Neutral Citation Number: [2010] EWHC 2449 (QB)
Case No: HQ09X04659
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/10/2010

Before :
THE HONOURABLE MR JUSTICE EDWARDS-STUART
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Between :

	1.	Katherine Lawerence 
2.	Raymond Shields	Claimants	
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	1.	Fen Tigers Ltd
2.	David Mitchell Coventry (t/a RDC Promotions)
3.	Moto-Land UK Ltd
4.	Terence Raymond Waters
5.	Anthony Walter Morley
6.	James Edward Waters	Defendants	

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Mr Peter Harrison QC and Mr William Upton (instructed by Richard Buxton Environmental and Public Law) for the Claimants
Mr Robert McCracken QC and Mr Sebastian Kokelaar (instructed by Mills & Reeve LLP) for the 2nd, 3rd and 6th Defendants
Mr Rory Clarke (instructed by Hewitsons) for the 4th Defendant

Hearing dates: 24 September 2010
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Judgment

The Hon Mr Justice Edwards-Stuart: 

1.	For the reasons given briefly at the hearing, I have in principle allowed the application to amend the Particulars of Claim, save only for paragraph 16 (the claim for exemplary damages).  That part of the application is to be dealt with in this judgment.  I have also allowed an application to amend the Defence to plead a prescriptive right to commit a nuisance.
2.	There is in addition an application by the Defendants to strike out certain passages in the Claimants’ witness statements.  I will also deal with that application in this judgment.
3.	These applications, together with the fact that the existing estimate for the trial is probably too short, have meant that the trial of this case, which was to have been on 11 October 2010, will have to be adjourned.  Thanks to the assistance of the Listing Office, it has now, by agreement, been fixed for 24 January 2011 for 10 days.  I am satisfied that this overcomes any potential prejudice caused by the lateness of the amendments.
Exemplary damages
4.	Mr Robert McCracken QC, who appeared for the Second, Third and Sixth Defendants, submits, correctly, that an award of exemplary damages can be made only in a single action if the conduct of each of the defendants was sufficiently outrageous to justify punishment (see Broome v Cassell [1972] AC 1027).  In the present case he submits that there is no real prospect of this because there are no specific allegations against the Second or Fifth Defendants.
5.	This is correct, so far as it goes, in that there are no specific allegations against the Second or Fifth Defendants.  However, the Claimants, who had their house attacked by a fork lift truck on 21 April 2010 and by arson on 11 June 2010, as a result of which they can no longer live in it, assert that these and other less serious acts were “directed and/or encouraged and/or acquiesced in by the Defendants or by one or more of them”.  I read this as an allegation that the attacks on the house were the result of a campaign of harassment orchestrated by the Defendants and directed towards the Claimants, alternatively by any combination of the Defendants.
6.	In my judgment it is not appropriate to strike out a claim for exemplary damages that is put on this basis.  This is for two reasons.  First, if the court finds that all the Defendants were liable for at least some outrageous behaviour with the required motive (ie. sufficient to support a claim for exemplary damages), albeit not all of it, then a claim for exemplary damages would lie against all of them.  However, the amount of damages recoverable against each of them would have to be assessed by reference to the acts of the defendant whose conduct was the least grave.
7.	Second, if, for example, the claim in nuisance against, say, the Sixth Defendant were to fail altogether, but were to succeed against the others, then the lack of involvement by the Sixth Defendant in the harassment would not have the effect that no award of exemplary damages could be made against the other defendants.  This is because there would be no award of damages against the Sixth Defendant at all, so the question of a joint award against him and the other defendants would not arise.
The objections to passages in the Claimants’ witness statements
8.	I will give my decision on each of these in turn.
(1)	Paragraph 20 of the witness statement of Peter Brooks.
Objection was taken to the fact that this includes the hearsay account by an unnamed “prime witness” of an attack on a property.  I direct that this is to be deleted.  However, the first 11 words of that paragraph which also appear in paragraph 19 (to which no objection has been taken) are not to be deleted from the latter paragraph.
(2)	Paragraph 4 of the witness statement of Anthony Mears.
This is objected to on the ground that it refers to a fire at an unnamed property.  However, the property is described as being at the Isleham Marina.  Accordingly, I regard this as sufficient identification for the purposes of the paragraph.  The first two sentences (with the redactions) may remain.  The first seven words of the last sentence may remain but I direct that the rest is to be deleted.
(3)	Paragraph 63 of the witness statement of the First Claimant.
The complaint is that this is hearsay from two unidentified witnesses.  The facts set out in those statements are quite capable of rebuttal by Messrs Waters and Bastick without any relevance to the identity of the two individuals.  It is admissible as evidence of what is being said locally, rather as to the truth of those matters.  I make no order in relation to this paragraph.
(4)	Paragraph 64 of the witness statement of the First Claimant.
The complaint is that the resident is unidentified.  The paragraph is admissible as evidence of the origin of a disclosed document (the authenticity of which, as opposed to its precise provenance, is not challenged).
(5)	Paragraphs 89 and 90 of the witness statement of the First Claimant.
The four letters referred to at paragraph 89 and 90 may be discloseable documents (but possibly subject to redaction of names and precise addresses).  I have not been told whether or not they have been disclosed.  It seems to me that this part of the application should be reserved to the trial judge.
(6)	Paragraph 91 of the witness statement of the First Claimant.
I do not know to what extent or with what success there have been or whether or not there will be applications for third party disclosure against the Council.  It seems to me that this part of the application also should be reserved to the trial judge so that it can be determined in the light of the material by then available.

The costs of the hearing and of the amendments
9.	Since I have not heard counsel on the question of costs, I will express provisional views only.  If either party is not content with the order that I propose, the applications can be listed for a further short hearing before me.
10.	In both cases, I do not consider that the usual order that the costs of the amendment should be paid by the party amending, willy nilly, is appropriate.  This is because in each case the subjects of amendments are either additional claims or defences: they are not alterations to an existing case.
11.	However, I consider that any costs thrown away (ie. which have been wasted so far as the other side is concerned) as a result of the amendments should be paid by the amending party in any event in the usual way.
12.	As to the remaining costs of and occasioned by the amendments, 
(1)	The costs of the Claimants’ amendments to the Particulars of Claim should be costs in the case, but only if, in addition, they recover either aggravated or exemplary damages at trial.
(2)	The costs of the Defendants’ amendments to the Defence to plead a prescriptive right to commit a nuisance should be costs in the case, but again only if, in addition, they succeed at trial on the allegation pleaded in paragraph 10 of the Defence and on one (or both) of the grounds pleaded at paragraphs 11 and 12
13.	Since this was a pre-trial review, I consider that the costs of the hearing on 24 September 2010 should be costs in the case.
14.	If there is any other matter relating to the applications that I have overlooked, perhaps the parties can get in touch with my clerk.
15.	I direct that the Claimants are to prepare a draft order and lodge it with my clerk.