Lawerence & Anor v Fen Tigers Ltd & Ors

In a claim involving alleged harassment and nuisance, an amendment seeking exemplary damages should not be struck out where the pleaded case is that the defendants jointly directed, encouraged or acquiesced in a campaign of outrageous conduct. If all defendants are liable for some qualifying conduct, exemplary damages may be awarded against them, with liability assessed by reference to the least grave conduct attributable to any defendant. If the claim against one defendant fails entirely, that does not prevent an award against the others. Amendments introducing additional claims or defences may attract costs-in-the-case orders, subject to the outcome of the relevant issues.

The claimants sought damages arising from alleged nuisance, harassment and attacks on their home. At a pre-trial hearing, they applied to amend their Particulars of Claim, including to plead exemplary damages. The defendants applied to amend their Defence to plead a prescriptive right to commit a nuisance and sought to strike out passages from the claimants’ witness statements.

The court considered whether the exemplary-damages claim had a sufficient pleaded basis, whether particular evidence was admissible or should be deleted, and how the costs of the amendments should be dealt with. The existing trial estimate was also reviewed.

1. Exemplary damages. The application to amend was allowed in principle, except for the proposed claim for exemplary damages. That issue was determined on the basis that an award of exemplary damages in a single action requires sufficiently outrageous conduct by each defendant. The court applied Broome v Cassell [1972] AC 1027.
2. The pleaded allegation that the attacks formed part of a campaign orchestrated by the defendants, or by a combination of them, was sufficiently arguable to resist striking out. If all defendants were liable for at least some outrageous conduct with the necessary motive, exemplary damages could lie against all of them. The amount recoverable from each would be assessed by reference to the conduct of the defendant whose conduct was least grave.
3. If the nuisance claim against one defendant failed altogether but succeeded against the others, that failure would not prevent an exemplary-damages award against the remaining defendants, because no joint award involving the unsuccessful defendant would arise.
4. The defendants’ amendment pleading a prescriptive right to commit a nuisance was allowed. Objections to witness-statement passages were determined individually: one passage was deleted, some passages were partly deleted, some were retained as admissible evidence, and issues concerning disclosure were reserved to the trial judge.
5. The trial was adjourned and relisted for 24 January 2011 for ten days. Wasted costs caused by the amendments were payable by the amending party. Other amendment costs were costs in the case, subject to the specified conditions concerning success at trial. The hearing costs were also costs in the case.