ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE PATTEN
| (1) MS SAMANTHA JONES
(2) MS RACHEL LOVEGROVE
|- and -
|(1) MR LIAM PATRICK RUTH
(2) MRS KAREN LESLEY PATRICIA RUTH
Terence P. Vaughan (instructed by Moroneys Solicitors) for the Respondents
Hearing date : 18th April 2011
Crown Copyright ©
Lord Justice Patten :
"It is a feature of this sad case that Mr Ruth throughout has failed to be open and transparent in relation to the scope and timescale of his building activities both at 101 and 103 Lower Thrift Street. He took the view that 103 was his house and he could do whatever he liked to it, and in it, at anytime that he chose convenient to the operation of his business and his development activities. He is clearly a hardworking and industrious man who is intolerant of criticism."
"76. The claimants allege that the defendants have committed nuisance. Firstly by unreasonably prolonging the carrying out of works on 103 for a period of four years whereby noise dust and some pollution was caused by burning noxious materials in the garden but also by maintaining scaffolding that came into 105 which was not properly fixed and repeatedly banged against the wall and which enabled workman using the scaffolding to see into the windows including the bathroom window whenever the scaffolding was used as work platform or for access. Such use of course also impinged upon the amenity of the claimants who were unable to use their patio and garden without privacy.
77. I am satisfied that the building activity could and should have been completed within the year and that the continued works constituted a degree of nuisance that caused such a loss of amenity to the claimants that was incompatible with the reasonable enjoyment by them of their house and land.
78. I am also satisfied that Mr Ruth deliberately disregarded their comfort by causing or permitting noise from operations at weekends and by not supervising his workman such that they played noisy radios or used machinery for protracted periods without giving any sensible warnings to the occupants of 105. It is clear that Mr Ruth removed fencing in order to get access to garden of 105 when he built the garage at the foot of the garden of 103. I am satisfied that he persistently sought permission to put his scaffolding upon the land of 105 for his convenience to build a replacement garage at 103 and when it was initially refused the Defendants obtained a reluctant consent from Ms Jones and Ms Lovegrove on the basis that their privacy would be respected and some security given and that scaffolding would be removed after a month. It remained there for 10 weeks and the lower part of the garden was used as a store for some of his building materials I do not accept the evidence of Mr Fountain, Mr Ruth's contractor, that it was for a very limited period.
79. It is evident that in digging the prescribed footings for the garage a metre deep heavy machinery was used which caused the tarmac areas at the foot of 105 garden to be ripped up. I am satisfied that this want of care epitomised the approach of Mr Ruth towards the occupants of number 105 and the integrity of their garden. I am satisfied that the plum tree was damaged when such want of care was also shown and that shrubs were uprooted in the garden for the convenience of Mr Ruth.
80. It is evident from the diaries of Ms Jones and the evidence of Ms Lovegrove that they frequently sought reassurances as to when work was going to be completed and reassurance as to when damage was to be repaired. It is evident from the diaries of Mr Ruth that he perceived Ms Jones and Ms Lovegrove as irritants who got in the way of his prolonged four year project. I accept the evidence of Ms Jones that he was persistently bullying in his manner towards her and unpleasant epitomised by his reaction to the damage caused to the roof of 105 "Your roof you fix it"".
"… the value to the Defendants of the unabated nuisance constituted by the stealing of support for their raised roof and attached 3rd storey. The value to their house is irreversibly enhanced. I would estimate this to be no less than £45000. At this stage an injunction is not the appropriate relief."
"105. In my judgment the claimants' case is not made out that the first claimant suffered psychiatric injury as a result of witnessing the damage to and destruction of her property. The first claimant became depressed by reason of the first defendants' stubborn refusal to recognise that he had caused damage to the roof and to the internal walls and wrongfully attached his roof timbers to the claimants' gable wall. In part that aspect of the claim is reflected in the remedy for harassment in part driven by a commercial motive.
106. The physical damage to the building was done during 2002. The mediation meeting attended by Mr Frampton occurred in 2003 and it is clear had the defendant honoured the agreement made at that meeting and matters been put right then Ms Jones would not have developed the conditions she now complains of and which both experts agree she continues to suffer from, namely a persistent somatoform pain disorder, a process by which underlying anxiety and depression are subconsciously converted into physical symptoms. In this case back pain and or a mixed anxiety and depressive disorder causing somatisation symptoms in the form of back pain.
107. Ms Jones' medical condition derives not by reason of witnessing damage to her house but from conduct of the defendants in failing to address her reasonable requests to deal with it and by the fact that the project was unreasonably protracted."
"In such circumstances of continuing nuisance and trespass and a refusal to abate the nuisance or ameliorate its consequences it is possible that the householder could be psychologically affected in consequence of such nuisance and refusal to abate."
"Judge Wilcox: I find that it does not flow.
Mr Noble: There was no injury as a result of –-
Judge Wilcox: "Anxiety" is the expression in the Act, is it not?
Mr Noble: It covers personal injury, both personal injury and anxiety are covered by the Act so that there can be two separate awards, one for personal injury and one for anxiety.
Judge Wilcox: Yes, I found that it did not arise out of the harassment. The harassment is a small part of this case. My finding on harassment, Mr Noble, in the end turned upon the notes. That really crystallised the behaviour and the attitude of both of the defendants and that is why the award is as it is. The substantial award is for nuisance which is the loss of the (inaudible) and the like in relation to 105."
"I now come to the second matter and that is an application for leave to appeal. This is a case that has been pleaded cautiously and in a way where various heads clearly overlap. In relation to the personal injuries they clearly cannot arise out of the nuisance as I have found and as the law is. It does not arise, as I have found, in relation to the negligence aspects of the matter but this matter is also pleaded as harassment under the statute. I have expressed the view to counsel now and it is expressed in my judgment that reasonable foreseeability of the injury is a test in harassment as it is in negligence. Mr Noble submits to me that is the wrong claim. He persuades me that it is arguable and since it is arguable in the light of this case and what rests upon it, it is right that I should give leave to appeal on that aspect of the matter only. That is, whether reasonable foreseeability of the injury would be necessary."
"(1) An actual or apprehended breach of section 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."
"22. … The effect of section 3(1) is to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. This includes an entitlement to damages for any loss or damage sustained by a victim by reason of the wrong. Ordinary principles of causation and mitigation and the like apply. Subsection (2) is consistent with this understanding of the section. The phrase 'among other things' assumes that damages are recoverable. The enabling language ('may be awarded') is apt simply to extend or clarify the heads of damage or loss for which damages are recoverable."
"29. Section 7 of the 1997 Act does not purport to provide a comprehensive definition of harassment. There are many actions that foreseeably alarm or cause a person distress that could not possibly be described as harassment. It seems to me that section 7 is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect.
The Act does not attempt to define the type of conduct that is capable of constituting harassment. "Harassment" is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct."
"31. Miss Moor seeks to rely on the provisions of the Protection from Harassment Act 1997 which provides, in section 3, that a victim of harassment may recover damages for any anxiety caused by the harassment and any financial loss resulting from it. The mischief from which protection is required is similar, it is submitted, to that in the present case and the civil claim does not require proof of foreseeability of the relevant damage. The statute does demonstrate that it is possible to create a statutory tort which does not incorporate the reasonable foreseeability test but I am not much influenced by that in construing the 1976 Act. As appears from section 1, the ingredients of the tort created by the 1997 Act are distinctly different from those under the 1976 Act, which was in any event enacted over twenty years earlier."
The cross appeal
"I made mention in my judgment to the intervention of Giles Frampton and the attitude particularly of the first defendant in relation to that. Belligerence; unwillingness; total non co-operation.
This case eventually arrived in the Technology and Construction Court and eight days were occupied by the evidence that was adduced and the testing of that evidence in support of the claimants' case.
The bulk of the time was spent in examining the nuisance; trespass and harassment aspects of the matter. In short, the conduct of the defendants, and basic evidential matters in relation to the house at 103 and the effect upon the works at 103 upon 105. No quarter was given by the defendants from start to finish. Everything was in issue. What was a relatively straightforward minor claim that originally should have been in the County Court, because of their attitude to the litigation and dispute, occupied eight days, save the time, of course, that was used to meet the arguments as to whether or not the medical condition of the first claimant was reasonably foreseeable by the defendants.
I am driven to the conclusion that this litigation was sadly driven by the relentless unwillingness of the defendants to face up to incontrovertible facts. In a detailed judgment I have dealt with the unwillingness to give information as to time and to assist the claimant in their planning.
Mr Vaughan submits to me that this was a claim that venturously quantified at just under £1 million. He is right, that was an optimistic view that the claimants would succeed for the first defendant in particular as to the personal injury claim. Large though that claim was there was as an element for claim damages, it occupied a very small part of this trial.
This is not a case where I am inclined to accede to Mr Vaughan's persuasive submissions that I should look at the issues on a numerical basis or on the basis that a large part of the money claim has not succeeded but ignore the fact that the costs flow from an eight day trial essentially about nuisance, trespass and harassment.
The cost of the trial will be paid by the defendants save that in relation to the medical claim I make an order of no order for costs. I now consider what basis the costs should be upon. In my judgment I make specific reference to the conduct of both defendants throughout. This is a trial that results from their intransigence. Their conduct is conduct that I defined in the small neighbourhood like that which I visited could be reprehensible and they are paying the costs that I have ordered on an indemnity, that is, compensatory basis."
"18. The general rule is that an unsuccessful party should pay the successful party's costs; see Civil Procedure Rules Part 44.3(2)(a). The trial judge, however, has a wide discretion in furtherance of the overriding objective of justice and fairness to make a different order; see Civil Procedure Rules Part 44.3(2)(b). In exercise of that discretion the judge should have regard to all the circumstances, including the conduct of the parties, for example, how they have respectively pitched and pursued their cases and whether a party has succeeded on part, if not all, of his case and to any payment in or offer made. I take that, with the examples I have added, from CPR Part 44.3(5).
19. It is, as both counsel have acknowledged, a wide discretion, and the Court of Appeal should only interfere with the judge's exercise of it if he has "exceeded the generous ambit within which reasonable disagreement is possible", a familiar passage taken now from the judgment of Brooke LJ in Tanfern v Cameron McDonald (Practice Note), 1 WLR 13, 11, at paragraph 32, citing Lord Fraser in G v G (Minors) CA  1 WLR 647, 652.
20. Another way of putting it, with a more direct focus on costs, is that the Court should only intervene where
" ... the judge has either erred in principle in his approach, or has left out of account, or taken into account, some feature that he should, or should not, have considered, or that [the exercise of] his discretion is wholly wrong because the court is forced to the conclusion that he has not balanced the various factors fairly in the scale.""
Lord Justice Aikens :
Lady Justice Arden :