Horridge (t/a Newford Parts Centre) v Downshire House (Reproductions) Ltd [2010] EWCA Civ 777

[2010] EWCA Civ 777Case No B2/2009/1985
IN THE COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM THE MANCHESTER COUNTY COURT
MR RECORDER KHAN
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 July 2010
Before
LORD JUSTICE PILLLORD JUSTICE SEDLEYLORD JUSTICE LLOYD
Between
NICHOLAS JOHN NORMAN HORRIDGE T/A NEWFORD PARTS CENTREAppellantDOWNSHIRE HOUSE (REPRODUCTIONS) LTDRespondentNICHOLAS JOHN NORMAN HORRIDGE T/A NEWFORD PARTS CENTRE Claimant Respondent- and -DOWNSHIRE HOUSE (REPRODUCTIONS) LTD Defendant Appellant
James Boyd (instructed by Pearson Hinchcliffe) for AppellantSimon Charles (instructed by Horwich Cohen Coghlan) for RespondentHearing Hearing date: 24 June 2010
Judgment
[1]This appeal from the Manchester County Court seeks to challenge a finding in favour of the claimant at a split trial on liability only in a claim in nuisance. The claimant, Mr Nicholas Horridge, and the Defendant, Downshire House (Reproductions) Ltd (Downshire), are neighbours. They occupy for the purposes of their respective businesses adjoining premises at Abbey Mill, Abbey Village, Chorley in Lancashire. Mr Horridge has a single storey building which abuts that of Downshire which is much taller, with four storeys. Part of the roof of Mr Horridge’s building is supported by timber purlins, one end of which was set into the wall of Downshire’s building. In October 2004 one of these purlins ceased to support the roof. It turned out that it was suffering from wet rot. It fell away from Downshire’s wall, causing Mr Horridge’s roof to subside and itself to be pulled away from the wall. That in turn led to water penetrating Mr Horridge’s premises. Mr Horridge asserts that this caused damage to his stock which he kept in his premises, as well as consequential loss, not to mention the loss due to the need to repair the roof structure.[2]By this claim, Mr Horridge sued Downshire for damages, asserting that all this damage was caused by nuisance committed by Downshire. It is not in dispute that a downpipe, which should and would have carried away rainwater from Downshire’s roof, had ceased to be connected to the gutter and the hopper, and had fallen away, so that rainwater poured down Downshire’s wall and onto Mr Horridge’s roof. Mr Horridge alleged that this was the cause of the purlin becoming waterlogged, developing wet rot, and failing, and therefore the cause of all the damage which he suffered. Downshire, by contrast, said that the water penetration was caused by lack of proper maintenance on his part, and in particular on the failure of flashings protecting his roof against water penetration, and his omission to repair that failure, which it said had occurred before the collapse of the purlin. It contended that the failure of the downpipe could not be shown to have caused the damage to his building and stock.[3]The case came to trial on 3rd and 4th August 2009 before District Judge Khan sitting as a recorder. He heard factual and expert witnesses and submissions over the two days, and gave judgment in favour of Mr Horridge on 6th August. Downshire argues that his conclusion was wrong because he had failed to give proper weight to the evidence given by Mr Horridge in the course of cross-examination to the effect that there had been water penetration of a significant kind before the collapse of the purlin. Permission to appeal was given by Rimer LJ.[4]We do not have a copy of the order for the split trial. The recorder referred to it at paragraph 6 as an order for liability to be tried as a preliminary issue. He treated it as strictly limited to liability, leaving issues of causation and quantum to a later stage. Since private nuisance is actionable only upon proof of damage, this required Mr Horridge to prove the facts and matters relied on, including that they had caused him some damage. How much damage had been caused by the nuisance proved would be for adjudication at the second stage. However, in practice, as regards the loss consisting of the cost of repairing the roof, which may well be the most substantial item in the damages claimed and therefore the major aspect of the nuisance claim, for Mr Horridge to prove that damage was caused by Downshire’s acts or omissions complained of would itself resolve the major issue of causation. In the debate after judgment, Counsel on both sides accepted that this was the effect of his decision.[5]The recorder had to decide a relatively small number of relevant issues of fact which he identified correctly at paragraph 15 of his judgment. He held that Mr Horridge’s property suffered flooding between 6 January 2005 and 28 March 2006. He held at paragraph 25 that the downpipe was missing from 1998 “at the earliest”. He also held at paragraph 33 that Mr Horridge did have a programme of maintenance of his premises, albeit reactive not proactive, and lacking in formality. None of these findings is at issue on the appeal. The recorder had not been sure whether it was necessary for him to make a finding as to the date from which the downpipe was missing. As will appear later, it was helpful that he did so. I take it to be a finding that the failure did occur in 1998.[6]What is at issue is whether the facts and matters alleged by Mr Horridge constitute an actionable nuisance. The major case on this related to the flow of water from Downshire’s roof, down Downshire’s wall, onto Mr Horridge’s roof and, as he alleged, into his property.[7]There was also a separate allegation that in January 2005, a window frame from Downshire’s building fell onto Mr Horridge’s roof causing damage to the roof tiles, the windows and the main roof sheeting of Mr Horridge’s property. This was said to be the result of neglect by Downshire to maintain its property to a proper standard. The recorder accepted this allegation as proved at paragraph 27, and at paragraph 28 he said that it had caused damage to Mr Horridge’s glazed roofline. He held that it was due to Downshire allowing its property to fall into disrepair and was thus an actionable nuisance. By itself that could be enough to make out Mr Horridge’s cause of action, but it would not lead to recovery for the substantial loss alleged, which is attributable to water penetration.[8]To a significant extent this part of the case depended on expert evidence. For Mr Horridge expert evidence was given by Mr Peter Gillies, on the basis of a report dated 31 October 2005. Downshire’s expert was Mr Tony Mancini, whose first report was dated 5 December 2007, made without having seen that of Mr Gillies. He then made a further report by way of response dated 20 December 2007. They made a joint statement dated 25 July 2008 setting out areas of agreement and disagreement, following a joint inspection. Each attended the trial and was cross-examined.[9]Mr Gillies summarised what he had been told of the history at paragraphs 2.8 and 2.9 of his original report. “2.8 Mr Horridge advises that approximately eighteen to twenty one months ago water penetration into the Property started to become a problem, and in particular in the area of the fourth set of roof pitches from the North side, at the junction of the roof with the Neighbouring property. Water penetration has been severe during rainfall, with considerable amounts of water penetrating, flooding the floor of the Property, disrupting work and causing damage to stock through rusting. 2.9 The water penetration has caused damage to the wall finish in this area, with plaster wet, soft and spalling, and has caused structural damage to a timber roof purlin which has resulted in the support to a section of the roof becoming compromised to the point where distortion of the structure is allowing further water penetration through the valley gutters of the roof.”[10]He stated that, where the downpipe was missing, the elevation of Downshire’s building was severely pattern-stained, showing that a lot of water had flowed down it over a significant period. He said the rainwater fell to the valley gutter of the relevant section of Mr Horridge’s roof but was too much for the gutter to cope with so that it “overtops flowing under any flashings and from there into” Mr Horridge’s property. He said that the external wall above the roof became saturated with water, penetrating dampness extended to Mr Horridge’s property, affecting the plastered wall surface of the wall below Mr Horridge’s roof and from that the timber purlin.[11]He said that the internal wall surface below that point was itself saturated, the plaster surface being decayed, soft and friable, as a result of water penetration. The purlin was seriously affected by wet rot as a result of the water penetration, the part nearest the wall decayed and missing, so that “its structural integrity is significantly impaired”. As a result the roof had distorted slightly, affecting the valley gutter and leading to leakage of the gutter. His opinion was that the cause of the water penetration and resulting damage to the property and contents was the water falling down due to the absence of the downpipe.[12]Mr Mancini on the other hand, while noting that there was water saturation of the walls as a result of the missing rainwater pipe, also observed that a lead flashing detail was missing and partly damaged, directly below where the downpipe was missing. He confirmed the water saturation on the inside of the wall below the roof at this point and the water damage to the timber purlin, with extensive rot which must have been in existence for a long time to have reached that stage. Other signs of water damage were noted elsewhere in Mr Horridge’s property. He commented on the poor standard of repair and maintenance of the roof. He attributed the moisture penetration to the missing flashing, not “solely or primarily” to the absence of the downpipe, the latter, he said, causing negligible water penetration to Mr Horridge’s property. He said that, regardless of the absence of the downpipe, “no water would penetrate [Mr Horridge’s] building if the flashing detail was intact and no disrepair existed”.[13]In his second report, having seen Mr Gillies’ report, he remained of the same opinion as regards the cause of the water penetration. He disagreed as to the inability of the valley roof to accommodate the additional water. He said that most of the water would discharge onto the brick surface and only a negligible amount of water would fall directly from Downshire’s property onto that of Mr Horridge due to the absence of a downpipe. He said that the valley gutters would cope with the surcharge if properly maintained.[14]The experts agreed, not surprisingly, on a good deal in their joint statement. They set out their disagreements as to the cause of the water penetration to Mr Horridge’s property, along the lines that I have described. They agreed that their respective views were within, though at opposite ends of, the range of reasonable expert opinion. They also set out summaries of the basis of their respective opinions.[15]For Downshire it is said that Mr Mancini’s opinion obtained significant, if unexpected, support from Mr Horridge himself in cross-examination when he was being asked about damage to stock. The relevant sequence of questioning was as follows:
“Q. So when did the damage, do you say, to the stock occur? A. It happened over a period of time. Q. Right. In this particular locale? In this area? A. Yes. Yes. Q. Because of water cascading through the roof in the area around the purlin? A. Yes. Yes. Q. Did this happen before the beam dropped? Was there water coming through? A. Water was coming through before it dropped, yes. It wasn’t coming through as badly but it was coming through. Q. Right. Did that cause you to think, “Maybe it’s the flashings. That may be the cause of the water coming through”? A. No, because, as far as I was concerned, the flashings were still there. Q. Yes, but they may have failed themselves, one of them or more of them. A. I don’t know. Q. You did not give any thought. A. I gave thought to the water coming in my property because of the missing downpipe, yes. Q. Yes, but you did not give any thought to what the cause may be. A. Well, the cause was the missing downpipe. That’s where the water was coming from. THE RECORDER: Why did you think that in any event? A. Well, you could hear the water on the roof coming in in bucket loads. It was really, really strong and that was because the downpipe was missing. Q. Yes, but if the intersection was secure then surely if there was a downpipe or not then there would not have been a leak? A. I’m sorry; I don’t follow you. Q. You say that the only reason for the leak was the missing downpipe. Yes? A. Yes. Q. But if the section between the wall of Downshire’s property and your roof was secure then (you may not be able to answer this because you are not an expert, and I am certainly not an expert) if that section was secure, whether there was downpipe or not, would that not mean there would be no leakage? A. There was leakage, yes. It was streaming through but it wasn’t cascading down.”
Q. Right. In this particular locale? In this area? Q. Because of water cascading through the roof in the area around the purlin? Q. Did this happen before the beam dropped? Was there water coming through? Q. You say that the only reason for the leak was the missing downpipe. Yes? A. There was leakage, yes. It was streaming through but it wasn’t cascading down.”

Q. You say that the only reason for the leak was the missing downpipe. Yes?

[16]For Downshire, Mr Boyd submitted that the evidence that water had come through before the purlin dropped showed that the cause of the penetration was something other than the damage to the purlin and that it must have been due to separate prior damage to the flashing, neglected by Mr Horridge through inadequate attention to the need for maintenance and repair, or inadequate execution of such maintenance.[17]In cross-examination, after Mr Horridge had given this evidence, Mr Gillies said that the question was when the flashing was dislodged and that it was noticeable that no other area of flashing had suffered in this way, whereas the fact that the damage was to this part of the flashing, exactly above the purlin and exactly below the point where the downpipe was missing and the wall saturated, made it probable that the defect in the flashing was caused by the penetration and the rot, not the other way around.[18]He was asked about the effect on his view if water had been coming through before the purlin failed. The cross-examination was as follows:
“Q. No doubt the Recorder will take a view about the evidence that he has heard from Mr Horridge. Let us assume, for the sake of argument, that that was the evidence - that water was coming in in much smaller quantities at the site. Would that change your view as to causation? A. That would depend on exactly where the water was coming, because the other issue then, of course, is that if you assume that the purlin is not defective at this point but you still have a missing rainwater pipe, you are getting a volume of water discharging on to the roof that the roof and rainwater goods cannot cope with because they are not designed to take that volume of water. Q. The flashing could fail because of the amount of water hitting it? A. What you would then get is water overtopping the gutter in the valley and, in turn, soaking the inside and drenching the wall and soaking upwards potentially resulting in exactly the same problem anyway. Q. Right. But if the flashing itself is defective – it has failed and water is coming in – that is going to be a significant precipitate cause, is it not, in terms of the beam failure in due course? A. Of course it will be a contributor, yes. Q. Are you in a position to say to what extent, in your view, if it fell at that point? A. Not really. It would depend exactly on the circumstances at the time. If it is a hairline crack, it would be minimal. If it is a massive split and it has worn away from the wall then obviously you are to get a significant amount of water. Q. Yes. Because, of course, your theory is premised upon water falling for an extended period of time, is it not, from the missing downpipe? A. Yes. Yes. Q. It takes time for the water to be absorbed by the bricks to rot the purlin from the inside. A. Yes. Q. How long, would you say? Is it years? That is how I understand it; that it is a matter of years. A. It does not have to be. I would say for probably a piece of timber that size, it is probably two or three years.”

Q. The flashing could fail because of the amount of water hitting it?

[19]It does not seem to have been put to him in terms that the earlier, if lesser, water penetration, of which Mr Horridge gave evidence showed that the flashing must have been defective already by the time of the penetration. He had given a different explanation, and Mr Boyd then questioned him on the assumption that the flashing was already defective. On that basis he accepted that it would contribute to the failure of the purlin.[20]In turn, Mr Mancini was cross-examined. He accepted, as he had done in his report, that there was a possibility that some of the water penetration into Mr Horridge’s building was caused by the absence of the downpipe, but he said that it was very small and that the primary cause of the failure of the purlin was other things. In cross-examination he mentioned that the purlin was made of pitch pine, with a very heavy dense resin concentration which made its water repellent qualities very high, and that the deterioration experienced would have taken many years, more than ten years, if the rot was to be regarded as the result of saturation of the wall into which the purlin was set. This was a new point to which he had not referred in his report or in his discussion with Mr Gillies. The recorder, as it seems to me not surprisingly, criticised Mr Mancini for producing this point out of his hat at this late stage. He declined to rely on it, and he regarded it as reflecting badly on Mr Mancini’s reliability generally.[21]Mr Mancini was cross-examined later about the flashings, which he said were near the end of their useful life of some 100 years, and therefore needed regular inspection for cracks and failure. He reckoned that it was coincidence that the failure and penetration occurred directly below the defective downpipe. He thought that Mr Horridge’s evidence about prior water penetration confirmed his own initial opinion. He also said that, to the extent that water had accumulated in the valley gutter, it was because of lack of maintenance, leading to vegetation and other materials blocking the gutter.[22]In his judgment the recorder correctly identified the questions that he had to decide. I have mentioned his findings on points which were not challenged on appeal. The major issue is covered in his judgment at paragraphs 29 to 31, but incorporating by reference passages from Mr Mancini’s report, from the experts’ joint statement, and from Mr Charles’s skeleton argument on behalf of Mr Horridge at the trial.[23]The recorder stated his preference for the evidence of Mr Gillies over that of Mr Mancini. He explained his reasons. Partly this was by way of the reference to the skeleton argument on behalf of Mr Horridge, which of course did not take account of his oral evidence which had not been given when it was prepared. However, it did focus on various relevant points including the coincidence of the position of the missing downpipe and the damage to the roof, and also on Mr Gillies’ explanation as to why the flashing, even if correctly installed and not defective, could not protect Mr Horridge’s property entirely against the exposure resulting from the absence of the downpipe, and on a number of other points which were accepted or not disputed by Mr Mancini. Then in turn the recorder mentioned some specific factors, including developing the point of the coincidence of location, and the absence of any adverse effect of the same kind elsewhere on the roof or in Mr Horridge’s building. He discounted the point about the purlin being made out of pitch pine as an afterthought of Mr Mancini which had not been put to Mr Gillies. He held that another piece of flashing elsewhere was not defective (as had been suggested on Downshire’s behalf). He rejected the inference of disrepair. At the end he said this, at paragraph 32.8:
“Finally I do not regard Mr Gillies’ evidence to be in any way unreliable, in the light of Mr Horridge’s admission that water was coming through the roof before the purlin dropped.”
[24]For Downshire, Mr Boyd submitted that the judgment is defective at this point because it does not accord proper weight to Mr Horridge’s evidence as to the earlier water penetration. He argued that this evidence must show that the flashing had been defective before the failure of the purlin, since otherwise water could not have got in. On that basis he contended that Downshire’s case was factually soundly based and either Mr Horridge’s case had been shown to be wrong or at the very least Mr Horridge had failed to prove on the balance of probabilities that it was right. As developed his submission came to be, at least in part, as an alternative, a challenge based on inadequacy of reasoning.[25]For the respondent Mr Charles disputed this. He argued first that the recorder’s conclusion was adequately explained, when seen properly in context, secondly that the so-called revelation in Mr Horridge’s evidence was nothing like as important as Mr Boyd argued, and thirdly that the recorder was entitled to come to the conclusion to which he expressed, especially given the presumption following from the coincidence of location, and in any event that the significant increase in the water on the roof constituted a nuisance even without water penetration. So far as that last point is concerned, since the proof of actionable nuisance depends on demonstrating special damage, I do not see that a mere accumulation of water on a roof can necessarily be taken to constitute damage in the absence of proof that the water has in fact penetrated to the property below or caused damage in some other particular way. On the other hand, it would not be surprising if such an accumulation did cause damage to the premises under it.[26]The essence of Mr Boyd’s case is that Mr Horridge’s reference to water having come through before the purlin dropped shows that the flashing must already have been defective by then, because otherwise water could not have got through. If the flashing had already been defective, as he submits is shown by this evidence, then he would argue Mr Horridge’s proper defence against the penetration into his property of water arriving on his roof, for whatever reason, had been compromised by his own poor maintenance of his property. If water had been coming in so as to be noticeable in the way that Mr Horridge described, it would also have been affecting the purlin, and so Mr Horridge’s lack of maintenance, it is said, is the cause, or at least a cause, of the damage.[27]It is important to note that Downshire did not plead contributory negligence on the part of Mr Horridge. Its defence was a straightforward denial(a) of nuisance and(b) of any causation as regards Mr Horridge’s alleged loss.[28]Mr Charles for the respondent made a number of different points. One was that the reference to water penetration before the failure of the purlin is a good deal less revealing than Mr Boyd argued. Among other things he referred to evidence that slates not far from the position of the purlin had been re-secured with metal clips as part of the maintenance programme, which showed that they had been displaced earlier, which might itself have led to water penetration. Moreover Mr Horridge had already referred to the property as suffering from minor leaks, from which water was dripping, but not to a flood of water flowing in.[29]In principle, it seems to me plain that the failure of Downshire to repair and replace the downpipe which, on the recorder’s finding, had failed by 1998, so as not to carry away to a suitable drainage point the rainwater falling on the relevant part of Downshire’s roof, and thereby causing or permitting it instead to run down Downshire’s wall and in part directly or indirectly to fall on Mr Horridge’s roof, is conduct which constitutes a nuisance. It is however actionable by Mr Horridge only if it causes damage to him. It was necessary, as I have said, for him to prove that he had suffered some damage in order to establish liability at this stage of the split trial. In practice the issue between the experts was such that the recorder had to decide what it was that caused the damage to the property through the failure of the purlin.[30]Part of Mr Charles’ argument to us, as it had been to the recorder, was almost on the lines of res ipsa loquitur. Thus, you find water cascading down from Downshire’s property onto this part of Mr Horridge’s roof, over a substantial period, due to Downshire’s neglect, and you find the relevant part of Mr Horridge’s roof failing due to water penetration and the rotting of the purlin, and no similar damage elsewhere. He argues that the coincidence is too powerful a factor to be defeated by arguments by way of inference as to the pre-existing defect of a flashing over an uncertain period.[31]It seems to me to be significant that the recorder held that the downpipe was missing for six years or so before the failure of the purlin. The cause of the failure of the purlin, it is agreed, was water saturation leading to wet rot, as a result of which the end of the purlin which was embedded in Downshire’s wall lost its structural integrity, became detached from the wall and therefore ceased to support the roof. That, it is also agreed, was the result of prolonged exposure to water. Mr Charles pointed to the fact that Downshire’s wall, both above and below Mr Horridge’s roof, was itself saturated with water, as the experts agreed, and was likely to be so in any event because of the constant flow of water down Downshire’s wall over a period in excess of six years. Both experts found this to be the case, although neither of them knew for what period it would be found that the water had been flowing down the wall due to the absence of the downpipe.[32]As Mr Boyd put the case to us, it focused essentially on whether the recorder had dealt properly or adequately with the implications and significance of Mr Horridge’s evidence that water had been coming through his roof before the purlin dropped. Although not so formulated in terms in the grounds of appeal it became, to some extent at least, a challenge to the adequacy of the recorder’s reasoning. Such challenges on appeal are rare but less so than they once were, since Flannery v. Halifax Estate Agencies [2000] 1 WLR 377 and English v.Emery Reinbold and Strick [2002] EWCA Civ 605. The latter case emphasises the obligation of a judge to explain the basis of his decision on any given issue sufficiently for(a) the parties, especially the losing party, and(b) an appellate court to understand why he has come to the conclusion stated.[33]Here the challenge is to the recorder’s paragraph 32.8, quoted at paragraph [23] above, in which, having given other reasons why he preferred Mr Gillies’ evidence to that of Mr Mancini, he said he was not swayed from that preference by Mr Horridge’s evidence as to the prior water penetration.[34]Mr Boyd also referred to observations of the recorder in the course of final submissions. This arose soon after Mr Boyd had finished his oral submissions and Mr Charles had embarked on his. The recorder said this:
“I am sorry to interrupt you, Mr Charles. If there is any force in the point, I think it goes only to the question of apportionment, if anything, but I am not sure, the way the case has completed on how the evidence has come out, that I have got the necessary material to deal with the question of apportionment. I could guess, but I think, if I guess, both of you will probably go up to the Court of Appeal. Whilst, without wishing to be disrespectful to Mr Boyd, the point has a superficial attraction, I looked at my notes over lunch and saw the context in which the concession (if you want to call it a concession) was made, but I am not sure it is the key point.”
[35]The reference to apportionment is puzzling at first sight, but it seems to me that the recorder may have been thinking along lines which could have led to a conclusion that the damage was caused by Downshire’s fault but was also contributed to by fault on Mr Horridge’s part. That would have been relevant and legitimate if Downshire had relied on contributory negligence. As it did not do so, the recorder had only to decide the first of those points, whether or not the damage was caused by Downshire’s conduct.[36]Mr Charles also relied on that passage for the remark that, in context, the so-called revelation was not as significant as it might have seemed. However, the recorder did not explain in terms, then or later, why he was of that view.[37]We were also shown some comments by the recorder during the submissions after he had given his judgment. Mr Boyd applied for permission to appeal. In the course of that he said:
“Seeing as your Honour was in no position to determine apportionment, Mr Horridge could not make out his case on causation.”
In his brief ruling refusing permission to appeal, the recorder said this:
“There has been an application for permission to appeal against my decision, primarily arising out of the evidence that Mr Horridge gave, namely that there had been water penetration before the purlin under the valley 4 dropped. I take it the application for permission to appeal is on the basis that the appeal will have a real prospect of success? I refuse the application because I am not satisfied, on the basis of submissions, that it could be said that taking into account the weight of the evidence, particularly the evidence of Mr Gillies, that that issue should have, or could reasonably have, outweighed all the other evidence, particularly of Mr Gillies, so as to lead to a conclusion that the claim should fail.”
[38]In his written reasons for refusing permission to appeal he kept closely to what he had said in his judgment.[39]The parties then spent some time outside court endeavouring to agree directions as to the next stage of the trial, and came back for debate as to the exact terms of the order to be made. At the very end of that process, as a parting remark, the recorder said this:
“Thinking about it, the experts might have been asked to deal with some form of apportionment. These things always come out at trial.”
[40]In general terms, a judge must provide enough in his expressed reasoning to enable the parties to know why the case has been decided as it has. However, it would be wrong to expect the judge’s reasoning to be fully developed and exposed in all cases and on all points. Otherwise judgments, which already tend to be too long (I do not speak of the recorder in this case, but generally) would become even longer, and substantially more time would elapse before they can be delivered. It is worth remembering that the recorder gave his judgment with only one day’s interval after the conclusion of the evidence and argument, so that matters were fresh in the minds of all concerned. We have recourse to a transcript of what was said, which we can examine minutely; the recorder and the parties and their lawyers did not have that, but they had their notes and fresh recollections of the course of the evidence and the trial.[41]The recorder referred expressly to the point at issue. It is clear that he had it in mind, that he did so in the right context, namely whether it undermined Mr Horridge’s case based on the expert evidence of Mr Gillies, and that he concluded that it did not.[42]For my part, it seems to me that this was an eminently reasonable conclusion. The question, in the end, was what it was that had caused the purlin to become saturated with water to the extent of developing wet rot, and thereby falling away from the wall and failing to support the roof. There was, really, no doubt that a major factor must have been the water falling down from Downshire’s roof due to the absence of a downpipe, whether directly onto Mr Horridge’s roof or down the surface of Downshire’s wall, thereby saturating the brickwork all the way down. The absence of any similar symptom elsewhere on Mr Horridge’s roof was inconsistent with it having occurred even if the downpipe had not failed.[43]Mr Mancini’s opinion was that, despite the additional incidence of water due to the failure of the downpipe, there would have been no penetration but for the failure of the flashing (which he would have to say was not itself caused by the excessive burden of water) and the failure of Mr Horridge to mend the failed flashing. Mr Gillies accepted in cross-examination, on the hypothesis that the flashing had been defective, that such a defect would have contributed to the exposure to water. He did not accept, and it was not put to him, that this would have been the sole cause. Correspondingly, Mr Mancini said that the missing downpipe was not the sole or primary cause of the water penetration. He did not say that it was not causative at all.[44]On that evidence, an argument of this kind seems to me to be a paradigm of a case of contributory negligence, not one of no causation at all. Apart from that, the question is whether Mr Horridge’s evidence of prior water penetration really does show that Mr Mancini’s theory was correct, or at least that Mr Gillies’ theory was not made out on the balance of probability. Mr Mancini thought that the purlin would have to have been exposed to water saturation for ten years or more before it would have lost its structural integrity by rotting as it did. Even if that is regarded as an exaggeration, because of the reference, which the recorder held to be unreliable, to the water repellent qualities of the timber, Mr Gillies’ view was that it would have required two or three years of exposure to get into that state. We know that the downpipe had been missing for over 6 years, because the recorder so found. On that basis, Mr Horridge’s roof was exposed to the resulting excessive fall of water, and Downshire’s wall to water saturation of the brickwork all the way down, for more than long enough to have caused the purlin to rot. Mr Horridge gave evidence of prior water penetration in the relevant area, but he was not asked how long beforehand this had been happening. It is therefore not open to the appellant to contend that this penetration had been happening for so long that, even on Mr Gillies’ approach (let alone that of Mr Mancini), it could itself have caused the rotting of the purlin.[45]As it seems to me, given the length of time for which Downshire’s failure to maintain its rainwater pipes had led to Mr Horridge’s roof being exposed to excessive amounts of water and Downshire’s brick wall becoming saturated with water (below, as well as above, Mr Horridge’s roof, as we know from the experts’ observations), and given the evidence that it would require quite a long time (even if not the very long time of which Mr Mancini spoke) for water saturation to cause the purlin to come into the rotten state in which it was found to be after the failure, Mr Horridge’s evidence of some water penetration in the relevant area before the failure of the purlin is, as the recorder thought, of much less significance than Mr Boyd sought to persuade him and, in turn, us. Not only may it have resulted from other causes than defective flashing (such as slipped slates), but even if it did show a failure of a flashing, it does not show that this had occurred long enough before the failure of the roof for the defect in the flashing, and Mr Horridge’s failure to repair it, to have been the cause of the purlin becoming rotten and therefore failing.[46]Moreover, Mr Mancini’s opinion that, if the flashing had not been defective, there would have been either no exposure, or at best negligible exposure, of the purlin to water as a result of the absence of the downpipe does not seem to me to meet the point that one of the effects of the flow of rainwater was to saturate the brickwork of Downshire’s wall, and that this led to water permeating down through the wall and reaching the area of wall beneath the level of Mr Horridge’s roof. It seems to me that Mr Gillies’ opinion that this was at least a significant part of the cause of the purlin itself becoming saturated, and as a result rotting, is compelling. It would stand regardless of whether, for some unknown period, part of the flashing above the roof was defective. Even a perfect flashing cannot protect Mr Horridge’s property from the effect of water passing down through the brickwork of Downshire’s wall. Mr Mancini’s comment that most of the errant water would discharge on to the brick surface of the wall seems to me to be both apt and revealing in that context. It is not an answer to the contention that the water caused the purlin to fail, when one has regard to the effect of the water passing down through the brickwork.[47]In the light of all of this, it seems to me that the recorder’s judgment was neither wrong nor inadequately reasoned in the circumstances. From my reading of a large part of the transcript of the trial, it seems to me that he dealt fairly and efficiently with the trial. Having done so, he gave a clear and convincing judgment, with commendable speed after the trial, by which he resolved the questions entrusted to him in a proper manner, giving due weight to the evidence adduced and to the arguments on each side, and explaining his reasoning adequately. I would dismiss the appeal.[48]I agree.[49]I also agree. ORDER BEFORE Lord Justices Pill, Sedley and Lloyd AND UPON hearing Counsel for the Appellant and the Respondent IT IS ORDERED:-

ORDER

[1]The Appellant’s appeal is dismissed.[2]The Appellant shall pay the Respondent’s costs of the appeal to be the subject of summary assessment[3]For the purposes of the summary assessment:(i) Copies of each party’s schedule of costs for the appeal shall be sent to the Clerk to Lord Justice Lloyd no later than 10am on Wednesday 14 July 2010(ii) The court will determine the amount of the summary assessment without a further hearing[4]The matter shall be listed for a CMC before District Judge Khan sitting at the Manchester County Court on the first available day after 20th July 2010 with a time estimate of 45 minutes plus 15 minutes reading time.

Cited in 1 later judgment