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IN THE DURHAM COUNTY COURT CASE No. DH400898
Between Maurice Kellett Plaintiff
and Shirley Carr Defendant
AFFIDAVIT BY PLAINTIFF
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I, MAURICE KELLETT of 16a The Lyons, Hetton-le-Hole, Tyne and Wear,
MAKE OATH and do say as follows:
1. On Friday November 12 1993 I learned that my neighbour Miss Shirley Carr, an employee of the Department of Health and Social Security living at 16 The Lyons, Hetton-le-Hole, Tyne and Wear was to have her roof replaced.
2. Men and youths were in attendance at the defendants on the afternoon of Friday November 12 1993 moving and re-stacking roofing tiles that had been delivered that afternoon.
3. While the tiles were being unloaded, I approached the defendant to ask if she would have the gable repaired on her respective side of the party wall between our homes before the roof was replaced. The repairs needed access onto the defendants roof which was about to be replaced. The defendant had previously denied any liability for repairs to the gable along with other matters of drainage of the defendants property onto our own, which have helped, or directly cause the flooding.
4. The defendant would give no undertaking for the work to be done. I then told her that I was not agreeable to any part of our property being removed or altered until we had reached an agreement on the other matters outstanding. I informed the defendant that in particular, I would allow no slates or parts of any roofing that were on my respective side of the party wall to be removed until we had reached agreement on the other matters. One of the men that had been re-stacking the roofing tiles was listening to the conversation between the defendant and myself made the statement "Oh we will lift the fucking lot", a short arguament arose.
5. The defendant and myself went into her home and she agreed that none of our property would be disturbed when her roof was being replaced during the following two days of Saturday and Sunday November 13 and 14.
6. Work started the following morning and within two hours I observed that the top of a parapet wall which formed part of the party wall was being hammered off. I informed the workman that he was removing part of the parapet wall which was on my respective side of the property, he ignored me.
7. Shortly after this I saw slates which were again on my side of the party wall being removed. I spoke to the workman and he continued to remove the slates. I climbed out of our upstairs window onto the roof and tried to stop the workman. He had a hammer in his hand and raised it as if to indicate that he might strike me with it. Another man busy removing slates from the defendants roof shouted "there are six of us and only one of you".
8. I started to climb back into our window. I then saw a large crack hadappeared a short distance from the top of the parapet wall. I informed the workman that the wall had been cracked. Another man came across the roof and took hold of the top of the wall and started to rock it from side to side. One of the workmen said laughingly to the other while rocking the top of the wall, " yes the fucking thing is loose is'nt it", and continued to rock the wall.
9. One of the workmen said that the reason the wall had cracked was because it was only one brick in thickness, he went on to say that whoever had built the property should have had their brains examined. I explained that the propery was built more than one hundred years ago and they had no building regulations at the time, the reply was that it did not make any differencebecause the wall should have been double brick thickness.
10. The workman then said he would put sealant in the crack. I refused to accept this as a satisfactory repair and asked the workmen to give me the name of their firm, they refused to give it. I then went to see the defendant and asked if she would give me the name of the firm, she also refused to give it. I informed the defendant that I would allow them two hours to reconsider their decision to keep the identity of the roofing people secret before calling for the police to attend. The two hours passed and the name of the firm had still not been given. The police attended.
11. The police said that they could not compel the roofing people or the defendant to give the required firms name because it was a civil matter, they did say that the defendant was, in any event, liable for the damage because she had employed the roofing people.
12. The defendant agreed that the roofing people she had employed had caused the damage and that she would have it repaired.
13. By early January 1994 the defendant had still not had the damage repaired even though by this time she had been made aware that water was leaking into
our kitchen.
14. Again a long period of time elapsed and nothing was heard from the defendant. Another approach to her informing her that thawing snow had soaked our kitchen wall brought no response. The defendant said that she did not wish to involve solicitors because of the cost involved.
15. Sometime later the defendant telephoned me fom the DHSS offices at Newcastle to say that she had arranged for a builder to call to have a look at the wall in order that he might estimate, and carry out the repair on the wall.
16. The following day January 19 1994 this builder called and detailed the work required to repair the wall and also detailed the work required to correct the drainage of the defendants property onto ours, and in addition, the work required to repair the gable wall.
17. I agreed that this builder could carry out the repair provided that the defendant acknowledge by a signature, as she had done many times verbally, that her roofing people had removed parts of the roofing on my side of the party walls despite her having said that she had told them not to do so. In addition, the signature would acknowledge that the damage had been caused by her roofing people, as again, she had agreed verbally that they had. The defendant said she would require legal advice. A copy of the document I asked the defendant to sign is now produced marked "MK1"
18. The following day of January 20 1994 I sent the defendant another lettera copy is now produced marked "MK2"
19. On January 22 1994 I received a short note from the defendant, a copy is now produced marked "MK3".
20. I waited to hear from the defendants solicitor but had not heard anything from him by the first week of February 1994 so I went ahead and was able to get an estimate for the damage of one hundred and thirty pounds. The builder that gave the estimate said that it might cost more if the job was not as straightforward as he hoped it might be.
21. This estimate was delivered to the defendant on February 10 1994. No reply was received to our request for pre-payment before repair of the wall by the builder that had gave the estimate on our behalf. A copy of this estimate and a covering letter dated February 10 1994 is produced marked "MK4".
22. I commenced action on one of the other matters of dispute namely to expel the defendant from land to which myself and my father have lawful title. Notice was served on the defendant to quit, and the land was fenced on February 15 1994. One day later I received a letter from professor Kenny of The University of Northumbria which is now produced marked "MK5".
23. In a later telephone call to professor Kenny he said that far better than for the matters to go into Court it would be better for us to have joint meeting to discuss the matters on site, I agreed to this. Because of specialised hospital treatment that I am receiving, before concluding the
thirty minute call, I asked professor Kenny when he would be making the visit, he replied that he did not know because he would first need to discuss the matters with law students.
24. Professor Kenny called at the defendants home on Sunday afternoon of February 20 1994 though had not called on me to attend the joint meeting that he had proposed. In another approach to the defendant on the evening of Sunday February 20 she informed me that the professor had called that very afternoon. The defendant could not offer any explanation as to why the professor had not called on me to discuss the matters and examine documentation that I had relating to the title I have on the land of which the defendant had been ejected.
25. On Thursday February 24 I received another letter from professor Kenny a copy of which is now produced marked "MK6".
26. I telephoned the University Law Clinic and requested to speak to the professor. The professor was not available and I spoke to a Mr Kerrigan, who was apparently a member of staff. Mr Kerrigan said he was also dealing with the defendants request for help. Mr Kerrigan said that the defendant had no legal liability whatsoever for the damage caused to our property by the roofing people because, although she had employed the roofing people, she was not legally their employer unless she had paid their National Insurance etc. A copy of an affidavit from Mr Norman Pringle who lives with the defendant is hereby produced marked "MK7", which states that Miss Carr is not liable. This affidavit was given to me prior to an appearance at Newcastle County Court on Tuesday March 15 1994 which related to the land dispute.
27. On February 24 1994 I sent the defendant another letter a copy of which is now produced marked "MK8"
28. A letter dated March 1 1994 was sent to The Dean of Faculty of The University of Northumbria is now produced marked "MK9", in which, along with other matters mentioned, I complained that the professor had said that he would call on me for a joint meeting to discuss matters but had not done so.
29. The defendant still refused to give the name of the firm that had replaced her roof and had caused the damage to the wall, and in addition had forcibly removed slates from my respective side of the party wall and substituted them with tiles. The tiles edging the wall were all cemented in place save the ones which were on my side of the party wall. The hole leftunderneath these tiles was subject to all the elements of the weather, namely the wind, rain, and snow. In addition to this the crack along the wall was also left open.
30. I approached Houghton-le-Spring police on the evening of February 24 1994 to ask their assistance in tracing the people that had replaced the defendants roof. Legal opinion that we received was that somewhere in law the defendant had a liability in the matter of damage to the wall, if only to give up the name of the roofing people. Some legal opinion was that Mr Kerrigans telephone statement saying the defendant had no liability whatsoever was not correct.
31. Though very sympathetic to the position that we had been placed by the defendants refusal to name the firm that she had employed to re-roof herhome, the officer to who'm we spoke could not help. He suggested that an interview with a CID officer stationed there might be helpful, if only to advise us of a way that we might trace the roofing people concerned. Because of current health problems and the time taken to prepare my defence for a Court appearance on the other matters the meeting with the CID officer did not take place.
32. It was obvious by now that the defendant was not going to have the damaged wall repaired, and it was further obvious that some considerable time was likely to elapse before I might be able to trace the roofing people, and in addition to the other matters at hand, extra health problems caused by a recent fifty per cent increase in my chemotherapy dosage have meant more attendances at Sunderland Royal Infirmary and the curtailment of the plannedmeeting with a CID officer.
33. Immediately after my Newcastle County Court appearance on March 15 1994 I had a conversation with professor Kenny. The professor asked if I would be agreeable to a joint meeting with him at the University of Northumbria Buildings in Newcastle, I told him that I was agreeable to such a meeting.Nothing more was heard from the professor after that conversation with him.
34. On Saturday March 19 1994 I lifted off the two tiles that had been left uncemented by the defendants roofing people in order to see if I might trace the source of water entering our kitchen, and to try to effect a temporary repair. These two tiles, although straddling the party wall, were mostly over on our side of the party wall, in fact the roofing people had placed these tiles so that they stuck over into our property by some three inches whereas the original slates had been flush with the wall.
35. While I was on the ladder I saw the defendant and her boyfriend walking up and down the strip of land that had been the subject of dispute in Newcasle County Court on Tuesday March 15 1994. The Court had allowed a temporary injunction allowing the defendant to re-enter the land that I had fenced on the condition that if she removed the fence, in the event her claim ofownership of the land being proved false, then she would be liable for the cost of replacing the fence along with other costs involved. I went to the back of my property and saw the defendant and her boyfriend Mr Norman Pringle carrying and depositing rubbish at a point that I had used to access the land in dispute and to which I have lawful title. I video filmed the defendant and her boyfriend in the act of depositing the rubbish.
36. I went into my home and wrote the defendant a letter informing her that the Judge at the former hearing had not given her permission to deposit rubbish on my land. While I looked for an envelope upstairs, my wife had picked up the letter and had gone around to the defendants and had put it through the letterbox as she had done so many times previous with other correspondence. A copy of this letter is now produced marked "MK10".
37. A short while later two police officers came to my door, they said they were looking for 16 The Lyons which is the defendants address.I told them that I thought they would have been called because I had removed the tiles on my side of the boundary and had not replaced them. The two tiles had not been replaced but had been placed covering the defendants respective side of the party wall. Because of the time taken to film the defendant and her boy friend dumping rubbish, and to write a letter to her, the attempted temporary repair to the wall was curtailed. I showed the police officers where I had taken off the two tiles on my side of the boundary wall. I also showed the police officers the wall in our kitchen and the point where water has been entering it. Black mould and staining on the wallpaper showed the actual damage by water entry from somewhere above the ceiling.
38. The police officers went in to see the defendant. When they returned to us they made no mention whatsoever of any complaint by the defendant relating to the tiles. Instead it became apparent that the defendant had attempted to have me arrested for an alleged breach of the temporary injunction. I explained to the policemen what had happened and told them that unknown to me, my wife had gone and put a letter through the defendants letterbox. The policemen read documentation that I had, and said that as I had not formally been servedwith the exact conditions of the temporary injunction they were not prepared to act.
39. The following day one of the policemen that had called on me the previous evening was seen climbing a ladder at the side of our home. He was looking at the place where the two tiles had been lifted off. The policeman said to the defendants boyfriend that it would be easy to put the two tiles back because they simply slotted into place. The defendant had apparently justnoticed that same day that the tiles had been lifted, and had been unaware that work had been done the previous day which had involved the lifting of the tiles. As stated earlier, the two police officers in attendance the previous evening were shown that the tiles had been lifted, this was when the defendant had made an attempt to have me arrested because my wife had puta letter through her door.
40. I told the officer that I was not prepared to let the defendants boyfriend, Mr Norman Pringle, replace any tiles on my side of the party wall, I reserved the right to say what others could or could not do on my side of the party wall. I had been forced to stand by and watch as the defendants roofing people had removed slates off my side of the party wall, along with the top of the parapet wall, I told the police officer that I had no intention of allowing that situation to repeat itself. A row with the defendant, her boyfriend, and her mother, who was visiting the defendant, ensued while the police officer looked on.
41. While the policeman watched, Mr Pringle removed the two tiles that had been left on the roof covering the defendants respective side of the party wall and he took them away, they were unbroken and this can be verified by PC Harding who had climbed the ladder to see what had been done, the undamaged tiles were on the roof at the time.
42. I invited the police officer into our home to show him documentation appertaining to the problems we are having with the defendant. I took the officer into our garden to show him where we were experiencing flooding, I asked him to go into the defendants rear yard and view what had been done to facilitate the flow of water from her rear yard, that has no drains, into our own yard which experiences flooding during heavy rain. I also showed the officer other sources of water onto our property from the defendants property that were causing nuisance, and damage.
43. On Monday March 21 1994 during gale force winds the wall was seen to be moving during heavy gusts. On Tuesday March 22 1994 I had the wall examined by a relative who had experience in the building trade, he confirmed that the wall was not "keyed" and that it could possibly collapse through the roof of our kitchen.
44. I sought legal advice on the matter again and was advised to summon the defendant to Court because, again, it was believed she could somehow have some liability in law for the present situation. My wife and I were told that the only way to find out was to take steps to make the defendant appear in Court. I sent the defendant a letter by post a copy of which is now produced marked "MK11".
45. On the morning of Thursday March 24 1994 pieces of mortar were seen coming off the wall during high winds. Because the defendant had already been issued with an ultimatum before the letter of Tuesday March 22 and it was taken for granted that she would again ignore the matter, an application for a summons against her was applied for at this Court on the afternoon of Thursday March 24 1994 in order that a judgement for the situation might begiven so that action might be taken to alleviate the possible danger of collapse of the damaged wall through the roof of our kitchen.
46. The statements that I have made in this sworn affidavit are true of the events that have taken place between the defendant and myself, and are not exaggerated in any way. I ask the Honourable Court to give judgement based upon the facts that I have given in my sworn statements.
SWORN this day of March 24 1994
At Durham County Court
Before me
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Any Email please to: Justice@jiwalu.demon.co.uk