Made on behalf of Applicants
Witness: Ivan Springwood Galligan
Ist Statement of Witness
Dated: 26th January 2004
IN THE MESSING COUNTY COURT Claim No xxxx
(1) IVAN SPRINGWOOD GALLIGAN
(2) ELIZABETH JANE GALLIGAN Applicants
(1) GILBERT ROBBINGS
(2) GILBERT ROBBINGS ASSOCIATES LIMITED
(3) GRUNGEONS LIMITED Respondents
the Claimant and Defendant in an Intended Claim
WITNESS STATEMENT OF IVAN SPRINGWOOD GALLIGAN
1 I live at 10 / 12 Cobbler’s Parade, Messing Road, South Boggiford, Messingshire (‘the premises’). and make this statement in support of the Applicants’ application for an interim injunction against the Respondents. The matters set out below are within my own knowledge, except where I indicate to the contrary.
2. I am the First Applicant in this action. My wife and I run a greengrocer at ‘the premises’, which is a specialist greengrocer. My wife has to work in the greengrocery, although we have two children both under five, because I have to go to London quite regularly each week to New Covent Garden, on Monday and Thursday .We sell both ordinary English and tropical fruits and unusual vegetables.
3. We set this business up in 1994, when I returned from working abroad, so that restaurants and people from all over Messingshire and indeed other counties come to us. The shop and flat are in the end of a small parade of shops. There are three big freezer cabinets, which are in the rear part of the shop, which is an extension. Next door to us on the other side from the chemist’s is a big old house, which at the side is about six feet away from the entrance to the shop.
4. My landlord was Harold Peter Elder, who granted me the lease dated 13th April 1994, a true copy of which is now marked ISG1, of ‘the premises’ from 25th March 1994 for the term of 14 years, died in 2002. The relevant part in the lease regarding of reserving by the lessor to carry out repairing on the site. For example, the lessor reserves the right to use the track to the south of the demised premises as a right of way for all purposes and the right to use the said track and the land immediately in front of the demised premises for access for the purpose of carrying out repairs to the north boundary wall of Waterway Lodge. Clearly, there is nothing has been found which cuts down the covenant to enjoy ‘the premises’ during the continuance of the said term. However, when Mr Elder died, a letter from his solicitors confirmed that the executors had sold the parade to Gilbert Robbings who did demand rent last year.
5. Waterway Lodge was a guest house when we first came to South Boggiford but has been empty for three years and there is planning permission to convert it into flats and build a new house on the site as part of a bigger estate which will run round the back of the parade. However, Waterway Lodge is stone and was very dirty almost black. Due to clean the outside walls of Waterway Lodge, the builders had been using water and / or sand without taking reasonable precautions to prevent or minimise the escape of water and / or sand over or into the premises, whether by putting up tarpaulins or otherwise.
6. Since Tuesday, there was excessive both noise and vibration at the site going on all day from dawn until dusk even though builders have no intention to minimise it. They usually start work with a compressor and the earthmover at six o’clock just as they had the day before. Due to the disruption, we don’t have any chance to get sleep as we generally had been up all night with the baby. Therefore, I spoke to somebody on Wednesday over the telephone that I think was Robbings, although I have never met him, anyway he didn’t correct me when I called him Mr Robbings. The builders said that they were working for Robbings Associates Limited, but they may not have got the name right. In fact, all their vehicles and the JCB which arrived on Thursday have painted on the side Grungeons Ltd but there was no telephone number and I have not had time to trace where they come from.
7. By Saturday, I took another step to convince the builders not to continue the work, but indeed they didn’t listen to me, and hoped they would be more helpful in the circumstances especially I tried to explain them that the mangoes were quite ruined and I was very worried about the rest of the stock which requires careful looking after to keep it in prime condition. Unfortunately, the mangoes were damaged. They were for a special order from Old Messings Hotel who was doing a tropical brunch on Sunday and we lost the order.
8. The builders had blocked the road drain with a heap of sand and a skip, which was obstructing the way round the back of the shop. As a result, the customers could not get into the shop without being soaked with water from the stone cleaning, and even the water was pouring into the shop through the door. I therefore telephoned the landlord to ask him, telling the builders not to do any more work, but there was no positive response. However, a lot of my customers are very elegant people and they do not want to come to a shop where they get soaked and covered in sand. Further, all the fruit and vegetables have to be washed every day which means the more delicate fruits go bad quickly but I have standards so I’ll have to go to New Covent Garden 3 times a week as long as this goes on. I went on Friday and I had to hire a van for $60 because of the skip so with the petrol it’s costing me $220 a week. They also obstruct my driveway by placing sand and a skip on the track, which needs to be cleared so I can get my van to London. I keep on asking the builders to move it but without success. I’ve always parked at the bottom of the driveway, ever since we moved in.
9. I should say that the back extension is also a 2-storey building, which sticks out over the waste land at the back. I think it is made of wood anyway it is hung with tiles and rests on four cast iron pillars – they are neo-classical and quite fine though I don’t suppose nowadays anyone would bother to use such pleasing building materials for such a purpose. There is quite a bit of waste land at the back of the Parade. The Parade is on the east side of the road and the road runs down the side of Boggiford Hill which also slopes down behind the Parade and that’s why the pillars are there to hold up the back extension which just out nearly to the edge of the stream. The planning permission is for building a small estate of houses. We tried to stop it but the Council are terrible and they are going to put what was quite a rural stream into a concrete culvert and drain all the water off the estate road into it I suppose. I expect there will be flooding. That is what the trench is for at the back of the shop I think. They were marking it out on Thursday morning when I went to London. When I got back we had the flood, on Friday morning I had to go to London again and then I was busy in the shop and so it was only on Friday evening when I had squeezed round the skip and walked down to take some empty boxes down to the Van because I can’t get it out while the skip is there although as I told them they could just as easily have put the skip the other side of Waterway Lodge. However, the pillar nearest the stream is right on the edge of the trench which they had already started cutting it is actually hanging in thin air for an inch and a half I measured it. The freezers are very heavy and we use the upstairs room as an office. I am sure that if they dig much more of the trench the back extension will slip into the stream. In fact, I think there is a crack developing near the floor inside already.
10. I again telephoned him who said to me that the work could not be stopped because the JCB had to be on another job next Tuesday and until the trench was finished they could not drain the rest of the site and start building and he had bank interest which would kill my business dead if I had the same overdraft he had. I then said if it went on much longer I would withhold my rent and he said ‘just you try that and you’ll see what will happen’. Furthermore, I said that my business was going to be killed by his activities and he said that was my look out and I said I was sure that he must have seen how the sand and water was getting into the shop and he said with bad expression that it would not go on longer than two weeks. When I objected to his language he put the phone down.
11. I want all this stopped immediately. I have spoken to a surveyor friend on the residents association and he says that I am entitled to have the works carried out in a proper manner and that he will come and see what is going on but he is away on business until Thursday.