Following the judgement from the Supreme Court on the Davies v Bridgend County Borough Council case, Paul Beckett from Phlorum discusses the case, the outcome and what this could mean for knotweed contractors. 

Knotweed has set some interesting precedents of late. The appeal judgement in Churchill v Merthyr Tydfil Borough Council - whereby it was found that the court can force litigants to engage in alternative ways to settle their differences before they bother the courts - has caused changes to be proposed to the wording of the Civil Procedure Rules. However, it is last week's judgement from the Supreme Court on Davies v Bridgend County Borough Council that is currently ruffling feathers. 

Case summary

The case was an appeal by Bridgend Council against an earlier appeal decision that went against them. The facts of the case are that knotweed encroached onto the home of Mr Davies from adjacent land owned by the council. Previous case law had established that for there to have been a tort (i.e. unfair loss or damage caused to the claimant), the encroachment must have happened after 2012, which was when the Property Case Association (PCA) and the Royal Institution of Chartered Surveyors (RICS) published their respective knotweed guidance documents.

In this case, it was agreed from expert evidence that encroachment had occurred well before 2012. However, it was Mr Davies’s position that the Council’s failure to treat the knotweed until 2018 had caused him a continuing nuisance, particularly by way of diminishing the value of his property, and that this impact would have been reduced had the Council started treatment earlier (ideally in 2012). 

The outcome

Simply put, the Supreme Court judgment is that Mr Davies is not entitled to any damages because the knotweed had caused its impact well before the council had a duty to deal with it. 

That being said, the door is far from closed on similar cases, as some arguments were not played out because specific points that would have otherwise required additional expert evidence were not pleaded (e.g. what is the cost impact of not treating knotweed effectively or in a timely manner?).

So, what does this all mean for knotweed contractors?

• Knotweed remains a significant property issue, so it should be identified and effectively dealt with as soon as possible - which could mean more work for PCA members;
• The damages sought by Mr Davies in his claim were a paltry £4,900, which is miniscule compared to the substantial lawyers’ fees - so, while opportunities for litigation remain, claimant firms will likely continue to seek them out (and get paid handsomely for doing so!);
• However, as several pieces of case law now allow much more robust defences, claims will need to be solid if they are to succeed, and expert evidence will need to be of high quality to support them;
• Consequently, there could be a decline in claims against large public landowners for causing historic encroachment of knotweed;
• If claimant firms change tack in this way, we might see a shift towards claims around misrepresentation, where knotweed-affected property has been sold without its presence being declared.

It will be very interesting to see what will happen to the claims industry. Added to the case law mentioned above, there have been other shockwaves that could change how claims proceed. Following some huge losses by legal funders and the folding of some specific types of law firms, the way ‘no win, no fee’ claims are financed could put many homeowners off if they now need to pay for such claims themselves, and accept the painful financial consequences if they fail.

Thank you to Paul Beckett from Phlorum for providing this guest blog. You can find further knotweed identification advice on the Phlorum website. Alternatively, if you are looking to become a qualified knotweed technician or surveyor, find out about all our training courses through the button below.

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