Misha Manson-Smith & Anor v Mark Arthurworrey

At the relief stage following summary judgment, a defendant cannot reopen issues conclusively determined by the liability judgment. Damages for harassment may include financial loss, including loss that is not foreseeable. Where continuing nuisance or harassment has diminished the capital value of property, damages for that diminution may be awarded even with a permanent injunction. However, a full diminution award normally prevents separate recovery for loss of amenity or distress, to avoid double recovery. A permanent injunction is appropriate where the conduct is likely to continue, but its terms must be no wider than necessary. Evidence is required to prove an individual claimant’s distress; pleadings alone are insufficient.

The claimants brought proceedings against the defendant, the freeholder of their building, alleging harassment, nuisance and breaches of lease covenants arising from prolonged interference with their flat, gardens and enjoyment of the property.

Summary judgment on liability was entered for the claimants by Hugh Southey QC, sitting as a Deputy High Court Judge, in [2020] EWHC 3802 (QB). The present hearing concerned the consequential relief, including damages for past financial loss, diminution in value, loss of amenity and distress, together with a permanent injunction.

1. Effect of the liability judgment. The summary judgment was valid unless set aside. The defendant could contest relief and quantum, but could not advance arguments inconsistent with the findings on liability, including the alleged fraud in the lease. The principle in Lunnun v Singh [1999] CPLR 587 was applied.
2. Damages. The claimants recovered £57,732.42 for past pecuniary losses caused by the defendant’s conduct. Under section 3(2) of the Protection from Harassment Act 1997, financial loss could be recovered notwithstanding lack of foreseeability, applying Jones v Ruth [2011] EWCA Civ 804; [2012] 1 WLR 1495.
3. Following Raymond v Young [2015] EWCA Civ 456; [2015] HLR 41, the court awarded £210,000 for diminution in the capital value of Flat A. The defendant’s conduct was continuing and likely to affect future purchasers despite an injunction. A separate award for loss of amenity or distress would constitute double recovery, so nil was awarded under those heads.
4. The alternative assessment of distress was guided by the Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 bands. Evidence from the individual claimant was required; the second claimant’s pleaded case was not evidence. The court would have awarded £30,000 to the first claimant but made no separate award because of the diminution award. Royal Brompton & Harefield NHS Foundation Trust v Shaikh [2014] EWHC 2857 (QB) was approved as to the importance of claimant evidence.
5. A final injunction with a penal notice was justified because harassment was likely to continue. The terms sought were narrowed, but restrictions were imposed concerning harassment, rubbish, garden access, contact, noise, vehicles and access to the demised premises. The defendant was also ordered to comply with landlord covenants and address Flat B’s flooring and soundproofing.
6. The claimants were awarded total damages of £267,732.42, interest of £5,742.62, and costs on the indemnity basis, with £32,487.36 payable on account.

The judgment itself records that liability had previously been determined by the High Court:

• High Court (Queen’s Bench Division): summary judgment for the claimants on liability in [2020] EWHC 3802 (QB).
• High Court (Queen’s Bench Division): consequential relief determined in the present judgment, including damages, injunction and costs.