Defendant carrying out works on neighbouring site – Claimant claiming works causing damage to its property – Claimant issuing proceedings – Delay of five years and five months – Application for claim to be struck out for want of prosecution – Whether substantial prejudice caused – Application refused – Appeal allowed
The claimant owned shop premises in Barnstaple, Devon. In May 1989 the defendant acquired for development a large site next to the claimant’s shop. The defendant commenced the development of the site. The contractors cleared the site and carried out excavations which revealed the need to provide additional foundation support to the walls of the claimant’s building. Between June 1989 and September 1989 underpinning works to the walls were carried out by the defendant. There were frequent inspections of the works by building control officers of the local authority, North Devon District Council. In February 1990 it became necessary to trim the underpinning. On 16 June 1990 the claimant was so concerned about the stability of the property that it closed the shop. In December 1990 the claimant issued proceedings complaining of the underpinning works and the vibration damage caused by the trimming and alleging trespass and nuisance.
In January 1993 the claimant demolished its shop and constructed a new one in October 1993. The limitation period for the trespass claim expired at the latest in September 1995 and the limitation period for the nuisance claim expired in February 1996. On 24 March 1998 the claimant served a notice to proceed. On 24 April 1998 the defendant applied for the action to be struck out for want of prosecution. The master dismissed the application. The judge found that the master’s reasons for refusing to strike out the action were wrong but dismissed the defendant’s appeal on other grounds. He concluded that although there had been inordinate and inexcusable delay for a period of 5 years and 5 months, it had not caused substantial prejudice to the defendant. He accordingly held that it had not been shown that there was a substantial risk that a fair trial of the issues in litigation would not be possible. The defendant appealed.
Held: The appeal was allowed.
1. The judge had underestimated the scope of the factual enquiry needed to resolve the main construction disputes that would arise and the significance of oral evidence for such an enquiry. It was obvious that the delay of five years and five months would make it substantially more difficult for the litigation to be conducted. There would have been a significant failing of witnesses’ memories during that period.
2. The action would have to proceed by examining the relevant building contracts from evidence provided by architects, engineers, quantity surveyors, site supervisors, the local authority, clients, contractors and possibly subcontractors. To start such a process of reconstruction 10 years after some of the main facts and after an interval of 5 years and 5 months when nothing had happened meant that the future progress of the action would be substantially more troublesome, more time consuming and more expensive. In addition there was a serious risk that the quality of any eventual judgment would be worse than if the facts had been put before the court at a proper time. For those reasons there was a substantial and obvious risk that a fair trial, and therefore the defendant, would be seriously prejudiced.
Geraldine Andrews (instructed by Trowers & Hamlins) appeared for the claimant; Stephen Whitaker (instructed by Clarke Willmott & Clarke, of Bristol) appeared for the defendant.
Thomas Elliott, barrister
