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Lyons Davidson’s Civil Litigation department recently acted for the successful claimants in a case arising from water inundation. The case illustrates the enormous benefit conferred by relatively inexpensive ‘before the event’ Legal Expenses Insurance purchased as part of a household insurance policy.

Around September 2009, Jacqueline and Graham Colover’s next-door neighbours carried out extensive works to the property and rear garden. The house was extended, a new swimming pool built and an area of the rear garden was levelled.  This necessitated construction of three retaining walls, including one parallel to the boundary with the Colovers’ property. The area within the retaining walls was then filled to create a level surface. The back of the level area was substantially higher than the rear garden of the Colovers’ property.

Flood damage

Planning consent had been obtained for the works, which concluded in approximately July 2009. Around July/August 2009, the Colovers’ rear garden began to be saturated with water flooding from their neighbours’ property. The water flooded across and down their garden, saturating the lowest section, where Mr Colover operated a miniature railway as a hobby.

The water rendered large portions of the lawn unusable (in particular Mr Colover’s railway track) and killed mature trees, shrubs and plants. The Colovers attempted temporary abatement measures in the form of pumps but they did not resolve the saturation and flooding.

Nuisance claim

The Colovers subsequently issued court proceedings against their neighbours, on the basis that the works on the neighbouring land had increased the burden of water percolation onto and into the Colovers’ rear garden, thereby giving rise to a nuisance. The Colovers sought an injunction for their neighbours to undertake works to intercept and dispose of the water within the bounds of their property, and damages (initially) for the costs of reinstatement of their garden and the temporary abatement works, among other things.

After extensive expert involvement from drainage experts, the Colovers realised that, while there were means by which their neighbours could collect the water in their garden, there was no practical engineering solution to dispose of the water. The Colovers therefore claimed, in the alternative, damages to compensate them for the diminution in value of their property caused by what was likely to be permanent flooding and saturation.

The Colovers’ neighbours contested the claim for a period of three years. In particular, they denied that the works undertaken to their property caused the water inundation.

The matter came to trial at the Royal Courts of Justice in March 2012. On the first day of trial, the Colovers’ neighbours accepted liability for the nuisance and the case was adjourned for a further hearing to take place later in the year to assess the diminution in value of the Colovers’ property.

Before the adjourned hearing, the parties were able to agree a settlement of £165,000 (to include the decrease in value of the property) and the case was settled on that basis.

Before the event legal expenses insurance

The case highlights the benefits of ‘before the event’ Legal Expenses Insurance. It is extremely likely that most private individuals would not have been able to fund the costs of a three-year legal battle involving extensive and complex expert engineering evidence, valuation and arboricutural experts. The complexities and high cost of such legal action would, most likely, also have deterred many law firms from taking the case on a ‘no win, no fee’ arrangement.

Without the benefit of their legal expenses insurance, the Colovers may well have been left with a substantial reduction in the amenity and value of their property, and no means of redress through the courts.

For more information on any of the issues raised in this article or on civil litigation matters in general, please contact us on 0117 904 6000.