Christel Naish v Vasos Vassili & Anor [2025] EWHC 1619 (Ch)

[2025] EWHC 1619 (Ch)Case No CH-2024-000188IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESVenue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 30/06/2025
Before
SIR ANTHONY MANNSitting as a Judge of the High Court
Between
Christel NaishAppellant(1) Vasos VassiliRespondents(2) Mrs Jyotibala PatelRespondent
David Mayall (instructed by Thirsk Winton LLP) for AppellantPaul Wilmshurst and Rabby Fozlay (instructed by Anglo Law Solicitors) for RespondentsHearing Hearing date: 7 th May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................SIR ANTHONY MANNSir Anthony Mann :Introduction
[1]This is an appeal from an order and judgment of HHJ Hellman, sitting at the Central London County Court. The judgment was delivered on 17th January 2024; the order was made on 24th July 2024. In the order the judge declared the position of the boundary between two residential properties - 1A Chadacre Ave, Ilford (the defendant’s property), and No 1 Chadacre Ave (the claimants’ property), as following the flank wall of 1A., including the footprint of two chimney breasts, and continuing a line into the garden. He made it by reference to a plan produced by a surveyor and annexed to the order. That plan is reproduced as Appendix 1 to this judgment. The consequence of that is that the claimants succeeded in claiming what is a very narrow gap of dead space (a few inches) between the house on 1A and an extension which was erected some years ago by the claimants on No 1. The defendant appeals that finding and says that the line should have been offset from the wall by the width of an overhanging guttering on that flank wall. This would enable her to claim ownership of that gap. The defendant/appellant (Ms Naish) at one stage maintained that if her boundary was correct then a tap and downpipe that the respondents had attached to their wall trespassed by overhanging. Her pleading indicated that she was content for the downpipe to remain (contrary to pre-action correspondence) but maintained that the tap was a trespass. On the appeal Mr Mayall for Ms Naish said she no longer took issue over the tap. The claim over the gap would therefore seem to have no further practical significance on the ground. When the two adjoining houses were built the gap, as a gap, did not exist because at the side of No 1A was open garden or a driveway. The gap was generated some years ago by the extension which the owners of No.1 build. It is now dead space, and one would have thought it was not worth arguing about. Nonetheless the parties are still at loggerheads over it, and have not managed to settle the dispute so this appeal is maintained in relation to the gap. It is pointless for me to make the further observations about the merits of that part of this litigation that I might otherwise be tempted to make.[2]When the relevant boundary line was translated from the plan on to the ground, it became apparent that the claimants had built on a very small triangle of land (longest side about 1.2m) which fell on Ms Naish’s side of the boundary (shown on the plan). The judge rejected a claim by the defendants that they had acquired this land by adverse possession, implied agreement and/or proprietary estoppel. There is no appeal from that determination.[3]The claimants commenced these proceedings, seeking a determination of the boundary, apparently because an extant dispute meant they could not sell the property. There were cross-claims by each party about what the judge called “micro-aggressions” over a period of time, in respect of which he made no order because he said they cancelled each other out. There is no appeal in relation to that.[4]The judge decided one further issue. He decided that the construction of a deck with underlying concrete hard up against a conservatory at the rear of Ms Naish’s property was responsible for 20% of the incursion of damp into that conservatory and ordered that the claimants pay her £1226 damages in respect of that. Ms Naish appeals that determination on the footing that the judge’s assessment of the contribution of that decking was too low and should have been 50%.[5]There are therefore two principal points on this appeal - whether the judge was correct to determine that the boundary between the properties lay along the flank wall of 1A, or whether it was defined by a plane cast down from the edge of the guttering on 1A; and whether the judge was right in his attribution of causation of the damp caused to Ms Naish’s conservatory by the adjacent decking of the claimants.[6]For the sake of clarity I should say that the plan in Appendix 1 shows features which were not present at the time of the 1953 conveyance which has to be construed in this case. On Ms Naish’s side it shows a conservatory that she erected at the rear of the property, and on the claimants’ side (No 1) it shows an extension built since 1953, which defined the gap which is in issue in these proceedings, the decking and a building to the rear which is a converted garage and which again was not built at the time of the critical conveyance in this matter.

The boundary point - the conveyances

[7]The critical conveyance is a 1953 conveyance of 1A under which it was carved out of a bigger plot, including No 1, by a developer. It is dated 20th October 1953, and the developer conveyed it to a Mr and Mrs Smith. The parcels clause describes the land thus:
“[the land] is for the purpose of identification only more particularly delineated on the plan annexed … and thereon coloured pink and numbered 1A thereon”
. Because so much turns on it that plan is annexed to this judgment as Appendix 2. The conveyance also contains a purchasers’ covenant that they will:
“within three months of the date of this deed erect and forever thereafter maintain a sufficient boundary fence not less than five or more than six feet high on the boundary of the property hereby conveyed and marked “T” on the plan annexed hereto.”
[8]As the judge observed, the plan is headed “proposed new houses: Chadacre Avenue, block plan”. It is an architect’s drawing, not an ordnance survey plan. According to paragraph 8 of the judgment below, the judge considered that the plan showed the boundary is running along the flank wall of 1A.[9]This conveyance is the key document which requires construing in this case because it is the conveyance which defines the parcels of 1A. It seems to have been common ground that the relevant boundary defined by this conveyance had not changed since 1953.[10]About a month later, on 16th November 1953, No 1 was sold by the same developer to J E Mackay Esq. The same wording is used in the conveyance, and the judge observed that the plan annexed was the same plan as was used in the October 1953 conveyance of 1A, though presumably differently coloured so as to reflect that the conveyance was of No 1 and not 1A.[11]There are later conveyances, which I mention for the sake of completeness because the judge mentions them, but they are of more peripheral relevance to the question that arises on this appeal. In 1957 1A was conveyed to a Mr Highams, describing the property by way of simply referring back to the October 1953 conveyance. Then on 23rd January 1961 Mr Highams conveyed 1A to Mr Charles Naish, the father of the defendant in this case. The plan annexed to this conveyance (again for identification purposes only) is not a coloured extract from the original estate plan. It is a differently drawn plan, with a number of dimensions on it. It seems to show the boundary line following the flank wall of 1A, but with two slight protuberances which are presumably the chimney breasts. Obviously this plan, coming after the 1953 conveyance, cannot be used directly to construe the earlier conveyance, but it may not be without significance that the boundary between 1A and No 1 is not shown, at the side of the house, as being marked by a fence. I will return to this.[12]It is not necessary to refer to the detail of any later conveyances of either property.

The decision below - the boundary point

[13]HHJ Hellman summarised a lot of the evidence and set out the relevant law in terms which the parties accept is correct. Having done that he gave his reasons for fixing the boundary where he did by indicating that his task was to construe the “contracts” (he must have meant the conveyances) by which the parties predecessors acquired their titles . He acknowledged that topographical features at the time would have been relevant. He compared the plans on those conveyances to later plans (a source of criticism in this appeal) and then considered three topographical matters. First, he rejected the significance of some box guttering on the boundary wall of No 1’s extension. He was right to do so, and I need say no more about it. Then he “attached little weight” to the fact that guttering, the facia to which the guttering was attached and the foundations of 1A extended beyond the line of the wall. This rejection lies at the heart of Mr Mayall’s submissions on this appeal. Third, he rejected evidence from Ms Naish that there was a fence running up the side of her house from a date a few years after 1A was carved out and which she said marked the boundary. The rejection of this evidence is criticised. His crucial finding was that the plans annexed to the two original conveyances “provide support for [the surveyor’s] conclusions that the boundary runs along the flank wall of No 1A” (para 100).

The boundary dispute - the principal grounds of appeal and criticisms of the judgment below

[14]Mr Mayall’s main point flows from his averment that the judge failed to find or even appreciate that the house on 1A, and indeed the house on No 1, were both already built at the time of both conveyances. Had he reached that finding he would have considered that the house on 1A was a key part of the topography which it was necessary to take into account in ascertaining where the October 1953 conveyance put the boundary. It would have been apparent that the guttering (and facia) extended beyond the wall of the house, as would the foundations, and it must have been the case that the parties would not have intended that the conveyance would immediately give rise to the trespass that would have existed had the boundary been along the flank wall. Accordingly, the boundary was actually in a position which would enable the guttering not to trespass, which meant that it was in a plane cast down from the line of the guttering. He did not emphasise the same point in relation to the foundations, but the same point could be made. Although there was no factual evidence about the position of the foundations the claimants’ surveyor seems to have assumed that they extended beyond the flank wall of 1A towards No 1. Accordingly the judge was crucially wrong in paragraph 102 of his judgment when he considered the protrusion point and said:
“102. Second, the guttering, fascia and foundations of 1A extend beyond the boundary line as adjudged by Mr Mann [the claimants’ surveyor]. But his evidence, which I accept, was that this was not unusual. I therefore attach little weight to the location of these items.”
[15]Mr Mayall’s next big point was to criticise the judge’s rejection of the evidence of Ms Naish about the existence of a fence which she said ran from the front of the property at the side of the house a little way away from the flank wall of the house. It was indeed her evidence that when she moved into 1A with her father in 1961 there was an existing boundary fence roughly along the line of what she maintains is the boundary at the side of the flank wall. However, the judge rejected her evidence on the footing that she was an interested party and her recollection was demonstrably inaccurate or unclear in some respects, although these lapses related to when things happened rather than where things were physically located (paragraph 104). He also found that her evidence was contradicted by Mr Seymour, a previous owner of No 1, who said there was no fence along the flank wall when he was living at the property (between 1982 and October 2013). Mr Mayall said that no attention should have been paid to what was said to be the evidence of Mr Seymour because the statement which he made and which was relied on by the judge was not admissible as evidence. I deal with the circumstances of this below. In those circumstances, Mr Mayall submitted, there was no evidence to contradict clear evidence of Ms Naish and her evidence should have been accepted.[16]He also had some criticisms of the judge’s formulations of his task. Thus in paragraph 98 the judge suggested that his task was to construe both of the original conveyances by the developer, and not just the conveyance of 1A which was his real task. He went on to say that:
“In so doing, I can take into account the conveyancing history of both parcels”
. That is said to be an error - the subsequent history could not affect the construction of prior documents which had to be done by reference to those documents alone and their contemporaneous circumstances. Mr Mayall further complained that the judge considered that he was entitled to take into account the topographical circumstances at the time of of both conveyances, whereas it was only the topographical circumstances at the time of the 1953 conveyance of 1A that were relevant. The judge also wrongly took into account the 1961 conveyance, apparently showing the boundary following the line of the flank wall and the chimney breasts.

The law

[17]There was no dispute on the law either here or below. The judge set out the authorities on which he relied and the parties did not dissent from their application to this case. He first referred to Pennock v Hodgson [2010] EWCA Civ 873:
“7. The opinion of Lord Hoffmann in Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894 is now regarded as the leading modern authority on the construction of the parcels in a conveyance. The rest of the Appellate Committee agreed with it. It discusses the status of an Ordnance Survey plan attached to a conveyance “for the purposes of identification” and the inferences that may properly be drawn from physical features of the land existing and known at the date of the conveyance. They are all familiar themes in boundary disputes. 8. Ought the judge to have ignored evidence of the presence and position of the fence, when construing the parcels clause and the attached plan? The judge should, according to the claimants, have excluded the fact of the fence from the process of construction, because there was no ambiguity in the presence and position of the stream shown as a boundary feature on the attached plan. 9. Alan Wibberley supplies the solution. From it the following points can be distilled as pronouncements at the highest judicial level :- (1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time. (2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land. (3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance. (4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary. 10. The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v. Ashton [1915] AC 900 at 906 Earl Loreburn said in a dispute about title to a small strip of land:- “We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.” 11. Lord Parker said much the same thing in different words (see p913.) He also said:- “There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence…”
(p. 909) “It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence…” (p. 912) 12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach …”. (1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time. (2) An attached plan stated to be “for the purposes of identification” does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land. (3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance. (4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.[18]He also cited Wigginton v Winster Engineering Ltd [1978] 1 WLR 1462, per Buckley LJ: “When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being “for identification only,” it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise *1474 purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be “for the purposes of identification only” does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel.” (p1473G-1474A)

The boundary dispute - determination

[19]So far as concerns the criticism that the judge did not proceed on the basis that both houses were constructed by the time of the October 1953 conveyance of 1A, it is true that the judge did not expressly find that 1A was built by that time, which both parties agree and agreed to have been the proper assumption. This is puzzling because it is difficult to believe that he did not have it in mind. It was (I am told) the case of both parties that it was so built. The transcript clearly records Mr Mayall’s submission that both properties were built by then, and the judge did not demonstrate any doubt about the submission at the time. It would seem unlikely that he forgot it. Furthermore, various paragraphs of his judgment only make sense if he had in mind the existence of a house there at the time - for example, paragraph 99 (a comparison of the 1953 and 1961 plans) suggests that he was treating 1A as existing throughout. It is also implicit in his paragraph 102, set out above. He does not dismiss the guttering point as being irrelevant because the house was not there. On the other hand, as Mr Mayall pointed out, in paragraph 5 the judge said he would refer to the two properties respectively as No 1 and 1A “to refer to the those parcels of land before they were built on or where it was not clear whether they had yet been built on.” That does not betoken a clear understanding that the houses (and in particular 1A) was built at the time of the October 1953 conveyance.[20]In the circumstances, it is not clear that he gave the October 1953 material, including the presence of 1A at the time, the prominence that it deserved. The October 1953 conveyance is the conveyance and plan which required to be construed, and it would seem from the judgment that the judge’s focus was more on the 1961 plan and the conclusions that Mr Mann (the claimants’ surveyor) drew from it. That is perhaps not surprising in the circumstances. Remarkably, when he prepared his report Mr Mann did not have the October 1953 conveyance, and he only saw it during the trial, which led to a further report from him. Indeed, I believe that I was told that Ms Naish’s October 1953 conveyance was only introduced into the proceedings during the trial. Judging from his report, Ms Naish’s expert did not have October 1953 conveyance and plan either. Mr Mann’s first report, in which he concluded that the boundary lay along the flank wall of the house, reached that conclusion by taking the 1961 conveyance plan with its comprehensive dimensions, and the claimants’ November 1953 plan, measuring the existing houses and overlaying all those factors. He found that they all fitted extremely well and reached his conclusion as to where the boundary lay. The judge found that the plans for No 1 and 1A provided support for that conclusion (paragraph 99). There may be an over-emphasis on the 1961 plan which was misplaced. If that was the case it is not surprising bearing in mind the way in which the matter was presented to the judge. The 1961 plan (bearing a date in 1958) is not the plan of the conveyance that was to be construed, and as such cannot be relied on to demonstrate the boundary (as opposed to topographical features, a point to which I will come).[21]In addition, what can be said about the judgment is that the judge did not fully address the argument that the plane of the guttering, and the foundations, was the true boundary line, and not the plane of the flank wall, and he did not consider that clearly in the context of a finding that 1A existed at the time of the October 1953 conveyance. All he said about that appears in paragraph 102. The judge’s judgment at this point does not address the topographical fact and significance of the presence of building as being a key topographical factor, which in my view it was. The reference to Mr Mann’s evidence about guttering is a reference to a passage in his cross-examination in which he vigorously asserted that it was common building practice to build so that gutters overhung an adjacent property. He also seemed to say the same about protruding foundations, and guessed that 1A’s foundations protruded about 6 inches beyond the flank wall. He stuck to his case that producing such overhangs and undercuts was common building practice.[22]That particular point seems to me to be irrelevant to the construction point that arises in this case. Mr Mayall’s case is that where such overhangs occurred it would be nonsense to say that boundary was the flank wall because that would mean that the overhang was a trespass. That was hardly a question for Mr Mann as a surveyor. Common building practice does not go to the construction point unless, I suppose, it were something known to both the developer and the purchaser, which was not alleged. It follows that the judge’s rejection of the guttering point was not on a sound basis.[23]The matter therefore needs consideration on this appeal. As Mr Mayall accepted, it was his main point. One starts with the proposition that the house was built at the time of the October 1953 conveyance. It was therefore a key piece of topographical extrinsic evidence. The boundary on the plan seemed to be hard up against the flank wall, so far as one can judge from the small scale plan. Mr Mayall’s point is that any purchaser and any seller (developer) looking at that situation on the ground would inevitably conclude that the boundary had to lie in the plane of guttering because otherwise there would be a trespass by the guttering as soon as the conveyance completed.[24]While I agree that it is useful to consider what would have been apparent to the parties on the ground at the time of the October 1953 conveyance, in the light of the terms of that conveyance, there are at least two flaws in where Mr Mayall takes that analysis. The first is that I do not consider that that is how a purchaser and developer would look at the situation. I think that a purchaser standing with the plan in his/her hand and looking at the position on the ground is unlikely to look much beyond the obvious flank wall of the house (including the protrusions of the chimney breasts). That would be an obvious boundary feature which fitted with the plan. I do not think the parties would cast their eyes upwards and see the guttering and re-shape their view of the boundary to the plane of the exterior face of the guttering. That does not seem particularly plausible. Nor do I think that the purchaser would be aware that foundations protruded beyond the flank wall (if indeed they do - there was no actual evidence of that, only a bit of speculation on the probabilities by Mr Mann). So the natural view of the boundary at this point would be the flank wall. It is the obvious topographical feature which bears on the question. It was not suggested that, at the time, there was any fencing which cast light on the situation.[25]Second, I do not think that the fear that there would be an inevitable trespass by the guttering is correct. A purchaser would no doubt think that he/she was acquiring the guttering, but it would not necessarily trespass. A more natural conclusion would be that the guttering and the airspace occupied by it would pass so there would be no trespass and the purchaser would still acquire the guttering (and the airspace that it occupied). Alternatively the right to maintain the guttering could be justified by an implied grant of an easement. Either way, there would be no trespass. That is a much more satisfactory way of analysing the situation than Mr Mayall’s trespass analysis which argues that the only way to avoid an otherwise inevitable trespass is to assume a grant of the gutter and cast a plane downwards to form the boundary. It is established on the authorities that the grant of a building may well include parts which project beyond its apparent boundary, and that the right to maintain a projection may be acquired as an easement - see Gale on Easements 22nd Edn para 11-41; and Truckell v Stock [1957] 1 WLR 161. That is what happened here, if one has regard to the presence of the completed house at the date of the conveyance. Mr Mayall’s trespass difficulties simply do not arise. The natural view of the position as at October 1953 is that the boundary at ground floor and above was the flank wall of the house (incorporating the bulge of each chimney breast), and that that boundary operated upwards save that at the guttering level that guttering passed and the profile of the guttering, at that level only, marked the boundary. I prefer that analysis to that of an easement, but either way the material parts of what is now the gap did not pass to 1A.[26]For the sake of completeness I should record that Mr Wilmshurst did not advance the analysis in the preceding paragraph as part of his submissions. Neither party considered the possibility of the guttering (and foundations, if relevant) defining their own boundaries, as it were. It is a point that occurred to me. I gave both parties the opportunity of considering the authorities to which I have referred and making submissions. Both parties did that. Neither of them accepted the analysis and Mr Wilmshurst submitted that it was too late to take a point based on those authorities, even though the authorities could ultimately be made to assist his case in resisting Mr Mayall’s analysis. I reject the submission that the point was taken too late. Neither party was prejudiced by its being taken late, and it is not possible to see how it could be affected by any further evidence. Since the point is plainly one which assists in bringing this unfortunate litigation to its proper conclusion it seems to me to be important to address it. My views on its significance have already appeared.[27]Mr Mayall’s other major point was the rejection of his client’s evidence about there being a fence when she came to the property in 1951, the fence being on what she maintains to be the boundary line. His complaint is that the judge rejected it because he allowed in and gave weight to the written evidence of Mr Seymour, a former occupier of No 1 which contradicted it. Mr Mayall says that no attention should have been paid to the evidence because it was in the form of a statutory declaration, not a witness statement, and in any event the claimants had been debarred from deploying any witness statements.[28]The relevant paragraph of the judgment below where Mr Seymour’s evidence was referred to was paragraph 104:
“104. Ms Naish’s recollection was demonstrably inaccurate or unclear in some respects, although these lapses related to when things happened not where things were physically located. Her evidence about the fence was contradicted by Mr Seymour who stated that there was no fence between the flank walls when he was living at the property. Ms Naish’s evidence was that the fence was removed by the claimants. Mr Seymour was on good terms with Ms Naish when they were neighbours and would have no motive to state the facts incorrectly. However, I note his medical condition and, as Ms Naish speculated, he may have been confused.”
[29]The history of this statutory declaration is a little odd. On 10th November 2023 HHJ Parfitt had refused an application by the claimants for relief from sanctions for late service (or attempted service) of their witness statements (including Mr Seymour’s statutory declaration) and there was no appeal from that. Accordingly the claimants were not allowed to put in any witness statements and not allowed to call the witness evidence they would otherwise have called. Notwithstanding that, the question of the presence in the bundle of the statutory declaration of Mr Seymour came up before HHJ Dight - it appears he sat the day before the trial was due to start to deal with matters that had come up, including the question of the presence of the statutory declaration in the trial bundle. Ms Naish’s solicitors had challenged the appearance of witness statements in the trial bundle in a letter of 24th November 2023. That led the claimant’s solicitors to seek clarification from

Judge Parfitt as to the effect of his order, and the court sent back the reply from him:

“In any event the statements should not be in the bundle - witness statements without a called witness cannot be evidence at the trial.”
[30]Notwithstanding that, apparently the claimants proposed to put the statutory declaration in the trial bundle. The matter was raised before HHJ Dight, and it was dealt with briskly. I have been given a transcript of the debate and it records Mr Mayall as saying:
“MR MAYALL: it is a document in circumstances where they wanted to call him and could have called in if they – it is difficult to see how the judge is going to place any real weight on it. [and then shortly afterwards] But it is a document and it is a statutory declaration, I suppose it can stay in the bundle. My learned friend said you can get statutory declarations made 30 years ago, well yes but then the witness is not available. JUDGE DIGHT: No, exactly but it is to prove title in a conveyancing situation. This appears to have been as a form of evidence for trial, which it is not. But it is not a prelude to someone being called as a witness.”
And that was an end of the debate on that occasion. The document therefore found its way into the bundle.

[and then shortly afterwards]

[31]Mr Wilmshurst claimed that he put the contents of the statutory declaration to Ms Naish. Mr Mayall accepted that putting the document to the witness would have been permitted - he told me that he considered that that was the farthest consequence of its appearing in the bundle. The transcript demonstrates all that happened was that Mr Wilmshurst asked Ms Naish if she had seen the statutory declaration. She confirmed she had and that Mr Seymour was confused about a few things. Its contents were not explicitly put to her. Then in final submissions Mr Mayall raised the question of the statutory declaration and its non-status as a witness statement to which

Judge Hellman observed:

“JUDGE HELLMAN: I have treated it as being admitted so it is a bit late now to argue about it if .. MR MAYALL: No, no I - His Honour Dight said “Well it can go in as a document but in the absence of any evidence from Mr Seymour”
And the absence of any ability to cross-examine him then - … Well we submit it should carry no weight or very, very little weight. Certainly not enough to overcome the testimony of Mrs Naish , who we submit was a perfectly reasonable witness who was telling the truth.”[32]All this is rather unsatisfactory. It is not apparent from what I have been shown when or in what circumstances HHJ Hellman saw the statutory declaration, or in what circumstances “treated it as being admitted”. If he had made some sort of decision about that then that ought to be the subject of an appeal in this area, but nobody suggested he had delivered any sort of decision on the point. It has been rendered even more unsatisfactory by the fact that Mr Wilmshurst said to me that in fact the statutory declaration had been served under cover of a Civil Evidence Act notice. When that matter was investigated further it turned out that that been the intention of the claimants, and one had been drafted (the draft was shown to me after the hearing) but it was “inadvertently” not served.[33]All this means that I should treat this part of the appeal as one relating to the proper evidential treatment of the statutory declaration where it was one of several witness statements that were not allowed to be deployed because they were not served in time.[34]It seems to me that Mr Mayall is right about what the position ought to have been. The original order for witness statements had provided that signed witness statements “and any notices relating to evidence” ought to have been served by 24th February 2023. That was not complied with either in respect of witness statements or Civil Evidence Act notices. The claimants’ application for relief from sanctions was refused. That meant that they had lost the opportunity to deploy even a Civil Evidence Act notice. That was not necessarily the end of the matter because section 2(4) of the Civil Evidence Act 1995 says:
“(4) A failure to comply with subsection (1) [requiring a notice to be served], or with rules under subsection (2)(b), does not affect the admissibility of the evidence but may be taken into account by the court - (a) in considering the exercise of its powers with respect to the course of proceedings and costs, and (b) as a matter adversely affecting the weight to be given to the evidence in accordance with subsection (4).”
[35]CPR 32.10 prevents a party from calling a witness in respect of whom a witness statement has not been served within the time specified. A note to Rule in the White Book at paragraph 32.10.3 says:
“Where a party is in breach of the sanction imposed by this rule it would not be appropriate to admit the witness statement as hearsay evidence: Gladwin v Bogescu [2017] EWHC 1287 (QB) (Turner J).”
[36]Turner J’s judgment is not quite as categorical as that - he uses the word “often” rather than “always” when considering the appropriateness of disallowing the evidence (see paragraph 34). However, in this case it is hard to see why one would not apply that practice, which makes sense as a general rule. The failure to serve witness statements on time was very serious. The same applied to the right to serve a Civil Evidence Act notice because that was included in the court’s order (“any notices relating to evidence”). It now appears that the claimants had thought of a Civil Evidence Act notice but didn’t get round to serving one. It is hard to see why the claimants would be allowed to sneak the evidence in under that Act anyway in those circumstances. Allowing the statement into the bundle did not give it any evidential status. Nor did putting it to Ms Naish (so far as it was put) unless she accepted its contents (which she did not).[37]It would seem that the way in which this statement was dealt with was somewhat chaotic, and it is not apparent why the judge should have said it was too late for Mr Mayall to object in final submissions, yet Mr Mayall did not press for a proper ruling. It is not apparent that these points were properly dealt with. My view is that I do not consider that this statement should have been given any evidential significance.[38]That conclusion, however, does not assist Mr Mayall in this case. First, it does not seem that the judge preferred Mr Seymour’s evidence. His reference to it is a little guarded. Second, he seems nonetheless to have had misgivings in relation to Ms Naish’s evidence on this point and declined to accept her evidence. That is a view which, as the trial judge, he was entitled to take even if there was no direct evidence contravening it. Third, and perhaps most importantly, even if Ms Naish saw a fence there in 1961 when her family moved in, that does not mean that its line defined the boundary in 1953. It would only be relevant to that boundary if it was present at that time, or if it could somehow be taken to reflect or replace other boundary-defining features (such as a prior fence). It was not made apparent to me that that was the case. In fact, there were (admissible) pointers the other way. The plan on the 1961 conveyance does not in any way reflect a fence there at all, or reflect a fence as a boundary along the side of the house. According to its marking the plan was prepared in 1958, and if it reflected the position on the ground at all then for 5 years after the October 1953 conveyance this fence did not exist.[39]All in all, therefore, the judge was entitled to reject the evidence of Ms Naish on this point, and even if he had accepted it it would not necessarily have affected a decision as to where the true boundary lay.[40]For the sake of completeness I add that Mr Wilmshurst told me that even if the statutory declaration should not have been relied on, there was in fact correspondence saying the same thing. That correspondence was not analysed before me, and in any event I fail to see why, for evidential purposes, it should not suffer the same fate as the statutory declaration.[41]Since Mr Mayall fails on those two major points none of his smaller points of detail make any difference. In my view the judge reached the right conclusion on the position of the boundary, albeit my reasoning differs from his. I do not consider that my different analysis is one that requires remission so that it can receive a fuller consideration at a trial.

The damp point - background

[42]In 2014 and 2015 the claimants installed decking on their premises. It comprised a concrete base with a concrete screed, and with timber decking above, and it almost touched the wall of Ms Naish’s conservatory at the rear of her premises. Although the conservatory had a damp-proof course, the level of the concrete screed (and therefore the timber decking) was above the level of that damp proof course. Ms Naish complained that water from the decking ran on to the wall adjacent of her conservatory and caused damp along that wall and sought damages and an injunction requiring the abating of the nuisance said to be caused by the decking.[43]The judge below considered Ms Naish’s evidence of the history of the damp and the evidence of each side’s expert on its source. He found (paragraph 121) that the wooden part decking did not directly cause an incursion of damp into the conservatory but accepted that the concrete screed did because parties’ experts said it did, essentially by diverting water. He rejected Ms Naish’s evidence that there was no damp problem before the decking was created and held that some of the damp in her conservatory was caused by the fact that the damp proof course was not 150mm above ground level (paragraph 122) and that the main ingress of damp was what he described as a “hole in the wall” at the end of the conservatory. The “hole” was apparently an area of missing pointing, with some adjacent poor pointing. At paragraph 123 he expressed his conclusions:
“123. Doing the best I can, I assess the concrete screed as being responsible for 20 percent of Ms Naish’s damp problem.”
He ruled that the claimants should pay 20% of the invoiced cost of remedial work plus £1,000 for general damages - 20% of the £5,000 he would have awarded for general damages had the claimants been responsible for all of the damp. In addition he awarded £100 as an uplift under Simmonds v Castle [2013] 1 WLR 1239. That came to a total of £1.226.[44]On this appeal Ms Naish seeks to increase the amount of damages. The grounds of appeal, appellant’s notice and Mr Mayall’s skeleton argument did not indicate what the target was, but in argument he indicated that the judge should have found a figure of 50%, not 20%, to be appropriate. I was told that this would make this limb of the appeal worth £2,600. The damp point - the points taken on this appeal and their resolution.[45]The first point taken on this appeal is that the judge was wrong to find that there would have been a damp problem even absent the screed/decking because that was not the effect of the expert evidence, whose evidence was broadly that the damp-proof course level “might” have caused problems with damp. It is said that in so finding the judge did not reflect the evidence of either expert and that the judge “concocted” a theory of his own.[46]This is an unjustified and unjustifiable criticism of the judge’s findings. He summarised the expert evidence at paragraphs 61 and following of his judgment. At paragraph 66 he accurately records the evidence of Mr Lametti, the claimants’ expert, as being that the principal causes of dampness were the bridging of the damp proof course, missing brickwork and the damp proof course level being too low, and at paragraph 68 he accurately recorded Mr Lametti’s evidence as being that the dampness would still have occurred if the decking and its concrete had not been installed. At paragraph 69 he records Mr Lametti’s evidence that run-off from the concrete slab would flow across and breach the damp proof course. There is nothing equivocal (“might”) about this. In cross-examination Mr Isaacs, Ms Naish’s expert, agreed that even without the decking, there would still be a damp problem.[47]The second point taken on this appeal is about a short finding in paragraph 122 of the judgment. It is necessary to put it in the context of the whole of the paragraph:
“122. There is damp all along the inside wall of the conservatory adjacent to the courtyard. I am satisfied that this is because the damp proof course is not 150mm above ground level. There would for this reason have been a problem even if the Claimants had not raised the ground level by laying the concrete screed. I am therefore sceptical about Ms Naish’s evident that before the Claimant made the screed there was no damp problem. But I accept that the raised floor level has exacerbated the problem. The damp is noticeably worse at the far end of the conservatory adjacent to the decking and a hole in the wall. As the screed is above the level of the damp proof course, I am not satisfied that the addition of the decking makes a material difference to the ingress of damp. In my judgement, it is more probable that the hole in the wall is the main source of the ingress of damp at the end of the conservatory. This ingress is additional to the ingress of damp to the rest of the conservatory.”
[48]In order to avoid confusion, it is important to note that the reference to “decking” at the end of this paragraph is a reference to the timber decking over the top of the concrete screed. The judge did not consider that that top surface, through which water could pass on to the concrete below, added anything to the diversion of water by the concrete screed. The evidence was that water did not get into Ms Naish’s wall directly from the wooden decking; it got there from the concrete below, to which rainwater was enabled to pass. What the judge is doing in this paragraph is essentially finding that there were sources of damp other than the diversion of water by the concrete screed. That is the context in which he referred to the hole in the wall and characterised it as a further source of the incursion of damp for which the claimants were not responsible.[49]The criticism of Mr Mayall of this finding about the “hole” is that it did not reflect the evidence of either expert witness. Indeed, it said to be contrary to the expert evidence of the experts. Again, this is an unjustified and unjustifiable criticism. In the joint experts’ report (paragraph 4) Mr Lametti records that in his view the missing pointing (the hole) was the principal cause of the damp. Mr Isaacs did not agree. It is therefore simply wrong to say that the judge’s finding was contrary to the expert evidence. The judge was faced with conflicting views and reached a conclusion that he was perfectly entitled to reach. It was not a view unsupported by any evidence.[50]At the end of the day the task of the judge was to weigh up the expert evidence on causation and come to a conclusion as to the relevant causalities. That is exactly what he did. His conclusion was that 20% of the damp problem was attributable to the claimants’ decking and he was entitled to reach that view. It is particularly undesirable that this already unfortunate litigation should be cluttered up by such unworthy points taken on this appeal.

A costs appeal

[51]There is also an appeal from the decision of the judge on costs. It was agreed that I could not deal with that until I had pronounced on the rest of the appealed matters, so I heard no argument on it. It will be dealt with on the consequentials hearing which will have to take place after this judgment is handed down.

Conclusion

[52]It follows from the above that I dismiss this appeal on the points identified above. The costs appeal has yet to be determined.