Anton Barkhuysen v Sharon Patricia Hamilton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 10 November 2016 |
| Neutral Citation | [2016] EWHC 2858 (QB) |
| Docket Number | Case No: A90TR403 |
| Court | Queen's Bench Division |
| Date | 10 November 2016 |
[2016] EWHC 2858 (QB)
Mr Justice Warby
Case No: A90TR403
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TRURO DISTRICT REGISTRY
Sitting at Exeter Combined Court Centre
Southernhay Gardens, Exeter, Devon EX1 1 UH
Alexandra Marzec (instructed by Stephens Scown) for the Claimant
John Samson (instructed by Public Access) assisted by Phoebe Bragg for the Defendant
Hearing dates: 17–21 October 2016
I. INTRODUCTION
Between 17 and 21 October 2016 I heard evidence and argument at the trial of claims and counterclaims in this dispute between two neighbours, Anton Barkhuysen and Sharon Hamilton. At the end of the trial I took time to consider the matter. This judgment identifies the issues, the parties' claims, the relevant law, and the evidence, and states my conclusions.
II. BACKGROUND
The case concerns events in the hamlet of Tregolls, in the Parish of Stithians in West Cornwall, between 2010 and 2013. Mr Barkhuysen, the claimant, is aged 72. He has lived in Stithians with his wife Rita for 44 years. The Barkhuysens currently live at Alquerias, Tregolls, which has been their home for 25 years. They have three children, among them a daughter called Rosemary. Rosemary is married to Iain Andrews, a Squadron Leader in the RAF.
The defendant, Mrs Hamilton, is in her 50s. She lives at Tregolls Farm, which lies a little way to the north of Alquerias. She went to live at Tregolls Farm some 22 years ago, in 1994, when she was first married to her husband Simon. The Hamiltons' marriage ended in 2005. Mr Hamilton left the farm, and Mrs Hamilton became sole owner in 2007. She has since lived at Tregolls Farm as a single parent with her daughter Katie, now aged 18, and her son Miles, now aged 20.
On the eastern side of the road that runs past Tregolls Farm lies Tregolls Common ("the Common"). This is common land over which the owner of the farm, like some other local landowners, has grazing rights. At the relevant times Tregolls Farm had an enclosure on part of the Common, surrounded with fencing. A little to the south of the farm, there is a gate leading off the road onto the Common ("the Common Gate"). It belongs to Mrs Hamilton, and provides access to the fenced off, enclosed area of the Common.
The Barkhuysens and Mrs Hamilton have a near neighbour, Mr Robert Dowling. In 2006 Mr Dowling moved in with his wife at Moonin Barton ("the Barton"). The Barton is close to the Barkhuysens', who are the Dowlings' nearest neighbours. The Barton also has a boundary with a field belonging to the defendant, her "top field". A roadway leads south off the main road, down to the Barton and the defendant's top field. At that point there is an intersection ("the Junction") with another route ("the Lane") which leads away from the gate, in a westerly direction, taking a dog leg turn back to the main road.
The claimant and the defendant have been in dispute for over 8 years. During that period of time there have been many incidents or alleged incidents between them, and a good deal of litigation. As with so many neighbour disputes, the origins of the falling-out lie in arguments about land. As so often, the history is quite a long one, the disputes multi-faceted, and the arguments detailed. In this case, the rights of third parties have also come into play. In recent times, Mr and Mrs Dowling and Mrs Hamilton have been at odds about rights over land at the Junction.
As I will explain, however, none of the claims and counterclaims that I have to resolve involves any claim to title to any land, or to rights over land. They are all claims for damages for interference with personal rights: the rights to freedom of the person, to the protection of reputation, and to protection from harassment. For that reason, and in pursuit of the overriding objective, I and other judges who have managed this case have been at pains to set boundaries on the allegations and evidence that can be put forward at this trial, cutting them down to what is clearly relevant and proportionate to the issues in dispute.
I have nonetheless heard a good deal of evidence about land rights, and about alleged wrongful interference with such rights. This has been by way of background, and by way of attack on the credibility of Mr Barkhuysen. It is also argued for Mrs Hamilton that evidence about these matters will help me reach conclusions on the inherent probabilities, when it comes to the disputed factual issues that I have to decide. In the circumstances I will need to sketch in the general background to the dispute, and to deal with some of the allegations and counter-allegations about the parties' behaviour with regard to land. To start with, however, I shall identify the central issues.
III. THE FACTUAL ISSUES
The parties' claims arise from the following events, and give rise to the following main issues of fact.
(1) 11–12 September 2010: The Van Incident
On the weekend of 11–12 September 2010 the claimant drove his campervan up to the Common. He had an altercation with the defendant and a friend of hers, Mr Mark Broomhead. He later reversed the van through the Common Gate onto the Common, where he remained in the van for some time, into the night.
The defendant alleges that on this weekend the claimant broke the latches off the Common Gate, exposing her farm animals to danger; that in the course of the altercation involving Mr Broomhead the claimant told the defendant not to go on the Common, and threatened to use force to throw her off; and that he deliberately drove his van at her, putting her in fear of her life ("the First Driving Allegation"). She alleges that while he stayed in his van he was watching her at her bedroom window ("the Watching Allegation"). The claimant denies doing any of these things.
The claimant's case is that the defendant wrongfully attempted to stop him from reversing onto the Common; that Mr Broomhead threatened the claimant with violence; and that the defendant threatened to damage his van. He says that when he stayed in the van he was with Mrs Barkhuysen, playing Scrabble.
(2) 20 September 2010: The Injunction Application
On 20 September 2010 the defendant, acting in person, made an application to the Court seeking an injunction against the claimant ("the Injunction Application"). She sought injunctions ("the Gate Injunctions") requiring the claimant to restore the latches to the Common Gate, and to restrain the claimant from leaving that gate open. She also sought injunctions to restrain the claimant from harassment.
The application was supported by an affidavit sworn by the defendant at court. This contained a number of allegations against the claimant, including to the effect set out at [113333] above. The Injunction Application was made without notice to the claimant. It was heard by DJ Mitchell. He granted the Gate Injunctions, which remain in force. He did not grant any injunction in harassment.
The claimant makes a complaint ("the Affidavit Complaint") that the defendant's affidavit contained five false and defamatory allegations about him. The defendant maintains that all five allegations were true.
(3) August 2011: The First Common Encounter
On a date in August 2011 there was an encounter on the Common between the claimant and the defendant. The claimant alleges that what happened is that he was out for a walk when the defendant approached from her farmhouse and started to abuse him verbally, and to photograph him. The defendant denies these claims.
(4) February 2012: The Bicycle Incident
On a date in February 2012 the claimant was cycling in the hamlet. He stopped at the Common, left his bike and entered the Common on foot, passing through the Common Gate. The claimant alleges that the defendant, who was with her ex-husband, approached him, threatened damage to his bicycle and abused him verbally as he left. The defendant denies all of this.
(5) 15 April 2012: The Wood Allegations
On the morning of Sunday 15 April 2012, the claimant and Mrs Barkhuysen drove to Stithians Methodist Church, which they attend regularly. On the way they passed the defendant. At around 10:40 that day the defendant later reported to the police that as they passed her the claimant had tried to run her over, and as he drove past hit her on the head with a piece of wood. The claimant was interviewed under caution about the matter. No further action was taken. The claimant alleges that this was a false allegation, invented by the defendant. The defendant says it was true: the claimant deliberately tried to run her over and, in the course of doing so threw a bit of wood at her.
(6) June 2012: The Second Common Encounter
A further encounter took place on the Common on a date in June 2012, involving the claimant, the defendant, and Squadron Leader Andrews. The claimant alleges that when he and his son-in-law were walking on the Common the defendant again approached them from her property across the road, and shouted verbal abuse at them. The defendant denies this.
(7) 1 January 2013: The Police Complaint
On New Year's Day 2013 the defendant made a report to the police, alleging that in the early hours of that morning she had seen the claimant having sexual intercourse with one of her pigs. The claimant complains that the Police Complaint led to him being arrested, detained, questioned, having property seized, being subjected to intimate sampling, and being kept on police bail for many weeks before being told that there would be no charges. The claimant says the allegation ("the Pig Allegation") was false and unfounded, a malicious invention by the defendant, which caused damage to his reputation, and to his feelings, and other harm.
The defendant admits making the Police...
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