Jones & Anor v Ruth & Anor

Foreseeability of the particular injury or loss is not an additional ingredient of the statutory tort created by the Protection from Harassment Act 1997. Once a defendant has pursued a course of conduct which he knows or ought to know amounts to harassment, he is liable for injury and loss caused by that conduct, subject to ordinary principles of causation and mitigation.

Damages in lieu of an injunction for continuing trespass may be assessed by reference to a reasonable licence fee. The increase in the defendant’s property value is only a starting point. The hypothetical negotiation must reflect willing grantors and willing grantees. Costs remain within the trial judge’s broad discretion, and an appellate court intervenes only for an error of principle or an outcome outside the proper range of reasonable disagreement.

The claimants owned 105 Lower Thrift Street, adjoining properties owned by the defendants. Building works at the defendants’ properties caused nuisance, trespass and damage. The claimants also alleged harassment, negligence, personal injury and financial loss.

HH Judge Wilcox found the principal nuisance, trespass and harassment allegations proved. He awarded damages for loss of amenity, the value of the defendants’ use of the claimants’ property rights, and harassment. He rejected the negligence claim for psychiatric injury and did not award personal-injury damages under the harassment claim.

The first claimant appealed against that omission and the refusal to award interest. The defendants cross-appealed against the £45,000 trespass-related award and the indemnity costs order. The central issues were whether foreseeability of the particular injury was required under section 3 of the Protection from Harassment Act 1997, how damages in lieu of an injunction should be assessed, and whether the costs order should be disturbed.

1. Harassment and personal injury. Lord Justice Patten, with Aikens and Arden LJJ agreeing, allowed the appeal. Section 3 of the Protection from Harassment Act 1997 permits damages for anxiety, injury and financial loss caused by harassment. The statutory language does not require the claimant to prove that the particular injury or loss was reasonably foreseeable. Section 1 focuses on deliberate conduct which the defendant knows or ought to know amounts to harassment. Once that conduct and causation are established, the defendant is responsible for the injury and loss flowing from it.
2. The observations in Majrowski v Guy's and St Thomas' NHS Trust and Thomas v News Group Newspapers Ltd did not establish a foreseeability requirement. The relevant passage in Laing Ltd v Essa was obiter, but it supported the conclusion that a statutory tort may omit such a requirement. Ms Jones was therefore entitled to the agreed general damages of £28,750 and to the £115,000 loss-of-earnings award assessed by the trial judge. Any further claims for medical expenses and future loss of earnings were remitted to a Master of the Queen’s Bench Division for inquiry.
3. Trespass damages. The cross-appeal was allowed in part. Under section 50 of the Senior Courts Act 1981, damages may be awarded in lieu of an injunction. For continuing trespass, the court may use a reasonable licence fee or wayleave approach. The increase in the defendant’s property value is only the starting point. The court must hypothesise negotiations between willing grantors and willing grantees, taking account of their respective interests and bargaining positions. The award was reduced from £45,000 to £15,000.
4. Costs. The costs challenge was dismissed. The general rule under Part 44.3 of the Civil Procedure Rules 1998 is that costs follow the event, but the trial judge has a broad discretion to consider all the circumstances, including conduct and success on particular issues. The defendants had failed to show an error of principle, an improper factor, or an exercise outside the generous ambit of reasonable disagreement.
5. The court also declined to admit new valuation evidence on the appeal. The evidence could have been adduced at trial, and reopening valuation would have caused unnecessary delay and expense.

The £28,750 award carried interest at 2% from issue of proceedings to the order. The £115,000 award carried interest from 1 April 2005 at half the prevailing special-account rate.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 804: appeal allowed; the first claimant was awarded £28,750 and £115,000, with further loss claims remitted for inquiry; the trespass-related award was reduced from £45,000 to £15,000; the costs cross-appeal was dismissed.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court — judgment of HH Judge Wilcox dated 28 June 2010: nuisance, trespass and harassment were found proved, with awards for loss of amenity, trespass-related value and harassment; the negligence claim for psychiatric injury was dismissed and no personal-injury award was made under the harassment claim.