Saunders v Williams & Ors

Permission to appeal requires a real prospect of showing that the order under challenge was wrong, or another proper reason for an appeal. A case-management order directing a joint expert to estimate remedial costs, liabilities and contingencies will not warrant appellate intervention merely because a party disputes the expert’s approach. Damages cannot be calculated with perfect precision; the court must do the best it can and seek to provide adequate cover for reasonably foreseeable contingencies. Applications to join parties made for the first time in the Court of Appeal must instead be made to the first-instance judge. Where a defendant lacks possessory rights over the property, an order requiring that defendant personally to carry out restoration may be inappropriate, leaving monetary damages as the practical remedy.

Mrs Saunders sought permission to appeal an order made by His Honour Judge Price QC on 7 February 2001. The order directed a jointly instructed expert to report on the reasonable costs of remedial works, liabilities under the Party Walls Act 1996, and other contingencies, so that damages against the builder could be assessed.

She also applied for the first time in the Court of Appeal to rejoin Blaenau Gwent Borough Council and to join the current owners of the neighbouring property. The central issues were whether those joinder applications could be entertained at appellate level and whether the expert-report order gave rise to a proper basis for permission to appeal.

1. Joinder applications. Applications to join defendants which have not first been made to a judge at first instance cannot be dealt with by the Court of Appeal. Any such applications, if pursued, must be made to the circuit judge. The court expressed no view on their merits. It noted, however, that limitation required careful consideration in relation to the proposed claim against the borough council.
2. Permission to appeal. The relevant question was whether Mrs Saunders had a real prospect of showing that paragraph 8 of the order was wrong, or whether there was another reason for an appeal which should be given effect. The order appeared correct on its face, notwithstanding that it had apparently been consented to by her counsel.
3. Assessment of damages and expert evidence. The order had a clear purpose: to assist the assessment of damages against the builder. Building works necessarily involve uncertainty, and the court cannot achieve perfect precision before works begin. It must do the best it can, using reasonable professional assumptions and making appropriate provision for contingencies. Mr Newton’s specification and estimates provided no fundamental flaw justifying appellate intervention. Dissatisfaction with a joint expert’s conclusions was not sufficient. A party wishing to challenge the approach might obtain further advice and seek permission to adduce it before the judge below.
4. Nature of the remedy. A monetary award might leave Mrs Saunders to arrange the repairs and address any consequences under the Party Walls Act 1996. That was inherent in a claim against a builder who had no possessory rights over the neighbouring property. An order requiring the builder to restore the wall was not readily available. The court should nevertheless seek to provide adequate compensation, including for reasonably foreseeable responsibility for damage to the neighbouring property.
5. Disposition. Permission to appeal was refused. The joinder applications were also refused, with the matter to proceed before the circuit judge and towards the assessment of damages.

• Court of Appeal (Civil Division): refused permission to appeal and refused applications to join or rejoin proposed defendants.
• First-instance judge: His Honour Judge Price QC made the order dated 7 February 2001 directing the joint expert’s further report and providing for assessment of damages.