EWJ Dec 2023 - Journal - Page 79
MBL and BDL pleaded in the Defence that it was not
admitted that the Defendants had excavated the Development Site beyond the boundary between the Development Site and the GAL’s Premises or that
approximately six inches of the GAL’s land has been
removed. It was denied that the piled foundations extended under GAL’s premises and/or that any wall
placed atop the capping beam was ‘likely to extend
onto’ GAL’s premises. It was positively stated that,
“The piled foundations, the capping beam (and consequently any walls built off of the capping beam)
are on the Development Site.” The Defendants
consequently denied the allegation of trespass.
Judgment on appeal
On appeal the Claimant contended that the judge at
first instance was wrong to make a factual finding that
there was no trespass on the basis of the evidence
provided by the Claimant including the witness and
photographic evidence.
The Claimant also sought to argue that the judge’s
pleading point was answered by the fact that the capping beam was formed by a single pour of concrete
and the trespassing concrete, whether properly characterised as “overspill” or not, forms part of that single mass of concrete which constitutes part of the
foundation of Majestic House. The Claimant therefore contended that the foundations claim pursued at
trial was properly within the pleaded case.
Judgment at first instance
The judge at first instance noted that he needed to
determine as a question of fact whether the piling
foundations, capping beam, and wall now placed on
them by BDL trespassed on the GAL Site and if they
did, whether he should grant GAL a mandatory
injunction or order damages in lieu.
Mr Justice Murray did not accept the Claimant’s
contentions:
1. The judge considered the Claimant’s witness
evidence and found that it was too heavily reliant on
the evidence of the Claimant’s expert, Dr Antino. The
judge largely rejected Dr Antino’s evidence on the
boundary and the foundations where it differed from
the Defendants’ expert, Mr French.
The judge accepted the expert evidence of the
Defendant’s expert, Mr French, as to where the
boundary line lay and by the time of the trial GAL accepted Mr French’s evidence as to the position of the
boundary. Having accepted the position of the boundary, GAL was also required to accept that, apart from
the question of concrete overspill onto the GAL Site
(which remained in dispute), the foundations, capping
beam, and wall for Majestic House were all constructed within the boundary of the Majestic House
Site.
2. The judge at first instance made clear that the
photos were not particularly helpful and the Court
was not able to say on an appellate basis that there was
any error in the Judge’s approach or assessment.
3. The trial pit dug on the GAL Site showed that no
concrete from the foundation crossed the boundary
line. The trial pit dug on the Majestic House Site was
less conclusive but the judge agreed with Mr French’s
conclusion that, to the extent the concrete crossed the
true boundary line by between 100 and 150mm, it
made no difference whether that occurred accidentally or deliberately to form part of the concrete base
of the fence. There was no basis to disturb the judge’s
findings on appeal.
The judge stated that trial pits were a much better
basis to ascertain what in fact took place than the photographs upon which GAL relied. Two trial pits were
dug, one on each site. The judge relied on the trial pit
on Goodmans Yard as demonstrating there was no
trespass in respect of the piling foundations and the
cap.
4. Mr Justice Murray found that the judge was not
wrong to conclude that the possible extension of concrete over the boundary line by between 100 and
150mm was not a trespass because (i) there was always
intended to be a concrete poured fence base below
GAL’s fence posts, (ii) from a technical perspective it
makes no difference that the concrete in question is
connected to the capping beam, and (iii) it makes no
difference that it was done as part of a single pour of
concrete. It was therefore a reasonable and compelling
inference that GAL’s contractors adopted the concrete
on GAL’s behalf to form the base for the fence.
The judge noted that there was a thin layer of
concrete that was not laid as part of the piling foundation and piling cap and that could be used and was
used to support a new fence. The judge accepted Mr
French’s evidence that the concrete seen was for the
fence and not overspill and stated “however the case
of GAL is not about minor concrete overspill but very
serious trespass of a wall on Goodmans Yard.”
The judge held that GAL’s pleaded case was that the
foundations of Majestic House trespassed on the GAL
Site but that was based on a mistaken view as to the
true boundary line. The judge also rejected the
pleaded case that there were “six inches (or similar
mm) of concrete foundations and pile cap on Goodmans Yard” and that any wall built on those foundations would extend onto the GAL Site.
5. The judge was not wrong to conclude that the case
eventually pursued at trial by GAL regarding concrete
trespassing by overspill was not within the APOC.
Once the boundary articulated by Mr French was
found to be the true boundary, it could not be said that
the “piled foundations extend underneath the
Claimant’s Premises” or that the “foundations” were
on the GAL Site, as pleaded. GAL could and should
have sought to re-amend the APOC if it wished to pursue the trespass by overspill claim, which it did not do.
The judge stated at paragraph 167 of the judgment,
“Accordingly the pleaded case on foundations is not proven by
GAL as they are required in this trial and if for any reason
there might be some concrete overspillage though on balance
I find it to be fence footings that has nothing to do with case
in the Re Amended Particulars of Claim in this trial.”
EXPERT WITNESS JOURNAL
Mr Justice Murray therefore dismissed the appeal.
Analysis
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DECEMBER 2023