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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