Abdol Hossein Azizi v Dama Construction Limited

A judge is not bound by expert evidence, including evidence from a single joint expert. The judge must consider relevant expert evidence and explain any departure from it. That duty does not require detailed engagement with evidence which has become irrelevant because factual findings or the allocation of legal responsibility lie outside the expert’s remit.

An appeal based on procedural irregularity requires both a serious irregularity and resulting injustice. A party’s submissions filed in time but placed before the judge shortly before hand-down do not cause injustice where the judge considers them and gives adequate reasons for maintaining the proposed course. Submissions going beyond the matters invited after circulation of a draft judgment are permissible only in rare and exceptional circumstances.

The appellant appealed from the County Court at Central London Technology and Construction List, where HH Judge Saggerson had determined the financial consequences of long-running litigation concerning basement construction works at properties in Fairhazel Gardens.

The appeal challenged findings that movement and failure of a flank wall and its underpinning were attributable to the appellant’s refusal of access, despite the report of a single joint expert. It also challenged the order for a separate costs hearing and the treatment of written submissions concerning costs and VAT, which had been filed by the deadline but reached the judge after the final judgment had been prepared.

The central issues were whether the judge had impermissibly departed from or misunderstood the expert evidence, and whether the handling of the submissions involved a serious procedural irregularity causing injustice.

1. Appeal dismissed. The judge’s findings that the parties intended a basement at no 17, that access had been sought from the outset, and that the appellant’s refusal of access was the effective cause of the failure were open to him on the evidence.
2. A judge is not bound by expert evidence, even evidence from a single joint expert. Relevant expert evidence must be considered, and a departure from the expert’s view on a relevant issue requires explanation. Findings of fact and legal responsibility remain matters for the judge. Where the judge’s factual or legal findings make the expert evidence irrelevant, the judge need not follow it or explain in detail why it is not followed.
3. The expert’s opinion in paragraph 4.45 concerned what good professional practice required on the assumption of an enduring denial of access. It did not determine the parties’ contractual responsibilities. The judge’s findings, based on the parties’ intentions and the wrongful denial of access, were therefore not inconsistent with the expert report.
4. Under CPR Rule 52.21(3)(b), an appeal requires a decision which is unjust because of a serious procedural or other irregularity. The costs submissions were before the judge before hand-down. He considered them, explained why a separate costs hearing remained appropriate, and caused no injustice by proceeding in that way. The failure to amend the judgment’s statement that no costs submissions had been received was an oversight, but did not make the decision unjust.
5. The VAT submission challenged entitlement rather than calculation and went beyond the matters on which submissions had been invited. Applying the approach in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs, such submissions after circulation of a draft judgment are permissible only on rare occasions and in exceptional circumstances. The judge was entitled to disregard the submission, but instead considered it and gave adequate reasons for maintaining his conclusion.

• High Court (Technology and Construction Court): appeal from the order and judgment of HH Judge Saggerson dated 5 August 2024 dismissed.
• County Court at Central London Technology and Construction List: determined liability and financial consequences arising from the building works, dismissed the claim, and directed a further hearing on costs.