Party wall — London Building Acts (Amendment) Act 1939 — Works commenced and damage caused prior to party wall award — Whether building owner liable in nuisance to adjoining owner for damages continuing after Act complied with
In August
1988, and without complying with the procedures under the London Building Acts
(Amendment) Act 1939, the appellant commenced works consisting of the
demolition and reconstruction of his two-storey end-of-terrace house. These
works interfered with the party wall and caused damage to the structure of the
respondents’ adjoining house and cracks to its front wall. Following the grant
of an injunction in October 1988 restraining further works, the appellant
served the appropriate notice under the 1939 Act in December 1988. The
appointed surveyors’ final party wall award was made in October 1991. The
appellant then repaired the damage to the respondents’ house at his expense,
and completed the reconstruction of his property by October 1992. The
respondents had accepted an offer to purchase their house in August 1988, but
because of the works it remained unsold and they were unable to start building
on a plot of land they had acquired in July 1988. In a claim in nuisance for
their losses, the county court judge awarded the respondents damages for, inter
alia, mortgage interest payable from the date when the house would have
been sold until trial, and the extra building costs in respect of the plot of
land attributable to price increases over the period. The appellant appealed
contending that once the provisions of the London Building Acts (Amendment) Act
1939 had been invoked, any liability at common law had been excluded or
reduced.
because of the work which he did without obtaining statutory authority under
the London Building Acts (Amendment) Act 1939, and that liability continued
until the works were completed in 1992 because the nuisance continued for that
period in fact, rather than because the statutory procedures took that
time to run their course. The decided authorities establish that the appellant
would not have been liable in nuisance if he had given notice, or obtained
consent, in accordance with the Act and then done what was agreed or was
approved by the surveyors. The appellant’s liability at common law was not
excluded or reduced by the provisions of the Act which he eventually invoked
after the nuisance had arisen. The adjoining owner’s common law rights are
supplanted when the statute is invoked, which can have the effect of
safeguarding the building owner from common law liabilities when he complies
with the statutory procedures, just as he may incur liabilities under the
statute which did not exist at common law. But if he commits an actionable
nuisance without giving notice and without obtaining consent, he cannot rely
upon a statutory defence under procedures with which ex hypothesi he has
failed to comply. If he then does give notice he will then in due course
acquire statutory authority for whatever works are approved or agreed, but this
does not relieve him from liability for the continuing nuisance which he has
unlawfully committed, until such time as and to the extent that such authority
is obtained. The works which created the nuisance to the respondents’ house
were not subsequently authorised; the appellant was liable for the losses
awarded, the loss of the sale of the house being caused by the unauthorised
works and were not too remote. The respondents had not failed to mitigate.
The following
cases are referred to in this report.
Adams v Marylebone Borough Council [1907] 2 KB 822
Major v Park Lane Co (1866) LR 2 Eq 453
Selby v Whitbread & Co [1917] 1 KB 736
Standard
Bank of British South America v Stokes
(1878) 9 ChD 68
Thompson-Schwab
v Costaki [1956] 1 WLR 335; [1956] 1 All ER
652, CA
Upjohn
v Seymour Estates Ltd (1938) 54 TLR 465
This was an
appeal by the defendant, Mohammed Sadiq, against a decision of Judge Platt, who
in Shoreditch County Court had awarded damages to the plaintiffs, Paul and
Paula Louis, in their claim for damages for nuisance.
Ann McAllister
(instructed by Dowse & Co) appeared for the appellant; David Gerrey
(instructed by Laurence Brass Conway) represented the respondents.
Giving
judgment, Evans LJ said:
This appeal raises issues concerning the rights and duties of neighbours whose
properties are divided by a party wall. Being in London, these are regulated by
statute, as they have been since the 18th century. The statute currently in
force is the London Building Acts (Amendment) Act 1939.
Facts
The appellant
Mohammed Sadiq is the owner of 50 Jennifer Road, London N16. This is a
two-storey end-of-terrace house. He has lived there since 1985. His neighbours
at no 52 are the respondents, Mr and Mrs Louis, who bought their property in
1979.
Sometime in
the early summer of 1988 there was an informal conversation between the
appellant and Mrs Louis. He told her that he wanted to build a small further
extension to the rear of his property where there was already an extension
known as the rear addition. She said that she had no objection, and she heard
no more about it.
Then suddenly,
as she put it, in August 1988 the appellant began what proved to be works of
demolition and reconstruction involving the whole of his house. First, without
warning, the garden wall was demolished. Then the rear wall of the rear
addition and the rear wall of the house itself were demolished, the new extension
was constructed and the rear wall partly rebuilt. Then the flank wall, furthest
away from no 52, was demolished and partly rebuilt. Finally, the front wall was
demolished also. This interfered with the party wall, as the demolition at the
rear had done, and damage was caused to the structure of no 52, including
cracks in its front wall.
At this stage,
as the judge put it, ‘The plaintiffs who had up to this point suffered more or
less in silence decided to take legal advice’. A writ was issued and the
plaintiffs sought and obtained an interlocutory injunction. The injunction was
dated October 14 1988. This restrained the appellant from carrying out any
works of demolition or reconstruction at no 50, save as to the flank wall,
until such time as he had complied with the provisions of the 1939 Act. He had
not given the notice required by the Act nor attempted to comply with its
provisions although he was advised by the borough surveyor that he should do
so, before the work began. He was also ordered to provide support for the front
elevation of no 52 at the junction with the party wall and make good any damage
caused.
Work stopped,
except for the shoring-up operation, and the statutory notice was given in
December 1988. The Act provides for the appointment of two surveyors and in
case of dispute they appoint an umpire. The umpire’s award was made on July 30
1991 and the surveyors made their final award on October 22 1991. Meanwhile, no
50 remained open to the elements with no front wall and a partly built flank
and rear walls which somehow managed to support the roof. The injunction was
lifted in December 1991 and work began in February 1992. The appellant repaired
the damage caused to no 52 at his own expense, something in excess of £10,000,
and the reconstruction of his own property was complete by October 1992.
The
respondents claimed damages for losses which they suffered by reason of this
extraordinary catalogue of events. These were substantial. They put no 52 on
the market for sale in June 1988 and accepted an offer of £143,000 in August.
The purchaser required a mortgage advance of £95,000. Valuers who reported on
August 13 1988 saw that ‘the adjoining property no 50 is being improved and
extended at the present time … Solicitors should obtain full details … and
should confirm that all such [party wall] notices were properly served and
agreement obtained for the approved plans’. Subsequently, the purchaser
withdrew.
The judge
found:
I am
satisfied that all the other matters raised in their report could have been
resolved within a few weeks.
and
The property
market in the middle of 1988 was extremely buoyant. Prices were rising and
continued to do so well into 1989… . If the defendant had properly complied
with the Act I am satisfied that the plaintiffs would have still been able to
find a buyer and to complete the sale of their property by the end of October
1988.
So the
property remained unsold. It is doubtful whether it was saleable at any price
until the repairs to it and the rebuilding at no 50 were complete in 1992. By
May 1994 due to the fall in the market its value was estimated as £100,000 and
in February 1995 when the plaintiffs served a ‘Provisional Schedule of Special
Damage’ it had fallen still further to £78,000.
Their failure
to sell no 52 affected the plaintiffs in other ways. They planned to move to
Guadeloupe and on July 22 1988 they purchased a building plot there for
250,000ff, about £25,000. They had arranged a mortgage of their London house,
no 52, borrowing £65,000 from Barclays Bank in April 1988. Part of this sum was
used to repay earlier loans for smaller amounts. Their building costs in
Guadeloupe were estimated in May 1988 as 680,428ff, but by February 1995 these
had risen to 985,500ff, an increase of 305,072ff over 81 months. Three-fifths
of the total costs was in fact incurred during this period, leaving two-fifths
outstanding at the date of trial.
Trial and
judgment
The
respondents abandoned their claim for the fall in value of no 52 as this was
due to the general operation of market forces. However, they maintained a claim
for special damages in respect of mortgage interest which they paid or were
liable to pay to Barclays Bank from the date when no 52 would have been sold,
up to the date of trial. They also claimed special damages for the extra costs
of building in Guadeloupe, and general damages for nuisance etc.
These claims
succeeded, for reasons which are clearly set out in the careful and
comprehensive judgment of Judge Platt, which was
He awarded the following sums:
(a) Interest
paid from November 1 1988 to March 31 1993 £22,762.07
(b) Extra
building costs, calculated as 2/5ths of the price
increase during the same period: 79,500ff.
(c) General
damages: £12,500 (plus £1,500 for a separate item).
The period
under (a) and (b) ran to March 1993 because that allowed the respondents six
months to sell no 52 after the work was complete.
Appeal
This appeal is
against the awards of special damages under (a) and (b) above. Miss Ann
McAllister on behalf of the appellant submits that there was no basis for the
award of such damages and that in any event the respondents’ losses were not
caused by him, or were too remote, or excessive in amount.
Liability
This makes it
necessary to quote from the judgment the basis on which liability was found to
exist. Having held that the defendant’s conduct between July and October 1988
amounted to a nuisance, the judge continued:
2. Apart from
the manner in which the work was done did the actions of the defendant amount
to a nuisance?
On this issue
specific complaint is made of a number of matters.
1. That the
defendants interfered with the rear end of the party wall by demolishing the
rear addition wall to no 50 without complying with the provisions of section 47
of the Act.
2. That the
defendant interfered with the foundations of the party wall by digging
foundations for the new extension and the rebuilt rear addition wall of no 50
without complying with the provisions of section 50 of the Act.
3. That the
digging of foundations for the new extension which encroached on to the
adjoining property caused damage to the foundations to the rear addition to no
52 necessitating underpinning.
4. That the
demolition and rebuilding of the rear addition wall to no 50 crossed over the
boundary line at first floor level into the rear addition wall of no 52 and
must have involved physical damage to the rear addition wall of no 52 …
5. That the
defendant interfered with the front of the party wall by demolishing the front
wall of no 50 without complying with the provisions of section 47 of the Act.
6. That the
demolition of the front wall in particular by cutting into the front end of the
party wall caused physical damage to the front wall of no 52 by separating it
to a significant extent from its junction with the party wall.
In relation to
each of these factual issues, the judge found that the appellant’s activities
had encroached upon the respondents’ property and had caused physical damage to
it. This can constitute a private nuisance in law for which damages are
recoverable: see Clerk and Lindsell on Torts (17th ed) para, 24-03,
approved by Lord Evershed MR in Thompson-Schwab v Costaki [1956]
1 WLR 335, which the judge quoted in full:
A private
nuisance may be and usually is caused by a person doing on his own land
something which he is lawfully entitled to do. His conduct only becomes a
nuisance when the consequences of his acts are not confined to his own land but
extend to the land of his neighbour by (1) causing an encroachment on his
neighbours land, when it closely resembles trespass, (2) causing physical
damage to his neighbours land or building or works or vegetation upon it, or
(3) unduly interfering with his neighbour in the comfortable and convenient
enjoyment of his land.
He then held
that the appellant was liable under each of the six heads to which he had
referred:
Complaints 1,
2 and 5 are effectively admitted in the sense that the defendant simply cannot
deny that he did carry out work affecting the party wall and its foundations
without serving notice under either section 50(2) or section 47 at least two
months before commencing work. The nub of each complaint is the failure to
comply with the statutory procedures laid down by the act before commencing
work. I have come to the conclusion that this is a nuisance under both heads
(2) and (3) of the passage from Clerk and Lindsell cited above.
The mischief
which results is that the plaintiffs as adjoining owners are left in the
position where work has been done to part of their own property without their
having any precise information as to the nature of the work, without their
having any information as to whether and if so how much damage has been caused
to the party wall and without their having any knowledge that the work has been
done either on instruction or advice from a properly qualified surveyor.
and
In my
judgment complaints 3 and 4 are true. They both fall under the headings both of
encroachment and physical damage and therefore constitute a nuisance.
He made a
similar finding regarding complaint, and he concluded:
It follows in
my judgment that each of the six acts complained of created nuisances for which
the defendant is prima facie liable to the plaintiffs.
As regards the
mortgage interest claim he made the following specific finding:
It is in my
judgment interference with the convenient enjoyment of land to act in such a
way as to make the neighbours property unsuitable security for a mortgage
advance certainly at a time when it is known to be on the market for sale. No
52 was known to the defendant to be on the market for sale from June 1988. It
was overwhelmingly likely that any purchaser of no 52 would require a mortgage
to assist in the purchase. It is equally clear from the mortgage survey and in
my judgment equally foreseeable that the failure to comply with the procedures
of the Act would constitute a fundamental obstacle to the property being judged
suitable security for a mortgage advance.
It is
important to note, as the judge did, that there was no claim for the cost of
repairs. This was because the respondents did not incur such costs. The repairs
were done by the appellant himself and at his own expense. ‘In each case … the
nuisance has so far as possible been abated and the damage repaired so that
there is no continuing problem’. The issue, therefore, concerned the claim for
special damages under these heads, both involving financial loss.
Liability
Miss
McAllister’s submission is that the appellant is under no liability at common
law, because the statutory procedures and remedies for breaches of them depend
entirely on the statute itself: common law rights, duties and remedies are
excluded by the Act. The respondents, represented by Mr David Gerrey at the
trial, expressly abandoned any claim for damages for breach of statutory duty.
There was no finding that the appellant ‘… exerted his statutory privileges so
as to inflict injury on the plaintiff by negligence, improper obstructiveness,
avoidable nuisance or unreasonable delay’ per McCardie J in Selby
v Whitbread & Co [1917] 1 KB 736 at p753. Without such a finding,
she submits, the respondents cannot succeed in this part of their claim. The
Act required the appellant to give prior notice, which he did not, but ‘failure
to comply with the Act does not per se give rise to an action in
nuisance’. Moreover, the appellant did give notice in December 1988, and the
subsequent delay was caused by the length of time which the statutory
procedures took. He should not be liable for that delay, when he was complying
with the Act rather than otherwise.
This analysis
of the basis on which liability exists, in my judgment, is wrong, although it
might be said to be supported by the judge’s statement ‘The nub of each
complaint is the failure to comply with the statutory procedures laid down by
the Act before commencing work’, which was reflected in Mr Gerrey’s submission
to us that the appellant was liable for failing to give the notice which the
statute required. I would prefer to say that the appellant committed a nuisance
because of the work which he did without obtaining statutory authority, and
that liability continued until the works were completed in 1992 because the
nuisance continued for that period in fact, rather than because the statutory
procedures took that time to run their course.
If this view
is correct, then it is unnecessary to refer to the statutory provisions in any
detail, but in deference to Miss McAllister’s submissions I will summarise them
as follows.
Section 46
specifies the ‘Right of owners of adjoining lands where junction line built
on’. These rights are given to ‘the building owner’ and they include demolition
as well as strengthening etc of party structures. However, by section 47,
‘Before exercising any right conferred on him by section 46 … a building owner
shall serve on the adjoining owner … a ‘party structure notice’ (section 47(1))
and the notice must be served at least two months (sometimes one month) ‘before
the date stated therein as that on which the work is to be begun’ (section
47(2)). The adjoining owner may then serve a counternotice (section 48) and
where differences arise between them they may appoint an agreed surveyor or each
appoint their own surveyor (section 55(a)). The parties’ surveyors then appoint
a third surveyor (section 55(a)(ii)) and there is a short and, as the present
case demonstrates, optimistic time table for the eventual publication of an
award, which may ‘determine the right to execute and the time and manner of
executing any work and generally any other matter arising out of or incidental
to the difference’ (section 55(k)). There is provision for an appeal to the
county court or to the High Court (section 55(n)(ii)).
These
procedures, however, are all subject to section 47(4):
(4) Nothing
in this section shall prevent a building owner from exercising with the consent
in writing of the adjoining owner … any right conferred on him by section 46 …
So the
statutory scheme is clear. The building owner has certain express rights, but
these can only be exercised (1) with the adjoining owner’s written consent, or
(2) in accordance with a valid award by the surveyor or surveyors appointed
under section 55.
The effect of these
provisions and their predecessors has been considered in a number of
authorities. No notice is required in the case of the ‘mere removal of a
building from an adjoining building without disturbing the party structure’: Major
v Park Lane Co (1866) LR 2 Eq 453. In Standard Bank of British South
America v Stokes (1878) 9 ChD 68 the building owner undertook works
with the bona fide intention of supporting the party wall, and at common
law the adjoining owner had no right of action (see p73). Under the Act,
however, the defendant ‘had no right to proceed with his work until the
direction of the surveyor had been obtained’, and he was liable to be
restrained from doing so (p77).
Sir George
Jessel MR said (at p76):
I think it
the duty of the Court to read these Acts in a reasonable manner, with a view of
carrying out the manifest intention of the Legislature that these party
structures should not be interfered with by building owners without due notice
to the person or persons other than the building owner interested in the party
structure … .
In Selby v
Whitbread & Co (cited above) McCardie J considered the relationship
between the statutory scheme and the parties’ rights at common law. He said (at
p752):
An
examination of the code at once shows that common law rights are dealt with in
a revolutionary manner. The two sets of rights, namely, the rights at common
law and the rights under the Act of 1894 (which followed the Act of 1855), are
quite inconsistent with one another. The plaintiffs’ common law rights are
subject to the defendants’ statutory rights. A new set of respective
obligations has been introduced. The common law was seen to be insufficient for
the adjustment of modern complex conditions. Hence I think that the Act of 1894
is not an addition to but in substitution for the common law with respect to
matters which fall within the Act. It is a governing and exhaustive code, and
the common law is by implication repealed. (p752).
In the
particular case, he held ‘… the plaintiffs cannot succeed upon their claim at
common law inasmuch as the defendants’ party wall notice had been duly given
under the provisions of the Act …’ (p753). He then referred to actions which
might be brought outside the Act if the building owner abused his statutory
rights (quoted above).
These
authorities establish, in my judgment, that the appellant would not have been
liable in nuisance if he had given notice, or obtained consent, in accordance
with the Act and then done no more than was agreed or was approved by the
surveyors. But then, no damage would have been caused to the respondents’
house, save in the party wall itself, and in that respect no liability would
have arisen. The issue raised in the present case is whether the appellant’s liability
at common law is either excluded or reduced by the provisions of the Act which
he invoked, eventually, after the nuisance had arisen.
I would have
no hesitation in rejecting this submission even without reference to authority,
because, in my judgment, there is nothing in the Act which can be said to have
this effect. The adjoining owner’s common law rights are supplanted when the
statute is invoked, which can have the effect of safeguarding the building
owner from common law liabilities when he complies with the statutory
procedures, just as he may incur liabilities under the statute which did not
exist at common law (the Standard Bank decision). But if he commits an
actionable nuisance without giving notice and without obtaining consent, he
cannot rely upon a statutory defence under procedures with which ex
hypothesi he has failed to comply. If he does then give notice he will in
due course acquire statutory authority for whatever works are approved or
agreed, but, in my judgment, this does not relieve him from liability for the
continuing nuisance which he has unlawfully committed, until such time as and
to the extent that such authority is obtained.
This
conclusion is supported by the judgment in Adams v Marylebone Borough
Council [1907] 2 KB 822. The decision of the Court of Appeal was that
surveyors appointed to resolve differences between the parties had no
jurisdiction to award compensation to the adjoining owner for inconvenience and
loss of trade caused by works which were authorised by the statute: ‘… in my
opinion, the mere exercise of such rights cannot afford any ground for
compensation under the Act’ (per Vaughan Williams LJ at p835; compare
p841 per Fletcher Moulton LJ ‘… the adjoining owner has no right to
compensation for any inconvenience caused by operations which the Act has given
the building owner a right to carry out, so long as the latter acts within the
provisions of the Act, for, so long as he does so, his action is lawful.’).
The case was
one where unauthorised works were begun before any statutory notice was served.
The adjoining owner, who was a restaurant owner, claimed an injunction (see
[1905] 1 KB 661) and in due course was awarded damages for loss caused by the
operations of the building owners prior to the giving by them of the party wall
notice (p824). It was not clear to the court what further claim was then made
before the surveyors, but it was assumed that the adjoining owner had suffered
further loss of trade after the notice was given and the statutory procedures began,
by reason of work which was already done (see p828). The court held that no
such claim could be made, and Vaughan Williams LJ in the leading judgment
expressed the view that no claim would lie ‘before any tribunal whatever’
(p829). That was because the work was ‘in its nature rightful’ (ibid).
In the present
case, therefore, Miss McAllister submits that no claim lies for damage caused
after the notice was given, in December 1988. If Adams v Marylebone
was authority for that proposition then of course it would be binding on us,
even if that result seemed not in accordance with principle, for the reasons
stated above. But, in my judgment, there were two significant features of that
case which are not present here. First, there was an agreement between the
parties when the notice was given ‘that the work already done should
thenceforward be treated as if it had been done under a notice duly given under
the Act’ (p828). No such agreement is alleged or found to have been made in the
present case. Therefore, the basis for the court’s decision that what was done
was lawful under the Act does not exist here. Second, a related point is that
there is no finding in the present case that the statutory approval when it was
given covered all the works which created the nuisance in 1988. It would be
surprising if that finding was even suggested, because the surveyors could
hardly have agreed to approve works which caused such widespread damage
to the adjoining house. For example, the appellant failed to provide shoring
when the front wall of his house was removed. So it cannot be said, in my
judgment, that the works which created the nuisance were subsequently
authorised, whether by agreement or by surveyors under the statutory
procedures.
Without such
justification, the appellant has no defence, in my judgment, to the claim for
damages for the nuisance which he created in 1988 and which continued, on the
judges’s findings, until the works were complete.
One authority,
on which we did not hear argument, appears to be directly in point. In Upjohn
v Seymour Estates Ltd (1938) 54 TLR 465 the owner of a house, 92 Camden
Road, began to demolish his property with the result that his half of the party
wall collapsed. The plaintiff lived next door at no 94 and as a result his
property was damaged and he suffered business losses. (‘His stock suffered
severely, as did his business …’ (p466).) The defendants gave notice under the
London Building Act 1930 and surveyors were appointed, but before their award
was published the demolition took place without further notice to the
plaintiff. Goddard J held that no trespass had taken place but the defendants
were in breach of duty by withdrawing support from the party wall, and they
were liable for ‘all such damage to the structure as can be proved to have
resulted from the withdrawal, and also for the damage to the stock and
disturbance of the business which was caused by the collapse …’ (p467). In
short, damages were at large and they were directed to be assessed by an
official referee. It was not suggested that they should be reduced by reference
to any award, if there was one, made by the surveyors after the disturbance
took place.
Causation
The judge
found that ‘if the defendant had properly complied with the Act … the
plaintiffs would have still been able to find a buyer and to complete the sale
of their property by the end of October 1988’. There was evidence that the
mortgage surveyors, who saw the extent of the demolition and rebuilding that
the appellant was carrying out, were concerned to know that proper notice had
been given and the statutory procedures complied with. The judge was entitled
to hold that the sale actually negotiated with a prospective purchaser, Miss
Knight, or with some other purchaser would have been concluded, even if the
works were in progress, provided they were carried out lawfully under the Act, a
fortiori, if a notice had been served and as a result the works themselves
had not begun. The appellant submits that the loss of a sale was not shown to
have been caused by his failure to serve the statutory notice, but that is not
what the judge found. ‘If the defendant had properly complied with the Act’
means ‘if he had not carried out unauthorised and therefore unlawful work’, and
undoubtedly it was those works which were the effective, if not the only cause
of the respondents’ failure to sell their house in 1988.
Remoteness
It is
sufficient, in my judgment, that the appellant could reasonably foresee that
the respondents might be unable to sell their house because of the (unlawful)
works which he carried out, at least until statutory authority was obtained and
the works so authorised were complete, and that they might suffer financial
loss in the form of a continued liability to pay mortgage interest on a loan or
loans which would otherwise be repaid. Moreover, the respondents might intend
to build a new property, in this country or overseas, and increased building
costs might be the consequence of delay. None of these was bound to happen, and
it might also have been the case that the respondents would have obtained a
fresh mortgage advance on their new property, for an equal or greater amount,
and therefore would not have suffered any loss of mortgage interest, by reason
of the delay. Both possibilities were reasonably foreseeable and the
respondents did in fact incur this type of loss by reason of their inability to
sell the house for the period in question.
Length of
period/failure to mitigate
The period
covered by the judge’s award was from November 1 1988 until March 31 1993, made
up as follows:
|
December 1988 |
Notice given. |
|
|
October 1991 |
Surveyors’ final award. |
|
|
October 1992 |
Rebuilding work complete. |
|
|
March 1993 |
Six months for sale. |
|
The bulk of
this period was taken up with obtaining the surveyor’s final award. The judge
examined the reasons for delay, one of which was that the respondents’ surveyor
held certain views as to the content of an agreed award with which the
appellant’s surveyor disagreed. This led to the appointment of a third
surveyor. A second reason was ‘the obvious inexperience bordering at times on
incompetence of the Defendant’s surveyor’. He held that the appellant could not
rely on delay caused by his own appointee, and that the respondents’ surveyor’s
conduct had not been so unreasonable as to be unforeseeable. ‘The truth is that
he was throughout as anxious to resolve matters as speedily as was compatible
with his professional duty to protect his clients’ interest.’
I can see no
ground on which these findings can be challenged, and in the light of them the
appellant’s submissions that the period was excessive and that the respondents
failed to mitigate their loss must, in my judgment, fail.
I therefore
would dismiss this appeal.
Henry and
Aldous LJJ agreed and did not
add anything.
Appeal
dismissed.
