Misha Manson-Smith & Anor v Mark Arthurworrey [2021] EWHC 2137 (QB)

[2021] EWHC 2137 (QB)

Case No QB-2019-002729

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice Strand, London, WC2A 2LL

Date 29 July 2021

Before

MATHEW GULLICK QC

(sitting as a Deputy High Court Judge)

Between

MISHA MANSON-SMITHClaimants

ALEXANDRA MANSON-SMITHClaimant

MARK ARTHURWORREYDefendant

Jamal Demachkie (instructed by Berry Smith LLP) for Claimants

The Defendant appeared in person for in person

Hearing Hearing date: 29 April 2021

Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email and release to BAILII. The date and time for handdown is deemed to be 10:30 am on Thursday 29 July 2021.

Approved Judgment

Deputy Judge Mathew Gullick QC:

Introduction

[1]This is my judgment on the question of what relief should be given the Claimants following summary judgment being entered in their favour by Mr Hugh Southey QC, sitting as a Deputy High Court Judge, on 11 December 2020. The Claim is for injunctive relief and damages arising from nuisance, harassment and breach of covenants in the Claimants’ lease, in circumstances which I will describe in more detail below.

[2]Before me, the Claimants were represented by Jamal Demachkie of Counsel, instructed by Berry Smith LLP. The Defendant had been legally represented earlier in these proceedings, including at the hearing before Mr Southey QC, but appeared before me as a litigant in person, his former Solicitors having ceased to represent him some ten days previously. The hearing took place as a fully remote video-conference via the Microsoft Teams platform in accordance with the arrangements adopted during the COVID-19 pandemic. I am satisfied that this was an appropriate and proportionate method of proceeding in all the circumstances and that neither side was disadvantaged by the way in which the hearing was conducted. During the hearing both the First Claimant and the Defendant gave evidence and were cross-examined; Mr Demachkie and the Defendant also made closing submissions.

Background

[3]Mr Demachkie’s Skeleton Argument described the dispute between the parties as having “a long and troubled history”. That description is amply justified on the material before me. It is necessary to set out the background in some detail.

[4]The Defendant is the registered proprietor of the freehold of 108 Forest Road, Hackney, London E8 (“the Property”). The Property is an end-of-terrace house, built in 1880, that is now converted into three flats: Flat A, Flat B and Flat C. All three flats are held on long leases. There is also a garden to the rear, which is walled but with large gates (which are of a sufficient width for cars to drive through) opening out onto the pavement. The Property was originally owned entirely by the Defendant’s mother but was converted in the early 1990s following a grant of planning permission. Flat A is on the lower ground floor of the Property and has its own private entrance and in addition a small private rear courtyard area, adjacent to but separate from the much larger rear garden; Flat B is on the raised ground floor and Flat C is on the first floor. Flats B and C are accessed via the external front steps and a common entrance hall.

[5]The Defendant has been the registered proprietor of the freehold of the Property since 27 July 2016. Prior to that point, at the times material to this Claim he controlled the freehold of the Property as Executor of his late mother’s Estate. The lease of Flat B is held by Natkim Co. Ltd, a company of which the Defendant is the sole shareholder and officer. The lease of Flat C is held by the Defendant personally. Prior to his imprisonment on 1 March 2017, the Defendant occupied Flat C himself. He now resides elsewhere.

[6]The lease of Flat A was first granted on 23 August 1991 and was surrendered and regranted to the Claimants’ immediate predecessors in title by a lease dated 29 February 2012, which extended the term of the lease to 189 years from the original grant in 1991, pursuant to section 56 of the Leasehold Reform, Housing and Urban Development Act 1993. The Claimants purchased the lease of Flat A in September 2014. Since that time, they have been subject to a significant course of harassment by the Defendant. The cause of the harassment appears to be the Defendant’s long-held belief that the plan annexed to the lease of Flat A which is held by the Land Registry has been forged. Specifically, the plan annexed to the lease indicates that the front garden area of the Property, which is paved, forms part of the demise of Flat A, and that the leaseholders of Flat A have the right to use the whole of the rear garden area, beyond the small private courtyard. The Defendant believes that the lease which was originally executed in 1991 did not convey those parts of the Property to the leaseholder of Flat A and that the lease held at the Land Registry has been forged. However, the originals of the lease held by the Land Registry have now been destroyed due to digitisation and all that survives is scanned images of the lease and the attached plan.

[7]I should make clear at this point that it is not part of my task when assessing the relief due to the Claimants in this Claim to determine whether the Defendant’s allegation that the lease of Flat A held by the Land Registry has been forged is correct or not. That is because, for reasons which I will explain in due course, that issue has already been conclusively determined by judgment having been granted against him.

[8]The Claimants purchased the lease of Flat A in September 2014. Although they had initially intended to renovate and then sell Flat A, they subsequently decided to move into the flat themselves. They undertook extensive renovation works, which were delayed by the Defendant’s conduct, and eventually moved into Flat A in June 2016 with their two young children. The Claimant’s younger child, who was born in 2012, is autistic. One of the reasons the Claimants decided to move into Flat A was that it had the benefit of the use of a private garden. They considered that the garden would be beneficial to the health and wellbeing of their younger child. As a result of the events with which this Claim is concerned, the Claimants and their children moved out of Flat A into rented accommodation on 15 August 2019; they have not been able to sell Flat A due to the impact of the Defendant’s conduct. They have since rented out Flat A to tenants on Assured Shorthold Tenancies.

The Claim

[9]This Claim was issued on 29 July 2019, making claims against the Defendant personally and in his capacity as Executor of his late mother’s estate. There are two broad causes of action in the Particulars of Claim, which were settled by Mr Demachkie on 19 July 2019: i) unlawful harassment of the Claimants, alternatively nuisance; ii) breach of covenants in the Claimants’ lease.

[10]The Claimants rely on the provisions of the Protection from Harassment Act 1997. Section 1 of that Act provides:

“Prohibition of harassment (1) A person must not pursue a course of conduct— (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (1A) A person must not pursue a course of conduct— (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above)— (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do. (2) For the purposes of this section or section 2A(2)(c), the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other. (3) Subsection (1) or (1A) does not apply to a course of conduct if the person who pursued it shows— (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.” (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above)— (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do. (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”

[11]Section 2 of the Act creates the criminal offence of harassment:

“Offence of harassment (1) A person who pursues a course of conduct in breach of section 1(1) or (1A) is guilty of an offence. (2) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”

[12]Section 2A creates the criminal offence of stalking, which is not relevant for present purposes. Section 3 provides a civil remedy for the victims of harassment:

“Civil remedy (1) An actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question. (2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment. (3) Where— (a) in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, the plaintiff may apply for the issue of a warrant for the arrest of the defendant. (4) An application under subsection (3) may be made— (a) where the injunction was granted by the High Court, to a judge of that court, and (b) where the injunction was granted by the county court, to a judge of that court. (5) The judge to whom an application under subsection (3) is made may only issue a warrant if— (a) the application is substantiated on oath, and (b) the judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction. (6) Where— (a) the High Court or the county court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence. (7) Where a person is convicted of an offence under subsection (6) in respect of any conduct, that conduct is not punishable as a contempt of court. (8) A person cannot be convicted of an offence under subsection (6) in respect of any conduct which has been punished as a contempt of court. (9) A person guilty of an offence under subsection (6) is liable— (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.” (a) in such proceedings the High Court or the county court grants an injunction for the purpose of restraining the defendant from pursuing any conduct which amounts to harassment, and (b) the plaintiff considers that the defendant has done anything which he is prohibited from doing by the injunction, (a) where the injunction was granted by the High Court, to a judge of that court, and (b) where the injunction was granted by the county court, to a judge of that court. (a) the application is substantiated on oath, and (b) the judge has reasonable grounds for believing that the defendant has done anything which he is prohibited from doing by the injunction. (a) the High Court or the county court grants an injunction for the purpose mentioned in subsection (3)(a), and (b) without reasonable excuse the defendant does anything which he is prohibited from doing by the injunction, he is guilty of an offence. (a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both, or (b) on summary conviction, to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both.”

[13]Section 3A of the Act contains further provision relating to injunctions: “Injunctions to protect persons from harassment within section 1(1A)(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person (“the relevant person”).

(2) In such a case— (a) any person who is or may be a victim of the course of conduct in question, or (b) any person who is or may be a person falling within section 1(1A)(c), may apply to the High Court or the county court for an injunction restraining the relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in the injunction.

(c) ,

[14]Under the heading of harassment and nuisance, the Claimants make the following claims against the Defendant: i) Between September 2014 and March 2017, the Defendant parked and then abandoned vehicles in the rear garden of the Property, preventing the Claimants from gaining access to the garden and the rear gates of the Property from being shut, and resulting in a security risk to Flat A (which was burgled). ii) On 29 August 2015, the Defendant dumped a large volume of rubbish in the front paved area belonging to Flat A, including a mattress and smashed wine bottles. iii) On 24 September 2015, the Defendant caused a large volume of rubbish to be thrown from the windows of Flat B and/or Flat C into the front paved area belonging to Flat A, including puppy training mats with dog faeces. iv) On 19 November 2015, the Defendant cut off the electricity supply to Flat A, whilst the Claimants were undertaking renovation works. The electricity supply was not reinstated until 24 November 2015. v) On 19 November 2015, the Defendant attempted to flood Flat A, his attempt only being frustrated by the Claimants’ contractors switching off the water supply to Flat B from the street. vi) On 21 April 2016, the Defendant (acting either himself or by others) smashed all the newly-fitted windows in Flat A at 2:45 am. vii) On at least nine specific occasions between July and September 2016, the Defendant played extremely loud music in the then vacant Flat B, immediately above the Claimants’ Flat, and regularly left Flat B unattended with loud music playing. On 16 July 2016, the Defendant was asked to turn the music down as it was distressing the Claimants’ children, whereupon he responded by increasing the volume. viii) Since September 2015, the Defendant has regularly fly-tipped rubbish and other detritus into the front paved area belonging to Flat A. Seven specific instances are pleaded, between August 2016 and January 2017, including one occasion on 30 September 2016 when the Defendant threw back rubbish into the paved area which had been moved onto the pavement. A further instance is pleaded in relation to the night of 28 February / 1 March 2017, whilst the Defendant was on bail overnight awaiting sentence, having been convicted of the criminal offence of harassment of the Claimants. ix)On 31 July 2018 and 21 June 2019, the Defendant allowed his contractors to access the Claimants’ front garden area without permission. x) Between 1 August 2018 and 7 August 2018, the Defendant permitted his builders to foul the Claimants’ front paved area and the communal areas adjacent to Flat A with debris from building works and other assorted rubbish. xi) On four occasions in May, July and August 2018, the Defendant caused or permitted persons to intentionally bang and scrape on the floorboards of Flat B, immediately above the bedrooms in Flat A, during the early evening. xii) The Defendant caused or permitted the removal of carpets and floorboards from the flooring of Flat B, leading to excessive noise being generated. xiii) On 7 November 2018, water leaked into the children’s bedroom in Flat A, shorting the networked smoke alarm system and causing severe distress to the Claimant’s autistic son. The Defendant did nothing to address this when told about it. The Claimants had to get Thames Water to turn off the water to Flat C. xiv) On 20 June 2019, the Defendant caused water to cascade through the light fitting, into the living room of Flat A. xv) On 21 June 2019, the Defendant tipped water through the floor of Flat B over the lighting and electrics in the ceiling of Flat A, which resulted in the Claimants having no lighting in half the flat for several days.

[15]Under the heading of breach of covenant, the Claim is for the following: i) Failing to insure the Property. Between December 2014 and April 2015, the Property was entirely uninsured. Thereafter the Claimants discovered the Defendant’s failure and paid for insurance themselves. ii) Permitting the Property to fall into disrepair in the following respects: a) damaged guttering leading to damp and water ingress; b) damage to external walls and the rear garden; c) disrepair generally to the upper floors; d) permitting the communal areas and paths to fall into poor order and remain in an unclean state. iii) Breach of the implied covenant for quite enjoyment, by reason of the matters relied on as amounting to nuisance / harassment. iv) Derogating from the grant of the lease of Flat A, including by: a) Granting a lease of Flat B to Natkim Co. Ltd which included both the front garden forming part of Flat A’s lease and half of the rear garden, which was recorded therein as being for the “exclusive use” of Flat B and Flat C. b) Granting leases of Flat B and Flat C including the right to use parking spaces over the rear patio and part of the rear garden, over which the Claimants enjoy rights of access and use and preventing the Claimants from gaining access to the rear garden. c) Denying that the Claimants have title to the front garden and the right to use the rear garden. d) Serving notice of intention to construct a parking area within the rear garden. e) Parking and abandoning several cars on the patio area and rear garden, preventing any practical access to the rear garden by the Claimants and their family.

Previous Legal Proceedings

[16]In November 2015, the Claimants brought proceedings against the Defendant in the Chancery Division of the High Court following their electricity supply being cut off. On 20 November, Morgan J made an Order requiring the Defendant to reinstate the supply forthwith. The Defendant did not, however, do this until 24 November.

[17]As a result of the difficulties they had encountered in dealing with the Defendant, in early 2016 the Claimants applied for the appointment of a Manager of the Property. That application was granted by the First-tier Tribunal (Residential Property Chamber) in a decision dated 12 October 2016. The Tribunal referred in the opening paragraph of the Reasons to the application being:

“… a good example of a solid, well articulated and well evidenced application to appoint a manager in the context of overwhelming evidence that any chance of proper management by the Respondent [i.e. the Defendant] is non-existent…”

The Tribunal went on to record at [8] that:

“… Stripped of the personal antagonism displayed by the Respondent, and the frustrations of the Applicant [i.e. the First Claimant] who we consider is now highly unlikely to be able to work positively with the Respondent (which might have been possible once), the bottom line is that the property is in need of care and attention and management, and nothing in the Respondent’s demeanour or evidence indicates that he can deliver it, personally or through the managing agents he has or has purported to appoint.”

[18]At paragraph [15] of the Reasons, the Tribunal referred to the provisions of the lease of Flat A:

“… The recitals state that similar leases of the other flats were to be granted. There was some dispute between the parties as to the extent of the demise, which has fed into the issues we have to deal with. The First Schedule defines Flat A “as the same is edged red on the plan annexed hereto together with the right to use the rear garden edged blue on the same plan.”

The rear boundary of Flat A is a line along the rear wall. It is quite clear that the Applicant has the right to use the garden. It is also the case that the front garden as defined on the attached plan is part of the Flat A, with a reserved right for other lessees to use the bin store area (paragraph 4, Third Schedule). We make these points because they are contested, directly or otherwise, by the Respondent, and provided a good example of the way in which he is capable of ignoring the straightforward effect of certain provisions in Flat A’s lease. The right to use the rear garden is an express right granted after the planning permission. Furthermore, the leaseholder of Flat A has the right to use the area marked “patio” on the plan (yellow area)… for access as provided by paragraph 1, Second Schedule. We note that the Respondent’s current plans for the rear include preventing the Applicant from having access to the patio and the garden in blatant disregard of these rights, because he wants to create parking spaces for the occupiers of Flats B and C, and so far as necessary “correct the anomalies” in the lease of Flat A…”

[19]The Tribunal went on to conclude that it was appropriate to appoint Mr John Fowler as the Manager of the Property. In doing so it rejected the Defendant’s evidence as unreliable, preferring the evidence of the First Claimant (see at [20-23] of the Reasons). At [33], the Tribunal described the parties’ relationship as “toxic”. That was as long ago as October 2016.

[20]The Defendant’s application for permission to appeal against the First-tier Tribunal’s decision to appoint a Manager for the Property was refused by the First-tier Tribunal on 28 November 2016 and by the Upper Tribunal (Lands Chamber) on 13 February 2017. The Defendant then filed a claim in the Administrative Court, challenging the Upper Tribunal’s refusal of permission to appeal to itself. Permission to apply for judicial review was refused on 28 March 2017.

[21]The First-tier Tribunal also made an order that the Defendant should pay 80 per cent of the costs of the application to appoint the Manager, finding that the Defendant’s conduct had gone “beyond the merely unreasonable”. Permission to appeal the Tribunal’s decision on costs was also refused.

[22]During 2015, the First Claimant reported a number of the incidents of harassment which form the subject of this Claim to the police, who served the Respondent with a Harassment Warning Notice but took no further action.

[23]On 12 August 2016, Hackney Borough Council’s Community Safety Team served a notice under section 80 of the Environmental Protection Act 1990 on the Defendant, as their officers who had attended the Property on 7 August and 11 August considered the noise caused by amplified music being played in Flat B to be a statutory nuisance.

[24]In late 2016 or early 2017, the Defendant was charged with the criminal offence of harassment of the Claimants, contrary to section 2 of the Protection from Harassment Act 1997. He was convicted of that offence by District Judge Clark sitting at the Stratford Magistrates’ Court on 28 February 2017. On 1 March 2017, the Defendant was sentenced to four months’ immediate imprisonment. The Magistrates’ Court also made a Restraining Order of indefinite duration against the Defendant which (as subsequently varied on 6 March) had the following conditions: i) prohibiting conduct by the Defendant which may cause any resident or guest of Flat A to feel harassed; ii) prohibiting the Defendant from parking or abandoning any vehicles in the rear garden of the Property, or causing or permitting any other person to do so; iii) prohibiting the Defendant from entering onto or placing any item in the front and rear gardens demised to Flat A; iv) prohibiting the Defendant from using the rear garden of the Property at the same time as any resident or guest of Flat A; v) prohibiting the Defendant from leaving rubbish around the Property in a way which causes nuisance or breaches any terms of the leases or local authority regulations or notices; vi) prohibiting the Defendant from making any noise which may interfere with the rights of Flat A to the quiet enjoyment of the demise and the rear garden. The Defendant was also prohibited under the Restraining Order from going within 100 metres of the Property for eight months after his release from prison. The Defendant’s attitude towards his criminal conviction for harassment is demonstrated by a witness statement which he made in further proceedings in the First-tier Tribunal dated 6 September 2018 in which he described the conviction as having been based on “trumped up harassment charges” and “absolute lies”. In that statement the Defendant repeated his position – which he has maintained throughout these proceedings, including before me – that the lease of Flat A held at the Land Registry has been fraudulently altered.

[25]The Defendant has submitted planning applications to the local planning authority in which he has requested planning permission to alter the Property and, pertinent to the present Claim, to turn the rear garden of the Property into a gated parking area for two cars. These planning applications, one of which the Defendant told me was outstanding, are apparently based on the Defendant’s longstanding belief – which, for the reasons set out in this judgment, is contrary to the basis upon which liability in this Claim has already been determined – that the leaseholder of Flat A has no right to use the rear garden.

The Application for Summary Judgment

[26]The Defendant was served with the Claim Form and Particulars of Claim at the Property on 31 August 2019 but appears to have made no attempt to defend it. The Claimants applied for summary judgment on 20 July 2020 on the basis that the Defendant had no realistic prospect of successfully defending the Claim. The application was supported by a lengthy witness statement made by the First Claimant, running to 196 paragraphs, giving a detailed history of the Defendant’s actions and setting out the Claimants’ losses.

[27]The application for summary judgment was heard by Mr Southey QC on 11 December 2020. The Claimants were represented by Mr Demachkie. The Defendant was represented by Counsel, instructed by the firm of Solicitors then acting for the Defendant. Mr Southey QC’s ex tempore judgment on the application has the neutral citation

[2020] EWHC 3802 (QB)

. He held that the Defendant had failed to comply with an earlier Order made by Master McCloud requiring him to file and serve a signed witness statement setting out his response to the application for summary judgment and outlining his proposed defence by 9 October 2020. He refused an application by the Defendant to set aside Master McCloud’s Order or, alternatively, for relief from sanctions. The conclusions reached by the learned Deputy

Judge on the merits of the application for summary judgment were as follows:

“Findings 10. The evidence that I have already referred to, filed on behalf of the claimants and signed by Mr Misha Manson-Smith, appears to me to amount to credible evidence in support of the application sufficient to give rise to an evidential burden on the defendant. In particular, paras. 39 to 158 of that witness statement sets out a series of detailed allegations made against the defendant which appear to me to be prima facie credible. One reason, it appears to me, that they are prima facie credible is that they are consistent with findings made by previous judges regarding the behaviour of Mr Arthurworrey. 11. Other than in relation to paras. 40 to 47 of Mr MansonSmith’s evidence, I have already ruled in an earlier judgment today that there is no proper response to the allegations. Allegations are either not engaged with at all or met with a bare denial. In those circumstances, apart from in relation to paras. 40 to 47, it appears to me that there is no material that would allow a court to reject the evidence set out in paras. 39 to 158 of the witness statement of Mr Manson-Smith. That means that the court would be required to make clear findings of interference with the electricity and water supply to Flat A, clear findings of fly-tipping and vandalism, clear findings of noise nuisance, clear findings of fake allegations being made in litigation, clear findings of flooding, clear findings of broken windows and pigeon infestation. 12. I recognise that there is a dispute about the lease and whether the lease in in the terms claimed by Mr Manson-Smith. However, it appears to me that this is no answer to the findings I have just made. Firstly, it appears to me that the lease could not justify much of the behaviour alleged, for example dumping rubbish in the front gardens in front of the property owned by the claimants is not justifiable and amounts to harassment whatever the terms of the lease. Secondly, it appears to me that there is no basis upon which the court find that the lease was fraudulent. The lease is clear on its face and nothing about the document suggests fraud. That finding is consistent with the First Tier Tribunal decision dated 12 October 2016, which said, expressly, “It is quite clear that the applicant has the right to use the garden. It is also the case that the front garden is defined on the attached plan as part of Flat A.”

That was an acceptance, essentially, of the terms of the lease that has been produced by the claimants. It also implies that the defendant’s evidence was rejected. 13. I am aware that it is said that the claim that the lease is fraudulent is backed by evidence. In particular, there is before me a letter dated 11 September 2020 addressed to the defendant from a Mr Ike Obanya, who is described as founder and principal of an organisation that is called Iketecture. Mr Obanya gives no indication of his qualifications to express an opinion about the matters he expresses opinions regarding. Even assuming, which appears to be the case, that he has some form of architectural qualification, he expresses opinions way beyond that expertise, as he refers, for example, to whether signatures are questionable. He does not, as far as I can see, sign any statement, which would be required of an expert witness. In those circumstances, it seems to me that it is inevitable that any court could give no weight to his evidence. Without that evidence, as I say, there is no independent evidence that the previous claims that the lease is inaccurate have been rejected. In those circumstances, it seems to me that it is inevitable that the claims the lease was fraudulently obtained would be rejected. As I have already indicated, I am not required to abandon my critical faculties in determining this application. 14. Section 1 of the Prohibition [sic] from Harassment Act makes it clear that a person is prohibited from pursuing a course of conduct which amounts to harassment and which he knows, or ought to know, amounts to harassment. Section 7(2) of the same Act defines harassing a person as including alarming the person or causing the person distress. It appears to me that the matters I have found a court would inevitably find proven in light of the evidence in this case do amount to harassment under s.1 of the Prohibition [sic] from Harassment Act so that the claimants are entitled to relief under s.3 of the same Act. It also appears to me that at the very least the conduct amounts to a breach of the implied covenant for quiet enjoyment of the property and so the claimants are entitled to relief for that. 15. That, it appears to me, is a sufficient basis for granting summary judgment, and that is what I will now order.” “It is quite clear that the applicant has the right to use the garden. It is also the case that the front garden is defined on the attached plan as part of Flat A.”

[28]I should record that the Defendant told me at the hearing that he considered that Mr Southey QC’s decision to grant summary judgment was flawed and that it had been taken without reference to important evidence upon which the Defendant had wished to rely, which he said had been filed but had been lost. He informed me that he was seeking permission to appeal against Mr Southey QC’s Order granting summary judgment and that he had provided all that evidence to the Court of Appeal. That does not, however, change the nature of my task in determining the appropriate relief. Mr Southey QC’s Order is valid unless and until it is set aside, and I must proceed to grant relief on the basis that judgment has been validly entered for the Claimants on the entirety of their Claim. Indeed, on 14 April 2021, Nugee LJ adjourned consideration of the Defendant’s application for permission to appeal against Mr Southey QC’s Order granting summary judgment, pending the provision of further documents to the Court of Appeal in connection with that application, but refused the Defendant’s application to stay the hearing in this Court to determine relief.

[29]In that regard, it is also important to note that the Defendant repeatedly sought during the hearing to raise, again, his contention that the copy of the lease of Flat A held by the Land Registry was inaccurate. As I indicated at the hearing, that is not a matter with which I am presently concerned. It has already been conclusively determined against the Defendant in these proceedings by the grant of summary judgment based on Mr Southey QC’s finding that it was “inevitable” that the Defendant’s claims regarding the lease of Flat A would be rejected at trial (see at [13] of the Deputy Judge’s judgment). It is not open to the Defendant to reopen that issue when dealing with the appropriate relief consequent upon the grant of summary judgment. The judgment granted by Mr Southey QC is conclusive on the issue of liability. Whilst it is open to the Defendant to argue against the grant of the relief sought, and to raise points going to the quantification of damage when doing so, he cannot pursue arguments which are inconsistent with the judgment on liability: see Lunnun v Singh [1999] CPLR 587, CA. In my judgment, the Defendant’s arguments regarding the alleged fraud in relation to the lease of Flat A are inconsistent with the judgment on liability granted by Mr Southey QC and cannot now be pursued when dealing with the question of relief. The same applies to many of the other arguments raised by the Defendant before me, including his contention that any problems with soundproofing and the episodes of water ingress into Flat A were nothing to do with him and were the result of what he described as “illegal works” that had been undertaken by the Claimants.

[30]The Defendant complained that this approach would mean that he was, to use his words, “bound and gagged”. But it is the consequence of judgment on liability having already been entered against the Defendant. If the Defendant takes issue with that decision then his remedy lies elsewhere and not by seeking to re-open the basis of the liability judgment at the hearing dealing with the relief due under that judgment.

Events since the Summary Judgment Hearing

[31]The Order made by Mr Southey QC provided that there should be judgment for the Claimants for relief to be determined. The learned Deputy Judge also gave a number of directions, including that: i) There should be joint instruction of a single expert in the field of property valuation, who would give evidence in writing. The expert was to be selected and instructed by 5 February 2021 and to report by 5 March 2021. The parties were permitted to ask questions of the joint expert by 12 March 2021, with replies by 19 March 2021. ii) The parties were given permission to file and serve any other evidence on which they intended to rely on the question of the appropriate relief by 5 March 2021.

[32]Following Mr Southey QC’s Order, the Claimants filed a second Witness Statement made by the First Claimant, dated 5 March 2021. The Defendant did not file any evidence in compliance with the Order. Nor did he engage in the instruction of a single joint valuation expert. That resulted in an application being made by the Claimants on 2 March to vary the terms of Mr Southey QC’s Order in relation to the expert evidence. On 4 March, Sweeney J made an order on that application permitting the Claimants to instruct their own valuation expert, Mr Richard Jackaman, and providing for his report to be produced by 31 March, for questions to be asked of that expert by 7 April and for responses to be provided by 14 April.

[33]Shortly before the hearing, the Defendant filed and served a significant quantity of material, including an eight-page witness statement dated 21 April 2021. Although this was in clear breach of the Order made by Mr Southey QC, Mr Demachkie did not object to the Defendant relying on this material and giving evidence at the hearing before me, although he contended that large parts of the Defendant’s evidence were irrelevant to the issues which I have to determine. The Defendant also told me that he had been led to believe by an email sent by the Court staff that he would be able to rely at the hearing on any evidence filed by 23 April, although he did not provide that email to me either during or after the hearing.

[34]Given that the Claimants were content to proceed with the hearing on the basis that the late evidence filed by the Defendant would be admitted, I did not consider that it was appropriate, in all the circumstances, to prevent the Defendant from relying upon it notwithstanding the breach of the earlier Order. Whilst the Defendant’s breach of the Order was serious and significant, and there was no good reason for it, the Claimants were content that the further evidence should be admitted (albeit they contended that it was largely irrelevant). At least part of the evidence supplied by the Defendant was, however, relevant; in particular, some of his criticisms of Mr Jackaman’s report merit consideration (albeit their effect is limited, particularly given the Defendant failed to participate at all in the process of obtaining expert evidence and failed to ask any questions of Mr Jackaman in relation to his report) as does his evidence regarding the Claimants having at times, when they were living there, rented out Flat A on short-term basis as an “AirBnB”, something which had not been taken into account by the Claimants in their calculation of damages. Applying the approach of the Court of Appeal in Denton v TH White Ltd

[2014] EWCA Civ 906

[2014] 1 WLR 3926

, in all the circumstances, and in particular given the absence of opposition from the Claimants, I considered that it was appropriate to permit the Defendant to rely on the evidence that was filed late.

[35]As I have already indicated, however, much of the Defendant’s evidence and argument at the hearing was not, in my judgment, at all relevant to the issues to be determined by me at this stage of the proceedings. Points made by the Defendant in his evidence which were, in my judgment, irrelevant to the assessment of damages or the grant of an injunction based upon the judgment already entered against the Defendant were: i) that the lease of Flat A held at the Land Registry has been forged (this is, for the reasons I have already given, not a point now open to the Defendant, at least in this Court); ii) that the First Claimant has brought vexatious legal proceedings against the Defendant (although the Defendant alleges that proceedings have been vexatious, there is apparently no finding to that effect by any Court or Tribunal – indeed, quite the reverse); iii) that the First Claimant suffers from a mental health condition (this is correct – indeed, the evidence indicates that it has been caused by the Defendant’s conduct and so it can hardly be prayed in aid by the Defendant, and nor can the Defendant use the existence of that condition, as he sought to do, to seek to undermine the accuracy of the First Claimant’s evidence); iv) that it is, in the Defendant’s view, the First Claimant who has harassed the Defendant rather than the other way around (this is also contrary to the basis upon which judgment has been entered against the Defendant); v) that the Defendant’s daughter, who now lives in Flat B, had brought proceedings in the County Court at Central London against the First Claimant for harassment of her: however, it transpired at the hearing that the claim made against the First Claimant by the Defendant’s daughter, which I should record was disputed by the First Claimant, had in any event been discontinued.

The Relief Sought by the Claimants

[36]The Claimants seek the following relief, based upon the judgment entered by Mr Southey QC, although as will be apparent from what follows, some of these heads of damage overlap and double recovery must be avoided: i) damages for past pecuniary losses; ii) damages representing the diminution in the capital value of Flat A arising from the Defendant’s conduct; iii) damages for past loss of amenity; iv) damages for distress and anxiety; v) a permanent injunction, backed by a penal notice, restraining the Defendant from continuing with his conduct towards the Claimants. I shall deal with the relief sought in that sequence. Mr Demachkie was correct to point out that the Defendant’s late-served evidence did not engage with the substance of the issue of injunctive relief or, save for the criticisms made of the report of Mr Jackaman and an issue arising from the Claimants’ letting Flat A as a short-term “AirBnB”, the claim for damages. It is, however, still necessary for the Claimants to establish that they are entitled to the relief sought.

[37]In that respect, the Defendant sought in cross-examination and in his submissions to portray the First Claimant as a serial liar whose evidence could not be trusted. The ultimate basis for this contention by the Defendant appears to be his belief that the First Claimant played some part in the alleged forgery of the lease of Flat A and that the First Claimant has waged a campaign against the Defendant, of which this litigation is a part, in an attempt to gain complete control of the entirety of the Property, having failed to purchase it from the Defendant in 2014. I unhesitatingly reject this characterisation of the First Claimant’s evidence, the substance of which is supported by the decisions of the First-tier Tribunal and the Magistrates’ Court, as well as a number of pieces of independent contemporaneous evidence such as the notice issued by the local authority in relation to the noise nuisance from Flat B, and the many photographs of the rubbish dumped in the front garden area and the cars parked in the rear garden area which I have seen. I accept the First Claimant’s evidence as accurate.

Damages for Pecuniary Loss

[38]Mr Demachkie submitted that I should take what he described as a “global, holistic approach” to the award of damages for pecuniary loss, on the basis that judgment had been granted for the Claimants on the entirety of their Claim. Any differences as between the individual causes of action – nuisance, harassment and breach of covenant – in the basis upon which damages are awarded did not, he submitted, make any difference to the ultimate result. This is particularly the case in respect of losses which are not foreseeable, which can be recovered as damages for harassment under section 3(2) of the Protection from Harassment Act 1997: see Jones v Ruth

[2011] EWCA Civ 804

[2012] 1 WLR 1495

at [32]. I accept Mr Demachkie’s submission in this respect.

[39]In my judgment, all the past losses claimed by the Claimants are losses which have been caused by the conduct of the Defendant about which complaint is made and in respect of which the Claimants have judgment in their favour. The Defendant failed to perform his obligations towards the Claimants as freeholder and conducted a lengthy campaign of harassment against the Claimants which ultimately had the effect of forcing them to leave their home. In my judgment, the Claimants are entitled to recover the sums which they have spent in maintaining and repairing the Property as a consequence of the Defendant’s various acts and omissions, the sums which they incurred in installing security measures, and the costs associated with and consequent upon their decision to move out of Flat A in 2019. The sums spent by them have been spent in consequence of the Defendant’s conduct and are, in my judgment, reasonable in amount.

[40]I therefore award the following sums by way of special damages for past loss, which are supported by the evidence given by the First Claimant (references in the list below are to the paragraphs of the First Claimant’s First Witness Statement): i) Payments made for buildings insurance for the Property in 2014 and 2015: £1,758.63 (paragraphs 160.a, 160.b, 160.c). ii) The cost of reinstating the collapsed garden wall, which was damaged by the Defendant’s actions in parking cars at the rear of the Property: £1,386.00 (paragraph 160.d). iii) Fixing dangerous guttering: £126.00 (paragraph 160.e). iv) Repairing smashed windows: £267.75 (paragraph 160.f). v) The cost of two bicycles stolen due to the Defendant parking cars at the rear of the Property, resulting in the gates being left open: £1,300.00 (paragraph 160.i). vi) The additional rent incurred by the Claimants as a result of delays to the refurbishment works to Flat A caused by the Defendant cutting off the electricity to Flat A in November 2015: £2,100.00 (paragraph 160.j). vii) Purchasing and installing CCTV cameras and subscribing to a service permitting online storage of the CCTV video: £1,271.00 (paragraphs 160.g, 160.h, 161.a, 160.e, 160.f). I reject the Defendant’s contention that this should not be awarded because the installation of CCTV was in breach of the terms of the lease of Flat A; and, in any event, the First Claimant’s evidence was that Mr Fowler had given express approval for the installation of the CCTV. viii) Electrical costs arising from water leaks in 2018 and 2019, including the purchase of replacement smoke alarms: £754.39 (paragraphs 161.b, 161.c, 161.d). ix) Removal and decorating costs arising from the Claimants’ decision to move out of Flat A into rented accommodation: £2,618.45 (paragraphs 162., 162.b, 162.c). x) Losses to the end of July 2021 arising from the differential between the Claimants’ rental payments on their new property and the net rental income received from Flat A: £22,149.34 (paragraph 162.d, updated to the end of July 2021). xi) Penalties incurred as a result of re-mortgaging Flat A and early repayment charges incurred by selling another mortgaged property to obtain funds required to mitigate the effects of the Defendant’s continued harassment: £24,000.86 (paragraph 168).

[41]The total sum that I award to the Claimants by way of past pecuniary losses is therefore £57,732.42.

Diminution in the Value of Flat A

[42]The Claimants seek damages representing what they say is the diminution in the value of their interest in Flat A caused by the Defendant’s conduct. Mr Demachkie referred me to Raymond v Young

[2015] EWCA Civ 456

[2015] HLR 41

, in which the Court of Appeal held that a claimant is entitled to damages representing the diminution in the value of land caused by the nuisance even where an injunction is granted. In that case, the defendants had been responsible for continuous acts of harassment, trespass and nuisance over a period of 40 years. The background circumstances of Raymond v Young are not dissimilar to those of the present case, in that the trial judge found that Mr Young had been unable to accept the fact that he no longer had any rights over the claimants’ property, which neighboured his own home but had been sold by his father in 1965. The trial judge found at [96] of his judgment that as a result it was Mr Young’s intention “to make the life of those who occupy [the property] a misery”. The claimants contended that Mr Young’s conduct had blighted their property and reduced its sale value to any purchaser, to whom the dispute with Mr Young would have to be disclosed during any sale process. The trial judge awarded £155,000 in damages, representing the assessed diminution of the sale value of the property. The defendants appealed on the basis that such an award was not appropriate where a permanent injunction had also been granted against the defendants.

[43]The Court of Appeal dismissed this part of the appeal, holding that the trial judge had been entitled to make the award that he did notwithstanding the grant of a permanent injunction against the defendants. Patten LJ held at [38], after a discussion of the relevant authorities, that the judge had been entitled to conclude that there was a continuing threat of nuisance to future purchasers, notwithstanding the grant of the injunction, and so to award damages representing the diminution in the value of the property as well.

[44]In the present case, I consider that the Claimants’ case that they should be awarded damages based on the diminution in value of the Property caused by the Defendant’s conduct is well-founded. As in Raymond v Young, the evidence in this case demonstrates, in my judgment, that the Defendant’s conduct is not transitory and that it is unlikely to cease even with the grant of a permanent injunction. The Defendant’s harassment of the Claimants has taken place over a period of many years. It is based upon a belief – which the Defendant continued to express before me, despite the previous judicial findings to the contrary – that the lease of Flat A, which the Claimants own, which is held by the Land Registry is inaccurate and indeed the product of fraud. Even a criminal conviction for harassment, a period of imprisonment and the imposition of a Restraining Order have not been sufficient to dissuade the Defendant from continuing his harassment of the Claimants and from continuing to deny the Claimants’ rights granted under the lease of Flat A.

[45]I accept Mr Demachkie’s submission that the evidence demonstrates that any purchaser of Flat A who wished to assert their rights under the lease would need to contend with the same harassment as has been inflicted on the Claimants. Indeed, this is borne out by the Defendant’s own evidence to me that, if Flat A were to be sold (as the Claimants would wish to do, in order to purchase another property rather than continue to rent as they have been doing since 2019), he would be content to assist with a sale and reach an agreement with any purchaser, and that he would be willing to give an undertaking to the court to assist with such a sale. The Defendant’s evidence was that the issues could clearly and easily be sorted out by such a purchaser entering into an agreement to rectify the lease of Flat A so that they did not have to inherit any “problems”. This demonstrates, in my judgment, that the Defendant’s apparent willingness to assist with the sale of Flat A in order to achieve its full market value is, ultimately, illusory: he would indeed assist with a sale, but only if it involved a recognition by any future purchaser of Flat A that it is the Defendant’s position about what rights the leaseholder of Flat A should have that is to be adopted going forward. Given the very basis of the present Claim, and the basis of the judgment granted by Mr Southey QC, is that the Defendant’s contentions regarding the rights granted under the lease of Flat A are incorrect, his willingness to assist with a sale, as expressed to me, does nothing to address the issue. Indeed it only reinforces what is, in my judgment, an obvious conclusion on the available evidence: that the Defendant is, despite all that has happened over the years, still unwilling to recognise the rights granted under the lease of Flat A which is held by the Land Registry and that he is willing, as he has done in the past, to take extreme steps against any present or future leaseholder of Flat A who does not accept his position regarding the allegedly fraudulent lease.

[46]Turning to the amount of the diminution in value, I accept the evidence in the report of the Claimants’ valuation expert, Mr Jackaman, which is that Flat A would achieve a price of £585,000 on the open market if it were managed in accordance of the terms of its lease with a willing freeholder, but that in the current situation it would, having regard to the Defendant’s conduct, achieve a much lower price of only £375,000. Mr Jackaman is, in my judgment appropriately qualified and experienced to opine on the valuation of Flat A in these circumstances, being an Associate Member of the Royal Institute of Chartered Surveyors with 30 years’ experience as an estate agent and latterly as a building surveyor and valuer. He has taken into account when doing so the impact of the Defendant’s conduct on its market value. I accept the valuations that he has given in his report.

[47]Before me, the Defendant sought to raise a number of criticisms of Mr Jackaman’s report. He did not, however, engage in any way with the process of obtaining expert valuation evidence or seek to ask any questions of Mr Jackaman. His explanation for this was to blame his former Solicitors, who were then acting for him, for not taking steps to keep him informed. That explanation is however undermined by the correspondence between the Claimants’ Solicitors and the Defendant’s then Solicitors, which indicate that it was the Defendant’s own decision not to engage with the directions given by Mr Southey QC. On 18 February 2021, the Claimants’ Solicitors wrote to the Defendants’ then Solicitors, stating:

“Thank you for your time on the phone yesterday and for your follow-up email below. We note your client’s position that he seeks an overall stay on the directions pending his application for permission to appeal (which for the avoidance of doubt we do not agree) and your instructions that he therefore does not intend to engage with the directions as they currently stand.”

That email and the content of the telephone conversation to the effect that the Defendant was, in February 2021, positively refusing to agree to instruct a single joint expert were relied on by the Claimants’ Solicitor in her Witness Statement in support of the application made to vary the directions of Mr Southey QC in relation to the expert evidence, which was granted by Sweeney J.

[48]I reject the Defendant’s criticism of Mr Jackaman’s report as being biased, because he was an expert instructed by the Claimants. An expert is not biased simply because they have been instructed by one party to the dispute. In my judgment, the Defendant had a full opportunity, prior to the hearing before me, to engage with the process of obtaining joint expert valuation evidence and, once the Claimants were permitted to obtain their own expert evidence, to raise questions to Mr Jackaman about his report. The Defendant knew throughout that the Claimants’ case was that they should be awarded a very substantial sum representing diminution in value: the First Claimant’s First Witness Statement, dated 2 July 2020, put the amount claimed in this regard at a figure in the region of £350,000. The Defendant was clearly well aware of the directions made by Mr Southey QC, because his then Solicitors took his instructions on them. He did not take up the opportunity to participate in the process of obtaining expert evidence, apparently expecting that the hearing to determine relief would not take place as a result of his application for permission to appeal the liability judgment. As a result, the only expert evidence before the Court is that from Mr Jackaman, who has not been given the opportunity to respond to the issues raised by the Defendant regarding the content of his report. I accept his evidence about the effect of the Defendant’s conduct on the value of Flat A.

[49]In any event, the Defendant’s criticisms of Mr Jackaman’s evidence do not, in my judgment, either individually or collectively undermine the conclusion that the expert has reached. Whilst the Defendant was correct to point out that Mr Jackaman incorrectly stated that the Property was not in a Conservation Area, I do not consider that this error means that I should reject his evidence about its value or, crucially, the price differential between the value of Flat A absent the Defendant’s conduct and that taking into account the Defendant’s conduct. This point was not put to Mr Jackaman by way of written question to enable him to comment upon its impact (if any) on his overall valuation. Nor does Mr Jackaman’s reference to the freeholder (i.e. the Defendant) having “not maintained and insured the building in accordance with the lease”. Whilst the Defendant pointed out that the building is now under the control of a Manager, that reference in Mr Jackaman’s report is capable of being read as referring to the Defendant’s past conduct rather than the current situation. Not only was this not raised with Mr Jackaman by the Defendant by way of question in accordance with the Order previously made, but I do not consider that the point undermines the overall conclusion reached by Mr Jackaman that the Defendant’s conduct, as relied on in this Claim, has significantly affected the value of Flat A. Indeed, it is evident from the First Claimant’s evidence and the further proceedings that have taken place in the First-tier Tribunal subsequent to Mr Fowler’s appointment that notwithstanding the appointment of the Manager, there are still great difficulties in securing the Defendant’s compliance with his obligations in relation to the Property. In any event, the Manager’s appointment is for a fixed period and is not indefinite.

[50]The Defendant also sought to undermine the valuation evidence of Mr Jackaman by referring to a valuation of Flat B that he had obtained in January 2021 in the sum of £450,000, which he said demonstrated that Mr Jackaman’s valuation of Flat A was inaccurate. There may be a number of reasons for this apparent difference – and, again, the issue ought to have been put to Mr Jackaman by way of question but was not. I do not consider that it should lead to me rejecting Mr Jackaman’s valuation of Flat A as inaccurate. So too with the fact that Mr Jackaman’s report does not refer to an apparently outstanding planning application made in respect of the Property by the Defendant, although it does refer to several previous applications; as the First Claimant noted when he gave evidence, it may well have been the case that there were technical difficulties with the local authority’s planning portal preventing the current application from being picked up. In any event, and as Mr Demachkie submitted, I cannot see how the existence of that application (which apparently proceeds on the premise that the Defendant’s view of the rights granted to the leaseholder of Flat A is the correct one) is capable of affecting, in the Defendant’s favour, Mr Jackaman’s valuation of Flat A or his assessment of the diminution in value arising from the Defendant’s conduct.

[51]The Defendant could have engaged with the production of the expert valuation evidence in this case but did not do so. I do not consider that his criticisms of Mr Jackaman’s report, raised for the first time at trial and in the absence of any countervailing valuation evidence, should cause me to reject the conclusion reached by the only valuation expert in this case. I accept Mr Demachkie’s submission that the approach in Raymond v Young should be applied on the facts of this case and therefore award the Claimants the sum of £210,000.00 in damages representing the diminution in the capital value of their property resulting from the Defendant’s conduct.

Avoiding Double Recovery

[52]The decision of the Court of Appeal in Raymond v Young makes clear however that damages for past loss of amenity and for distress cannot be awarded where there has also been an award representing the diminution in value of property of the type that I have made in this case. This is because the award of damages representing the full diminution in the capital value of the Claimants’ property as a result of the Defendant’s conduct necessarily compensates for the past distress and inconvenience suffered as a result of it. In Raymond v Young, the trial judge had awarded the claimants an additional sum of £20,000 representing both loss of amenity and general damages for anxiety and distress. The Court of Appeal allowed the defendants’ appeal on this ground and reduced the total award of damages by £20,000, holding that on neither basis was this sum recoverable. Having referred to the speech of Lord Hoffmann in Hunter v Canary Wharf Ltd

[1997] AC 655

, Patten LJ held as follows:

“27. The issue in Hunter was whether a claim in private nuisance could be maintained by occupiers of flats whose television reception had been interfered with by the construction of the Canary Wharf Tower but who did not have a lease or other right to exclusive possession of their own properties. But I read the passage I have quoted as an endorsement of the principle that damages for what is commonly described as loss of amenity are damages for the diminution in the value of the right to occupy the affected property and not merely damages for the personal distress or inconvenience suffered by the individuals concerned. They are intended to and do compensate the Claimant landowners for the distress and loss of amenity which they experience as a result of the nuisance but only in terms of the consequent loss in the use value of their property. For this reason, as Lord Hoffmann explains, the damages are not increased simply because the property is occupied by more than one person. 28. It must, I think, also follow from this that it is not appropriate to make separate awards of damages for distress in cases of nuisance. The consequences in terms of personal distress or discomfort which the Claimant may experience as a result of the nuisance are, as I have said, simply part of the assessment of the Claimant occupier's loss of amenity…”

Patten LJ went on to uphold the defendants’ appeal against the award of £20,000 made by the trial judge, holding that it was not recoverable either at common law by way of damages for loss of amenity or by way of damages for distress suffered under section 3(2) of the Protection from Harassment Act because, in circumstances where an award had been made for loss of capital value, it would have amounted to double recovery:

“39. The Recorder was wrong in my view to have awarded the claimants the full measure of their capital loss and also £20,000 by way of damages for loss of amenity. Unlike in Dennis, the loss of capital value figure has not been reduced to take account of the transitory nature of the nuisance and is historic in the sense that it represents the consequences of the defendants' acts of nuisance over the period up to the trial. There is therefore double recovery in this case by the award of both sums. They are alternative methods of calculating the diminution in value of the claimants' property and if damages are to be awarded for loss of capital value then damages for loss of amenity are excluded. 40. If one treats the £20,000 (or a significant part of it) as representing damages for distress rather than for loss of value as such, there is still double counting. As already explained, damages for distress are not recoverable separately in nuisance from an award for loss of value. The distress suffered by the claimants is reflected in the damages awarded for loss of value and compensated for accordingly. Although the claimants have also succeeded in their claim for damages for anxiety and financial loss under s.3(2) of the 1977 [sic] Act, that cannot add to the award of £155,000 which compensates them for all the distress they have suffered in the way I have explained. The 20% reduction in value took account of the impact of the defendants' conduct on the claimants and their property. I would therefore reduce the total award of damages by £20,000 to eliminate the element of double recovery. The awards of £3,500 as damages for trespass and £5,000 as aggravated damages are unaffected by this point. Subject to that adjustment, I would dismiss the appeal against paragraph 5(4) of the Recorder's order.”

[53]Patten LJ’s judgment in Raymond v Young is binding authority on this point. I therefore consider that it is not open to me to make separate awards of damages either for past loss of amenity or for distress suffered (whether at common law or under the 1997 Act), having already awarded the Claimants damages representing the diminution in the capital value of their interest in the Property. Nonetheless, in case this matter proceeds further I will set out what I would have awarded under these heads of loss, had it been open to me to make such awards.

Damages for Loss of Amenity

[54]Had I not awarded the Claimants damages based on the diminution in the value of Flat A, then I would have allowed their claim for damages for their past loss of use of the rear garden. Such damages are not, however, recoverable where there has been an award for loss of capital value: see Raymond v Young at [39], cited above.

[55]The First Claimant’s evidence, which I accept, is that the Defendant’s actions in parking and abandoning vehicles at the rear of the Property over a number of years deprived the Claimants of the use of the rear garden. The First Claimant’s evidence referred to many photographs of cars parked at the rear of the Property, including some (e.g. those taken on 30 December 2015) which showed as many as three cars parked across the whole of the rear garden area. The use of the garden is a valuable part of the rights granted to the Claimants under the lease of Flat A; indeed the availability of the garden for their autistic child was one of the reasons that the Claimants moved into Flat A in the first place.

[56]As to the period of loss of amenity, the Claimants claim £75 per week over a period of 200 weeks, i.e. just under four years. The basis for this is a letter dated 23 May 2020 written by Mr Tom Page, the Manager of Fyfe McDade, a firm of estate agents in Shoreditch. He considered that the difference in the rental value of Flat A if it were to be marketed without a rear garden would be £75 per week. Mr Demachkie submitted that I should adopt this figure as the value of the loss of use of the garden, and I agree that it is an appropriate measure of the impact on the Claimants of the loss of use of their garden.

[57]I would not, however have awarded the Claimants the sum of £75 per week over the full period of 200 weeks claimed. It is clear that for at least some of the period when they were living in Flat A, the Claimants were not present at the flat because they were renting Flat A out on the “AirBnB” platform. This was not referred to in the First Claimant’s evidence but was raised by the Defendant in the evidence supplied by him shortly before the trial and during cross-examination. The Defendant supplied printouts from the “AirBnB” website, taken in September 2019, showing positive reviews of Flat A by users of the “AirBnB” site dating from April 2017, May 2017, June 2017, July 2017, August 2017, April 2018, August 2018 and April 2019. When challenged on this point, the First Claimant accepted that Flat A had been rented out occasionally.

[58]I consider – and Mr Demachkie ultimately accepted the correctness of this point – that the Claimants cannot recover damages for loss of amenity in respect of their inability to use the garden for periods when they were not at the Property because they were renting it out as an “AirBnB”. The Claimants have not, however, disclosed the details of their “AirBnB” rentals to enable me to make a precise assessment of the reduction in their loss of amenity claim. The First Claimant was not able to provide any detailed evidence on the level of “AirBnB” rentals when cross-examined, his evidence being that Flat A was let out occasionally when the family were away on holiday. I consider that, in this respect, I should err on the side of the Defendant in assessing the appropriate period of any loss. I would, therefore, have reduced the award for loss of amenity from the 200 weeks at £75 claimed to 175 weeks at £75, i.e. to £13,125. In my judgment, given that Flat A was the Claimants’ home during this period but they clearly let it out for some of the time to paying guests, in particular it seems during the summer months, a reduction of this level in the amount of this claim would be appropriate.

Damages for Distress and Anxiety

[59]Had I not awarded the Claimants damages based on the diminution in the capital value of Flat A, then I would have awarded damages for past distress and anxiety caused by the Defendant’s conduct. Such damages are otherwise recoverable under section 3(2) of the Protection from Harassment Act 1997, but not in circumstances where there has already been an award for the full amount of the diminution in the capital value of the property resulting from the harassment: see Raymond v Young at [40], cited above.

[60]Mr Demachkie referred me to the decision of His Honour Judge Moloney QC, sitting as a Judge of the High Court, in Royal Brompton & Harefield NHS Foundation Trust & Others v Shaikh

[2014] EWHC 2857 (QB)

(“Royal Brompton v Shaikh”), in which the learned Judge applied, when awarding damages to the individual claimants for distress arising from what he described as an intense campaign of harassment by the defendant, the authorities on damages for injury to feelings in discrimination claims. The learned Judge said this:

“Quantum of harassment 10. It is important to emphasise another difference between harassment claims and libel claims. Compensation for libel includes both injury to reputation, that is to say, how one is held in the esteem and regard of other people than oneself, and also for the subjective feelings of alarm and distress that one suffers as a result of the libels. A harassment case, as its name suggests, focuses on the latter element and does not include damages for injury to reputation. It does focus on the alarm, distress and so forth that a person will suffer as a result of being harassed. In case of injury to feelings the leading case is that of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318. The Court of Appeal there identified three bands of compensation appropriate for claims for injury to feelings such as those applicable in harassment cases, In 2010 the Employment Appeal Tribunal said in the case of Da'Bell vNSPCC [2010] IRLR 19 that the figures in Vento should be adjusted for inflation. The three bands, which are well known, are these. The lowest band, now between £700 and £7,000, is awarded in less serious cases, isolated or one-off occurrences; the middle band, £7,000 to £21,000, is awarded in serious cases but not those which merit an award in the highest band; and the highest band, from £21,000 to £35,000, is awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. 11. It is possible to imagine more serious cases than the present one, because of course some harassment cases involve what one might call personal harassment, stalking, direct hanging around outside people's houses, matters of that kind that can create direct personal fear and alarm. In some cases the harassment can result in serious injury to health or serious specific matters such as loss of one's job. Those factors do not apply here, but subject to that reservation I have said enough to indicate that is a case that fits well within the higher band. I note the volume, persistence and viciousness of the campaign in this case, lasting over many years and comprising innumerable incidents given a wide area of publicity, all of which will be known to the personal claimants. It is difficult to distinguish between the four claimants within that upper band, but it is my duty to do so both out of justice to them and also out of justice to the defendant. Even though the defendant is not here I must ensure that my awards are fair and proportionate and take into account any distinctions between the claimants, which might lead to awarding a lesser sum towards one or a greater sum to another. In the present case, doing the best I can, for reasons that are apparent from the evidence that I have read out, the effects so far as subjective suffering of alarm, distress and the like have been great for all of these claimants but have been particularly great for Ms Rochelle because of the personal fears for her own safety and that of her family that she gave expression to, and for Mr Ali who has testified that it has actually affected his health and caused him to take increased medication. Under the harassment head I therefore propose to award Ms Rochelle and Mr Ali £25,000 each and, without in any way belittling their sufferings (as I say, I put them in the higher bracket), Mr Brown and Mr Octave £20,000 each. I am going to add to that some damages for defamation and the two awards need to be taken together.”

[61]I agree with Mr Demachkie that any award for damages for the distress and anxiety caused by the Defendant’s harassment should be based on the Vento guidelines referred to by Judge Moloney QC. The figures given for damages in the three Vento bands by the learned Judge have been uprated since 2014 by guidance issued from time to time by the Presidents of the Employment Tribunals for England & Wales and for Scotland. The uprated Vento figures applicable to the present Claim are those issued by the Presidents on 25 March 2019 in respect of claims presented after 1 April 2019. These are: i) the lower band (less serious cases): £900 to £8,800 ii) the middle band (cases that do not merit an award in the upper band): £8,800 to £26,300 iii) the upper band (the most serious cases): £26,300 to £44,000 – with the most exceptional cases capable of exceeding £44,000.

[62]Nonetheless, the level of distress and anxiety caused to the Claimants is not selfproving and the award must be based on the available evidence. In that regard, as I pointed out during argument, there is no evidence of any sort from the Second Claimant as to the distress and anxiety suffered by her, or the impact of the Defendant’s conduct upon her. She did not file a Witness Statement and did not give any evidence to me. I consider that on the evidence I could only properly have awarded any sum for distress and anxiety to the First Claimant. No explanation was advanced for the failure to file any evidence from the Second Claimant. Mr Demachkie nonetheless submitted that on the evidence I should award a similar sum to both Claimants. I reject that submission. In Royal Brompton v Shaikh, Judge Moloney QC referred at [8] to the witness statements filed by each of the four individual claimants before him as being “a very important matter for the decision that I have to make about the level of damage”. I respectfully agree that the evidence given by a claimant in this respect is very important. It enables the court to assess the degree of distress and anxiety that has been suffered by the individual claimant and to calibrate the award of damages accordingly. Here, there is no evidence at all from the Second Claimant. Mr Demachkie made some attempt to rely on the Claimants’ pleaded case, signed with a Statement of Truth – but statements of case are not evidence for the purposes of trial: see CPR 32.2 and CPR 32.6.

[63]I make clear that I am not making any positive finding that the Second Claimant has not suffered distress and anxiety as a result of the Defendant’s conduct. Rather, she has failed to prove by way of evidence the nature and degree of the distress and anxiety suffered. That is a matter which must, in my judgment, be proved by evidence in order for an award of damages to be made. Accordingly, as no evidence has been given by the Second Claimant, I would, had it been open to me to make a separate award, have made no award of damages.

[64]Turning to the award of damages to the First Claimant, Mr Demachkie submitted that the persistent harassment of the Claimants, which had the effect of driving the Claimants from their home, justified an award of damages in the upper Vento bracket. Having heard the First Claimant’s evidence about the impact of the Defendant’s conduct upon him, I agree. Although this is not, in my judgment, an exceptionally serious case of harassment justifying an award at the top of the upper Vento band or indeed exceeding the top of that band, I would regard this as a case well within the upper Vento band. The Defendant’s harassment about which complaint is made lasted several years. It has comprised incidents of what can be described in the main as vandalism and obstruction of the Claimants’ property rights rather than direct personal confrontation of the Claimants, physical violence (or the threat of such violence), the sending of malicious communications or ‘stalking’. Nonetheless, in my judgment, it is a serious and lengthy course of harassment and one which has driven the First Claimant and his family from their home. The incidents in which water has come into Flat A must have been particularly unpleasant and distressing for the First Claimant, and especially so given the effects on his children. The Defendant’s conduct over many years, and notwithstanding the efforts made by the Claimants and the courts to curb his behaviour, is serious. It has resulted in the First Claimant being diagnosed with an anxiety disorder and being prescribed medication, as well as placing a considerable degree of strain upon the First Claimant who has been forced to undertake work away from home in order to make ends meet and to spend a considerable amount of time dealing with the consequences of the Defendant’s conduct rather than with his young children. A substantial award of damages for distress and anxiety would be justified in this case. In the circumstances, I would have awarded the First Claimant the sum of £30,000 under this head of loss.

[65]I should note that this figure is somewhat higher than Mr Demachkie initially requested (in his skeleton argument, he submitted that the award should, as in Royal Brompton v Shaikh, be between £20,000 and £25,000). However, in my judgment, the First Claimant would be entitled to have any award assessed using the uprated Vento bands applicable to this Claim. Applying the uprated bands applicable to claims issued in 2019, as this one was, the figure of £30,000 is broadly equivalent to the upper level of Mr Demachkie’s original submission. I consider that it would have been a just and proportionate sum to award in all the circumstances of the case, had the Claimants not succeeded in persuading me to award damages based on the diminution in the capital value of Flat A.

Injunctive Relief

[66]Mr Demachkie submitted that final injunctive relief ought to be granted. He argued that breach of the Restraining Order made by the Magistrates’ Court is only actionable by way of criminal prosecution – which in practice means at the instance of the Crown Prosecution Service rather than the Claimants themselves – and that it provided no means by which the Claimants could themselves directly seek to address the Defendant’s behaviour. I agree. The Restraining Order granted in 2017 has not stopped the Defendant from continuing his harassment of the Claimants. I regard as particularly serious the further incidents of deliberate flooding of Flat A that occurred in June 2019, after the imposition of that Restraining Order and immediately prior to the Claimants being forced out of Flat A. It is clear to me that if the Claimants were now to return to live in Flat A – as they have every right to do – then the Defendant’s harassment of them would continue. It is therefore just and appropriate to grant final injunctive relief to the Claimants, and for a Penal Notice to be attached to the injunction.

[67]Nonetheless, the terms of the injunction sought by the Claimants were, in my judgment, too wide. One of the proposed terms would have required the Defendant to comply with any instruction given by the Manager of the Property, Mr Fowler. On reflection, Mr Demachkie accepted that this would not be appropriate, given the penal consequences and the potential for legitimate disagreement between the Defendant and Mr Fowler.

[68]I will therefore grant a final injunction, with a Penal Notice attached, in the following terms, preventing the Defendant (whether by himself, his servants or agents, or otherwise howsoever), from: i) harassing the Claimants, their family, their tenants or their lawful visitors to Flat A, or engaging in any conduct which may cause any such person to feel harassed, intimidated or distressed; ii) placing any rubbish or other items in, or on, any part of the Property demised by the lease of Flat A, save that the Defendant may deposit rubbish in the communal bin store, provided it is placed in the correct type of secure bin bags and placed within the correct bins; iii) in any way interfering with or discouraging the Claimants, their family, their tenants, or their lawful visitors from using the rear garden of the Property; iv) approaching the Claimants or their family, or contacting them save via the Manager of the Property, the Police or their Solicitor; v) making any noise which may interfere with the Claimants’, their family’s, their tenants’ or their lawful visitors’ quiet enjoyment of Flat A; vi) using the rear garden of the Property at the same time as the Claimants, their family, their tenants or their guests or lawful visitors to Flat A; vii) parking or abandoning vehicles on, or otherwise altering the character of, the rear garden area of the Property; viii) entering or accessing any part of the Property demised by the lease of Flat A, save in relation to the placing of rubbish in the communal bin store or for the purpose of checking the gas meters. The injunction will, as sought by the Claimants, additionally require the Defendant to comply with all and any landlord covenants within the lease of Flat A, and within 28 days of service of the Order to repair and carpet the floors of Flat B, or otherwise enforce the covenants in the lease of Flat B in relation to soundproofing.

Conclusion

[69]I grant the final injunction sought by the Claimants, albeit with some modifications to the terms originally sought. I award the total sum of £267,732.42 in damages (before interest), comprising: i) as damages for past pecuniary losses: £57,732.42 ii) as damages for diminution in the capital value of Flat A: £210,000.00 iii) as damages for loss of amenity: nil (to avoid double recovery given the basis of the award for diminution in value, applying Raymond v Young) iv) as damages for distress and anxiety: nil (to avoid double recovery given the basis of the award for diminution in value, applying Raymond v Young)

[70]As to interest, I will award interest on the Claimants’ past losses, but not at the Judgments Act rate of eight per cent that is claimed. Nor, however, would limiting interest to the special account rate, which is now close to nil, adequately compensate the Claimants, who have been required to borrow money by way of re-mortgage in order to deal with the consequences of the Defendant’s conduct. In my judgment, an appropriate annual rate of interest on the Claimants’ past losses, and one which adequately compensates them for having been kept out of their money in the particular circumstances of this case, is four per cent. The Claimants have provided a detailed calculation of the interest claimed on their past losses at the rate of eight per cent; I will therefore award half of the sum claimed, which results in a figure for interest of £5,742.62.

Costs

[71]Following the circulation of this judgment in draft, in accordance with Practice Direction E to CPR 40, the parties were not able to reach agreement about costs. Written submissions were filed in accordance with directions given by me when the draft judgment was sent to the parties.

[72]The Claimants seek their costs of the proceedings from the Defendant, and request that an order be made that they be paid on the indemnity basis. The Defendant in his written submissions made clear that he did not agree the order sought by the Claimants but did not advance any argument of substance against the award of costs, the basis of assessment or the making of a payment on account, save to repeat that he was pursuing what he clearly regards as a meritorious appeal to the Court of Appeal against the judgment entered by Mr Southey QC. That is not a good reason for me to order that the Claimants, as the successful parties, should not recover their costs from the Defendant: CPR 44.2(2).

[73]I also accept the Claimants’ submission that costs should be awarded on the indemnity basis. The conduct of the Defendant in this case has gone outside the norm, justifying an award of indemnity costs. There has been repeated non-compliance by the Defendant with the Orders made by this Court, including the failure to comply with the Order made by Master McCloud, and the failure to engage with the directions given by Mr Southey QC in relation to both expert evidence and witness evidence for the hearing which took place before me. The Defendant’s conduct of the proceedings generally has also, in my judgment, been unreasonable to a high degree in raising allegations of fraud in relation to the lease of Flat A which had no real prospect of success and in continuing to pursue those allegations in this Court notwithstanding the entry of judgment determining that issue against him. This is, in my judgment, a clear case for indemnity costs.

[74]I will therefore order that the Defendant shall pay the Claimants’ costs, to be the subject of detailed assessment on the indemnity basis if not agreed. Although the Claimants invited me to assess the costs due to them summarily, that would not be appropriate in the circumstances given the duration and complexity of this litigation and the fact that judgment is being handed down remotely without a hearing. The Claimants are, however, entitled to an order for a payment on account of a reasonable sum in respect of costs: see CPR 44.2(8). The Claimants have filed a schedule of their costs to the date of the hearing on 29 April 2021 in the total sum of £40,609.20 inclusive of VAT and disbursements; that figure excludes the costs of the application for summary judgment, which were ordered to be paid and assessed summarily by Mr Southey QC. Having considered the Claimants’ costs schedule and the accompanying schedule of work done on documents, and bearing in mind that costs are being awarded on the indemnity basis, I will order that the Defendant should pay 80 per cent of that sum by way of payment on account, i.e. £32,487.36.