Jones and another v Ruth and another

Trespass – Building works – Damages – Respondents adding further storey to their terraced property – No permission obtained for support of extension by appellant’s adjoining terraced property – Damages for trespass awarded representing amount by which respondents’ property enhanced by extension – Damages for personal injury to first appellant caused by respondents’ harassment refused – Appeal allowed; cross-appeal allowed in partThe respondents owned two adjacent terraced houses that had been built over two storeys. In 2002, the appellants purchased the adjoining terraced property, which had three-storeys. Between May 2002 and March 2010, the respondents carried out extensive works to their two houses to add a third storey, a larger kitchen at the rear and a rebuilt garage in the rear garden.In February 2008, the appellants brought a claim against the respondents for damages for nuisance and trespass to their property during the building works. Their allegations included excessive noise and vibration, the making of holes and insertion of purlins in their gable end wall, damage to their roof and boundary wall and trespass on their garden by scaffolding, building materials and rubbish. The first appellant also claimed damages of £28,750 for personal injury and financial loss, in the form of severe back pain brought on by anxiety and depression and consequent loss of earnings, which were alleged to have been caused by harassment contrary to section 1 of the Protection from Harassment Act 1997.At the trial, the judge found the principal allegations of trespass and nuisance to be proved and awarded damages of £30,000 to the appellants for loss of amenity. He went on to consider the appropriate relief in respect of the continued stolen support for the respondents’ raised roof and new third storey. He concluded that an injunction requiring the removal of the offending structures was not appropriate at that stage and instead awarded a further £45,000 in damages, representing their value to the respondents, in terms of the enhanced value of their property. He also awarded £6,000 damages for harassment by the respondents although he made no award for personal injury.The appellants appealed against the dismissal of the personal injury claim; the central issue was whether, to found a damages claim in respect of personal injury caused by harassment, the injury had to have been reasonably foreseeable to the respondents. The respondents cross-appealed against the award of £45,000 for the value of the additional storey.Held: The appeal was allowed; the cross-appeal was allowed in part. (1) Section 1 of the 1997 Act made it unlawful to pursue a course of conduct that amounted to harassment of another party and that the perpetrator knew or ought to know amounted to harassment. Harassment meant the persistent tormenting or irritation of the victim and was deliberate conduct that its perpetrator either knew, or ought reasonably to have been aware, had that effect. Conduct of the kind described in section 1 of the Act was actionable under section 3 in respect of anxiety or injury caused by the harassment and any resulting financial loss. The statutory language did not import an additional requirement of foreseeability. Foreseeability was not the gist of the tort. Section 1 was concerned with deliberate conduct of a kind that the defendant knew or ought to know would amount to harassment of the claimant. Once that was proved, the defendant was liable in damages for the injury and loss that flowed from that conduct. Foreseeability of the injury or loss sustained by a claimant in a case of harassment was therefore not an essential element of the cause of action: the judge had erred in excluding an award of damages for personal injury based on an absence of foreseeability. It followed that the first appellant was entitled to general damages with regard to that matter in the agreed sum of £28,750.(2) The award of £30,000 made to the appellants had been to compensate them for the loss of their reasonable enjoyment of their property as a result of the nuisance caused by the respondents during the building works. That left the claim in trespass for the unauthorised works to the appellants’ gable-end wall carried out in order to add the third storey to the respondents’ property. Although the appellants had sought an injunction compelling the respondents to remove the offending parts of their property and to make good the damage, the court had jurisdiction, under section 50 of the Senior Courts Act 1981, to award damages in lieu of an injunction, on a basis that compensated the appellants for the loss of their property rights by awarding damages in a sum equal to the amount they could reasonably have demanded for a licence: Jaggard v Sawyer [1995] 1 WLR 269 applied. A similar basis could be adopted for an award of damages at common law for trespass: Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538 applied. In deciding to award damages in lieu of an injunction for the continuing trespass to the appellants’ property, the judge had therefore been entitled to take into account the value to the respondents of being able to complete and maintain in place the works to their property.However, he had erred in awarding £45,000. The net increase in value that the trespassers would obtain from their actions were only the starting point in any calculation of damages on the wayleave basis. The issue was what the parties, acting reasonably, were likely to have agreed as payment for the necessary licence, assuming them to act as willing grantors and grantees. Consistently with that, the respondents would not have been willing to give up the entirety of any value attributable to the planned works, and the appellants would not have refused to give permission save on payment of the lion’s share of any increase in value. Where the case concerned a dispute between neighbours concerning what should have been a relatively straightforward extension to the respondents’ property, rather than a commercial development raising complex issues, the court could resolve issues as to the outcome of the hypothetical negotiations without a further hearing with expert evidence. In the instant case, the agreed licence fee was unlikely to have exceeded one-third of the prospective increase in value, given the appellants’ sensitivity about interference with their property and the respondents keenness to tie in the development of the property adjacent to the appellants’ house with that of its other property: Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 distinguished. An award of £15,000 would therefore be substituted for the judge’s award of £45,000.Philip Noble (instructed by Lorrells LLP) appeared for the appellants; Terence Vaughan (instructed by Moroneys Solicitors, of Wymondham) appeared for the respondents.Sally Dobson, barrister