Select Committee on the Crossrail Bill Minutes of Evidence

Examination of Witnesses (Questions 10980 - 10999)

  10980. My reservation is that, if I do not persuade you and we are stuck with undertaking No 234, that must not go into the deed because that would mess up my contractual rights by at least allowing the argument that compensation is limited to that rather than for breach of contractual provisions.

  10981. CHAIRMAN: I have the copy of the deed out here in front of me.

  10982. MR DINGEMANS: My Lord, yes. May I ask your Lordships how many paragraphs you have in your deed, because there are two deeds floating around at the moment and one has 14 and one has 13 paragraphs.

  10983. CHAIRMAN: Mine has 14. 13 is Compensation.

  10984. MR DINGEMANS: Yes. At the moment, my Lord, if you were against me then what we would simply ask for is compensation to be left as an undertaking because that is grafted on a statutory scheme, the 1965 Act, whereas, for example, if you look at your deed clause 5, if we can show that they had not used reasonable endeavours to maintain six loading bays, that is a breach of contract and then we can sue them in the courts and say: "Look, you did not use your reasonable endeavours", and they would no doubt say "Well, although we only had four for most of the time that was our reasonable endeavours because of X, Y and Z that were unexpected situations".

  10985. So there under the deed a right to sue for breach of contract and to claim damages.

  If one goes back to clause 13, the clause 13 provision is for those losses that will accrue that are, at the moment, claimed under the 1965 Act. So this is to be grafted on the 1965 Compulsory Purchase Act. When you assess compensation as a result of injurious affection, which is the 1965 Act, then the undertaker will actually increase the damages by just not restricting it to the value of land. So clause 13, in some respects, is outside the deed. It is a separate provision. What we are really asking your Lordships to do, in short, is this: ditch their clause 13, turn to paragraph 28 of our Petition and insert those words. In fact, it would be to the trader and, instead of the Promoter, it would be the nominated undertaker.

  10986. CHAIRMAN: I thought 234 had already been agreed.

  10987. MR DINGEMANS: Undertaking 234 was agreed—no. Our whole point has been that 234 is not adequate to cover our situation. That is what our Petition was. If one looks at paragraph 28, it was that we needed more than 234. If your Lordships were against us in saying that we needed more then we are stuck with 234.

  10988. CHAIRMAN: Let us try and get this absolutely clear. We are abandoning a new clause for the Bill.

  10989. MR DINGEMANS: Your Lordships are not going to order one.

  10990. CHAIRMAN: I do not think that it is likely to be a very profitable line. We have already got 234, which is somewhere in here.

  10991. MR DINGEMANS: Yes.

  10992. CHAIRMAN: And it's not good enough because — Shall we look at its text?

  10993. MR DINGEMANS: Yes, my Lord. If you go to page 149 of our bundle.[29] It is the third box down. "The Promoter's proposal to deal with this is as follows:" Do your Lordships have that bit of text? It is remarkably small text. "The Promoter's proposal to deal with this is as follows: it applies to the market traders who are tenants of the City Corporation at Smithfield Market"—which is us. So that is great. "Where an event occurs during the construction of Crossrail which triggers a right for the market traders to claim compensation under section 10 of the Compulsory Purchase Act 1965 (as modified by clause 50 of the Crossrail Bill) or section 6 of the Railway Clauses Consolidation 1845 (as incorporated, with modifications, by paragraph 3 of Schedule 10 to the Bill) against the nominated undertaker, the Secretary of State will require the nominated undertaker to include in the compensation an amount representing any consequential loss, whether or not reflected in the value of the land (1) which was caused by the construction of the works under statutory authority and (2) for which the nominated undertaker would have been liable to pay damages if the construction had not been authorised by statute."

  10994. CHAIRMAN: That is the nuisance point, is it not?

  10995. MR DINGEMANS: Yes. This is all dependent on me coming within the 1965 Act. To come within the 1965 Act I have to show, as I think I indicated to you this morning, that there was a nuisance—i.e. an interference with a legal right—which I would have been able to sue them for but which I could not because there had been statutory authority. So it is a very narrow right. It is, effectively: if I show that there is a common law nuisance and the defence to it is statutory authority, then I can come within this. The effect of this extension is this: what it means is we are not restricted to the value only of our leases, which, as I have explained this morning, in real terms is nothing, and we can claim economic losses. That is an important extension but the limitation is still there; we need to show that it would have been a nuisance.

  10996. Why does that matter? Because, as Lord Hoffmann pointed out in Wildtree Hotels, when you have construction works of this type going on, dust that is generated, disruption that is generated is not actionable at common law—unless, as I think my lord, Lord Brooke, had indicated there was some sort of catastrophic failure, a failure to use reasonable care and skill, then you are into the arguments that there is a failure at common law. There are a number of problems with this clause, at the moment. First of all, it is dependent on showing a nuisance. That is not sensible in circumstances where—to pick my the point my Lady, Baroness Fookes, made this morning—you are then immediately into what is a nuisance at law and what is not. Great work for me, as a lawyer, but hopeless for the market tenants.

  10997. Secondly, you are grafting on to an existing scheme on which the Law Commission did say—and I will take you back to their recommendations—"Get rid of the 1965 Act; it's hopeless; it's in old-fashioned language". My real concern on behalf of the tenants is this: the 1965 Act is bad enough but it has been to the House of Lords enough times that people know what it means. However, then you put on this provision, and you are into a whole series of different arguments about meaning. We would respectfully ask your Lordships not to condemn us to the lawyers' feast that that will bring about.

  10998. CHAIRMAN: The first objection is a cross-reference to section 10.

  10999. MR DINGEMANS: Yes, because we need to show nuisance. The second objection: you are stuck with archaic language and you are modifying archaic language with language that I am sure your Lordships are all capable of reading and knowing exactly what it means but it has taken me a considerable period of time, and one suspects that the Lands Tribunal might have difficulties as well. The third objection—

29   Crossrail Bill-Register of Undertakings and Assurances No. 234 (LONDLB-24-04-001) Back

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