Case No:   IHC 46/06
NEUTRAL CITATION NUMBER: [2006] EWHC 3720 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Date: Friday, 28 April 2006

BEFORE:

MR JUSTICE LINDSAY

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BETWEEN:

KENNETH GODDARD
Claimant
- and -

MEGAC LTD & ANOR
Defendant

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MR W AINGER (instructed by D’Angibau Willmot) appeared on behalf of the Claimant

MR W MOFFETT (instructed by Grundberg Mocatta Rakison LLP) appeared on behalf of the 2nd Defendant

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Judgment

MR JUSTICE LINDSAY: 
1.	I have before me an application notice of 9 January 2006 in the action Kenneth Goddard, claimant, against, as first defendant, Megac Limited, and as second defendant, Mr Roger Evelyn Stanfield Salvesen Baden‑Powell.  The application notice asks that there should be an order for summary judgment against the claimant, dismissing the whole claim pursuant to CPR Rule 24.2, further or alternatively, that the claimant’s claim be struck out pursuant to CPR Rule 3.4(2) because (the individual defendant so avers) the applicant has no real prospect of succeeding on his claim and because the particulars of claim, he says, disclose no reasonable grounds for bringing the claim.

2.	I need to say something of the action.  It was begun with a claim form of 9 February 2005, and it concerns two properties, and to some extent, the relationship between them.  The properties consist, firstly, of Alderbury Hill House, which is owned by the first defendant, but may be beneficially owned by the second defendant.  At any rate, its ownership is on the defendant’s side.  The other property is The Lodge which was for a time (and it was at material times) owned by Kenneth Goddard, the claimant.

3.	I have laid in front of me, handed up this morning, estate agents’ particulars as to the lodge.  Even discounting to the usual extravagance of estate agents’ language, it would seem to be (The Lodge) a property of some charm.  It is described as an “exquisite Victorian lodge situated in the setting of Clarendon, only 1½ miles from the cathedral city of Salisbury”.  Although I am not in terms told this, I would expect that Alderbury Hill House, of which I have no photograph, is a grander property, possibly in much the same style.

4.	The casus belli between the owner of The Lodge and the owner of Alderbury Hill House is a water supply to The Lodge, and that supply goes back possibly 100 years, but, so far as concerns expressed legal rights, it came into existence as a right in favour of The Lodge as dominant tenement over Alderbury Hill House’s servient tenement by a deed of grant of 8 May 1974.  The grant was by the then owner of Alderbury Hill House in favour of the then owner of The Lodge.  Both of those parties have been succeeded in the sense that there no longer is Stanley William Edwards as the owner of Alderbury Hill House, and no longer are the grantees of that grant, Mr and Mrs Holland, the owners of The Lodge.

5.	The recitals in the deed of grant indicate, after noticing who is owner of what, that the grantee, it says, (that is to say the then owners of The Lodge) is desirous of obtaining a supply of water to the lodge aforesaid for domestic purposes from a boring situated on the owner’s land (and the owner is defined as the owner of Alderbury Hill House of the time and successors, and equally, the grantee is defined so as to include successors) “shown on the plan annexed hereto”.  One notices that whereas the grantee is desirous of obtaining a supply of water for domestic purposes, it does not follow that he is going to get it.  For that, one has to see what the effective part of the deed provides.

6.	That was at recital (3).  At recital 4, it says:

“The supply of water aforesaid is intended to be by means of a pipe about Two Inches in diameter already laid.”

7.	At recital 5, it says:
“The Owner has agreed with the Grantee for the grant to him in fee simple of the right to take water from the said boring so far as the same may be required for the domestic purposes only of the Grantee.”

8.	So much for the recitals; now, says the deed of grant (in the conventional way ) this deed witnesseth as follows:

“1.  In consideration of the premises and of the covenants hereinafter contained the owner hereby grants unto the grantee full and free right and liberty to draw and receive from the said boring and to convey through the said pipe such an amount of water as may be required for the domestic purposes only of the grantee’s said dwelling and for no other purpose whatsoever with liberty from time to time as shall be necessary to cleanse repair or replace the said pipe in the same position as the present pipe and for these purposes and no other to enter upon pass along and break up the land adjoining the said pipe doing as little damage as possible to the said land TO HOLD the said liberties and rights unto the grantee in fee simple.”

9.	Then at paragraph 2, it says:

“The grantee hereby covenants with the owner …”

10.	The first little covenant is for the payment of a sum and that transpires to be a really small (that is almost to say insignificant) sum of 5.4 pence in the pound of the rateable value from time to time of the lodge per annum.  I will not say any more about that for the moment.  There is a covenant by the grantee to exercise the rights that he gets so as to do as little damage as possible to the owner’s land and to make good, and I do not think I need to go into that further.  The grantee also covenants at (c):

“To remove and carry away all stones gravel soil clay sand or any refuse or rubbish at any time removed from the said pipe or accumulated on the adjoining land at the time of any repair thereto or cleansing thereof and not at any time to create or continue a nuisance on the Owner’s land.”

11.	There is a covenant by the grantee to keep the owner indemnified and at 2(e) the grantee covenants:

“In the event of a water main being laid by the competent local authority or other statutory contractor along the nearest public road to The Lodge aforesaid to apply to such authority or contractor for the main water supply to be connected to The Lodge at the Grantee’s expense.”

12.	It is not, in terms, a provision that if a connection is made to that particular main that the rights granted under the deed fall away.  Given that they were expressed to be granted in fee simple, one would expect them to continue however relatively valueless they might be once there were to be a connection with the main.

13.	The plan attached to the 1974 deed shows the main road, which is the A36.  It shows The Lodge virtually on top of the main road at the entrance of a driveway which passes The Lodge and wends a curving way up to Alderbury Hill House at some good distance from the road.  In the top northern corner (almost as it is) of the Alderbury Hill House plot on the plan, one sees a dot and the word “boring”.

14.	There is no indication whatsoever on the 1974 deed’s plan of the course that the then-already-laid pipe took.  Nor is there any mention of pumps or water towers, stop cocks, electricity supply to a pump or anything of that nature.  The deed is not badly drafted but it could be that the solicitors were never told of the existence of a pump, a water tower and the course of the pipe or any need for the supply of electricity.  One just does not know, and the parties before me now - Mr Moffett appearing for the second defendant, and Mr Ainger for the claimant - are unable to tell me whether, when the deed was drafted in 1974, the pump and the water tower already existed or not.

15.	If they did exist, it looks as if the solicitors who drafted the deed were never told.  I suppose it is possible that instead they were told, but failed to realise the significance of them.  One way or another, as I say, there is no mention whatsoever of pumps, water towers, stop cocks, electricity supply or anything else.  In many respects it is the deficiencies in that respect that have come to lead to difficulty between the parties, and difficulty there certainly has been.

16.	Unfortunately, whilst they were neighbours (or for a time at any rate whilst they were neighbours, because Mr Goddard no longer lives there) there were very poor relations indeed between the claimant, Mr Goddard, and the second defendant, Mr Baden‑Powell.  Thus, it came about that the sort of issues that might have been dealt with amiably enough between neighbours who were amicable, came instead to be not dealt with in an amiable way but dealt instead by the issue of proceedings which, as I have mentioned, began in February 2005.

17.	The particulars of claim set out the case as the claimant then wished to formulate it, and at paragraph 6(2) it said this:

“The Claimant will, inter alia, contend that by reason of the 1974 Conveyance and the 1974 Deed [and it is chiefly, if not only, the 1974 deed to which I have referred which is the material document] the owner (or owners) from time to time of AHH [that is the Hill House] was (or were), in the premises, at all material times under an obligation or duty to ensure that …”

18.	Then five separate duties or obligations are set out and it is the breach of those duties that gave rise to various claims in damages which the claimant was looking to be relieved against.  Mr Moffett began his argument, as one would expect on a striking out, to indicate that, in the second defendant’s view, the duties that there were pleaded really had no sound foundation in law and that, as framed, the case must fail.  It has long been recognised on both sides that the claimant, Mr Goddard was chiefly intending to base his case on a reported case called Abbahall Ltd v Smee [2003] 1 WLR 1472.

19.	Mr Ainger says, with good justification, that the second defendant has always known that Abbahall was the cornerstone of the claimant’s case and Mr Moffett, with equal justification, can say that all along the defendants have been baffled about how Abbahall assists the claimant.  In the course of argument, rather than going in detail through each of the sub‑headings of the particulars of claim, it became apparent that the best course was to see how far, if it all, Abbahall can, indeed, assist the claimants.  In practical terms, if Abbahall does not assist the claimant then, with his usual candour, Mr Ainger economically says that he will accept that the claimant’s case will have to be struck out.

20.	If by amendment one could be sure that an Abbahall case could be called into existence that would be one thing.  It would need to be considered whether it would be appropriate to allow the amendment, and if so, on what terms as to cost and so on.  If, even amended to bring out an Abbahall case, in point of the language of the pleading, the claimant still could fail.  Putting it another way if, simply in point of language, an Abbahall case were framed but would be such that, having regard to the facts and surrounding circumstances, its prospects of success would be no more than fanciful, well then, again, the case would have to fail at this threshold stage.  It would be a kindness to Mr Goddard, in such a case, not to let it go forward to encourage false hopes and possibly expose him to costs, although he is, I should add, legally‑aided.

21.	Accordingly, crucial to the case is an examination of Abbahall and then an examination of whether there is any sufficient ground to think that either an Abbahall type claim is already in existence or whether by relatively straightforward and substantiated amendment one could be called into existence.  Firstly, I look at Abahall.  It is an unusual case in the sense that it concerned the relationship between the ground floor and the first and second floor of a building in the circumstance that the likelihood was that, at one point, they had all been in the same freehold ownership.

22.	The first and second floors and the roof had come into the ownership of the defendant, Miss Smee, by way of adverse possession.  The ground floor was in the ownership of a freeholder, Abbahall, which let it at a not insubstantial rent.  Miss Smee, though, was of relatively modest means or of relatively indifferent views as to the maintenance of buildings, one way or another.  The position was such that rainwater was causing leaks;  the roof leaked and water fell via the first and second floors so as to cause damage to the ground floor flat.  Also, the upkeep of the first and second floors were such that there was a danger of falling masonry falling onto visitors to the ground floor.  The question arose as to what works needed to be done, and who was to bear the costs, and in what proportion.

23.	The two‑man Court of Appeal consisted of Lord Justice Chadwick and Mr Justice Munby and it was Mr Justice Munby that gave the leading judgment to which I need to refer.  At his paragraph 3 he says:

“The Flat accordingly comprises a ‘flying freehold’.  (That is to say Miss Smee’s flat].  It is common ground that, no doubt because of the circumstances in which Miss Smee came to acquire her freehold, there are no covenants of any sort regulating the relationship between the two freeholders.  That relationship is regulated by the law of easements and by the law of nuisance and negligence.”

24.	That is at page 1474B.  By contrast, as Mr Moffett points out here, his client has a dominant and servient tenement whose relationship so far as material is regulated by the deed of 1974 to which I have referred.

25.	At paragraph 4 on page 1474, Munby J speaks of the danger of masonry falling onto visitors to the ground floor.  He refers to chartered surveyors having said - and they, I should add, were jointly commissioned by the parties, so that one could expect them to be indifferent between the needs of the two sides - describing brickwork to the parapet corbelling as in need of “immediate attention” otherwise sections will “inevitably” fall onto the public thoroughfare.

26.	At paragraph 8 it is to be noticed that Miss Smee accepts that she owes Abbahall a duty of care.  There is no corresponding acceptance of the duty of care being owed by Mr Baden‑Powell to Mr Goddard.  At paragraph 9, this is now page 1475, Munby J says, after referring to some easement cases:

“Nowadays, however, matters have been transformed by the developments in the law of nuisance and negligence heralded by the decision of the Judicial Committee of the Privy Council in Goldman v Hargrave [1967] 1 AC 645.”

27.	He then says how those new developments had been built upon.  He, at paragraph 10, refers to two of the cases, Holbeck Hall and Bond and says:

“Those two cases remain, no doubt, good authorities in relation to the law of easements; but they tell us nothing about the proper content of the modern law of nuisance and negligence.  It is to those causes of action that I now turn.”

28.	It seems to me that it is not too much to expect that from this point on the judgment of Munby J is dealing not with anything immediately concerned with the law of easements, but with the modern law of nuisance and negligence and causes of action at that time.  He continues:

“The law of easements may provide Abbahall with no remedy but the modern law of nuisance and negligence does.”

29.	When he says, “The law of easements may provide Abbahall with no remedy” he thereafter says nothing further about easements or the law of easements or the applicability of easements.  He concerns himself exclusively, as it seems to me, with nuisance and negligence.  He then turns to how nuisance and negligence comes to arise on the facts of that Abbahall case.  He turns to Goldman v Hargrave, which I have already referred to, and then at paragraph 11 speaks, by way of citation, of:

“the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man-made.”

30.	That is a crucial reference because it is the duties on occupiers in relation to hazards that the rest of the case is dealing with.  There is then an extensive look by the learned judge to what the law is in relation to this kind of escaping hazard.  It leads to what, in paragraph 22, citing from a judgment of Stuart-Smith LJ, he describes (that is Stuart‑Smith LJ described) as “a measured duty of care”.  At paragraph 27, he says:

“What Abbahall seeks by way of its claim for damages is reimbursement of the expenditure already incurred, and hereinafter to be incurred, in abating the nuisance.”

31.	What the case is concerned about is how is cost to be borne between the parties who are affected by the escape of a hazard from one property to another, in this particular case, where the one property is situated vertically above the other.  It is, admittedly, a very broad approach.  At page 1481, paragraph 42(h), Munby J speaks of the test as being “clearly broad and impressionistic”.  At the end of that passage, he describes it at paragraph 43 as:

“a duty to make the appropriate contribution to the cost of the appropriate works, always assuming, that is, that the works are actually carried out.”

32.	Then there was a careful examination of in what proportions inter se the costs there should be picked up.  I do not need to go into that in any detail, but for many, many reasons the learned judge thought that half and half between the parties was the appropriate split.  At paragraph 77, he says, after having said that he would like to make two final observations, as follows:

“The other is a caveat as to the potential ambit of this decision.  As I have made clear my decision is confined to the situation where the owner of a flying freehold shares with her neighbours below the protection of a common roof.  Other solutions may be appropriate where the properties in dispute are arranged side by side rather than one on top of the other.  I would also wish to reserve the question of what Miss Smee’s duty might be were the cost of the necessary repairs to be of a wholly different and very much greater order of magnitude than is in fact the case.  It may be that it would make no difference.”

33.	He then goes on to say that in different circumstances it might make a difference.  Hence, in his judgment, the expenditure there, which was of the order of £20,000, although it had not actually been spent by that stage, should fall equally between Miss Smee and the freeholder of the ground floor, Abbahall.  Lord Justice Chadwick’s judgment is very short.  He, at paragraph 78, agreed that the appeal should be allowed and he said of Mumby J’s judgment:

“There is nothing that I wish to add to his analysis of the issues in this case, his reasoning or his conclusions.”

34.	He said also that:

“The judge accepted the view, expressed by the surveyors in their report and not challenged, that the condition of the house at Queensgate Place Mews constitutes a danger to the public.  If the parties cannot bring themselves to act responsibly, it must be hoped that the local authority will give urgent consideration to the exercise of its powers to require the abatement of what, on the evidence, is plainly a public, as well as a private, nuisance.”

35.	The first consideration, as I mentioned, is whether a case of an Abbahall type of liability is already pleaded.  I do not need to go through the particulars of claim in any detail to establish that there is no mention of a hazard, there is no mention of the escape of a hazard, there is no mention of a nuisance, there is no mention of a duty of care, and there is no mention of negligence.  If Mr Goddard’s case, as he would now wish to put it, depends on Abbahall, he would need to have leave to amend and Mr Ainger, of course, recognises that.

36.	Is it the position that simply by a little bit of linguistic by‑play one can stretch or, indeed, compress the available facts so as to derive thereout an Abbahall case?  That, as it seems to me, depends upon whether one can find some hazard that has escaped from Alderbury Hill House land to The Lodge land.  Here, the nature of the hazard which Mr Ainger would wish to have the opportunity of identifying in an amended pleading as a hazard, is the escape of contaminated water down the two inch pipe that leads ultimately to The Lodge.

37.	As to that quality of water, there has been some earlier inquiry and in June 2001 a report was made by a Mr David Tester.  There were appearances before him by Mr Baden‑Powell, who was there identified as a barrister, by the local planning authority, by Mr Goddard, and there was an inquiry of some length under the aegis, I think, of the Department of Environment, Food and Rural Affairs.  It matters not who Mr Tester was acting for so much as what he said.  He said this in relation to contamination found in the water supply:

“There is no previous analytical information to establish whether the contamination also occurs under normal conditions and there is no obvious source of pollution.  The catchment of bore holes of this depth are also usually protected from contamination from the land surface by the underlying thick mantle of soil, clay and aquifer rock.  However, pollution of the bore hole itself from surface water ingress from the neighbouring field containing sheep may be responsible.  It is unlikely that cattle grazing in Mr Baden‑Powell’s own field were responsible for the high bacteria counts as alleged by Mr Goddard, because this field is down gradient of the bore hole.  However, the council has not yet asked the environment agency to investigate this as it could have done under paragraph 6.9(iii) of Circular 24/91.”

38.	Insofar as water passing down the pipe is concerned, there is no obvious source of its pollution.  The most likely source, it would seem, is nothing to do with Mr Baden‑Powell’s or Megac’s land, but is to do with run‑off of water from what is physically, yet higher adjoining land to the north.  It is necessary to have in mind, broadly speaking, the directions in which the water flows and to whom it flows from the bore hole.  The bore hole, as I mentioned earlier, is towards the northern corner of Alderbury Hill House land.  One pipe runs off north‑eastward to a swimming pool and that is no concern whatsoever to the case.

39.	The other, and important, limb, runs first down to Alderbury Hill House, then down to The Lodge.  If the water is, indeed, contaminated, and if, indeed, the likelihood is that it was not contamination derived from Mr Baden‑Powell’s land but from the northern land that is even higher, the water, it would seem, would be already fully contaminated to the degree to which it is contaminated by the time it comes out of the bore hole.  In which case, Mr Baden‑Powell’s house, Alderbury Hill House, has had a supply of contaminated water, as also has had The Lodge.

40.	Mr Moffett says that it is of the nature of a hazard, certainly where a duty to do something about it under Abbahall is expected of a party, that one should know of it, and there is no suggestion that Mr Baden‑Powell has known of his own house as being supplied with contaminated water.  There is no indication that Mr Baden‑Powell, or his guests or invitees, have suffered by reason of the supply to them at Alderbury Hill House of contaminated water.  I do find it difficult to the point of impossibility of regarding the passage of water from the northern bore hole, down past Alderbury Hill House and on to The Lodge as capable of being either a hazard or an escape of a hazard of the kind that is contemplated in Abbahall.

41.	The pleadings, as they stand, and as Mr Ainger accepts, make no mention of hazard, make no mention of nuisance, make no mention of negligence, and make no mention of a duty of care.  If leave were given, could it be made the case that an Abbahall type of escaping hazard could be pleaded as inflicted upon the lodge at the southern end of the two inch pipe?  I do not regard it as possible to see the facts as creating any such escape.  I would not care to define a hazard.  Obviously, in many cases, there will be little or no dispute about what a hazard might be.  There might be flood; there might be fire.  But it is difficult to see how a supply of water in a two inch pipe, where there is no obligation whatsoever on the owner of the pipe to ensure that the water should be of drinkable quality, is capable of being described as “a hazard”.  As I mentioned earlier, the actual conveyance makes reference expressly to the supply being of such an amount of water as may be required for domestic purposes, but there is nothing there that suggests that its quality should consistently be good enough for the domestic purpose of drinking.  There are many, many domestic purposes which a house such as The Lodge might need water for that do not require water to be of any drinkable quality.

42.	It is not easy to see from Mr Tester’s report just how deficient the water would be for other domestic purposes than drinking, but there is no evidence before me that suggests that the water is, for example, of so poor a quality that one cannot sprinkle a lawn with it, fill a lavatory system with it, and possibly wash a car with it, or do many of the other things that water is used for where water of the best quality is not required.

43.	Mr Ainger, as I have mentioned, nails his colours to the Abbahall mast, but as it seems to me, first of all, the case as already pleaded is not an Abbahall case.  I think that is acknowledged.  Secondly, and more importantly, in my judgment, it cannot be made to be a case of an Abbahall nature without one being able to find something that can fairly be described as an “escaping hazard” and, given the best ingenuity that Mr Ainger has been able to deploy, he has found no escaping hazard beyond that of contaminated water of the kind to which I have referred.

44.	There is a difficulty in that if there were to be a serious escaping hazard represented by his supply of water, then the obvious thing to do would be to turn the supply off, but that would have done no good to Mr Goddard whatsoever.  An alternative way, of course, would be to allow the supply to continue, but instead to purify the water.  That would be a thing that Mr Goddard might set about doing to “de‑hazardize” (if I could invent a word) the supply, but it is not a thing which can be claimed by he who is no more than the dominant owner for the purposes of an easement.

45.	The deed of 1974, itself, regarding its creation of an easement, cannot be expected to cast upon the servient tenement positive obligations.  The existence of positive obligations and the existence of easements, broadly speaking, are mutually exclusive.  In any event, as I have said, Mr Ainger wishes to move away from an easement approach to an Abbahall approach.  Where does that leave the case?  It seems to me that Mr Ainger is right to say, in effect, that this is either an Abbahall case or is nothing, and I fear, from Mr Goddard’s point of view, that I find it is not an Abbahall case and therefore that it is nothing.

46.	Although I was addressed in detail by Mr Moffett (at a stage when the nature of the Abbahall case that was being put had not emerged and which, once it had emerged, led to an analysis of the case chiefly in easement terms) I do not need to go through that argument stage by stage because before Mr Ainger had sat down, it had become quite plain that it was Abbahall or nothing; that was the claimant’s own case.  I mean no disrespect to Mr Moffett’s argument by not going through it in detail, but it seems unnecessary at this stage to do so.

47.	Coming back to the main relief which is asked for in the application notice, it seems to me that I must recognise that “all or nothing” basis.  It is to be regarded, in my judgment, as nothing and hence the claimant’s case should be struck out.

[After further discussion]

48.	I request counsel for the claimant to prepare a minute outlining the formula to be used to determine costs as appropriate.  If counsels are unable to reach agreement on the formula to be used, then the matter may be restored to me for determination.