Ingram v Green Cape Ltd

An appeal is a review of the lower court’s decision, not a rehearing. The appellate court must respect findings based on witness credibility and the trial judge’s interpretation of evidence. It must nevertheless intervene where material failures to engage with expert evidence, or misunderstandings of that evidence, render the decision unsafe. In a misrepresentation claim concerning compliance with approved plans and building requirements, the court must address material divergences from those plans and the evidence of their practical consequences. A later manifestation of damage does not, by itself, establish that the underlying defect was absent at the date of sale. Where the reasoning cannot safely stand, the proper course may be remission for retrial rather than substitution of findings by the appellate court.

Mrs Mary Majella Ingram purchased a long lease of a flat developed by Green Cape Ltd. She counterclaimed for rescission, damages and related relief, alleging breaches of contract, misrepresentation, breaches of the Defective Premises Act 1972 and personal injury. Her complaints included noise transmission, drainage and landscaping defects, a visibility-splay variance, internal damp, a defective bicycle store and a redundant drain.

Recorder Shepherd QC dismissed the counterclaim by an order dated 21 December 2018. Permission to appeal was granted by Soole J. The central issue was whether the Recorder’s findings and conclusions were rendered unsafe by an inadequate or mistaken analysis of the expert evidence.

1. Appeal approach. The appeal was a review under CPR 52.21(1), and could succeed only if the decision was wrong within CPR 52.21.3. The appellate court had to respect the trial judge’s assessment of witnesses and interpretation of the evidence. That restraint did not relieve it of the duty to intervene where the reasoning could not safely stand.
2. Noise and approved plans. The Recorder had failed to engage adequately with the claim that the property materially departed from the approved plans. The expert evidence identified an offset soil pipe, rigid contact with the wall structure and partitions that did not extend to the slab as shown in the drawings. Those matters required consideration in deciding whether the property differed substantially in quality from what the representations had led the purchaser to expect. The Recorder also misunderstood or failed properly to address the expert evidence concerning Approved Document E, night-noise thresholds, testing methodology and relevant hotel standards. His conclusions on soil-pipe noise were therefore unsafe.
3. Other defects. Similar failures affected the conclusions on external soakaways, the visibility splay and internal damp. The evidence identified non-functioning drainage, departures from approved plans and the possibility that an underlying damp problem existed before it manifested. These issues required reasoned consideration in the context of the misrepresentation claims. The bicycle-store and redundant-drain issues were different: no actionable loss had been identified and the Recorder was entitled to deal with them shortly and proportionately.
4. Disposition. The appeal was allowed on all issues except the bicycle store and redundant drain. The remaining claims were remitted for retrial. The court encouraged mediation and invited written submissions on disposal and costs.

1. High Court (Queen’s Bench Division): appeal from the Bournemouth County Court order of Recorder Shepherd QC dated 21 December 2018. The appeal was allowed in part and the relevant claims were remitted for retrial.
2. High Court: permission to appeal was granted after an oral hearing before Soole J on 2 October 2019.