Saunders v Williams & Ors

Permission to appeal may be confined to a particular issue where that issue has a realistic prospect of success. An applicant cannot use a later appeal against an assessment of damages to reopen a liability issue that was previously raised and refused permission, or that was not pursued before the judge whose decision is challenged. A claim for specific performance or statutory rebuilding relief must be raised at the proper procedural stage. The Court of Appeal will not grant permission where the proposed relief was already refused on an earlier permission application and was not raised before the damages judge. The assessment of damages must nevertheless proceed on the basis that the court does the best it can to compensate for reasonably foreseeable contingencies, while recognising that precise building costs cannot always be known in advance.

The claimant owned a house adjoining property where building works had damaged the party wall. Liability had been established by consent against the builder, with damages to be assessed. On 7 February 2001 directions were given for expert evidence concerning the remedial works and their cost.

The claimant subsequently sought permission to appeal on several matters, including statutory or specific-performance relief requiring rebuilding of the wall. Lord Justice Mance refused permission on those matters on 30 April 2001. The damages assessment then proceeded before Mr Justice Jacob on 11 July 2001. Judgment by consent was entered for £24,572, representing the principal repair cost, and the judge awarded £1,000 for distress, inconvenience and loss of use, limiting those heads to one year.

The claimant sought permission to appeal from the limitation of those additional heads of damage and again sought to raise statutory rebuilding relief. The central issues were whether the latter matters could be reopened and whether the one-year limitation had a realistic prospect of being wrong.

1. Permission granted in part. Permission to appeal was granted only on the question whether the claimant had been wrongly limited to one year’s value for distress, inconvenience or loss of use. The proposed appeal was to be heard by a three-member court, with the claimant bearing the risk of costs.
2. The claimant could not obtain permission to reopen the proposed claim for specific performance or statutory rebuilding relief. That matter had already been raised before Lord Justice Mance, who had refused permission. It was therefore not open to be revisited on a later application.
3. An appeal from an assessment of damages was not the proper occasion to introduce a liability issue or a claim for substantive statutory relief that had not been raised before the judge conducting the assessment. The claimant had not raised it before Mr Justice Jacob or sought an adjournment pending its determination.
4. In any event, the court expressed doubt that specific performance could be ordered against defendants who were no longer in possession of the adjoining property. The original claim for restoration of support did not readily translate into an order against a builder without possessory rights next door. This was an additional practical reason why the proposed appeal had no sufficient basis.
5. The earlier directions for expert evidence were not shown to disclose a fundamental flaw. The assessment court had to do the best it could where the precise work and costs might involve contingencies. The expert evidence appeared to allow for the minor item concerning concrete slabs, and there was no realistic prospect of assistance from the Court of Appeal on the other alleged omission.
6. The claimant’s separate issue concerning negligent misrepresentation was not pursued before the Court of Appeal. The question concerning possible remedies against the local council had already been addressed in the earlier permission proceedings.

• Court of Appeal (Civil Division): On 30 November 2001, permission to appeal was granted only in relation to the limitation of damages for distress, inconvenience and loss of use. Permission was refused in relation to statutory or specific-performance relief and the other complaints.
• Bristol County Court, before Mr Justice Jacob: On 11 July 2001, the damages assessment resulted in judgment by consent for £24,572 for rebuilding the party wall, together with £1,000 for the additional heads of damage limited to one year.
• Cardiff County Court, before His Honour Judge Price QC: On 7 February 2001, judgment by consent was entered against the builder on specified liabilities, with damages to be assessed and directions given for expert evidence.
• Court of Appeal (Civil Division), before Lord Justice Mance: On 30 April 2001, permission was refused on the proposed statutory or specific-performance issues and other challenges to the earlier directions.