A claimant can only pursue its pleaded case at trial. If it wants to bring a different claim it must amend its pleadings accordingly.
In Goodmans Autos Ltd v Maverstone Properties Ltd and another [2023] EWHC 1882 (KB) the High Court has rejected an appeal from dismissal of a claim in trespass because the claimant was pursuing a different claim to its pleaded case.
GAL was the registered leasehold owner of land in Borehamwood from which it operated its business of repair, servicing and testing motor vehicles. MPL was the registered freehold owner of the contiguous site know as Majestic House.
MPL had obtained planning permission to demolish the building then on its site and to build the four-storey detached Majestic House with basement commercial use, ground floor retail use and residential units above. During the development works the fence bounding the GAL site was removed.
GAL alleged that when reinstating the fence, it was forced to do so further into its own site as the excavation had removed up to six inches of earth from its site resulting in the loss of four parking spaces. GAL also alleged that the piled foundations of Majestic House extended underneath its premises and if built on the building itself would extend onto GAL’s premises. GAL brought claims for trespass, damage and nuisance seeking an injunction for removal of the foundations. MPL denied the claim.
The judge preferred the evidence of MPLs expert as to where the boundary lay which was supported by trial pit evidence. He found as fact that the foundations, capping beam and wall for Majestic House were all constructed within MPLs boundary.
GAL submitted on appeal that the judge was wrong to find that there was no trespass by concrete overspill extending into the GAL site as shown in photographs of excavation under fence posts and the evidence of GAL’s director.
The High Court was satisfied that the judgment read as a whole rejected the trespass by excavation claim as pleaded on the basis that the boundary line was as determined by GAL’s expert. The appellant’s director’s evidence was also too heavily reliant on that expert. The judge did not consider the photographs to be particularly helpful in determining whether the alleged trespass by concrete – which was tiny – had occurred. The two trial pits were a much better basis for a determination. GAL had pursued a different case at trial – trespass by concrete overspill – which was not part of its pleaded case. To pursue such a claim, it needed to amend its pleading, which it did not do.
Louise Clark is a property law consultant and mediator
