In July 2011 the Court of Appeal handed down its judgment in Jones & Lovegrove v Ruth & Ruth  EWCA Civ 804. The case is interesting because it confirms that an errant building owner can be liable in substantial damages for harassment of their adjoining owner, and also provides some guidance on the principles to be applies when assessing damages for trespass to a party wall.
The Claimants, mesdames Jones and Lovegrove, purchased 105 Lower Thrift Street, Nottingham (pictured) in 2002. The Defendants, Mr and Mrs Ruth, owned the adjoining property, 103 Lower Thrift Street. They also owned the next house in the terrace, no 101.
101 and 103 had been constructed as two-storey houses. 105 was constructed as a three-storey house. The wall that separated 103 and 105 was a party wall to the extent that 103 enclosed on it, but the third storey was solely in the ownership of 105.
Between May 2002 and March 2007 extensive works were carried out to. 103, in which the house was gutted, a third storey and a rear extension were added, and a garage constructed in the back garden. As part of the construction of the third storey Mr Ruth cut holes into the third-storey wall of 105, inserted purlins, and enclosed upon the wall, all without the consent of Jones and Lovegrove.
Mr Ruth had purported to serve a party structure notice on the predecessor in title of 105, Mr Pollard, but that notice was invalid. Mr Ruth also gave evidence that he had obtained Mr Pollard’s consent to the works. However, at the trial Mr Pollard gave evidence that he had never had any such discussions with Mr Ruth. [AUTHOR’S NOTE: even if such consent were given, it would not remove the requirement to comply with the 1996 Act: See Seeff v Ho below].
Mr Ruth’s works dragged on for 5 years. By February 2008 Jones and Lovegrove had had their fill, and issued proceedings in the Technology and Construction Court. They sought an injunction, alternately damages to nuisance and trespass. Their principal complaints were that during the works to 103:-
- they suffered from excessive and persistent noise and vibration which affected 105;
- the vibration caused cracking in the walls of 105 which continued until about March 2006;
- Mr and Mrs Ruth had trespassed by making holes in the gable end wall of 105 and by the insertion of purlins, and had also damaged the roof;
- there had been trespass on to their garden by the erection of scaffolding and the storage of building materials, particularly during the re-building of the garage at 103;
- the boundary wall had been damaged and in part demolished during the works; and
- there had been numerous other incidents of rubbish being thrown into their garden and of other anti-social behaviour, including Mr and Mrs Ruth or their children dropping notes from their windows containing offensive and threatening remarks about lesbians (mesdames Jones and Lovegrove being in a same-sex relationship).
In addition, Ms Jones also claimed damages for personal injury. Ms Jones suffered severe back pain brought on by anxiety and depression as a consequence of witnessing the damage inflicted on 105 by Mr and Mrs Ruth. That claim was based on negligence, in the alternative under the Protection from Harassment Act 1997.
The High Court
The Claimants succeeded in their claim for damages in respect of the alleged nuisance and trespass. In particular, His Honour Judge Wilcox found that the work could and should have been completed within one year, and that the continued works over a 4 year period amounted to a serious loss of amenity and the Claimants’ enjoyment of their home.
His Honour summed up Mr Ruth’s attitude to the works as follows:-
“It is a feature of this sad case that Mr Ruth throughout has failed to be open and transparent in relation to the scope and timescale of his building activities both at 101 and 103 Lower Thrift Street. He took the view that 103 was his house and he could do whatever he liked to it, and in it, at anytime that he chose convenient to the operation of his business and his development activities. He is clearly a hardworking and industrious man who is intolerant of criticism.”
His Honour assessed the damages for the trespass at £45,000, and the nuisance at £30,000.
His Honour dismissed the claim for personal injury on the basis that the injury to a claimant must be reasonably foreseeable as a result of a defendant’s actions. On the facts of the case His Honour found that the injuries complained of were not reasonably foreseeable, and therefore the claim must fail.
Jones and Lovegrove appealed the dismissal of Ms Jones’ personal injury claim. The Defendants cross appealed the award of £45,000 for the trespass.
It was submitted on behalf of Jones and Lovegrove that His Honour had made an error of law in requiring foreseeability of the injury to be a component of a claim for damages for harassment. Although foreseeability was a requirement for negligence, there was no such requirement in the Protection from Harassment Act 1997.
The Court of Appeal agreed. Unlike negligence, there is no requirement in a claim in damages for harassment that the injury be foreseeable as the result of a defendant’s actions. If the injury is caused by the harassment, that is enough to award damages for that injury to a claimant.
Therefore, if a building owner undertakes work in such a fashion as to cause harassment of the adjoining owner, he is liable in damages for all that flows from that harassment, including personal injury.
On the facts of this case Ms Jones was awarded general damages of £28,750 and loss of earnings of £115,000.
The Cross appeal
On behalf of Mr and Mrs Ruth it was argued that the award of £45,000 was made without jurisdiction, or alternately that there was a double recovery, as there was an overlap of the head of loss in respect of the award of £30,000 for nuisance and the award of £45,000 for trespass.
The Court of Appeal rejected those points out of hand, but did undertake an analysis of how the figure of £45,000 was arrived at. His Honour Judge Wilcox awarded £45,000 on the basis that this was the increase in the value of 103 as the result of the unlawful addition of the third floor.
The Court of Appeal though this was incorrect. In Wrotham Park Estate v Parkside Homes  1 WLR 7985% of the increase in value as the result of the Infringement was determined to be the likely license fee the claimant would have charged the defendant for the infringement of their rights.
However, in the facts of this case, the Jones and Lovegrove were particularly sensitive to the building works, and would have asked a larger fee before they would granted Mr and Mrs Ruth the right to cut into and enclose upon their third-storey wall. Conversely, Mr and Mrs Ruth would have very keen that the third storey be added to 103 so as to match 101, and would have been willing to pay a greater fee.
The Court of Appeal therefore determined that Mr and Mrs Ruth should pay one third of the increase in value; that is, £15,000, and substituted that figure as the award for the trespass committed by Mr and Mrs Ruth.
Hard-nosed building owners who undertake their works without proper consideration for their adjoining owners may well be liable for harassment under the Protection from Harassment Act 1997. There is no requirement that the injury suffered by the adjoining owner, be it harm to their property, or physical harm or indeed psychological harm, be foreseeable. The only requirements are that the defendant’s conduct must amount to harassment, and that injury is suffered as the result of that harassment.
The decision also provides some useful guidance on how surveyors should assess Wrotham Park damages when quantifying damages for a trespass or infringement of other property rights. The starting point is the amount by which the value of the building owners property has been increased by the infringement.
The surveyors must then factor in how unwilling the adjoining owner would be to grant the right sought, and how keen the building owner would be to have that right. The more unwilling the adjoining owner and/or the more willing the building owner, the greater the award.