What will the level of proof be in dispute

[Witchlight]

Hi, we are having a problem with our neighbour. They have a flying freehold over us and as part of this, must maintain the roof over a section of our house - providing us with a right of protection.

There is a leak in the roof, which is causing a damp patch (and sometimes drips) which can only come from above, so from their section of the roof. Our insurers sent an expert, who put up scaffolding and confirmed this to be the case. The neighbours disagree.

The cost of repairing the damp patch is minimal, so we don’t need to ask the insurers to pay, but we are covered . However, the neighbours are refusing to repair the roof unless we can say “categorically” (they keep using this term) where the leak is coming from and prove categorically it is coming from their part of the roof. We have asked what they would consider to be categorical proof, but they will not answer. The problem is that there may be damage to roof timbers in our part of the roof, caused by this leak in the future.

We have spoken to our insurers and they said when we suffer financial loss, we need to take them to court to recover it. What level of proof would we need in court as I believe it will go to court in the future, because whenever and whatever proof we provide, they just say they don’t agree.

1. Balance of probabilities
2. categorical
3. another level of proof that I don’t know about.

Help much appreciated.

Civil standard is on the balance of probability, so 51%. Court proceedings would involve expert witnesses. Does your insurance have legal cover?

Yes it does (legal cover) but insurers said as we haven’t suffered financially yet ( it cost less than £50 to repair the damp patch) it would prove difficult. Insurers paid for scaffolding and expert report, which neighbours just say they disagree with.
The insurance company will cover us if we ever need to redecorate, but we are more concerned if the timbers are rotting where we can’t see.

All their (neighbours) emails keep saying we have to prove the exact place of the source of the leak categorically......

Sorry, forgot to say thanks

I would point out to the neighbours that, given the position of the leak and the expert report, it is very likely that the courts would decide they are liable if the leak causes serious damage. They may, therefore, want to act now to avoid a bigger liability later. You could offer to refund them the costs of an investigation if it proves that the leak is not their issue.

I suspect that the neighbours think that you have to prove the leak is down to their roof beyond reasonable doubt - the standard of proof required in criminal cases. I find it surprising how many people think the same standard applies to civil cases.

Balance of probabilities.

I find it surprising how many people think the same standard applies to civil cases

Conversely, I don't ... but then as this very forum shows, there are also people out there who believe in the Freeman of the Land bollocks. So based on the balance of probabilities, there are going to be quite a few morons around. As the recent discussion on not registering a childs birth amply demonstrated.

Thanks so much. We did discuss jointly funding an investigation as to where problem was, but they said they would only pay for the repair if we could prove categorically where it was coming from and nothing about paying for the cost of investigation.

The cost of the repair is likely to be quite small, once identified, but the cost of identifying (scaffolding) is going to be thousands. Also when we asked what they would consider acceptable proof, they ducked.

We can prove the leak is coming from above and have expert advice to that conclusion.
We can show they are responsible for the roof from the bottom of the joists upwards, it is stated in the deeds and clarified in an a legal document with the previous owners.

I think we will write stating our position, that we consider them liable if we suffer any costs from further or ongoing damage, we (or our insurance co) may seek a legal resolution, where the level of proof will be balance of probilities.

It is what I was planning to do, but was concerned re their continual use of the phrase “prove categorically”, even when it fitted into their sentences clumsily.

Thanks so much for replying.