Peter James Raymond and Another v Steven Frederick Young and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Briggs,Lady Justice King |
| Judgment Date | 14 May 2015 |
| Neutral Citation | [2015] EWCA Civ 456 |
| Date | 14 May 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2014/1656 |
[2015] EWCA Civ 456
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARLISLE COUNTY COURT
Mr Recorder Duncan Smith
2BW00140
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Briggs
and
Lady Justice King
Case No: B2/2014/1656
Mr Anthony Elleray QC (instructed by Green Solicitors) for the Appellants
Mr Edward Bartley Jones QC and Mr Stephen Connolly (instructed by Cartmell Shepherd) for the Respondents
Hearing date: 22 April 2015
This is an appeal by the defendants, Mr and Mrs Young, against an award of £155,000 by way of damages for the diminution in value of the claimants' property caused by acts of harassment and nuisance. The award is contained in paragraph 5(4) of the order of Mr Recorder Duncan Smith which was made on 6 May 2014 following a trial in the Carlisle County Court.
The claimants, Mr and Mrs Raymond, are the owners of a property known as Lin Cragg Farm ("the Farm") at Blawith in Cumbria. Immediately adjacent to the Farm is Lynn Cragg Cottage ("the Cottage") which is owned and occupied by Mr and Mrs Young. The properties were originally in common ownership. They were purchased together with the adjoining farmland by Mr Young's father on 21 June 1950 and Mr Young was born at the Farm. In 1965, following his retirement, Mr Young's father sold off most of the Farm with the exception of the Cottage and reserved a right of way in favour of the Cottage over what has been called in the proceedings the Western Drive.
The Farm was sold to a Mrs Scott who almost immediately sold off most of the farmland (84 out of 91 acres) to a neighbouring farmer. On 11 September 1968 Mrs Scott sold the Farm (including what remained of the farmland) to Mr Charles Craig who used it as a weekend home. Mr Craig subsequently transferred the Farm to one of his companies and eventually on 14 June 1999 it was sold on to Mr and Mrs Alan Williams and Mr Williams' sister. In 2005 they were killed in an aircraft accident and on 17 August 2009 the Farm was sold by their executors to Mr and Mrs Raymond for £600,000. They have subsequently bought back some of the land which used to form part of the Farm up to its sale by Mrs Scott. In March 2010 they purchased a 7.37 acre field (Quarry Field) for £50,000 and in June of the same year they acquired Wood Park Meadow for a similar sum.
Mr and Mrs Young live at the Cottage with their four children three of whom are now grown up. Mr Young is a builder but between 1994 and 1999 he also ran and lived at the Red Lion Public House in Lowick. Mr Young's parents are now deceased and he and his wife are the registered proprietors of the Cottage.
The Recorder found that Mr Young and members of his family have been responsible for continuous acts of harassment, trespass and nuisance against the owners of the Farm for almost 40 years. He describes it in his judgment as a campaign of truculence and belligerence borne out of Mr Young's resentment against the acquisition and use of the Farm as a weekend home. In paragraphs 96 and 97 of his judgment, the Recorder said:
"96. Having listened to 12 days' oral evidence and 22 witnesses as to fact, I am satisfied that since the sale of LCF by Frederick Young in 1965, the first defendant has been unable to accept the fact that he has no legal dominion over that property. It is clear from an examination of the historical evidence that it was his intention to make the life of those who occupy LCF a misery; that his campaign of belligerence has continued since the death of his father; that he has a deep-seated aversion to those wealthy enough to afford a second home the size of LCF; and that the notoriety of his conduct in the locality is an open secret. Though nothing turns on it, the allegation that he stated publicly that he had acquired a number of dead rats and it was his intention to strew the corpses over the courtyard at LCF, is one that I am inclined to accept. It is consistent with his conduct that has been demonstrated to my satisfaction and, I would add, his showing his buttocks to the security camera at LCF goes only to show his juvenile and disrespectful attitude.
97. Without causing violence to language I am unable to describe his near 40 year campaign of truculence as transitory."
The claim form was issued by the Raymonds on 3 May 2012. It contains numerous allegations of trespass, nuisance and harassment the precise details of which do not matter for the purposes of this appeal. But, in summary, the claimants alleged that the defendants (including their children) had:
(i) obstructed the use of the Western Drive;
(ii) interfered or prevented the use of a right of way to a gate into Quarry Field;
(iii) failed to control their dog and to prevent it from defecating at the Farm;
(iv) caused trespass and nuisance with their guinea fowl;
(v) left dustbins and other rubbish near to the back door and kitchen window of the Farm;
(vi) burnt plastic and other noxious materials causing smoke;
(vii) vandalised the two CCTV cameras, a greenhouse and other property; and
(viii) physically intimidated Mrs Raymond.
The Recorder found these allegations proved and awarded damages under each head. For the trespass on and obstruction of the Western Drive and the right of way, he awarded a total of £3,600 calculated on a wayleave basis. He then proceeded to make awards ranging between £50 and £1,000 for the various acts of nuisance. The claimants also sought damages under these heads for the costs, distress and inconvenience which they suffered as a result of the individual acts of nuisance and harassment and also general damages for distress and inconvenience. In addition, they claimed damages for the diminution in value of the Farm which had been caused by the actions of the defendants.
The Recorder in Part VIII of his judgment made the specific awards of damages for the acts of nuisance I have mentioned but then rounded them up to a figure of £20,000 to include general damages for distress and inconvenience and to avoid double counting. He also awarded aggravated damages of £5,000.
That left the claim for damages for diminution in the value of the Farm. The Raymonds' case was that the conduct of the defendants, and in particular Mr Young, which the Recorder found had started long before the Raymonds purchased the Farm, had blighted their property and reduced its value on a sale to any purchaser who was aware of the matter. The disclosure of disputes involving neighbours is now part of the standard pre-contract enquiries on any sale by private treaty. In June 2011 the Raymonds attempted to sell the Farm by auction in three lots with a reserve of £935,000 for all three lots. Disclosure of the problems with the Youngs was not required in the case of a sale by auction but, in the event, the reserve price was not met.
The Recorder heard expert evidence about valuation. Mr Humphrey Nicholson FRICS, who was called by the claimants, expressed the opinion that the defendants' conduct had resulted in a diminution in value of 20% which, on a valuation of £850,000 for the Farm, amounted to £170,000. The defendants' expert was Mr Howard Whitaker FRICS who said that in his opinion there would be no diminution in value post the making of the order if the court granted injunctive relief (as it did) to prevent further acts of nuisance and harassment occurring in the future. The behaviour complained of was historic and had ceased with the injunctions.
The Recorder preferred the evidence of Mr Nicholson to that of Mr Whitaker and therefore accepted that there had been a diminution in the value of the Farm. But he adjusted the amount of the diminution to £155,000 by treating the acts of nuisance as having a detrimental effect upon the value of the Farm itself rather than upon the additional land which the Raymonds had acquired. On the basis that the Farm would have had an open market value of £775,000 but for the dispute, the loss in value was £155,000.
Mr Elleray QC on behalf of the Youngs does not seek to challenge either the Recorder's treatment of the expert evidence or his acceptance that the various acts of nuisance and harassment would, without more, account for a reduction in the value of the Farm of some 20%. But he submits that the Recorder was wrong to have made the award of £155,000 because the effect of the injunctions which he granted was to exclude any residual loss of value attributable to the defendants' tortious conduct. Moreover the Court, he submits, had no evidence that the Raymonds intended or were likely to sell the Farm in the foreseeable future so as to crystallise and incur the loss in value for which his clients are responsible. In these circumstances, there was no loss under this head for which the Raymonds should have been awarded compensation by way of damages.
The first of those objections to the award which the Recorder made is advanced as a matter of legal principle rather than as a criticism of the Recorder's assessment of the facts. Mr Elleray bases this part of his argument on the award of the £155,000 being damages under what is now s.50 of the Senior Courts Act 1981 which empowers the court to grant damages in lieu of or in addition to an injunction. Damages under what was originally s.2 of the Chancery Amendment Act 1858 ( Lord Cairns' Act) are now conventionally assessed on the basis of the sum which the claimant could reasonably have demanded for a licence to carry out...
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