Jersey Unreported Judgments

Property - reasons for various directions and costs orders.

[2018]JRC173

Royal Court

(Samedi)

18 September 2018

Before     :		Advocate Matthew John Thompson, Master of the Royal Court.
Between	David de Maid Naylor		Plaintiff
And	Kingsworthy Holdings Limited		Defendant

Advocate C. Hall for the Plaintiff.

Advocate C. B. Austin for the Defendant.

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-5
3.	The defendant's answer	6-13
4.	Orders	14-17

judgment

the master:

Introduction

1.        This judgment represents my reasons for various directions and costs orders I made in relation to an application for directions. 

Background

2.        The proceedings were commenced by order of justice dated 27^th April, 2018.  The plaintiff and the defendant are neighbours.  The proceedings concern a collapse of a wall in March 2016 belonging to the defendant. 

3.        The plaintiff at paragraph 13 of its order of justice pleads the following:-

"13.     Observations of the Wall have revealed the following:

a.        The Wall is in poor condition;

b.        The 'scar' resulting from the collapse of the Wall is approximately 10m wide;

c.        Several buttresses were not connected to the Wall and appear to have rotated away;

d.        Multiple cracks/bulges are present along the Wall; these are particularly visible where buttresses are not in sound condition;

e.        Vegetation is visibly growing in several locations through the mortar and down the face of the Wall;

f.         There are no visible weepholes present in the Wall;

g.        Towards the south several sections of the Wall (which was battered), the Wall is slumped and voiding is visible;

h.        Mineral deposits are visible from mortar at multiple locations;

i.         The buttresses appear to be filled with rubble fill and are formed from concrete blocks;

j.         Debris from the Wall has been partially cleared with rock rubble retained;

k.        The location of the failure appears to be between buttresses. lt should be noted that based on observed spaces and the size of the failure, a buttress would be expected to be at the location of the failure;

I.         The material behind the Wall is a mixture of cohesive material (clays, sills) mixed with builders' rubble;

m.       There is evidence of considerable movement of the Wall;

n.        Based on the visual appearances of the buttresses and their positions (often slid or rotated), it is likely that the foundations are not suitable for the work they are required to do, or the ground is suffering movement, and therefore have moved. Some of this movement is large and it would be expected to be observed during any maintenance on site;

o.        lt is likely that the original failure of the Wall (caused by unsuitable foundations which do not give enough restraint for the wall), tied in with apparent lack of maintenance and weepholes, resulted in the unstable wall that is in place.

p.        The height of the Wall (5-6 meters) is greater than the distance from the Wall to the Property (4-5 meters); should another failure occur, there is a high likelihood that the Property could be affected. The integrity of the Wall is degraded and there is a potential of further collapse/movement."

4.        The plaintiff pleads at paragraph 17 that the defendant owes a duty to the plaintiff pursuant to the rule of voisinage not to use the property in such a way to cause damage to a neighbouring property.

5.        The defendant's answer was filed on 21^st June, 2018.  On 30^th July, 2018 a directions hearing was fixed before me which due to absences over the summer was listed for 5^th September, 2018.

The defendant's answer

6.        The answer of the defendant was deficient in a number of respects.

7.        Firstly, it failed to plead to various paragraphs of the order of justice because the defendant could not obtain documents from its former agent.  I was told that the former agent now had legal representation, had provided some documents but wanted a further 3 months to respond and provide information to its principal about the steps it has been doing.  In my judgment this case does not warrant a period of delay of such a period of time which I regard as wholly unjustified. 

8.        Secondly, the answer fails to plead to paragraph 13.  The answer stated:-

"19.     The Defendant reserves its position in respect to paragraph 13 pending receipt of detailed advice from its Structural Engineers."

9.        Given that the wall collapsed in 2016, and proceedings were commenced at the end of April 2018, by the time of the directions hearing the defendant has had more than adequate time to plead.  The defendant has also had enough time to address the reasons for the collapse of the wall. 

10.      The defendant's focus appears to be on whether the collapse was due to the actions of its agent and whether the agent should pay for the repair of the wall rather than the defendant.  To that extent it wished to join the agent as a third party.  Yet no draft pleading was produced.  The defendant's focus on whether the agent should bear the cost of the loss however is not of itself a defence to the plaintiff's claim.  Beyond a non-admission that the defendant is not liable, there is no case yet pleaded as to why the defendant is not responsible.  Neither the plaintiff nor the court is in a position to understand the defence being advanced. 

11.      I was informed at the hearing that the defendant had now obtained a report from a surveyor and that the defence to be advanced was that the collapse was unavoidable.  In light of this information I gave the defendant 4 weeks in order to prepare a pleading that properly addresses the claims raised and sets out the defence.  I also refused to allow in principle a third party order convening the former agent at this stage without seeing a draft pleading. 

12.      Furthermore the defendant does not admit paragraph 17 of the order of justice which is no more than a summary of the principle of voisinage.  It is not clear why the duty of voisinage which is now well established is not admitted.

13.      All the above matters meant that I reached the view that I was not satisfied that the answer as pleaded was a proper answer setting out the defendant's case clearly.  I was also not satisfied that the defendant had met the obligations contained in the overriding objective in Rule 1/6 of the Royal Court Rules 2004, as amended.  The defendant could have appointed a surveyor last April and could have pleaded as to the cause of the collapse, which I repeat, occurred some two years ago.  I was also informed a letter for action was sent as required by the pre-action communication protocol on 2^nd June, 2017.  The defendant has had plenty of opportunity to obtain a report on the cause of the collapse of the wall.  The defendant has not therefore approached this litigation in the manner expected to enable this case to progress to a conclusion justly and at a proportionate cost.  I accept that the defendant is owned by a series of shareholders who bought individual flats and who find themselves in what may be a difficult situation.  However, those difficulties do not mean that those interested in the defendant are exempt from complying with the requirements of the Royal Court. 

Orders

14.      In light of the above, I firstly gave the defendant 4 weeks to amend its answer to plead a proper defence to the plaintiff's claim having regard to the matters raised by this judgment.  If such an answer is not filed then I would consider an application for summary judgment on liability. 

15.      Secondly, I ordered the defendant to pay the costs of the directions hearing on the standard basis. 

16.      This was because the answer was not satisfactory for the reasons set out above.  The defendant also could have issued separate proceedings to obtain records held by its former agent.  The defendant could have also retained a surveyor much earlier to advise on the cause of the collapse of the wall.  The defendant did not do any of these things which justifies the court imposing sanctions. 

17.      I also made various consequential orders relating to discovery and witness statements and expert evidence. 

Authorities

Davey and Chawke v Tredant [2015] JRC 182

Royal Court Rules 2004, as amended