Court of Appeal Dismisses Appeal in Falcon Aviary Negligence Case

The Court of Appeal has dismissed the appeal in Barnes Thomas & Upper Cot Estate Limited v. Nicholases & Raptors of Penwith [2026] EWCA Civ 847

39 Essex Chambers’ barrister David Mitchell was successful at first instance, acting for the owners of a falcon breeding business who were awarded damages of £258,000 following the nuisance and negligence of their neighbour, whose construction of a barn and operation of a scaffolding business on land adjoining the falcons’ aviary caused the deaths of 3 birds, as well as destruction of their eggs.

The neighbour appealed. In a split decision the Court of Appeal allowed the appeal in nuisance by a two to one majority (Moylan and Nugee LJJ, Whipple LJ dissenting), finding that the falcons were too sensitive for the breeding business to be an ordinary use of the respondents’ land. However, by a different majority (Whipple and Nugee LJJ, Moylan LJ dissenting), the appeal in negligence was dismissed. The judge had reached clear findings that a duty of care was established which had been breached by the appellants.

David Mitchell successfully argued the case in negligence, appearing with Jonathan Seitler KC and Lemuel Lucan-Wilson, instructed by Sally Marsden of arch.law.