Martin Craig Nicholas v Barnes Davison Thomas

Hearing dates: 23 rd, 24 th, 27 th, 28 th, 29 th, 30 th and 31 st January and 3 rd and 5 th February 2025 (Site Visit: 17 th January 2025)

Draft judgment circulated to the parties on 27th March 2025

Approved Judgment

This judgment was handed down remotely at 10.00am on 8 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

HHJ Russen KC:

INTRODUCTION

This is my judgment following a trial which is the result of a bitter dispute between neighbours in Cornwall, all of them living and, so far as the parties to the proceedings are concerned, respectively operating (through a company which is also party to the proceedings) their businesses next to one another. The location is the hamlet of Bosavern, St Just, in Cornwall, only a few miles short of Land's End.

The dispute has led to a claim by two brothers based upon 35 allegations of harassment by their neighbour, the first defendant.

Their company, which carries on the business of breeding falcons, also sues him and his company (the owner and operator of a small farm neighbouring the properties of the claimants and their parents) for the torts of nuisance and negligence and it seeks damages for losses caused to that business. Those losses are said to be the result of some birds dying and others not breeding as they should (including but not only through smashed and infertile eggs in the relevant year) because of the defendants' actions.

There are 8 allegations of nuisance. The damages claim is put at £1,209,000 (to include the loss of chicks over a 10 year period) plus ongoing losses of £344,250 per annum in respect of the loss of 14 breeding pens within the aviary. The claimants also seek injunctive relief against the defendants, the granting of which they recognise would avoid such ongoing losses to the company. They say the nuisance, which they also frame as negligence, has involved malice on the part of the defendants.

The defendants deny those claims. The first defendant has his own counterclaim, including a claim for injunctive relief, based upon his own 5 distinct allegations of harassment (pleaded as a non-exhaustive list of “ frequent acts of harassment” against him by the claimants).

This is not the only litigation between some of the parties arising out of their adjoining ownership. In recent proceedings in Truro County Court commenced on 24 November 2022 (“ the Septic Tank Claim”) the present first defendant sued the two brothers, their parents and another neighbour over what was either a cesspit (per the claimant in those proceedings) or a septic tank (per the defendants). Those proceedings were compromised before trial by a Tomlin Order dated 10 May 2024. As I touch on below, by any standards the Septic Tank Claim appears to have been a highly questionable piece of litigation so far as the basis and timing of it (at least in terms of service of the proceedings after the tank in issue had in fact been removed) are concerned.

Factual evidence about forty-eight distinct alleged causes of action (all of which, at least at their high point on the nuisance allegations, involve an allegation of consciously deliberate wrongdoing), some widely diverging submissions about actionability under the law of nuisance (despite further recent Supreme Court clarification of the principles), some sweeping and largely unchallenged submissions from each side about the approach to awards of damages for nuisance and harassment (of the type relevant to this case) including the potential liability of a director for the torts of his company, a relatively rudimentary approach to ROP's claim for ongoing losses (including after the claimants' production of a very detailed and potentially discombobulating document on the eve of trial about breeding numbers) and, finally by way of this summary of the bigger points requiring considerable thought for this judgment, the need to analyse detailed veterinary scientific evidence about the nature and cause of illness and death in gyr falcons, all make for a very long judgment.

The structure of it is as follows:

A. BACKGROUND

In this judgment I refer to the First Claimant as Martin, the Second Claimant as Scott and the Third Claimant company as ROP. I will refer to the First Defendant as Mr Thomas and the Second Defendant as UCE.

Martin and Scott are brothers and co-owners and directors of ROP, a business specialising in the breeding of falcons from a large and modern aviary next to their homes. ROP focuses upon breeding gyr falcons, peregrine falcons (and gyr/peregrine crosses) though barbary falcons (which are also sometimes used in the cross breeding), Peale's falcons and merlins are also raised in its aviaries. ROP raises chicks both through birds breeding naturally and by “imprinting” which is a process of artificial insemination with sperm collected from male falcons which is ejaculated into a hat worn by the breeder. This is a delicate operation which obviously first requires the breeder to gain some familiarity with the male donor.

The gyr falcon ( Falco Rusticolus) is native to a region from the edge of the Arctic coast south to around the northern tree lines of Canada, Russia and Europe. The peregrine falcon ( Falco Peregrinus) is native to area from around the southern limit of the Gyr falcon's natural habitat and extending south to across the equator as far as southern South America, South Africa and Australia.

Martin and Scott are also co-owners and directors of a company with a scaffolding business whose offices, like ROP's, are next to their homes at Higher Bosavern, St. Just. The two companies share members of staff.

Martin and Scott live with their respective families in two houses in the immediate vicinity of the aviary. Their parents, Mr Roger Nicholas and Mrs Susan Nicholas also live immediately next door to Martin and his family.

Mr Thomas is the claimants' neighbour. UCE, his company, owns neighbouring agricultural land (which includes the field that borders the aviaries on the other side of the path) which is separated from the claimants' land by a public footpath, including the land over which that footpath runs and the yard between ROP's offices and Martin's and Scott's respective homes.

The proximity of these neighbours, and the position of the aviaries, is shown by the shading on the aerial photo at Annex 1 to this judgment. I visited their properties on a site visit on 17 January 2025, shortly before the trial.

The Nicholas family moved to Bosavern in 1995. The lower of the yellow shading at Annex 1 covers both Nos. 1 and 2 Bosavern Cottage. Martin and his wife, Karen, and children live in No. 1 and Roger and Susan live in No. 2. The plan at Annex 2 shows the division of that building. Scott and his family live in No. 1 Bosavern Manor Farm (highlighted in green at Annex 1 and also shown on the plan at Annex 2). Their adjoining neighbours – Mr and Mrs Bragg – use No. 2 Bosavern Manor Farm as a second home.

Mr Thomas lives in Pengelly which is shaded blue at Annex 1. This is a new, substantial house, built of stone, which he has built in place of a bungalow (also known as Pengelly) which he inherited from his grandmother Barbara Thomas. His grandmother bought the former Pengelly in 1988.

Mr Thomas moved in with his grandmother in 2018. In October 2020 UCE bought the land shaded purple at Annex 1 from Mrs Deborah Trembath. While the land was in her ownership it had been farmed by a tenant farmer. This arrangement probably meant that the Nicholas family was effectively able to use the land between their homes, which provides access to them, as if it was their own. Indeed, the evidence of Karen Nicholas and Roger Nicholas indicated that they and other members of the public used to walk quite freely over the...