Appellant
v.
The State of
Respondent
FROM
THE COURT OF APPEAL OF
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered
- - - - - - - - - - - - - - - - -
Present at the hearing:-
- - - - - - - - - - - - - - - -
[Delivered by
1. Articles 640 and 641 of the Civil Code (which are part of Book II, Title IV dealing with servitudes) provide, so far as now directly relevant:
“640. Lower tenements are subjected to those which are higher, to receive waters which flow naturally from them without the hand of man having contributed thereto. A lower owner may not raise dams which prevent that flow. An upper owner may not do anything that worsens the servitude of the lower tenement.
641. An owner has the right to use and dispose of rainwater which falls on his tenement. Where the use of those waters or the course given to them worsens the natural servitude of flow established by Article 640, a compensation is due to the owner of the lower tenement.”
So when rainwater or spring water flows down naturally from one landowner’s land to lower land owned by another person, the latter has no grounds for legal complaint. But as soon as the owner of the higher land alters the position by building works or civil engineering works that alter the flow, the possibility of a claim arises. Whether the upper owner is liable depends on the degree to which the burden on the lower land is increased, an issue which was not much explored in the courts below, for reasons that will appear.
Topography
2. This appeal is concerned with a claim for very large damages for loss said to have been suffered by the appellant,
3. The motorway crosses an area of land, originally extending to about 15.4 hectares, which
4. It would be a mistake to picture the land in question simply as a uniform slope like the side of a pyramid. The terrain is much more irregular, and is difficult to describe without plans (such as exhibit D5, a contoured plan showing the land in its natural state in 1983; exhibit D6, a plan showing the culverts and drains constructed as part of the motorway works; and exhibit D9, a plan showing the whole of Mr Daby’s land and containing some descriptive comments). These plans were prepared and produced by
5. Despite the difficulty in a verbal description of the land, and of the motorway’s construction and drainage system, it is a task that must be undertaken. The reader must be supposed to be standing on what is now the highest part of
6. In its original state
7. The most important part of the topography is the watercourses, the culverts and drains, and the flow of water below and beyond the motorway. Although this was the subject of great controversy and confusion at trial, it is not now in dispute (as the judge found, after studying the plans and visiting the site) that there are three reasonably well-defined natural watercourses to be considered. To the left, and off
8. The fact that the converged watercourse does eventually discharge into the Ruisseau Sec in the wet season (but at a considerable distance from the new bridge) seems to have been a potent source of confusion and misunderstanding during the trial. Unfortunately the court’s site visit took place after all the oral evidence had been completed, rather than before. Very few of the witnesses had any familiarity with the natural state of the land before the motorway was built. In particular, Mr Daby was (as he readily admitted) an absentee owner, though he repeatedly asserted in cross-examination that there were no natural watercourses on the land, and that the land was not marshy, before the motorway was built. He also repeatedly asserted that during the construction work the contractors had filled in a canal which had previously taken water from his land to the Ruisseau Sec at or near the site of the new bridge. Dr Moutia did not visit the site until 1997, and derived all his information from Mr Daby. So, it seems, did Mr Kushiram, Mr Daby’s engineering expert, who would not concede that there were existing watercourses on the land.
9. There were only three witnesses with any real familiarity with the condition of the land before the motorway was built. One was Mr Bundhoo, an articulate engineer who was closely engaged in the construction project from 1986. As already mentioned, he prepared and produced most of the plans (though there are other plans, consistent with Mr Bundhoo’s, annexed to the report of Mr Kushiram). The judge found Mr Bundhoo to be a reliable witness, and thought that the view showed that Mr Kushiram was mistaken.
10. The transcript records Mr Bundhoo’s description, in his evidence in chief, of the land in its original state. Here the spectator is supposed to be looking at the land from the north-west, where the new bridge is:
“So, we get Ruisseau Sec first which runs from right-hand side to left-hand side and just after this Ruisseau Sec, the main big river, the biggest one in the region, in this area – we get a hill, a rocky hill which we had to cut to build the road and the site of the hill is still visible. And then after the small hill, there is a sort of valley and then afterwards it goes up again. And before going up again there are still two water passages crossing at the proposed road at that time which we have maintained and the two water passages.
The first one after Ruisseau Sec, it was a canal which existed and it even crossed Mr Daby’s land by a culvert which was existent there, not on the road, in the private land because there was a track. So, below the track there was this culvert built. So that’s why we had to keep this water passage by building a culvert, a pipe culvert. This concerns the middle one and then the final one in the limits of Mr Daby’s land there is another one running again from the right-hand side towards the left-hand side and it goes down a very deep land.
So I would say that this culvert, the third one, it is impossible for it to bring water towards Ruisseau Sec along the road, because the steeper part goes into Mr Daby’s land and it can only join Ruisseau Sec after crossing the whole area, so that it can meet naturally by gravity the existing Ruisseau Sec.”
11. The other witnesses who had real familiarity with the site were Mr Balaram Bassoodeosingh and Mr Soubhas Backaria, both of whom had worked cutting sugarcane for one of Mr Daby’s predecessors in title. The judge did not mention Mr Bassoodeosingh and discounted the evidence of Mr Backaria. It seems possible (though their Lordships cannot and do not make any firm finding about it) that when the judge thought that these witnesses were describing something that was physically impossible, that is an artificial watercourse carrying water by gravity, with the land in its original state, to the site of the new bridge, the witnesses were actually talking about the old track or road on the lower ground used first by sugarcane lorries and later by construction vehicles. It seems that some minor works were carried out here in order to improve access for construction traffic. Mr Bundhoo’s evidence on this topic was as follows:
“Q At the place which was acquired by Government, wasn’t there a road for lorries to come in order to take the canes from the fields to the factory?
A There were roads, accesses, tracks.
Q No. A road which could be used by a vehicle?
A We had to use a 4x4 to go to the site, because I have been on the site in this region. I had to go through Midlands and then use the tracks shown on the drawing to come to that area.
Q What I’m saying is this – there was a road which was used by lorries to come to Mr Daby’s land and take the canes to the factory?
A Yes, the roads are on the plan, there were no roads along . . .
Q There is that road has been covered by the motorway?
A No, no.
Q And next to that road, there was a canal going to Ruisseau Sec?
A No, because there was a hill.
Q This also has been covered by the motorway?
A No, there was a hill. As you will see on the profile, it is not possible to build a road like this.
Q The construction of the motorway has covered both the road which existed and the canal which took the water to Ruisseau
Sec?
A No, Your Lordship.”
A little later Mr Bundhoo added some more detail:
“Yes, at the figures I’ve shown the natural water was going there. And, there was one main because, when we had access to this site, to the road under construction, we had to use those tracks in Mr Daby’s land to get to our site. So, at a certain place, in the middle, we had to cross a gutter, a dallot, which was 50cms x 50cms, to allow the water to cross Mr Daby’s land and this is the culvert which we maintained. We cannot afford to block it, it is right in the middle and, on the plan which I have just submitted, there is the gutter which we maintained.”
12. Mr Bassoodeosingh was not a very articulate witness, but he seems to have had an advantage over almost everyone else in Court of a detailed knowledge of the locus in quo. He gave evidence in chief about some works carried out on the lower track in order to facilitate access by construction traffic. He stuck to this evidence in cross-examination:
“Q Uncle, you say that there was a street before?
A There was a street close to the drain, lorries were transporting the sugarcanes.
Q In other words the drain and the street were in the same direction?
A Close to it here, water goes downward like this.
Q As is the street goes this way and water also goes in the same direction?
A Yes, it goes into that Ruisseau Sec.
Q As if today when you stand on the new road which has just been constructed as if the street goes in that direction as you are saying, in the direction of Curepipe?
A No, the street which goes towards Midlands, Rose Belle, Cluny, the water goes in that direction. The street is like this here, there is the Royal Road at Midlands like this.
Q No, I wish to tell you that you have said that the street is here?
A Yes
Q The street goes up towards Ruisseau Sec.
A No, it is close to it. Ruisseau Sec is downward, the street is here.
Q No, what about the drain which leads to that Ruisseau Sec?
A It is close to that street.
Q Close to it?
A The street is here – the drain is here.
Q No, I wish to say that the drain which you have just said in which direction does it go, let’s take the new road constructed today, does it go towards Curepipe or does it go to another direction?
A It goes like this. It does not go towards Curepipe.
Q It does not go towards Curepipe, where does it go?
A It goes like this, Ruisseau Sec is here, water goes down here.”
Curepipe is to the north-west. Midlands is to the east, and Cluny and Rose Belle to the south-east (as appears from exhibit D3). Mr Bassoodeosingh stuck to his evidence, but no one seemed to have understood it. The evidence of Mr Backaria might possibly be explained in the same way, but the transcript is so garbled that it is a matter of guesswork. The judge thought that Mr Backaria was evading the question about the physical impossibility of water flowing up to the site of the new bridge.
13. Culvert 1 and Culvert 2 were both constructed with 800mm pipes. Mr Bundhoo’s evidence was that this was the smallest size used in motorway construction, but that it was more than adequate. A smaller pipe would have been adequate for the flow of water, but would not have been so easy to maintain.
14. Another issue at trial was the extent of sugarcane production on the lower land. Dr Moutia, who was undoubtedly an expert on that subject (he had in 1973 conducted a survey of agricultural suitability of land in Mauritius) said that the land was marginally suitable for sugarcane and that 18.77 arpents out of the original 36 arpents were producing sugarcane (an arpent is slightly less than an English acre – about 42 per cent of a hectare). In 1985 262 tonnes were produced. Sugarcane production has now ceased but the reasons for this were not fully explored. Mr Daby said in evidence that he was involved in litigation with his former agent, who was accused of misappropriation. Mr Bundhoo’s notes on exhibit D9 describe one area as “traces of abandoned sugarcane cultivation.” Tea cultivation has also been discontinued on the higher ground.
15. One other piece of documentary evidence calls for mention. Mr Attarou, a government research scientist specialising in land and soil management, referred to an official agricultural report and map produced in 1973 (for which Dr Moutia seems to have had some responsibility when he was in the service of the Government of Mauritius). Mr Attarou said:
“From the agricultural suitability map of 1973, it is mentioned that there are many small depressions in this area. Small depressions, which are poorly drained, that is water accumulates in those areas, in those small depressions.”
16. After the construction of the first carriageway was completed, Mr Daby repeatedly complained to the Ministry of Works about the discharge of water from culvert 1 and culvert 2 onto his lower land. In 1994 he took his complaint to the Ombudsman. With the assistance of the Ombudsman he had a meeting with Mr Bundhoo, who agreed to help by constructing a new artificial watercourse from the lower aperture of culvert 1 along the lower edge of the motorway to the Ruisseau Sec just below the new bridge (this was now a feasible operation because of the change in the configuration of the land). Mr Bundhoo’s evidence about this was as follows:
“In fact, it is not the remedy, it is not the correct word because it is not a remedy to the bad workmanship of the road. Normally when we construct a road, if there is a problem concerning the riverine, we try to help them. So there was a meeting with the Ministry of Works and the Ombudsman. There was a meeting trying to find out a solution to this everlasting problem, which started right from the beginning, before the construction. So, we seized an opportunity when we were resurfacing the road in ’94, I suppose. We seized the opportunity of the same project to build a counter-slope drain. A counter-slope drain [means] a drain against the slope of the natural ground. So we had to go deeper, but we have been able to do it only for the middle one, but for the third one, the lowest one, it is impossible because it is too low.”
In other words the counter-slope drain ran along the edge of the motorway only from culvert 1 to the Ruisseau Sec; it did not run from culvert 2 because that was not feasible as a matter of civil engineering. The counter-slope drain is shown on D1, an artist’s sketch produced by Mr Bundhoo.
The trial
17. Mr Daby commenced proceedings against the State of Mauritius at the beginning of 1996. His statement of claim alleged that
“(a) Before the construction of the motorway Phoenix/La Vigie and the culverts, rainwater was being drained through existing canals which led to an area found nearby called ‘Ruisseau Sec’.
(b) The canals and the ‘natural situation of the place and its landscape’ facilitated the drainage of rainwater and the plaintiff’s land was not affected in any manner whatsoever by erosion and water flow nuisance.
(c) As a result of the construction of the said motorway and culverts and the covering of the canals which existed, rainwater from the motorway and the neighbouring lands nearby drains onto the land of plaintiff.”
The pleading alleged that there had been soil erosion and waterlogging as a result. It alleged fault, imprudence and negligence and gave particulars which added little more detail. It claimed damages of R10m for loss of earnings, loss of use of the lands, moral damages and cost of reinstatement. No further particulars of alleged defects in works, fault or loss have ever been requested or given.
18. The State denied the relevant allegations and briefly pleaded a positive case as follows:
“(a) The topography of the land and the existing canals in that area indicate that the land has always been waterlogged.
(b) Rainwater would never flow from plaintiff’s land towards Ruisseau Sec since the water had first to cross the lower parts of plaintiff’s land.
(c) The Defendant has maintained all national drains by building culverts in each of them.”
In (b) the first reference to the plaintiff’s land should probably be to the defendant’s land and in (c) “national” may have been an error for “natural”.
19. The trial began on 27 September 1999 before Lam Shang Leen J. But that hearing was only for the purpose of taking the evidence of Dr Moutia, who was then resident in Australia. He was ill and was not expected to be able to return to Mauritius (he has since died).
20. The trial resumed on 5 March 2001. The State’s counsel told the judge that he wanted to apply for the judge to have a view of the site. Mr Daby’s counsel applied for leave to amend the damages claimed from R10m to R25m. This application was refused, primarily on the grounds of delay. On that day the judge heard evidence from Mr Daby and three other witnesses for the plaintiff.
21. The case was then adjourned for nearly a year, to 31 January 2002, when the plaintiff’s counsel called three more witnesses and closed his case. The State called three witnesses, the third being Mr Bundhoo, who was still being cross-examined when the hearing was adjourned until 7 February 2002. On that day Mr Bundhoo finished his evidence and the State’s last witness was Mr Nabeebaccus, a civil engineer in the Ministry of Public Infrastructure (the successor, it seems, of the Ministry of Works), who had not seen the land in its natural state but had been involved in the construction of the second carriageway in 1999-2000.
22. As soon as the evidence was complete there was discussion about a view. The State’s counsel seems to have become less enthusiastic about the idea, but the judge (having heard four days of conflicting and confusing evidence about the topography) decided that there should be a view. He commented that it would be best when it was raining, but it was thought inadvisable to wait for a rainy day and the view took place in fine weather on the afternoon of 7 February 2002. The judge gave his own account of the view in his judgment:
“Since we did not spend too much time at the alleged water passage opposite the first culvert, it was an indication that the existence of that water passage on the higher part of plaintiff’s land could not be denied as it was so conspicuous. We spent more time at the alleged second water passage to identify it and we had to walk inside. From where we had been, I am satisfied that there are indisputable signs of the existence of a flow of water coming from the higher part of plaintiff’s land. After having seen the existence of the furrows of two water courses, I wanted to see whether the two canals meet somewhere in the lower part of plaintiff’s land. We went across to the left side of the motorway and in order to go down into plaintiff’s land, we had to jump over the barriers and go downhill moving around bushes freshly cut by plaintiff’s employee in order to allow a much easier access. Both counsel representing the parties as well as the clerk were unable to follow us in view of some physical ailments which they gave as reason for not accompanying me. However, I was accompanied by Mr Bundhoo and Mr Kushiram and an employee of the plaintiff who led the way.
We started off from the first culvert, the one nearer to Ruisseau Sec and after some 15m from the motorway inside plaintiff’s land we could not proceed further through the trees and bushes as there was a sudden fall in the elevation of the ground. This is also described in the evidence of Mr Kushiram, namely when he was referring to culvert no. 2, “that there is a steep slope which actually is not clearly visible until you actually move out away from the motorway into Mr Daby’s land. So maybe it was not apparent to various people at that time but there is a sharp fall . . . in fact, it goes further down into a steep cliff . . .”. The steep slope is confirmed by Mr Bundhoo and anyway, it is clear from the contours map of that area. We then moved to exit from the second culvert. On the way, we had to walk over big boulders which in my opinion could not have been dumped there in view of their alignments and the existence of furrows dug by the water to find its way downhill. The sinuosity of the furrow leads us to the second culvert. From that brief stroll, it has not been possible to ascertain whether the two water passages meet on the plaintiff’s land before finding the natural path to meet Ruisseau Sec. However, the meandering furrows left by water give an indication that having regard to the steep fall, the water must find its way across plaintiff’s land. What is also clear is that the defendant has been able to show on a balance of probability the existence of the natural water passages across plaintiff’s land.”
The judge concluded his account of the view by commenting that if the entrance to culvert 2 was obstructed, it was because Mr Daby had failed to clear scrub. The judge then heard closing submissions on 22 February 2002 and reserved judgment.
23. In his judgment the judge identified four issues, which were largely issues of fact. They were set out as follows by the Court of Appeal:
“(1) Whether there existed a canal prior to the construction of the motorway which allegedly ran parallel to an existing track and which brought water to Ruisseau Sec;
(2) Whether as contested [? contended] by the respondent, there existed two natural water passages which crossed the appellant’s land and that the two culverts had been built along the natural water passages under the motorway;
(3) Whether the respondent had failed to take all measures in the construction of the motorway, more specially in not providing adequate canals for the evacuation of rainwater; and
(4) Whether with the construction of the motorway, rainwater had been collected all along the motorway to be discharged through the two culverts built under the motorway into the appellant’s land.”
24. The judge determined all four of these issues against Mr Daby, and on issues (1), (2) and (4) the Court of Appeal saw no reason to interfere. There are therefore concurrent findings of fact on these points, and they can be taken fairly shortly. But in view of the course which the Court of Appeal took on issue (3) it is necessary, in their Lordships’ view, to note how decisively the judge rejected Mr Daby’s case on the other issues. He decided them squarely in favour of the State, basing himself primarily on the view, the contoured plans, and the evidence of Mr Bundhoo and also Mr Nabeebaccus, who had described Mr Daby’s land below the motorway as a “natural catchment area.” The presence of the small hill near the point where the motorway now crosses the Ruisseau Sec made the plaintiff’s case on the first issue impossible. The judge’s findings about the topography strongly suggest that he must also have accepted that the marshy area (under what the judge called “very steep and deep land”) was there before the motorway was built. On issue (4) the judge considered the evidence of Mr Kushiran, Mr Daby’s engineering expert, to the effect that the State was in effect pouring into the culverts on Mr Daby’s land, rainwater collected “all along the motorway as far away as the Nouvelle France roundabout” (a distance of about 3.5km). This was factually incorrect. The judge accepted Mr Bundhoo’s evidence that there were nineteen other drains and culverts along this stretch of the motorway. So the judge concluded issue (4) against Mr Daby.
25. The judge understood issue (3) as amounting to a complaint that the defendant “had dug canals for the evacuation of rainwater without reinforcing them with concrete” (meaning, it seems, failing to provide further concrete work at the outlets of culvert 1 and culvert 2 so as to channel the flow of water to the natural watercourses and down the slope). Mr Kushiram’s evidence went much further, suggesting that there should have been a concrete drain over a distance of 580m, at a cost of about R2.5m. The judge rejected these arguments. He found that Mr Daby had not proved his case and he dismissed it with costs.
The appeal to the Court of Civil Appeal
26. Mr Daby appealed to the Court of Civil Appeal. There were fourteen grounds of appeal, all but the first (which related to the refusal of leave to amend) raising factual, not legal issues. Despite that the parties agreed that the appeal should be dealt with on the basis of written submissions, and there was no oral hearing before the Court of Civil Appeal (Yeung Sik Yuen ACJ and K P Matadeen ASPJ), which gave a written reserved judgment on 18 September 2006. The Court rejected the appeal against the judge’s refusal of leave to amend. That is no longer a live issue, and is unnecessary to say more about it. The Court then formulated the four issues raised by the other grounds of appeal in the terms set out above. They reviewed the evidence, including the direct evidence provided by the view, and concluded that there was no ground for interfering with the judge’s conclusions on issues (1), (2) and (4).
27. On issue (3), however, the Court took a different view. It was not enough to say, as the judge had said, that Mr Daby as the lower owner was bound to receive all the water coming through the culverts from the higher part of the land. That flow of water would be increased by two factors: first, the surface of the single-carriageway road on Mr Daby’s land (an area, judging from exhibit D5, upwards of 2000 sq metres) was an impermeable surface which would act as a more efficient collector of rainwater than land in its natural state. Second, the existence of the motorway (and in particular, the gutter between it and the higher land) would again act as a more efficient collector of rainwater running down from the higher land than when rain was falling on bare land. The Court seems to have reached these conclusions on its own initiative, since there is no trace of them in the appellant’s written submissions.
28. The Court’s conclusions were as follows:
“It follows that the evidence of Mr Kushiram that the respondent had failed in its duty to ascertain that there was proper evacuation of the excess water which was being discharged through the culverts should have been accepted. Indeed, the learned Judge referred in his judgment to partial remedial work which had been effected to divert the water from the appellant’s land but which had stopped at a point where huge boulders were found, probably because of lack of equipment to complete the works.
We are of the view that there was evidence on record establishing that some soil erosion as well as water-logging must have been caused to appellant’s land nearer the culverts. However we cannot help reflecting, upon considering the evidence on record, that the appellant presented his case in a perspective which was thoroughly exaggerated and which did not reflect the true situation in relation to the type and amount of prejudice he had actually suffered. We are equally unable, on the material on record, to assess the damages suffered. We must consequently allow the appeal and order that the case before the trial Judge be non-suited.”
The Court made no order for costs.
Was this a case for non-suit?
29. If a judge makes an order non-suiting a plaintiff the result is that the plaintiff obtains no relief, but is at liberty to commence other proceedings based on the same cause of action, provided that it has not become statute-barred (or liable to be defeated by some other subsequent event, such as a change of position). Non-suit is therefore in the nature of an indulgence to the plaintiff, who is given the opportunity (subject to statutes of limitation) to start afresh. The Court has a discretion to give the plaintiff this opportunity if it feels that the plaintiff’s failure to prove his case was in some way a misfortune and that the defendant would be winning on a technicality, or something like a technicality, if the claim were dismissed.
30. Non-suit is obsolescent if not obsolete in England, but is still alive and well in Mauritius, whose courts have followed the same principles as have in the past been applied in England. The Mauritian authorities are conveniently collected in the decision of the Supreme Court in Narayen v Sarah 13 April 2006, 2006 SCJ 88, which approved the statement of principle in Halsbury’s Laws, 4th edition, vol. 10, para 417:
“Subject to his discretion to direct judgment for the defendant, the judge should non-suit the plaintiff when there is no evidence to support the plaintiff’s case (Clack v Arthurs Engineering Ltd [1959] 2 QB 211) and he may hold that there is for this purpose no evidence when there is no substantial evidence (a mere scintilla of evidence not being sufficient to preclude a non-suit).”
The Supreme Court added, citing Boolaky v Reega 14 June 2001, 2001 SCJ 148, that the view which the Court takes of the defendant’s merits is also material to the exercise of discretion. In Boolaky Yeung Sik Yen SPJ (who presided in the Court of Civil Appeal in this case) said,
“A non-suit in fact serves as a mechanism which primarily aims at ensuring the proper dispensation of justice in cases which otherwise may have to be dismissed on technicalities and which would foreclose the unvindicated rights of the plaintiff.”
31. In this case Mr Daby had put forward a case which both the judge and the Court of Civil Appeal regarded as exaggerated. He was initially claiming as damages nearly twenty times what he had originally paid for the land, having already received R135,000 in compensation for the compulsory acquisition. He was seeking to amend his claim to nearly fifty times that sum, on the basis of an estimate for using 300,000 cu ft of topsoil to reinstate the land. His case was based on factual assertions found to be, not merely inaccurate or exaggerated, but fundamentally wrong: the existence of natural watercourses was repeatedly denied, and the filling-in of an artificial canal (a notion shown to be physically impossible) was repeatedly asserted.
32. The claim which the Court of Civil Appeal identified – the extra burden from the impermeable road surface and its gutters – seems to have received little attention at trial, either in the evidence or in counsel’s submissions. Nor was it identified as a ground of appeal, or addressed in the written submissions on which the Court of Civil Appeal decided the case. That Court was right to say that it was unable to assess the damage suffered as a result of this matter.
33. In their Lordships’ view the Court of Civil Appeal was right to reach this conclusion, subject to what is said below as to surprise. Indeed the Court should, in their Lordships’ view, have referred to being unable to assess the damage suffered, if any. Whether an increased flow in a natural watercourse constitutes an actionable wrong is under Articles 640 and 641 of the Civil Code a question of degree which was never explored at trial. Mr Daby’s case was not a complaint of a materially increased flow in existing watercourses, but of a torrent of water, washing away his land, when there had been no natural watercourses there before. This litigation has now been continuing for more than ten years and after the complete collapse of Mr Daby’s case as deployed at trial a remission to the judge for further findings of fact would be an extraordinary course to follow, and a grave hardship to the State. Moreover the Court of Civil Appeal seems to have overlooked the construction in 1994 (before the commencement of proceedings) of the counter-slope drain which carried an unquantified part of the output of culvert 1 along the edge of the motorway to the new bridge. This served the purpose which Mr Daby alleged to have been served by the canal which he said had been filled in. There is no evidence that the flow along the counter-slope drain may not have equalled or exceeded the extra burden from the impermeable nature of the road surface and gutters.
34. The Court of Civil Appeal was raising a new point not found in the grounds of appeal or in the written submissions but it did not, it seems, think it necessary, so that the parties should not be taken by surprise, to give them the opportunity of making further submissions (either orally or in writing). This is itself a little surprising. But the parties had agreed that the appeal should be dealt with on the basis of written submissions. They had consciously deprived themselves of an oral hearing at which they might have the opportunity to sense the Court’s reaction and seek to meet doubts or difficulties raised by the Court. In the circumstances their Lordships cannot say that the Court’s decision not to seek further submissions was unreasonable or unfair. If there had been any unfairness, it would have cut both ways, since the State was deprived of the opportunity of drawing attention to the significance of the counter-slope drain, and generally of arguing for an order for dismissal rather than non-suit.
35. For these reasons their Lordships dismiss the appeal with costs before the Board, leaving untouched the costs orders made below.
