Abbotsley Limited & Anor v Pheasantland Limited & Ors

Evidence of an incident need not be pleaded as a separate allegation if it is relevant to an issue between the parties. Evidence may be admissible as an evidentiary fact because it provides context or tends directly or indirectly to prove or disprove a fact in issue.

Where a party alleges harassment or serious anti-social behaviour and relies on conduct in opposing equitable relief, the court should consider relevant evidence of conduct from both sides. It should assess the conduct in its proper context and avoid selecting isolated incidents or accepting only one party’s account. The rule in Browne v Dunn does not require cross-examination on evidence which the opposing party has not challenged in its own written or oral evidence.

Two consolidated claims concerned alleged water trespass, harassment and related conduct at a caravan site, together with a claim for forfeiture and an application for relief from forfeiture. The claimants alleged serious anti-social behaviour by the defendants and relied on that conduct in support of their claims and in relation to equitable relief.

During the continuing trial, the claimants objected to evidence from the eighth defendant, Darren Honeywill, about an alleged incident in which the second claimant had attempted to drive him off the road while he was with his children. The objections were that the incident had not been put to the second claimant in cross-examination and had not been pleaded. The central issue was whether the evidence could be relied upon as relevant contextual evidence.

1. The objection was dismissed. The eighth defendant was permitted to rely on his evidence concerning the alleged driving incident, and the video footage was directed to be played when his evidence resumed.
2. The rule in Browne v Dunn requires a party wishing to challenge another witness’s evidence to put the substance of that challenge to the witness. The principle was reiterated in TUI UK Limited v Griffiths [2023] UKSC 48. It did not assist the claimants because the second claimant had not challenged the allegation in her witness statements or oral evidence. There was therefore no matter on which the eighth defendant needed to cross-examine her.
3. The fact that the incident was not pleaded did not make it inadmissible. The eighth defendant was not bringing a claim for harassment and relied on the incident as part of the factual matrix explaining the parties’ relationship. Under Civil Procedure Rules 1998, CPR 16.5 set out the requirements for a defence, and his defence complied with them.
4. The evidence was irrelevant to the alleged water trespass but highly relevant to the allegations of trespass and harassment and to forfeiture. Relief from forfeiture is equitable, and conduct is a relevant consideration when deciding whether relief should be granted.
5. The court was required to hear relevant evidence from both sides and to assess conduct in context. It would be unfair to require contextual evidence concerning the claimant’s conduct while excluding contextual evidence concerning the defendants’ alleged conduct. The ultimate question was whether, on the balance of probabilities, the incident occurred and what it showed about the parties’ conduct.