Lyons v Gardner

In an appellate challenge to a first-instance factual decision in a nuisance claim, the critical question is whether the judge’s reasoning, read as a whole, was adequate and supported by the evidence. A judge may prefer eyewitness evidence after assessing credibility and may find that documentary or expert material does not displace it. An artificial drainage test showing that overflow was possible does not establish that the alleged mechanism operated during ordinary rainfall, particularly without evidence of such backing-up in practice. The claimant must establish that the defendant’s works caused a new or materially worse condition and the resulting damage. A retrial is not required merely because the judge could have given fuller reasons or referred to additional material.

The claimant and defendant were neighbours occupying separate parts of a divided house. The claimant alleged that drainage works carried out by the defendant in 1995 caused or materially increased ponding in the courtyard, which led to damp in rooms along the claimant’s wall.

After hearing conflicting evidence from the neighbours and expert evidence about drainage, water movement and dampness, the County Court judge rejected the claimant’s factual case. The claimant renewed an application for permission to appeal, arguing that the judge had failed adequately to consider surveys, expert evidence and a borehole test. The central issue was whether the judge’s factual reasoning was inadequate or erroneous so as to require the decision to be set aside and a retrial ordered.

1. Disposition. Lord Justice Rix granted permission to appeal but dismissed the appeal. Lord Justice Gage agreed with his reasons and with the dismissal.
2. Assessment of evidence. The trial judge was entitled to treat the conflicting eyewitness evidence of the two neighbours as central. He had observed both witnesses, gave reasons for preferring the defendant’s evidence, and found that the claimant had failed to establish any worsening of the courtyard after the 1995 works. The Court of Appeal assessed the judgment as a whole and found no material inadequacy in that approach.
3. Documentary and expert evidence. The judge was not required to mention every survey. The title report and mortgage valuation reports added little to the issue. The 1988 survey did not compel a finding that there had been no previous dampness, particularly in light of evidence of minor historic moisture problems, plastic skirting and other features consistent with damp.
4. Borehole test. The judge was entitled to regard the test as unrealistic. It involved discharging 250 gallons into an otherwise empty borehole system and showed only that overflow could occur in those artificial conditions. It did not establish what happened during heavy rainfall, account for inadequate gutters, or show that the gullies backed up during rainfall.
5. Causation. The judge also considered the expert evidence concerning mineral salts, ground levels, damp-proof courses, external render and the location of ponding. The claimant failed to prove that the defendant’s works caused a new or materially enhanced condition resulting in the complained-of damp. The evidence that ponding lasted longest against an unrendered wall, rather than the rendered wall adjoining the affected rooms, further weakened the alleged causal mechanism.
6. The possibility that the judge could have expressed some matters more fully did not demonstrate error requiring the judgment to be set aside or a retrial ordered. Appeal dismissed.

• Court of Appeal (Civil Division): Permission to appeal was granted on renewal, but the appeal was dismissed. [2007] EWCA Civ 259.
• County Court: HHJ Charles Harris QC rejected the claimant’s case that the defendant’s drainage works had worsened the courtyard conditions or caused the alleged damp.