Risely v (1) Network Rail Infrastructure Limited (2) A S Gammell (3) N K Gammell (2017)

Background

The Claimant owned a property in a row of terraced houses with adjoining gardens, all of which shared a boundary with a strip of land, owned by the First Defendant, across the end of those gardens. The Second and Third Defendants owned a property in the terrace with a garden immediately adjoining the Claimant’s.

In 2006 the Claimant made a Statutory Declaration of adverse possession in respect of a portion of the First Defendant’s land at the rear of his garden. He then built a two-storey summer house with a cellar on that land in 2007/2008. The Claimant subsequently had to demolish this summer house as a result of proceedings brought by the First Defendant in 2008. Following the demolition in 2010 the First Defendant erected a fence at the boundary of its property and the Claimant’s. Further, it leased the strip of land to the rear of the Claimant’s garden to, amongst others, the Second and Third Defendants.

 

The Claim

Against a background of significant neighbour disputes spanning several years, the Claimant alleged that he had been standing at the rear of his garden in September 2010 when the ground gave way and he fell, injuring his back. The Claimant’s case was that the Defendants had negligently undermined his garden and removed retaining structures, causing the earth to fall away. His pleaded losses totalled over £446,000.

Liability was tried as a preliminary issue by HH Honour Judge Saggerson in October 2017. The Defendants obtained comprehensive expert evidence indicating that there was nothing to suggest ground failure or that the Claimant could have suffered the accident he described. Following his cross-examination, the Claimant discontinued. This being a QOCS case, the Defendants then applied for a finding of fundamental dishonesty, which the Judge narrowly rejected.

Nigel Lewers acted for Network Rail Infrastructure Ltd.