Lait v Williams & Anor

Introduction

By proceedings commenced in the TCC as long ago as October 2004 the Claimant, Mr Sidney Lait, seeks damages for nuisance against the Defendants, his neighbours, Mr and Mrs Roland Williams. The Claimant lives at Yew Tree Cottage, Crockenhill Road, Orpington, Kent. The Defendants live next door at a property called “The Bungalow”. On their land there is also a workshop and a greenhouse. From those buildings, Mr Williams carries out a car repair business which, amongst other things, includes bodywork repairs and restoration, paint spraying, servicing and mechanical work. It is those activities that lie at the heart of the nuisance action.

The precise history of the Defendants’ property and its use for business purposes will be the subject of a final judgment in the nuisance action. It is both unnecessary and inappropriate for me to make findings at this stage. The following facts, however, are apparent from the written Appeal Decision by the Planning Inspector of the 14^th February 2000 and were confirmed during Mr Williams’ cross-examination:

Thus, in the nuisance action that was commenced thereafter in the TCC, there were two principal issues: Did Mr Williams’ use of his property constitute a nuisance and, if so, was there a delay and/or failure to act on the part of the Claimant, and/or a failure by the Council to serve an Enforcement Notice in proper time which provided Mr Williams with a defence to any nuisance claim? Even now, those remain the real issues between these parties.

The issues were due for trial in May of last year. However, at a Case Management Conference, on the 22^nd February last year, the parties informed me that Mr Williams was making an application for planning permission to rebuild the workshop. It was thought that this proposed work might address the matters complained of by the Claimant and, for that reason, the parties were anxious that the trial be adjourned to allow the planning application to be made. I adjourned the trial because it seemed to me that this proposal did bring with it some prospect of resolving the differences between the parties. One critical feature of the proposed order for an adjournment were the undertakings required of Mr Williams.

Despite receiving advice on a number of occasions prior to that hearing, that he should obtain the services of a solicitor, Mr Williams was still not legally represented by the time of the hearing on the 22^nd February. He acted through a friend, Mr David Gorton, who had successfully conducted Mr Williams’ case at the hearing in front of the Planning Inspector. Therefore, on the 22^nd February 2005, I explained to Mr Williams, who was present, together with Mr Gorton, that the undertakings which he was agreeing to provide were important and had to be fully complied with. Both men indicated their understanding of the importance of the undertakings.

The relevant part of the Order reads as follows:

“1

On the Defendant’s undertaking to the Court that:

a)

The Defendants will make an application for planning permission to rebuild the existing workshop outlined in brown on the plan attached to the Particulars of Claim by the 22^nd March 2005 at the latest;

b)

The Defendant’s operations will be confined to the workshop building only;

c)

The Defendant’s operations will be carried out only between 9 a.m. and 5 p.m. Monday to Friday; the PTR on the 15^th April 2005 and the trial on the 3^rd May 2005 will be adjourned.”

It appears that the planning application was made by Mr Williams on the 23^rd March 2005 and rejected by the Local Authority on the 18^th May 2005. It also appears that the Claimant was not told about these events and did not discover the failure of the planning application until Mr Gorton’s letter of the 14^th July. The nuisance action was not restored until late November 2005. As recently as 10^th March 2006 the parties chose, by consent, to adjourn the latest CMC in the nuisance action. As a result, a trial date for that action remains to be fixed.

On the 29^th November 2005 Mr Lait sought permission to issue an application for Committal on the grounds that Mr Williams was in breach of the undertakings given on the 22^nd February 2005. I granted that application the following day, the 30^th November. The relevant claim form was served on the 9^th December. This identified:

The relevant time period for these alleged breaches was between March 2005 and the 16^th October 2005. The vast majority of the specific events relied on were said to have occurred either at the beginning or at the end of that period. In his evidence, the Claimant explained that this was because he had installed a CCTV camera to observe Mr Williams’ activities between March and mid-May, but that, on being told that any Committal for breach might lead to Mr Williams’ imprisonment, he instead chose to turn the camera off. He did not switch it back on again until late October because of particular events (to which I shall return) in late August, September and October.

Also on the 30^th November 2005 a timetable for the Committal proceedings was provided leading up to the hearing fixed for the 20^th and 21^st March . Written evidence was exchanged between the parties in accordance with that timetable. However, on the 20^th March, the first day of the hearing, the Claimant made an application:

The application was vehemently opposed by Mr Clarke, on behalf of Mr Williams. I concluded that the application to amend was made too late and should be refused. Essentially, pursuant to paragraph 10 of the Practice Direction accompanying RSC Order 52, I concluded that I could only allow the new allegations if they did not cause injustice. However, it seemed to me that there plainly would have been injustice to Mr Williams if the amendments were allowed, because the new allegations were so numerous that an adjournment of the hearing would then be necessary to allow him time to deal with them and give proper instructions. It seemed to me it would be wrong to allow any amendments that would, effectively, lead to an adjournment. Similarly, the admission of evidence in respect of the new allegations, whether advanced as to the truth of those new allegations themselves, or as to Mr Williams’ credibility, would also have led to an adjournment for precisely the same reasons. Accordingly, I allowed in only that part of the new evidence which was essentially evidence in rebuttal or which set out matters with which Mr Williams could deal at the hearing. I refused to admit the new material that went to allegations of breach beyond the original cut-off date of the 16^th October 2005.

It is, of course, open to the Claimant to seek permission to commence a new Committal application in respect of the new allegations and new evidence. For the reasons set out below that would not, in my judgment, be an appropriate or proportionate response.

At Section B below I identify the legal principles relevant to a case of this kind. At Section C below I address the parties’ submissions as to the scope of the undertakings. At Section D below I make some general observations on the evidence. At Section E below I deal with the allegations of weekend working; at Section F I address the allegations of working outside the agreed hours of 9 a.m. to 5 p.m. and at Section G I deal with the allegations of working outside the workshop building. My conclusions as to whether any breaches were deliberate or inadvertent are set out in Section H below and the outcome of the application itself is set out at Section I below.

Relevant Principles

An application for Committal involves a quasi-criminal process. As Lord Denning MR put it in In Re Bramblevale Ltd (one of the cases relied on by Mr Clarke):

“A contempt of Court is an offence of a criminal character.”

As a result, the offence must be proved beyond reasonable doubt. Where the offence is a breach of an undertaking it has been said that “the undertaking must be clear and the breach must be beyond all question”: see Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67.

If a breach of an undertaking has been proved beyond reasonable doubt then it is no defence in law to say that the breach was unintentional or inadvertent. The most helpful recent authority on this point is Adam Phones Ltd v Gideon Goldschmidt & Ors, (9^th July 1999) which was a decision of Jacob J, as he then was. It was concerned with the alleged infringement of software copyright. There was an application to commit against one of the Defendants who, in breach of the Court’s original Order, had erroneously deleted a programme from his computer. Although he intended to delete that programme he did not appreciate that to do so would put him in breach of the Court Order. Jacob J. referred to the House of Lords case of Heatons (below) and the decision of Millett J., in Spectravest Inc. v. Aperknit Ltd [1988] F.S.R. 161. He concluded:

“The purpose of the remedy for Contempt of Court is to ensure obedience to the Court’s Order. If a man honestly tries to obey the Order but makes a mistake (always assuming the Court believes him) then I can see no point in saying he is guilty and that his honest mistake goes merely to mitigation. Indeed, it is an abuse of language to say that a man honestly trying to obey the Order of the court is showing ‘contempt’. So, I think that it is appropriate for the mental element of contempt of court to be reconsidered by a higher court. At first instance, however, I feel bound to follow the Heaton, Spectravest etc., line of authority. I think, therefore, that Gideon’s conscious deletion of the higher manager files was a technical breach of the Order.”

However, whether or not a penalty is imposed at all and, if so, the nature of the penalty may depend, at least in part, on the Court’s conclusion as to whether the breach was deliberate or unintentional. In his speech in Heatons Transport v The Transport & General Workers Union & Ors [1973] AC 15, 109, Lord Wilberforce said:

“It is also the reasonable view because the party in whose favour an Order has been made is entitled to have it enforced and also the effective administration of justice normally requires some penalty for disobedience to an Order of a Court if the disobedience is more than casual or accidental and unintentional.”

In the Adam Phones case, to which I have already referred, having concluded that the deletion of the programme was a technical breach of the Order, Jacob J. was quick to say:

“But there is no question of any penalty being imposed. Sometimes for slight violations of its Order the court ‘merely’ requires the Respondent to pay the Applicant’s costs (often on an indemnity basis) but this can still be a draconian punishment… Alternatively, the Court may simply make no order as to costs.’ ”  

The Meaning of ‘Operations’

Unhappily, there appears to be a dispute about what is meant by the word “operations” as set out in the undertakings given by Mr Williams on the 22^nd February 2005. The right approach to disputes of interpretation of the wording of an undertaking is set out by Lewison J in JobServe Ltd v Skill Site Ltd [2004] EWHC 661 Ch. From that judgment two principles can be identified:

Here the Claimant says that the word “operations” covers anything connected with, preparatory or ancillary to the car repair business. That might extend as far as, say, Mr Williams working on papers in the workshop at 8.55 am. The Defendant says that it must be limited to just car repairs or the actual working on vehicles, and that all other activities, either preparatory or ancillary to such operations, are not included. That would, or could, extend as far as the complete rebuilding of the workshop on a Saturday and a Sunday.

In my judgment neither of those submissions is quite right. They both go too far and (perhaps unsurprisingly in this case) in completely opposite directions. It was plainly not the intention of the Order that the Claimant could not undertake “any” work-related activities outside the hours specified, or at weekends. Thus, I consider that working on papers, or answering the telephone, at any time, is legitimate. It is not outside the undertakings because the activity involved is not a nuisance. However, I think that the Defendant does go too far the other way in suggesting that all ancillary and preparatory works were excluded from the undertakings. As I have said, that would allow the Defendant to undertake major refitting works, for instance, on a Saturday and Sunday, and then say that, because such work was preparatory to his core activities, it was not a breach of his undertakings.

In my judgment, “operations”, as referred to in the undertakings, means the operations carried out by Mr Williams which:

For the avoidance of doubt, I confirm that the undertaking was not ambiguous and that the proper interpretation of the word “operations” (which I have set out above) was the clear and obvious interpretation of the word in this context.

There appears to be a specific dispute about works apparently carried out by Mr Williams at the workshop as part of a refurbishment programme following the refusal of the application for planning permission to demolish and rebuild. No details and no documents relating to that work have been provided so it is a little difficult to be too specific as to precisely what Mr Williams was doing or why. However, it does appear to be his case that, since this work was not part of his car repair business, he was entitled to do that work at weekends and outside the hours specified in the undertakings.

I reject any such submission. The refurbishment works to the workshop were plainly and directly connected to the Defendant’s car repair activities. Thus, if such works were going to cause a nuisance because they were loud or dirty, then again they could only be performed in accordance with the limitations set out in the undertakings. It would, I think, be a nonsense to suggest that the Defendant could employ men to undertake refurbishment work to the workshop at midnight and not be in breach of his undertakings in so doing. If the refurbishment work was outside the undertakings, it would mean that one man angle grinding part of a car on a Saturday morning was in breach of the undertakings, whilst the man next to him, angle grinding some part of the new paint spraying system, was not. In any event, as the Claimant pointed out, I find that, if there was any doubt in the Defendant’s mind about this, he ought to have informed the Claimant as to the work that he was doing and, indeed, come back to the Court if he needed clarification.

General Observations on the Evidence

I found Mr Lait to be a generally reliable and truthful witness. I reject the assertion that was made by Mr Williams that Mr Lait has, as he put it, “a problem with the truth”. I accept Mr Lait’s evidence, repeated on a number of occasions, that he did not want Mr Williams to go to prison and that he did not want to issue these proceedings until, as he put it, he was driven to do it by the particular events in late August, September and October.

I do repeat the point, which I raised during argument, that the Committal proceedings which I have heard did not address the key issues between the parties. For instance, Mr Lait said that he regarded the Committal proceedings as part of his overall nuisance case and that may explain why, for instance, some of the complaints in the evidence were about things like unfiltered paint spraying on weekdays. In fact, this application has little to do with the underlying nuisance claim. It is solely about the alleged breach of the undertakings, which is a very different thing. So, for instance, paint spraying between 9 a.m. and 5 p.m. might be a nuisance, but it was not a breach of the undertakings, and was thus irrelevant for the purposes of this application.

For those reasons, therefore, whilst I accept Mr Lait’s evidence that what mattered to him was his nuisance claim and its final resolution, I consider that he was wrong to think that that claim had very much to do with these Committal proceedings which have, regrettably, taken on a life of their own. For the avoidance of doubt, it is my view that a trial of the nuisance allegations, and the crucial point regarding the history of use, would have been a much more productive use of the court’s time than a hearing of these Committal proceedings.

As to the Claimant’s other witnesses, I have no reason to disbelieve the evidence as to specific noise and activities that were provided by Mrs Collins, Mr Wallace, Mr Atkins and Mr Anderson. The fact that Mrs Collins is the Claimant’s sister, and the fact that the other three men are all employees of Mr Lait, did not, in my judgment, mean that they were unable, or unwilling, to tell me the truth. I reject any suggestion that, because they were employees of Mr Lait they were likely not to tell the truth. I consider that, on the contrary, all of them did tell the truth.

Mr Knight also gave evidence about the CCTV footage. He was challenged about the accuracy of the date and the time-stamps on the images, but he said he had no reason to doubt their accuracy. He said the stamping was authentic and, to the extent that it makes any difference to my findings below, I accept that evidence.

I accept that it has been difficult for Mr Williams to prepare to deal with these allegations, since all of us would struggle to remember precisely what we were doing on a particular day over the course of the last year. I also accept that Mr Williams was entitled to feel that, because of the history between the parties, the Claimant may have had some sort of vendetta against him. However, it might be thought that Mr Williams did not help himself in one or two of the things that happened, or did not happen, during the period when these undertakings were first in force. I have in mind three general points:

Working at Weekends

The evidence as to the weekend working divides into two parts. First, there is the evidence of the CCTV footage. Secondly, there is the specific evidence concerning the events on the 27^th to 29^th August 2005, the 4^th September 2005 and the 15^th to 16^th October 2005.

In my judgment, the CCTV footage was not very telling. Generally, what was shown was Mr Williams walking about, in and around the workshop and the greenhouse. It would be impossible to conclude on that evidence that he was in breach of his undertakings. The most important clip from this footage was a clip from the 12^th March 2005 which showed two fine clouds by the workshop some minutes apart. That was said to evidence paint spraying. It is simply not possible for me to say that, beyond reasonable doubt, this is what the clip showed. In any event, it might be thought that two puffs of cloud on CCTV footage that, in total, covered a period of something like 6 months was not particularly persuasive evidence that paint spraying was a regular feature of the weekend working at the property.

Given the quasi-criminal nature of this application, I am bound to give Mr Williams the benefit of any reasonable doubt in this regard. There is plainly reasonable doubt in relation to all this CCTV footage in respect of weekend working, so I reject the suggestion that the footage demonstrates a breach of Mr Williams’ undertaking not to work at weekends.

Although this was a Bank Holiday weekend and although it is a relatively small point, I accept Mr Clarke’s submission that the undertaking would only relate to the Saturday and the Sunday; that the Monday was a day that could have been worked, although only between 9am and 5pm. The Claimant’s evidence was that on the Saturday he heard what he described as “the sound of metal being struck repeatedly” and “an angle grinder cutting through metal”. There was also evidence from Mr Anderson who was working on the Claimant’s house. He also said that Mr Williams was carrying out work on that Saturday.

I have already made the point as to the credibility of Mr Anderson’s evidence. Unusually, perhaps, for a case of this sort, there was a note from Mr Anderson which recorded what he had heard on the Saturday 27^th. The note read:

“Saturday 27^th August 2005 At approximately 12:30 p.m. I heard a disturbing noise which sounded like metal being whacked, then a noise which I would say sounded like an angle grinder cutting up metal. I heard these noises throughout the day.”

There was nothing to gainsay this evidence. Mr Williams very fairly accepted that he could not say what he was doing at that weekend. He thought he might have been carrying out refurbishment works to the workshop, but that was as high as he put it.

I, therefore, conclude, on all the evidence that I heard, that beyond reasonable doubt Mr Williams was working over that weekend on his car repair business. I find that, on the evidence, he was actually involved with repairing vehicles. If, which I do not accept, he was working on the refurbishment of the workshop, then, for the reasons I have given, that was still a breach of the undertaking.

This alleged breach was of a lesser order than the one on the 27^th August 2005 because it involved car engines as opposed to metal working. However, the evidence from Mrs Collins was that “on the Sunday afternoon there was a persistent high revving of a car engine coming from Mr Williams’ garden.” That was supported by the Claimant who said “a vehicle engine was being run at high speed in the Defendant’s garden.”

Mr Williams, again, could not remember the weekend in question. He said in his oral evidence in chief the revving sounds could have been from the property beyond his own where the owner had go-karts and scramblers. The problem with the credibility of that explanation, as I put to Mr Williams, was that it was not something that was referred to in either of his two statements.

Given the clarity of the evidence from both Mrs Collins and the Claimant as to the source of the noise, I find beyond reasonable doubt that Mr Williams, or others, were revving engines in his garden on that Sunday in connection with the repair business. Although that was a breach of his undertakings, as I have indicated, it was plainly lesser in nature and scope than the events of the previous weekend.

The evidence of the work being done over this weekend came from the Claimant (the Saturday), and from Mr Atkins, Mr Wallace and the Claimant (the Sunday). As to the Saturday, the Claimant, who was in bed with a prolapsed disc during the late afternoon, heard loud banging coming from Mr Williams’ workshop which he said “continued until at least 7:16 p.m.” As to the Sunday, the Claimant heard the noise of an angle grinder being used. He telephoned his factory. Mr Atkins and Mr Wallace came to the house. Mr Wallace heard what sounded like the angle grinding of metal and what sounded like a hammer hitting metal. He said “the noise came from Mr Williams’ workshop.” Mr Atkins gave similar evidence.

The evidence from the Claimant and the two employees demonstrated overwhelmingly that work was being carried out over that weekend. They were properly cross-examined on this evidence by Mr Clarke and, during that cross-examination, both men dismissed the suggestion that the noise might have been coming from somewhere else. It seems to me, again, that there is nothing to gainsay their evidence. Again, frankly, Mr Williams accepted he could not really say what he had been doing over that weekend. Again, he thought if there had been a noise he may have been working on his workshop. I find beyond reasonable doubt that he was working on his car repair business and, for the reasons I have given, if (which I do not accept) he was working on his workshop, that still constituted a breach of his undertakings.

Therefore, in respect of the weekend of the 15^th to 16^th October 2005, I find that that the Defendant was in breach of his undertakings.

I find that Mr Williams was in breach of his undertaking not to work at weekends. There were three specific breaches which I find: the 27^th to 29^th August, 4^th September and 15^th to 16^th October 2005. I reject the allegations of weekend working by reference to the CCTV footage.

These three instances of weekend working were important to the overall story because it was these events which, on the Claimant’s evidence, led to the resumption of filming and the decision to launch this application. It follows, therefore, that in the widest sense, I find that it was not unreasonable for Mr Lait to commence these Commital proceedings, because of those three breaches of his undertakings by Mr Williams.

Outside Weekday Hours

The evidence that Mr Williams worked before 9 a.m. and after 5 p.m. is, to all intents and purposes, entirely dependent on the CCTV footage. The problem is that, generally, the footage simply shows Mr Williams, or somebody else, moving about near the workshop, or near the greenhouse. It is not linked to specific allegations of noise, or spraying, or any work activity connected with the car repair business.

In addition, for the reasons which I have given, Mr Williams was not in breach of his undertakings if he was engaged in an activity in the area of his workshop which was not a nuisance. Therefore, Mr Williams could have been in these locations simply moving things about, looking at paperwork and the like. That would not constitute a breach of his undertakings.

For those two reasons, I find that the Claimant has not demonstrated to the necessary standard of proof that Mr Williams worked before 9 a.m. or after 5 p.m., let alone that he did things which were capable of being a nuisance. I, therefore, reject in its entirety that part of the Claimant’s case.

Much of the CCTV footage, alleged to show that Mr Williams was working outside the workshop, is, I think, inconclusive. It may show that, but it is generally difficult to say beyond reasonable doubt that he was doing so. The screen, of course, does not help in that regard. However, I consider that there are four exceptions to this general position, when I conclude that there was a breach. However, I make it plain that I consider, having heard Mr Williams’ evidence, that these breaches were, as he put it, “technical” and, therefore, they are not of any significance at all when I come to consider the question of the penalty. However, for completeness I ought to deal with them.

The first two breaches are those two occasions which can be seen in the CCTV footage and which are admitted as technical breaches at paragraph 9 of Mr Williams’ statement.

In addition, I consider that on the 3^rd May 2005 the CCTV footage does show work being carried out to a large van drawn up very close to the workshop. The van was too big to fit inside the workshop. The work can be seen in clip 140.

I do not accept the explanation that was given that these vans were there just to be driven to the testing centre. It seems to me, if that were so, they would not have needed to be driven so close up to the workshop. There was a belated suggestion from Mr Williams that repair materials were then loaded into the van so that, if the van failed the MOT, repair work could then be carried out. I do not accept that. The owner of the van would hardly want its deficiencies advertised by the presence of repair equipment in the back of the van before it was entered for its MOT. In any event, the nature of any necessary repair work would not be known until after the MOT test.

The CCTV footage on this occasion is clear enough to persuade me that on this occasion Mr Williams was working on a van that was too large to go into the workshop.

Similarly, I conclude that on the 18^th April 2005 there was work on a car shown on the CCTV clip 123. That footage, I think, makes it clear beyond doubt that work was going on to that car at that time.

As I have stated, in view of the quasi-criminal nature of this application, the Defendant is properly entitled to the benefit of any doubt that I may have as to whether or not he is in breach of his undertakings. I give him the benefit of that doubt and I conclude that any breaches are strictly limited to:

The next issue concerns the nature and degree of those breaches. Are they inadvertent and technical, or are they deliberate? This issue goes to the question of the penalty.

I accept, as I have indicated, that the breaches noted in section G (working outside the workshop) were inadvertent. Therefore, they have no effect at all on the question of the penalty. It seems to me that the breaches in respect of the weekend working (section E above) are of a different nature and I do not consider, on the evidence, that those were inadvertent. Those, therefore, are the only breaches that I have in mind when I consider the question of the penalty.

The final question concerns the consequences of Mr Williams’ breach of the undertakings. I have no hesitation in concluding that imprisonment would be utterly unjust and inappropriate. This is because:

I consider that, in view of the breaches of his undertakings, it is appropriate to impose a fine on Mr Williams. That fine should be relatively modest. The figure that I suggested during argument was £500 and that is the level of the fine that I impose. Payment is to be made by 4 p.m. on Thursday 20^th April 2006.

The final argument concerns the question of costs. I had originally thought that it would be appropriate to reserve the costs, but both Counsel have argued that it would be appropriate for me to deal with the question of the costs this morning. I accept those submissions.

As to the relevant principles, I have accepted, as indicated above, that the Claimant was entitled to make this application even though it may very well be said, at least with hindsight, that what we should have been dealing with this week was the trial of the nuisance action itself.

Given that the Claimant was entitled to make the application and given that the Claimant has successfully demonstrated some breaches, I think it is appropriate that there should be an order for costs in the Claimant’s favour. However, I have to note that the majority of the individual allegations of breach have failed and that, aside from the technical breaches in relation to the outside working, the CCTV footage has been of no assistance.

Mr Clarke suggested that, if I was against his submission that there should be no order as to costs (which, for the reasons indicated, I am) the Defendant should pay 20% of the Claimant’s costs. Mr Bates, on the other hand, submits that the Claimant should be entitled to 75% or 80% of his costs. In my judgment, as a rough and ready apportionment and to reflect the degree of success obtained by the Claimant, it seems to me that it would be appropriate for the Defendant, Mr Williams, to pay 50% of the Claimant’s costs of this application.

Finally, there are the costs of the application that was made on the first morning of the trial. That application, made by the Claimant, was rejected. In those circumstances, it must be right that the Defendant should have his costs of that failed application and I, therefore, order that the Claimant pay the Defendant the costs of the failed application on the 20^th March 2006.

All costs should be assessed on the standard basis, and if they cannot be agreed, they will have to go off for assessment. The parties’ representatives ought to try and agree the costs so as to avoid the costs of any such assessment.