altogether a contribution which she must make. I am told that she has in this freehold a valuable asset which is worth some £250,000. It is true she may not have an income, but capacity to raise it I am sure is there by some way or another, and I do think that this roof, from the report of the experts, is in such a state that it needs urgent attention to protect, indeed, herself (but that is not the point here), to eliminate the danger which exists that gutters, bricks and materials may fall onto the public, and of the ingress of water that will certainly cause more and more damage to the ground floor and to her immediate neighbour (although not in physical occupation). Works that have already been done are dealt with in the joint report (that is the emergency works in 1996) and then it looks to the condition of the roof, and gives a quantified figure as to what it would cost to put the roof right and eliminate the water ingress, although there are certain items there which are not necessary. I hold that this is a case, having looked at the circumstances of both parties to the dispute, where I must be guided by the approach of Megaw LJ of sharing in the duty which exists and in the responsibilities for the cost of making this roof watertight and preventing the hazardous condition in the roof from causing further damage to the claimant. I believe the right sharing of responsibilities in the circumstance of this case, whether of the previous bill or any future bill, is a responsibility of 25 per cent as to the defendant and 75 per cent as to the claimant."[72]I am afraid that I cannot, with all respect, agree with the learned Judge. I suspect that we have had the benefit of more detailed argument than he had, and he seems not to have been referred to Lord Cooke of Thorndon's analysis in the Delaware Mansions case. But in my judgment he erred in principle in holding that the parties' shares of the liability to contribute to the cost of the repairs fell to be adjusted in the light of their respective financial resources. In my judgment they did not, and on that ground alone I would allow this appeal.[73]Mr Ticciati sought to argue that a different proportion should apply to certain elements of the future repairs. That is not, so far as I am aware, an argument that he sought to deploy before Judge Cotran who, correctly as it seems to me, held that the same percentage should apply both to the repairs that have already been carried out and to those which remain to be carried out. Mr Ticciati's argument was founded on the proposition that some of the repairs that still have to be carried out are necessary in order to avoid a possible public nuisance. That may be so but is, as it seems to me, beside the point. The present claim is brought by Abbahall as owner of the ground floor of the building. It is a claim in negligence and private nuisance and falls to be determined accordingly. The same apportionment should in my judgment apply to all the works.[74]In my judgment the appeal should accordingly be allowed to the extent of i) substituting an award of damages in the sum of £2,592 for the £1,296 awarded by Judge Cotran; and ii) amending his order to provide that Miss Smee and Abbahall shall each be liable for one half of the cost of the remaining works and the fees of the surveyor.[75]I should like to make two final observations.[76]The first relates to the perilous state of the building as described almost a year ago both by the joint experts and by Judge Cotran. I was dismayed to discover that nothing has yet been done by either party to carry out the works in accordance with Judge Cotran's order. There is, as it seems to me, a pressing need to put the building into a safe state of repair without any further delay and before some innocent passer-by suffers potentially grave – or even crippling injuries – as a result of brickwork falling from the parapet onto the public thoroughfare.[77]The other is a caveat as to the potential ambit of this decision. As I have made clear my decision is confined to the situation where the owner of a flying freehold shares with her neighbours below the protection of a common roof. Other solutions may be appropriate where the properties in dispute are arranged side by side rather than one on top of the other. I would also wish to reserve the question of what Miss Smee's duty might be were the cost of the necessary repairs to be of a wholly different and very much greater order of magnitude than is in fact the case. It may be that it would make no difference. It may be that it would – I have in mind Lord Wilberforce's observations in Goldman v Hargrave at p 663G. That is something on which I prefer to express no view. I observe only that the total expenditure with which the parties are here concerned – something of the order of £20,000 in all – is, when adjusted for inflation, somewhat less than the sum of £1,000 with which in 1923 the court was concerned in the case of Job Edwards Ltd v Birmingham Navigations [1924] 1 KB 341 to which Lord Wilberforce referred.

Lord Justice Chadwick :

[78]I agree that this appeal should be allowed to the extent proposed by Mr Justice Munby. There is nothing that I wish to add to his analysis of the issues in this case, his reasoning or his conclusions.[79]I should, however, emphasise the concern of this Court that nothing has yet been done by either party to carry out the works of repair for which the order of 15 January 2002 made provision. The judge accepted the view, expressed by the surveyors in their report and not challenged, that the condition of the house at Queensgate Place Mews constitutes a danger to the public. If the parties cannot bring themselves to act responsibly, it must be hoped that the local authority will give urgent consideration to the exercise of its powers to require the abatement of what, on the evidence, is plainly a public, as well as a private, nuisance. Order; Appeal allowed to the extent set out in paragraph 74 of the judgment of Munby J: order for costs made by the judge below set aside and an order substituted that claimant will have 50 per cent of the costs of the proceedings below and 50 per cent of its costs of this appeal. (Order does not form part of the approved judgment)

Cited in 8 later judgments