Abdol Hossein Azizi v Dama Construction Limited

Mr Justice Eyre :

1. The Appellant and the Respondent, respectively the claimant and the defendant below, have been engaged in long-running litigation arising out of building works (“the Works”) performed by the Respondent at the Appellant’s property, 17, 17A, and 17B Fairhazel Gardens, London. No 17 was an existing end terrace house and 17A and 17B were vacant plots alongside it. The Appellant appeals with permission of Constable J on two grounds against the order of HH Judge Saggerson of 5 th August 2024. The order was the consequence of a judgment handed down on the same date. In the judgment the judge made findings as to the responsibilities for the problems which had arisen in the course of the Works and identified the financial consequences which flowed from those findings.

2. As a result of the Works there had been movement of the flank wall of no17. Ground 1 relates to the judge’s finding that the responsibility for this lay with the Appellant because the Respondent had been denied access to no 17. The Appellant contends that this finding was not open to the judge because it was contrary to the report of the single joint expert when that report was properly understood. The Appellant says that the judge had either misunderstood the report or had impermissibly departed from the opinion of the expert without good reason and/or without adequately identifying his reasoning.

3. The judge had sent out his judgment in draft in advance of handing it down and had invited submissions on costs and on matters of calculation. The Claimant had sent submissions to the correct email address by the required date. As a result of an oversight those submissions were not put before the judge before he had prepared a final draft, although they did reach him before he handed down that judgment. In ground 2 the Appellant says that there was procedural irregularity in that regard and in the steps which the judge took to address the matter when the submissions were drawn to his attention.

4. For the reasons I will set out below neither ground has been established and the appeal is dismissed. The Proceedings Below.

5. Although it will be necessary to set out the background to the judge’s order of 5 th August 2024 in some detail what follows will only be a summary of the long history of this matter and will be limited to those matters which are necessary to determine the grounds of appeal.

6. The Appellant engaged the Respondent under a contract of November 2011 to carry out the work of excavating the basements of the three elements of the property. The basement of 17A was excavated and in February 2012 there was movement of the existing flank basement wall of no 17 as a consequence of lateral pressure and the failure of the underpinning works. Central issues were the cause of and responsibility for that movement. At that time there had been no excavation of the basement of no17 nor any partial excavation with a view to addressing the lateral pressure. There was a significant issue as to the relevance of and responsibility for that. The Respondent’s case was that the agreement was that the basement of no 17 would be excavated together with that of 17A, albeit in phases; that it was also agreed that it would have access to no 17 from the outset to undertake a partial excavation and so release the underpinning from lateral pressure; and that the problems had been the result of the Appellant’s action in denying the Respondent access to no 17 to carry out those works.

7. On 19 th July 2012 the Appellant obtained an adjudication award of £8,333.80 in his favour and on 12 th July 2018 he commenced proceedings seeking to enforce that award. The Respondent defended the claim and issued a counterclaim. It asserted that the adjudicator had acted in excess of jurisdiction. The Respondent also set out its case as to the terms of the contract and as to the cause of the damage to the wall of no 17 saying at paragraph 38(c) and (d): c. “Dama had intended first to carry out the works for the construction of the basement at No17A. The starting point for Dama' s work was to underpin the flank wall between No17 and No17A (the Flank Wall). Dama intended to cut the ground on the No17 side of the Flank Wall at 45 degrees to release the underpinning from the lateral pressure from the soil and any groundwater. However Mr. Azizi failed to provide access to No 17 for these works. d. or about 24 February 2012 the underpinning on the Flank Wall failed, and Dama thereafter undertook temporary remedial works to secure the foundations of the Property. Following a visit to site on 6 March 2012 by Adrian Lofty of engineers Derek Lofty & Associates, a solution to rectify the underpinning failure was determined. It included the temporary propping of the Flank Wall utilising the ground floor area of No 17. Mr. Azizi was aware following discussion with Mr Lofty that implementation of the rectification measures would require access to and use of No l7. However, Mr. Azizi failed to allow the necessary access.”

8. The Respondent said that it had lawfully suspended work because of the Appellant’s refusal to allow access to no 17 and that the contract had been brought to an end by the Respondent’s acceptance of the Appellant’s repudiation. The Respondent counterclaimed for sums said to be due either pursuant to the contract or as damages.

9. In his Reply and Defence to Counterclaim the Appellant denied that the contract had provided for the Respondent to have access to no 17 saying at paragraphs 25 - 29: [25] “From the outset, Mr Bergamini of Dama tried to obtain possession of the House. He said that he needed it for an office and for welfare and toilet facilities for Dama's workmen. Mr Azizi objected to his house being taken over for such purposes and he deliberately installed tenants to ensure that Dama did not take it over. Dama provided a site hut and toilet facilities. [26] In an email dated 17 April 2012 to Mr True, Mr Bergamini demanded that Mr Azizi hand over to the Site Manager the key of the front door and back room of 17 Fair hazel Gardens "in case of power cut". He also stated that the "like to take possession of the site at 17 Fairhazel Gardens in order to start working on the basement". [27] As set out in paragraph 38e of the Counterclaim, in a letter to Mr Azizi dated 12 May 2012, Dama stated that it was imperative that they should have access to the House, and set out three reasons: • Need for storage space • Need for office space • Need to set up the safety support to replace the underpinning. [28] The Claimant denies that it was necessary that Dama should have possession of the House for office or storage space, or that they were entitled under the Contract to insist on using the House for such purposes. [29] As regards the underpinning and the replacement of the underpinning, Dama aver in paragraph 38c of the Counterclaim that they intended to cut the ground on the No 17 side of the flank wall at 45 degrees to release the underpinning from the lateral pressure and any groundwater. This was never stated to Mr Azizi as an intention prior to the original underpinning being carried out. It appears to be an attempt by Dama to justify their defective work. When constructing the original underpinning Dama well knew that such excavation inside the House had not taken place. If they had engaged a qualified engineer to produce designs and calculations, as they should, he would have appreciated that the design of the underpinning and temporary and permanent supports needed to take account of the soil and water pressures.”

10. The judge gave directions in the case on 27 th June 2023. He set out the issues in two schedules. Schedule One listed the issues of the enforceability of the adjudicator’s decision; of the Respondent’s entitlement to suspend the works; and of repudiation. Schedule Two listed issues relating to remedies including the amount, if any, due to the Respondent. The judge directed that there be an initial trial of the Schedule One issues.

11. That trial took place on 7 th – 9 th August 2023 and the judge handed down his judgment on 10 th August 2023. The judge accepted the Respondent’s case that from the outset the agreement had been for the excavation of the basement of no 17 and for the Respondent to have access to no 17 throughout. At [14] – [16] he explained why he was accepting the Respondent’s evidence and rejecting that of the Appellant on this issue. At [19] he said: [19] “From D's perspective access to 17 became increasingly urgent due to problems encountered 173 in digging-out 17 A. Requests for access to 17 were issued on 7 March 2012 [375]; 13 April 2012 [376] and by 12 May 2012 access had become "imperative" [3 84]. Mr Bergamini made it clear for reason he gave that work would have to stop without access to the whole site [3 84]. Mr Azizi does not accept that this was a request for site access.”

12. At [20] the judge found that access to no 17 had been refused by the Appellant.

13. The judge then turned to the issues against that background. He concluded that the adjudicator had breached the rules of natural justice and had exceeded his jurisdiction so that the award was not enforceable. He found that the Respondent’s suspension of work had been valid by reason of the Appellant’s denial of access to no 17. He found that there had been repudiation in the Appellant’s actions in engaging another contractor and purporting to terminate the contract and that the Respondent had accepted this repudiation.

14. Against that background the judge dismissed the claim and gave directions for the trial of the remaining issues. Those directions included provision for the instruction of a single joint expert (“the SJE”).

15. In fact two experts reported: one to cover civil engineering and structural issues and the other to address quantum issues. I will not distinguish between them and the issues on this appeal all relate to the aspects of the report prepared by Nick Barham, the civil engineering and structural expert.

16. Paragraphs 2.1 – 2.7 of the Executive Summary of the SJE report are of note for current purposes and said: [2.1] “The movement of the flank wall of No.17 was primarily the result of lateral ground pressure, and probably also groundwater pressure, applied against the 'back' of the underpinning, following excavation of the No.17A basement in front of the underpinning. This resulted in overturning (and possibly some sliding) of the underpinning and base of the masonry wall. [2.2] The Dama Design showed the flank wall of No.17 underpinned, with a basement excavation on the No.17A side, and no excavation or basement shown on the No.17 side. The underpinning should therefore have been designed to resist lateral ground and groundwater pressure. This could have been achieved by (i) making the mass concrete underpinning wider or by designing it as a reinforced concrete retaining wall, and/or by (ii) propping it at the top (potentially by way of a lowered ground floor slab). [2.3] I have prepared basic hand calculations, which show that the Dama Design was inadequate to resist the lateral ground and groundwater pressure that should have been allowed for. ln my view, therefore, the Dama Design as shown on the drawings, was inadequate in the permanent condition. [2.4] I understand that Dama's design intent may have included a basement below No.17: that is, the Phase 2 works, for which a planning application had been made. lf the permanent design included a basement to No.17, then there would be no lateral ground or groundwater pressure on the underpinning. ln this scenario, the design in the permanent condition would be adequate. However, this scenario or design intent was not shown in the Dama Design. [2.5] I understand that Dama's design intent may have included excavating within No.17 to “ release the underpinning from the lateral pressure from the soil and any groundwater” ln my view, that would have been an appropriate measure in the temporary condition, because it would have removed the lateral ground and groundwater pressure from the underpinning. However, it would not have addressed the issues in relation to the permanent condition shown in the Dama Design. That is, had the excavation below No.17 been infilled following completion of the works to No.17A, then the lateral ground and groundwater pressures would have been re-introduced. [2.6] An alternative appropriate measure in the temporary condition would have been to install propping to the underpinning, to prevent sliding and overturning failure. However, this too would not have addressed the issues outlined above in relation to the permanent condition shown in the Dama Design. That is, when the temporary propping to the underpinning was removed, there would have been inadequate restraint of the underpinning against overturning. [2.7] ln the event, it appears that no excavation of No.17 occurred, and little or no lateral propping was provided to the underpinning, during the excavation of the No.17A site, which allowed the failure of the underpinning to occur during construction. ln my view, had an adequate sequence of construction and/or temporary works been put in place, a failure would likely have occurred later due to the inadequacy of the Dama Design in the permanent condition.”

17. The reasoning underlying that summary was set out in section 4 of the report. I was referred to paragraphs 4.2, 4.8, 4.33 and 4.45 the last of which said: [4.45] In these circumstances, where I understand Dama could not access No.17 to carry out the excavation, Dama should have either: [4.45.1] revised its temporary works design, by installing propping to the underpinning which would have prevented sliding and overturning in the temporary condition although it would not have addressed the issues outlined above in relation to the permanent condition); or [4.45.2] revised its permanent works design, by (i) making the mass concrete underpinning wider or by designing it as a reinforced concrete retaining wall, and/or by (ii) propping it at the top.”

18. The further trial took place on 17 th and 18 th June 2024. The judge had directed at the time of his earlier judgment that there would be no need for further oral evidence at the second trial and neither side applied for permission to call such evidence. The judge sent out his judgment in draft on 2 nd July 2024. The following parts of that draft are of note for current purposes: i) [10] which said: “At the conclusion of this hearing, I indicated that I would provide a second written Judgment. This I now do. I am circulating this Judgment in draft for editorial and just as importantly arithmetical correction, and to allow the parties to comment on the calculation of applicable VAT, interest and costs as a result of my quantum findings.” ii) [53] in these terms: “Bearing in mind that a substantial proportion of the items to be charged are zero rated for VAT purposes and some elements of the Counterclaim have been disallowed or secondary options accepted in preference to D's primary case, I calculate that VAT recoverable by D is f.5,670.72. VAT is recoverable on the relevant aspects of the counterclaim because they are charges for the provision of chargeable services that are not zero rated.” iii) [57] – [59] which said: [57] “Costs should follow the event. C should pay the costs of the action on the standard basis subject to detailed assessment if not agreed. [58] This Judgment is circulated in draft for editorial and arithmetical correction only. I will receive written suggestions on these matters and on contractual interest and costs (strictly limited to 4 pages of A'4) and sent electronically (marked for my attention) to reach my clerk by no later than 4.00pm on Friday 26 July 2024 at [email protected] [59] On receipt of such suggestions or submissions I will consider whether a further ‘consequentials’ hearing is necessary.”

19. It will be noted that the draft judgment directed that the suggested editorial and arithmetical corrections and the costs submissions were to be submitted by 4.00pm on 26 th July 2024. The Appellant had acted in person at the hearings in front of the judge but after the June 2024 hearing he instructed solicitors. Those solicitors instructed Saleem Khalid of counsel and he prepared submissions on the Appellant’s behalf. The solicitors sent them to the correct email address at 3.54pm on 26 th July 2024.

20. At paragraph 19 the solicitors made this submission in respect of VAT: “The Claimant submits that the Defendant would not pay VAT in relation to the new build project which the counterclaim is predicated upon. In any event, the Defendant has not evidenced that it is currently VAT registered and therefore is entitled to invoice now for sums in respect of VAT.”

21. The document contained detailed submissions as to costs. These ran to 15 paragraphs and culminated in this submission at paragraph 21: “Accordingly, in all the circumstances, the Claimant submits that the Defendant should not be awarded any costs. At most, the costs which flow from the draft judgement ought to be limited to those litigant in person costs for the trial period that are proved at any assessment. Crucially, the Claimant submits that in any event the overall costs if assessed then ought then to be reduced by at least 75% to reflect the Defendant's failure on the vast majority of the counterclaim and its bullying conduct as found by HH Judge Roberts. Given these factors, plus the lack of costs budgeting and the Claimant's previous capacity issues, it is submitted that the Honourable Court should be cautious if awarding costs to the Defendant in this protracted litigation.”

22. Although sent to the court in time those submissions were not delivered to the judge until 12.45pm on Friday 2 nd August 2024. By that time the judge had prepared the final version of his judgment with a view to handing it down on Monday 5 th August 2024. At 2.46pm the judge emailed the parties’ lawyers explaining that there had been a delay in delivering the submissions to him and then saying: e. “Because I thought the Claimant remained "in person" I was not concerned that no editorial or arithmetical suggestions were made by the Claimant in respect of the draft Judgment. f. I was a little surprised (as I thought) that nothing had been said about costs. g. I was surprised that the Defendant was seeking extra time for costs submissions through Mr Dawson - but was unaware of any attempts to exchange submissions with D (of course also in person, so had to be approached directly). h. I did harbour a sense of some foreboding in the light of what I thought was the position that costs issues might be complicated. That is why I decided to list a Costs Hearing so that the Claimant could be heard. As it turns out submissions had been filed. I was aware that there was apparent non-compliance by D with regard to costs submissions. i. Nonetheless, in all the circumstances I consider that a Costs Hearing is still the least inefficient way of dealing with this - because from what I have read so far, dealing with written submissions is going to occupy me for at least that time in any event. There may be other costs issues as yet undisclosed to me. The costs of the Costs Hearing may also now be `in play’. Accordingly:

1. The Hand down will still take effect on the Judgment circulated in advance (as corrected) at 10.30am on Monday 5 August 2024.

2. The Interim Order with regard to the Costs Hearing will also stand”

23. The Appellant’s solicitors replied to the judge’s email at 4.00pm on 2 nd August 2024 and the material part of the email said: "As regards your item 1 below, our brief 4 page submission addressed the questions of VAT and interest (albeit not in depth in view of the brevity of submission required) and I respectfully submit that those submissions be taken into account in any final Judgment handed down on Monday 5 August. As regards item 2, given that the Claimant has already complied with your Order, and submitted its Costs Submission on time (and those costs submissions were unilaterally served on the Defendant in the absence of agreement to exchange), but has still not received any costs submissions from the Defendant, we submit that an appropriate course to adopt would be for the Defendant to submit its costs submissions no less than 14 days before any costs hearing so that the Claimant (and his counsel) may have a reasonable opportunity to consider them. The Defendant will have had the Claimant's Costs Submission for many months in advance of any hearing, and we submit that the interests of fairness (and doing the best that can be achieved given all the vicissitudes) that would be a reasonable course to adopt. Not only that, but this may assist in narrowing issues and so potentially reducing court time.”

24. The judge replied to that email at 4.32pm the same day saying: “Thank you. You must forgive a little consternation. I implored the Claimant at both PTRs and at the end of Phase One to secure legal representation - it was entirely and determinedly his choice not to do so and that was his right. Proportionality dictates that I cannot devote even yet more time now to matters that might have been previously raised. a. VAT is either payable or it is not on chargeable items. If D is not registered for VAT, this is only part of the picture. I am not registered for VAT (now) but I must still account for it on invoices for chargeable services. b. There is no more to be said about contractual interest. The Judgment will be handed down as indicated. I am sure you will all manage with the Directions already given.”

25. The judgment was handed down electronically on the morning of Monday 5 th August 2024. It is apparent that the judge had not revised the final draft which he had prepared before receipt of the Appellant’s submissions following that receipt.

26. The judge began by summarizing the procedural history. That initial section culminated in [10] which was in substantially the same terms as paragraph 10 of the circulated draft. The judge listed the evidence which had been before him and the issues. At [15] he said: “This Judgment follows-on from that of 10 August 2023 and should not be taken in isolation.”

27. The judge then summarized the submissions he had received after which he addressed questions of the validity of the counterclaim, inter partes costs, and the approach to the credibility and weight of the evidence. Having done that he addressed the measure of damages doing so by reference to the Scott Schedule which had been provided. The Appellant takes issue with the judge’s conclusion as to the sums which are set to have flowed from his findings as to the responsibility for the movement of no 17’s basement wall and the failure of the underpinning. The crucial findings in those respects were set out thus at [28] – [37]: [28] The disputes between the parties arose as a result of the movement and failure of the underpinning of flank wall of l7 in the course of ground works on the site of l7A. The SJE concludes [503/2.1 etc]: "The movement of the flank wall of No 17 was probably the result of lateral ground pressure and probably also groundwater pressure applied against the 'back' of the underpinning, following excavation of the No 17A basement ... This resulted in 216 overturning (and possibly some sliding) of the underpinning and base of the masonry wall." [29] As a result of answers to questions posed by D [583] the SJE was unable to express an opinion about groundwater. It is, in my judgment, more probable than not that the failure of the underpinning was due to lateral ground pressure. [30] I am satisfied that within the intended scope of the contract between C and D it was the parties' common intention [91] that in addition to the building of a new property at 17A a basement was to be dugout underneath 17. [31] This is reflected in D's primary position in this action namely that the starting point of the project was to underpin the flank wall between 17 and l7A and to cut the ground on the 17 side of the flank wall at 45 degrees to release the underpinning from lateral pressure from the soil and any groundwater and that C failed to provide access to l7 for such works. I accept the accuracy of this statement. [32] The SJE concludes [503]: "If the permanent design included a basement to No 17 then there would be no lateral ground ... pressure on the underpinning. In this scenario, the design in the permanent condition would be adequate". [33] In the event (as the SJE puts it) no excavation to 17 occurred and such propping as was provided to the underpinning was insufficient and ineffective to prevent the failure of the underpinning. [34] C's case (on underpinning) relies on the propositions that final planning permission had not been granted for a basement at 17 (although a recommendation for approval had been indicated)[510]; drawings for underpinning relevant to 17A did not indicate that digging out a basement of 17 was included; if D was insistent (as it was) that work should start on Phase I (17A) without waiting for planning approval for 17A it was D's responsibility to ensure that the underpinning was adequate to resist lateral ground pressure in the interim; absent final planning approval to a basement at 17 and there being a dispute as to whether it would fall within the boundaries of permitted development, D was obliged to ensure that the underpinning was adequate pending resolution of these uncertainties notwithstanding the parties common intention that a 17 basement was to be included in the project in due course and notwithstanding (as I have found) that remedial work was obstructed by C's denial of access to the site. Mr Bergamini articulated D's position clearly by letter of 13 April 2012 [247]. " I have explained clearly to you on site the two possible alternative[s] and considering that the contract foreseen the creation of a basement under 17 it make not reasonable to go through the expenditure of a retaining wall unless you have decided not to go ahead with the creation of a basement under 17... Further costs to be incurred will be the managing of the water behind the retaining wall which could be avoided if the construction of 17 would go ahead". [35] I accept that this accurately reflects what had, in effect, been the agreed position between D and C as the project unfolded. [36] The difference between the valuations in respect of item l in the colour-coded Schedule is explained by the SJE at 15321. [37] 1am satisfied that the disputed sum of £11,250.00 [532; 5,45] should be included in item 1 of the Schedule due to the common intention of the parties to include a basement at 17 in the project and C's denial of access for the relieving of lateral ground pressure on the structure.”

28. Before me Mr Khalid also referred to [40.1] which said: "I am not satisfied that items 16 and 35 are recoverable. The fees and costs of labour for the temporary supports were in respect of what the SJE describes as ineffective measures [522]. I have not seen sufficient evidence to justify an inference that such measures were justified in the short term before the more robust "Lofty" measures [513] were adopted, or for how long such temporary ad hoc propping constituted a reasonable period pending a more robust alternative. Further, although the SJE is focusing on groundwater conditions [518; 4.16 etc] D should have taken suitable measures in the permanent and temporary works designs to accommodate uncertainties [518;4.18] whether in the context of groundwater or lateral ground pressure and not simply relied upon what would, in effect, have been a remedial dig out of the basement of 17 to address the lateral pressure problem."

29. At [48], in the context of dealing with the sums which the Appellant was seeing to set off as abatement costs, the judge said: “.... The primary and effective cause of the failed underpinning was C's refusal of access.”

30. [53] was in the same terms as in the circulated draft.

31. The judge dealt with costs at [56] – [59] saying: [56] Provisionally at least, costs should follow the event. C should pay the costs of the action on the standard basis subject to detailed assessment if not agreed. [57] This Judgment was circulated in draft for editorial and arithmetical correction and the recalculation of contractual interest. I said I would receive written suggestions on these matters and costs electronically (marked for my attention) to reach my clerk by no later than 4.00pm on Friday 26 July 2024 at [email protected] [58] I received helpful arithmetical, editorial and interest calculation assistance in writing on behalf of D but I have heard nothing from C. [59] I have not received any submissions on costs. Mr Dawson invites me to make additional provision for this. Because I have not heard anything from C the following directions will apply. [59.1] This matter must be relisted (reserved to HHJ Saggerson) on the first open date on or after 1 September 2024 with a time estimate of 1 day to deal only with costs and the final form of Order. [59.2] The parties must supply their dates to avoid up to the end of 2024 to the court listing office by 4.00pm on Friday 16 August 2024. Otherwise, the matter will be listed in any event regardless of availability. [59.3] Written submissions on costs (and any relevant authorities) and draft proposed final orders must be submitted electronically to my clerk (as above) 48 hours before the date fixed for the next hearing.”

32. The order of 5 th August 2024 gave effect to the terms of the judgment in those terms. Ground 1: the Judge’s Approach to the Report of the Single Joint Expert.

33. The Appellant says that the SJE had concluded that the Respondent was responsible for inadequate design and performance. He says that the SJE had concluded that this was the cause of the failure of the basement wall. The Appellant then says that the judge’s reasoning and conclusion at [28] – [37] were incompatible with the SJE’s analysis. It follows from that, the Appellant says, that in attributing the failure to the actions of the Appellant in refusing the Respondent access the judge either misunderstood the SJE’s report or impermissibly disregarded that report without having a proper basis for doing so and without explaining his reasons. Mr Khalid accepted that it would not be appropriate for this court to seek to substitute its own figures for the sums awarded by the judge because even on a correct (as the Appellant characterizes it) reading of the expert report there was no single demonstrably correct figure. Accordingly, if the appeal were to be allowed the matter would have to be remitted for rehearing.

34. The Appellant was not represented below and had presented his own case with the assistance of his wife. Before me Mr Khalid presented the Appellant’s case with care and skill and by making detailed reference to the documents. Ultimately, however, the Appellant has failed to show that the judge’s decision was wrong.

35. The parties were substantially agreed as to the approach to be taken to expert evidence and to the accuracy of the summary of the principles in the White Book at 35.8.6. In short, a judge is not bound by expert evidence, even the evidence of a single joint expert. However, a judge must have regard to such evidence in respect of issues to which it is relevant and if the judge is to differ from the view of the expert on such an issue, then an explanation of the reason for doing so must be given. However, findings of fact and the determination of legal responsibility are matters for the judge and not the expert. It may be the case that findings on one or both of those matters mean that the expert evidence is irrelevant to the findings which have to be made. In such a case a judge does not have to follow the ex hypothesi irrelevant expert evidence nor is it necessary to engage in the exercise of explaining in detail why that is not being done.

36. The Appellant accepted that it was open to the judge to find as a matter of fact that the parties’ joint intention had been that no 17 should be excavated as well as 17A. In that regard it is to be noted that the SJE report set out two alternative scenarios: one in which there was to be excavation of no 17 and the other in which there was not. The judge was entitled to proceed on the basis that the former reflected the parties’ intention. However, the Appellant does say that the judge had misunderstood the Respondent’s case. As pleaded that case was not that the basements would be excavated at the same time but that while 17A was being excavated there would be access to no 17 to carry out a partial excavation to release the underpinning from the lateral pressure (see paragraph 38(c) of the Defence and Counterclaim as quoted above). The Appellant says that the judge misunderstood that and approached matters on the basis that there had been an intention for both to be excavated simultaneously. If the judge had properly understood the case he would have realised that the absence of any plans for either a full or partial excavation, as shown by the SJE, meant that the Respondent’s case was untenable. In that regard the Appellant points to the fact that the judge quoted only part of paragraph 2.4 of the executive summary of the report.

37. The judge did not address the argument in quite those terms in either of his judgments. That is not surprising because it is clear that matters were not presented to him in that structured way by the Appellant. The focus was on the issue of whether there was to be excavation of the basement of no 17 in any event or whether that was dependent on obtaining planning permission. Before the judge the Appellant was saying that the Respondent was not entitled to access no 17 at all at the stage the Works had reached before the falling out. However, it is clear that the judge fully understood the nature of the Respondent’s case. At [31] of the second judgment the judge paraphrased paragraph 38(c) of the Defence and Counterclaim and said that he accepted the Respondent’s evidence in that regard. That was a finding the judge was entitled to make based on his assessment of the competing oral and documentary evidence as to the parties’ intentions as the outset. The finding was ultimately derived from the findings made after the first trial and based on the evidence given there. It did not amount to a failure to take proper account of the SJE report and the fact that the judge did not quote every element of the parts of that report which he did quote does not indicate to the contrary. If [30] of the second judgment had stood alone there might have been force in the argument that the case had been misunderstood but it does not stand alone and when it is read in context and in particular in the context of the immediately following paragraph it is clear that the judge fully understood that it was the Respondent’s case that there was to be excavation on the no 17 side of the flank wall to release the underpinning from the lateral pressure and that in due course there would be a full excavation of no 17.

38. Mr Khalid advanced a further argument. This depended on four propositions: i) That the second half of the first sentence of paragraph 2.7 of the SJE report was setting out an “in any event” position and identifying the cause of the failure. ii) That paragraph 4.45 of the SJE report provided the basis for paragraph 2.7 and explained what the Respondent should have done in light of the denial of access. iii) That the movement of the basement flank wall began in February 2012. iv) That the judge’s finding at [19] in the first judgment showed that the Respondent only requested access from 7 th March 2012 and so after the movement had started.

39. Based on those propositions Mr Khalid argued that it had not been open to the judge to attribute the movement to the Appellant’s denial of access. That, he says, followed the movement and cannot have caused it. In attributing responsibility to that denial the judge erred in respect of causation, not only by reference to timing but also because he failed to have proper regard to the conclusions in the SJE report as to the cause of the movement and the action which the Respondent should have taken.

40. The Appellant’s argument was not put in that structured and ordered way to the judge and so his judgment did not address matters in that way. Nonetheless, the judgment covered the relevant points in this regard and the conclusion the judge reached was entirely open to him as I will now explain.

41. The judgments are to be read together (see the second judgment at [15]).

42. It was clear that the judge understood the Respondent’s case as to the parties’ intentions (see above) and that he accepted that case as a consequence of his assessment of the oral evidence and the contractual exchanges. The Respondent’s case was that there should have been access to no 17 from the outset. Part of the purpose of that was to enable excavation of the basement flank wall to relieve the lateral pressure on the underpinning with that partial excavation later being incorporated in the excavation of the entirety of the basement.

43. The judge proceeded on the basis that from the outset the Respondent attempted to obtain access to no 17 and the Appellant resisted that attempt. Indeed, that was the Appellant’s pleaded case. At paragraph 25 of the Reply and Defence to Counterclaim the Appellant averred that the Respondent had sought access from the outset. The Appellant did not accept the Respondent’s case as to why access was being sought but did say, in terms, that the attempt was from the outset. The argument now being advanced is inconsistent with the Appellant’s pleaded case below. More significantly it is based on a misreading of the first judgment at [19]. That was not a finding that the requests for access only began on 7 th March 2012. It was the Appellant’s case on the pleadings that access had been sought from the outset and so the judge did not need to make a finding as to when the requests began. Instead, [19] is to be read in context. When that is done it is a finding that as matters became pressing so the requests for access were made in writing and in stronger terms.

44. In those circumstances the conclusions which culminated in the finding at [37] of the second judgment were open to the judge. They did not amount to a failure to take account of the SJE report and nor were they inconsistent with the SJE’s analysis. In paragraph 4.45 the expert does go on to say what the Respondent should, in the expert's opinion, have done. However, that was an expression of the SJE’s opinion as to what should have been done as a matter of good professional practice. As such it was subject to the judge’s assessment of the parties’ respective responsibilities under the terms of their agreement. That was a matter for the judge not the expert. In that regard the judge had found that the Appellant should have provided access to no 17 from the start. It is also to be noted that at paragraph 4.45 the SJE was approaching the position on the footing that the Respondent could not access no 17 but does not make any reference to the period or duration of the absence of access. The report seems to be predicated on a permanent and enduring denial of access. The position in light of the judge’s findings was rather different. There had been a denial of access but that was wrongful. The Respondent had been pressing for access from the outset and had been doing so with increasing force. The Appellant should have acceded to those demands and could have done so at any time. The SJE report, understandably, has no regard to those matters and the opinion of the SJE as to what good practice required in the abstract was of no assistance to the judge in determining what was required in those particular circumstances.

45. It follows that the judge’s findings were not inconsistent with the SJE report nor did they amount to a failure to take that report into account. They were findings on matters within the remit of the judge and on which the report did not impinge.

46. For completeness I should add that as a subsidiary point Mr Khalid pointed to the judge’s finding at the latter part of [40.1] and submitted that this was inconsistent with the approach at [37] and demonstrated that the finding at [37] was based on a misunderstanding and a failure to take proper account of the SJE report. I do not agree. The finding at [40.1] is arguably generous to the Appellant. It is entirely properly expressed in short terms and cannot undermine the earlier conclusion, based as that was on the thrust of the judgments when read as a whole and together.

47. This ground, therefore, fails. Ground 2: Procedural Irregularity.

48. An appeal will be allowed if the decision below was “unjust because of a serious procedural or other irregularity in the proceedings in the lower court” (CPR Rule 52.21(3)(b)). The Appellant contends that ground arises here because it is said that the judge failed to take into account the written submissions which the Appellant had made on costs and VAT even though those submissions had been invited and were received before the handing down of the judgment. It is to be noted that although Mr Khalid by no means abandoned this ground before me he accepted that it was supplementary and his main focus was on ground 1.

49. In respect of costs the judge had invited submissions by 4.00pm on Friday 26 th July 2024. The Appellant’s solicitors sent such submissions in due time but they were not before the judge until 12.45pm on Friday 2 nd August 2024. The judge had by then prepared the final version of his judgment which was to be handed down on Monday 5 th August 2024. In that judgment he had recorded that he had received no submissions on costs; he noted the proposal which the Respondent had made for further directions; and set out directions for a 1 day hearing to determine costs.

50. On receiving the Appellant’s submissions the judge contacted the parties explaining why he remained of the view that a separate costs hearing remained appropriate. The Appellant’s solicitors responded with submissions contending that costs should be deal with on paper. The judge replied indicating that he remained of the same view and the order made provided for a separate costs hearing.

51. If the Appellant’s costs submissions had not been supplied to the judge before he made his decision or if he had taken no account of them there would have been a serious procedural irregularity and that would have been a sound basis for setting aside the relevant part of the order. That would have been because it would have been a serious irregularity for the decision to be made without reference to submissions which were potentially relevant and which had been filed in time. Not only would such a course have been irregular, it would have been unjust. However, that is not what happened. Instead, the submissions were put before the judge in advance of the handing down of his judgment. He considered them and explained why he still remained of the view that there should be a separate costs hearing. There was no injustice in that course.

52. As it was developed before me the Appellant’s argument was that the judge should have acceded to his solicitors’ proposal for a written determination of the costs as set out in their email of 4.00pm on 2 nd August 2024. This was in reality an argument that the conclusion reached was wrong rather than that it was unjust but even when it is considered on that basis it does not amount to a sound ground of appeal.

53. In their 2 nd August 2024 email the Appellant’s solicitors contended that it would be unfair for there to be a hearing because the Respondent would have had the Appellant’s submissions “for many months in advance of any hearing”. There is no substance in that point. First, the judge’s directions provided for the hearing to be listed on the first open date on or after 1 st September 2024 and it is clear that he was aiming to ensure that the matter was heard by the end of 2024 at the latest. Any delay would, therefore, be rather less than the “many months” to which the solicitors referred. Second, the advance knowledge would be of legal submissions as to costs rather than factual evidence. There will not have been any material prejudice to the Appellant in the Respondent having those submissions in advance of the hearing.

54. Before me the point was made that there was a disadvantage to the Appellant in the fact that he would be put to the expense and inconvenience of a one day hearing by way of contrast to awaiting the outcome of a paper determination. I note that the Respondent is balance sheet insolvent but even when account is taken of that there is nothing in this point. The judge considered the matter. He took the view that a determination on paper would occupy at least a day of judicial time; he noted that there might be further costs issues; he explained that the costs of the costs hearing would be “in play”; and in short, he came to the conclusion that a hearing would be the fairest and most efficient way of determining the costs issues. That was a course entirely open to him and it cannot be said that either he was wrong to reject the proposal of a paper determination nor that the decision to do so was unjust.

55. The judge’s final reply in the exchange of emails of 2 nd August 2024 was sent at 4.32pm and was in short terms. However, it had to be read in light of the detailed explanation given in his email of 2.46pm. When that it is done the exchanges made it sufficiently clear that it was the judge’s view that the course being adopted was fair and proportionate and also explained why he took that view. The Appellant had all that material and so there can be no question that he had not been informed of the reasons for the judge’s decision.

56. The judge did not revise the judgment which was to be handed down to reflect the fact that submissions had been received from the Appellant nor to explain why he was nonetheless ordering a costs hearing. It follows that paragraph 59 of the judgment as handed down incorrectly stated that no costs submissions had been received. It would have been better if the judge had revised the judgment to record the correct position. The failure to do so was an oversight. It was an entirely understandable one given that the judge had clearly been engaged on the afternoon of 2 nd August 2024 in considering the costs submissions; compiling the email to be sent to the parties; and then considering and responding to the email from the Appellant’s solicitors doubtless in addition having to deal with other matters. That oversight did not cause the decision to be unjust.

57. It follows that the challenge to the judge’s order for a costs hearing and the directions relating thereto fails.

58. The position in respect of the VAT submissions can be addressed rather more shortly. The draft judgment set out, at [53], the judge’s calculation of the sum recoverable in respect of VAT but also his reasoning for saying that VAT was recoverable saying “VAT is recoverable … because…”. The reasoning was expressed shortly but clearly. The draft judgment made it clear at [10] and [58] that the judge was inviting further submissions on four matters: editorial corrections (in the sense of typing errors and the like); arithmetical corrections of his calculations; contractual interest; and costs. The judge was not inviting submissions as to the recoverability of VAT.

59. The Appellant’s submissions at paragraph 19 were as to the recoverability of VAT and advanced an argument as to why the judge was wrong to say that VAT was recoverable. That was clearly not a submission as to calculation. It went beyond the submissions which the judge had invited and was an attempt to argue entitlement. Submissions to that effect are only permissible “on rare occasions and in exceptional circumstances” ( R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ158. [2011] QB 218 at [4] per Lord Judge CJ). This was not such an occasion and nor were the exceptional circumstances which would warrant such a course present.

60. The judge would have been entitled simply to disregard those submissions. Instead, he considered them and explained in his 4.32pm email why he remained of the view that VAT was recoverable. Again his reasons were short but entirely adequate for the reasoning to be clear. There is simply no substance in the contention that the earlier failure to refer the submissions to the judge led to any injustice in respect of the VAT position.

61. It is understandable that the Appellant feels aggrieved at the failure of the court administration to place promptly before the judge the submissions which his solicitors had filed timeously and at the fact that the judgment as handed down was not revised to remove the erroneous reference to an absence of submissions. Those oversights were regrettable but they do not form any proper basis on which it can be said that the decision was unjust.

62. This ground also fails and the appeal is to be dismissed.