In Raymond and another v Young and another, the Court of Appeal clarified that it could be appropriate to award damages for the loss of capital value to a property, even where a permanent injunction had been granted restraining further acts of nuisance. It would not, however, be appropriate to make an award of damages for loss of amenity and distress in addition to the damages for loss of capital value, as that amounted to a double recovery.
The claim related to alleged acts of harassment, nuisance and trespass by the defendants, who were the claimants’ neighbours. At first instance, the Recorder found that the defendants had committed persistent acts of nuisance and harassment, and these merited the granting of a permanent injunction. In addition, the Recorder awarded the claimants damages of £155,000 in respect of the diminution in value of their property caused by the continuing nuisance and harassment, and damages of £20,000 for loss of amenity and distress.
On appeal, the defendants argued that the Recorder was wrong to have awarded damages as well as granting the injunction. They claimed that the effect of the injunction was to exclude any loss of capital value that was attributable to the defendants’ tortious conduct; that where the court had granted equitable relief in the form of an injunction, there was nothing to compensate the claimants for. The defendants further argued that the claimants had not presented any evidence suggesting that they intended to sell the farm in the foreseeable future, in order to make apparent the alleged loss in capital value.
The Court of Appeal found that the award of damages for the loss of capital value was appropriate. Although an injunction might be a sufficient remedy where a nuisance was transitory, the court considered the defendants’ acts were not of a transitory nature, and were unlikely to be restrained by the injunction. A permanent injunction was not to be treated as a permanent guarantee that any potential purchaser would not be subjected to the defendants’ belligerent conduct. In addition, it was noted that the injunction would be personal to the claimants and not transferrable to a new owner; therefore the issue of the granting of an injunction would resurface with the purchase of the property.
The Court of Appeal held, however, that it was not appropriate for the Recorder to have made a separate award of damages for loss of amenity and distress. An action for nuisance was for injury to the land, not to the claimants’ emotional state. Damages for what was commonly described as “loss of amenity” were for the diminution in value of the claimants’ right to occupy the property, and not merely for any personal distress or inconvenience they had suffered as a result of the nuisance. Any distress suffered was regarded as part of the claimants’ loss of amenity, and this in turn was part of the diminution in value of their right to enjoy their property. An award for loss of capital value was therefore an alternative method for awarding damages for loss of amenity and distress, and to award both would amount to double recovery.
Finally, the Court of Appeal upheld the Recorder’s decision to order the defendants to pay costs on an indemnity basis. The defendants had raised arguments in the proceedings, knowing that they would not hold up as plausible submissions in court, and the Recorder was entitled to reflect this in his costs award.
Raymond and another v Young and another  EWCA 456