Misha Manson-Smith v Mark Arthurworrey (in his personal capacity and as Executor of the Estate of Primrose Catherine Arthurworrey)
| Jurisdiction | England & Wales |
| Judge | Mathew Gullick |
| Judgment Date | 29 July 2021 |
| Neutral Citation | [2021] EWHC 2137 (QB) |
| Docket Number | Case No: QB-2019-002729 |
| Court | Queen's Bench Division |
[2021] EWHC 2137 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mathew Gullick QC
(sitting as a Deputy High Court Judge)
Case No: QB-2019-002729
Jamal Demachkie (instructed by Berry Smith LLP) for the Claimants
The Defendant appeared in person
Hearing date: 29 April 2021
Approved Judgment
Deputy Judge Mathew Gullick QC:
Introduction
This is my judgment on the question of what relief should be given the Claimants following summary judgment being entered in their favour by Mr Hugh Southey QC, sitting as a Deputy High Court Judge, on 11 December 2020. The Claim is for injunctive relief and damages arising from nuisance, harassment and breach of covenants in the Claimants' lease, in circumstances which I will describe in more detail below.
Before me, the Claimants were represented by Jamal Demachkie of Counsel, instructed by Berry Smith LLP. The Defendant had been legally represented earlier in these proceedings, including at the hearing before Mr Southey QC, but appeared before me as a litigant in person, his former Solicitors having ceased to represent him some ten days previously. The hearing took place as a fully remote video-conference via the Microsoft Teams platform in accordance with the arrangements adopted during the COVID-19 pandemic. I am satisfied that this was an appropriate and proportionate method of proceeding in all the circumstances and that neither side was disadvantaged by the way in which the hearing was conducted. During the hearing both the First Claimant and the Defendant gave evidence and were cross-examined; Mr Demachkie and the Defendant also made closing submissions.
Background
Mr Demachkie's Skeleton Argument described the dispute between the parties as having “a long and troubled history”. That description is amply justified on the material before me. It is necessary to set out the background in some detail.
The Defendant is the registered proprietor of the freehold of 108 Forest Road, Hackney, London E8 (“the Property”). The Property is an end-of-terrace house, built in 1880, that is now converted into three flats: Flat A, Flat B and Flat C. All three flats are held on long leases. There is also a garden to the rear, which is walled but with large gates (which are of a sufficient width for cars to drive through) opening out onto the pavement. The Property was originally owned entirely by the Defendant's mother but was converted in the early 1990s following a grant of planning permission. Flat A is on the lower ground floor of the Property and has its own private entrance and in addition a small private rear courtyard area, adjacent to but separate from the much larger rear garden; Flat B is on the raised ground floor and Flat C is on the first floor. Flats B and C are accessed via the external front steps and a common entrance hall.
The Defendant has been the registered proprietor of the freehold of the Property since 27 July 2016. Prior to that point, at the times material to this Claim he controlled the freehold of the Property as Executor of his late mother's Estate. The lease of Flat B is held by Natkim Co. Ltd, a company of which the Defendant is the sole shareholder and officer. The lease of Flat C is held by the Defendant personally. Prior to his imprisonment on 1 March 2017, the Defendant occupied Flat C himself. He now resides elsewhere.
The lease of Flat A was first granted on 23 August 1991 and was surrendered and re-granted to the Claimants' immediate predecessors in title by a lease dated 29 February 2012, which extended the term of the lease to 189 years from the original grant in 1991, pursuant to section 56 of the Leasehold Reform, Housing and Urban Development Act 1993. The Claimants purchased the lease of Flat A in September 2014. Since that time, they have been subject to a significant course of harassment by the Defendant. The cause of the harassment appears to be the Defendant's long-held belief that the plan annexed to the lease of Flat A which is held by the Land Registry has been forged. Specifically, the plan annexed to the lease indicates that the front garden area of the Property, which is paved, forms part of the demise of Flat A, and that the leaseholders of Flat A have the right to use the whole of the rear garden area, beyond the small private courtyard. The Defendant believes that the lease which was originally executed in 1991 did not convey those parts of the Property to the leaseholder of Flat A and that the lease held at the Land Registry has been forged. However, the originals of the lease held by the Land Registry have now been destroyed due to digitisation and all that survives is scanned images of the lease and the attached plan.
I should make clear at this point that it is not part of my task when assessing the relief due to the Claimants in this Claim to determine whether the Defendant's allegation that the lease of Flat A held by the Land Registry has been forged is correct or not. That is because, for reasons which I will explain in due course, that issue has already been conclusively determined by judgment having been granted against him.
The Claimants purchased the lease of Flat A in September 2014. Although they had initially intended to renovate and then sell Flat A, they subsequently decided to move into the flat themselves. They undertook extensive renovation works, which were delayed by the Defendant's conduct, and eventually moved into Flat A in June 2016 with their two young children. The Claimant's younger child, who was born in 2012, is autistic. One of the reasons the Claimants decided to move into Flat A was that it had the benefit of the use of a private garden. They considered that the garden would be beneficial to the health and wellbeing of their younger child. As a result of the events with which this Claim is concerned, the Claimants and their children moved out of Flat A into rented accommodation on 15 August 2019; they have not been able to sell Flat A due to the impact of the Defendant's conduct. They have since rented out Flat A to tenants on Assured Shorthold Tenancies.
The Claim
This Claim was issued on 29 July 2019, making claims against the Defendant personally and in his capacity as Executor of his late mother's estate. There are two broad causes of action in the Particulars of Claim, which were settled by Mr Demachkie on 19 July 2019:
i) unlawful harassment of the Claimants, alternatively nuisance;
ii) breach of covenants in the Claimants' lease.
The Claimants rely on the provisions of the Protection from Harassment Act 1997. Section 1 of that Act provides:
“ Prohibition of harassment
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(1A) A person must not pursue a course of conduct—
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.
(2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other.
(3) Subsection ( 1) or (1A) does not apply to a course of conduct if the person who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting crime,
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
Section 2 of the Act creates the criminal offence of harassment:
“ Offence of harassment
(1) A person who pursues a course of conduct in breach of section 1( 1) or (1A) is guilty of an offence.
(2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”
Section 2A creates the criminal offence of stalking, which is not relevant for present purposes. Section 3 provides a civil remedy for the victims of harassment:
“ Civil remedy
(1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
(3) Where—
(a) in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and
(b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction,
the plaintiff may apply for the issue of a warrant for the arrest of the defendant.
(4) An application under subsection (3) may be made—
(a) where the injunction was granted by the High Court, to a judge of...
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