Younger v Molesworth & Anor

On an application to amend a claim, the court should not refuse a proposed case merely because its prospects appear finely balanced. The question is whether it has a real prospect of success, assessed on the allegations and evidence capable of further investigation.

Where an alleged nuisance arose without the defendant’s act or default, liability may arise if, with actual or presumed knowledge of the nuisance, the defendant fails to take reasonable steps to end it despite having ample time. Knowledge of damage and of a possible defective condition may justify further factual investigation, even where the claimant initially identified the wrong cause.

The claimant appealed from the summary dismissal of his claim against the second defendant and the refusal of permission to amend his particulars of claim. The original claim alleged that leylandii, their stumps and roots caused water damage to the claimant’s property.

Expert evidence substantially undermined that case but suggested that a drain had been inadequately constructed or maintained. The proposed amendment alleged that the second defendant had adopted or continued a nuisance by failing to remedy the defective drain after purchasing the adjoining property. The central issues were whether the proposed case had a real prospect of success and whether the evidence could establish sufficient knowledge for liability for a continuing nuisance.

1. Appeal allowed. The order summarily dismissing the claim was set aside. Permission was granted to amend the claim, without prejudice to the second defendant seeking further particulars.
2. The deputy judge’s conclusion concerning an easement was based on an inadequate evidential foundation. Although the owner of a servient tenement is generally under no obligation to maintain the subject of an easement, it remained possible that the drain had been constructed for the joint benefit of both properties or to protect Trevellyn from claims by the owner of Little Cott. That issue required further investigation.
3. For a nuisance arising without the defendant’s act or default, liability requires knowledge or presumed knowledge of the nuisance and failure to take reasonable means to end it despite ample time to do so, applying Sedleigh Denfield v O’Callaghan [1940] AC 880, at p 894.
4. The analysis in Holbeck Hall Hotel v Scarborough BC [2000] QB 836 showed that liability depends closely on the facts, including the defendant’s actual or presumed knowledge. A latent defect does not automatically impose liability merely because further investigation might have revealed it. The degree of knowledge and the reasonable remedial or investigative steps required were fact-sensitive issues.
5. The evidence could establish that the second defendant knew of serious water ingress, knew that the claimant attributed it to the trees and understood that a damaged or defective drain was alleged to be causing the ingress. Although the alleged cause was initially wrongly identified, those matters gave the proposed amended claim a real prospect of success. The court therefore considered it wrong to shut the claimant out at the amendment stage.

• Barnstaple County Court: Deputy Circuit Judge Thompson QC summarily dismissed the claim against the second defendant and refused permission to amend it on 22 August 2005.
• High Court (Queen’s Bench Division): On appeal, Langley J set aside that order and permitted the proposed amendments.