Lazari v London & Newcastle (Camden) Ltd

A party should not obtain an increased payment into court merely because a claim has been enlarged or additional evidence has been assembled after an earlier application. The court should require strong evidence and consider whether an increase is fair and just, while avoiding a reconsideration of the earlier decision on evidence that could previously have been deployed. Further remedial costs funded by the defendant should not ordinarily increase the payment. Potential loss of use, mortgage-related accommodation costs and diminution in value may be arguable, but they require sufficiently strong and tested evidence. Repeated applications under the procedural rules should be kept to a reasonable minimum, particularly where they increase costs or distract from preparation for trial.

The claimant purchased a leasehold flat from the defendant. The defendant accepted liability for overheating caused by heating pipes beneath the flat and had undertaken remedial works. Following an earlier application, the court ordered a payment into court of £30,000 and gave directions requiring, among other matters, continued co-operation between the parties’ experts.

The claimant later served further particulars of loss and applied for the payment to be increased. She relied on further remedial costs, accommodation-related mortgage contributions, possible loss of use, and alleged capital diminution or “blight” of the flat. The defendant disputed the evidential basis and contended that the remedial works had substantially resolved the problem. The issue was whether the additional evidence justified revisiting and increasing the earlier payment.

1. Application dismissed. The claimant had previously had an opportunity to present the material supporting the payment into court. The court should not revise the earlier decision simply because further evidence had later been collated, particularly where that evidence could have been obtained earlier and could not be tested by cross-examination on the procedural application.
2. The defendant had breached the order requiring the experts to continue meeting. The breach was careless rather than deliberate or contumelious. It could be taken into account on costs, but did not justify increasing the payment.
3. The court could not increase the payment to reflect further remedial works because those works were being paid for by the defendant. The possible need for further work remained a matter for the trial judge.
4. The claim for accommodation-related mortgage contributions was arguable, but the evidence was insufficiently strong to justify an increase without a proper explanation from the claimant or her advisers.
5. A claim for capital diminution caused by disclosure of the remedial history was legally possible. Its recoverability required close examination of the effectiveness and reliability of the remedial works, together with proper valuation evidence. It was inappropriate to take the asserted diminution into account at this stage because the defendant had little opportunity to deploy its own valuation evidence and the claimant could have relied on such evidence on the earlier application.
6. Repeated applications for financial relief under CPR Part 3.1 or CPR Part 25.7 should not be made merely because more evidence has become available. The claimant’s application was dismissed.