Raymond & Anor v Young & Anor

Damages for nuisance may include residual diminution in property value where cogent evidence proves the loss. An injunction does not necessarily remove that loss, particularly where its benefit is personal to the claimant and a purchaser may face renewed nuisance after sale. Capital-value loss and loss of amenity are alternative measures of the same property loss. Distress is not separately recoverable in nuisance. Damages under Protection from Harassment Act 1997, s.3(2), cannot create double recovery where the same loss is already compensated. Indemnity costs may be justified by a defence known to be false and without prospect of success.

The claimants owned a farm adjoining the defendants’ cottage. After a trial, Mr Recorder Duncan Smith found a prolonged course of nuisance, trespass and harassment. He awarded £155,000 for diminution in the farm’s value, £20,000 for loss of amenity and distress, damages for trespass and aggravated damages, and granted injunctions. He also ordered indemnity costs.

The defendants appealed. They argued that the injunction removed any residual diminution in value, that there was no sufficient prospect of a sale, that the amenity award caused double recovery, and that indemnity costs were unjustified. The central issues were the correct assessment of property loss and the proper treatment of overlapping nuisance and harassment damages.

Lord Justice Patten gave the judgment, with Lord Justice Briggs and Lady Justice King agreeing.

1. Nature of the damages. The £155,000 award was not damages under s.50 of the Senior Courts Act 1981 or the original Lord Cairns’ Act jurisdiction. It was an award of common-law damages for nuisance and harassment. The court therefore did not need to decide whether substantial statutory damages could be awarded in addition to an injunction.
2. Residual diminution. Residual diminution in value is a recognised head of loss where proved by cogent evidence, including in nuisance cases. The injunction was personal to the claimants and would not guarantee a purchaser protection from renewed conduct after a sale. The expert’s 20% reduction already allowed for the risk of continuation. The defendants had not pursued the likelihood of sale as an issue at trial, and the Recorder was entitled to make no further allowance.
3. Alternative measures of nuisance loss. Following the principles in [1997] AC 655 and [2009] EWCA Civ 28, damages for nuisance compensate injury to land, including diminution in the use value of the right to occupy it. Distress and inconvenience are not separately recoverable in nuisance. Capital diminution and loss of amenity are alternative methods of assessing the same loss. The Recorder therefore erred by awarding both the full £155,000 capital loss and £20,000 for loss of amenity and distress.
4. Harassment damages. Although the claimants had also succeeded under s.3(2) of the Protection from Harassment Act 1997, the statutory damages could not be added where the same distress and impact had already been reflected in the capital-loss award. The total award was reduced by £20,000. The trespass and aggravated-damages awards were unaffected.
5. Costs. The Recorder was entitled to order indemnity costs because the defendants pursued allegations and a defence which they knew to be false and which had no prospect of success. The costs appeal, including the interim payment on account, was dismissed.

• Court of Appeal (Civil Division): On 14 May 2015, the appeal was allowed in part. The £155,000 diminution award was upheld, but the total damages were reduced by £20,000 to remove double recovery. The costs orders were upheld. [2015] EWCA Civ 456
• Carlisle County Court: Mr Recorder Duncan Smith awarded damages following trial and made an order dated 6 May 2014, including £155,000 for diminution in value, £20,000 for loss of amenity and distress, injunctions and indemnity costs.