High Court Awards Damages of £258,500 for Deaths of Three Falcons in Bitter Neighbour Dispute
Judgment has been handed down in Nicholas & Ors v Thomas & Anor [2025] EWHC 752 (Ch) (HHJ Russen KC sitting as a judge of the High Court). The case concerned “a bitter dispute between neighbours in Cornwall” which had “acquired real momentum and escalated through unwelcome behaviour over a relatively short space of time.” Claims were brought in private nuisance, negligence and harassment.
The claimants breed gyrfalcons which are exported to the Middle East for racing. The birds are acutely sensitive to noise and visual disturbances, particularly during their breeding season. The court accepted the claimants’ case that in spite of the defendants’ being on notice of these risks to the birds’ welfare, they had proceeded to construct a barn next to their aviary during the breeding season, causing the deaths of 3 falcons as well as breeding losses and the destruction of eggs. The claim succeeded on the basis of private nuisance and negligence.
The court comprehensively reviewed the law of private nuisance in light of the Supreme Court’s decision in Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2024] AC 1 and rejected the defendants’ case that the tort did not protect against the claimants’ injury based on the particular sensitivity of the falcons during the breeding season (the “locality principle”) [58] & [396].
In proving liability it was not necessary for the claimants to establish malice and the malice plea was not proven on the basis that the defendants’ actions in building the barn were related to farming which was “to be contrasted with the inherently negative behaviour of the kind considered in Christie v Davey [1893] 1 Ch. 316 and Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468” [394]. The court rejected the defendants’ case that malice in nuisance had to be the dominant motive as required to defeat a plea of qualified privilege in defamation per Horrocks v Lowe [1975] AC 135 [74].
Alternatively, the case in negligence was established on the basis that the defendants were under a duty of care “not to cause or permit the falcons to suffer excessive noise or visual threats, in particular during the Breeding Season.” [398]
In terms of the claim in harassment, the court found that the claimants had proven their allegations that Mr Thomas had falsely and maliciously alleged homophobia against them (including on social media), made false and malicious complaints to the police and threatened violence against their families. However, (on what might be considered a very strict application of the law) the court did not find that these acts satisfied the standard for civil liability under the Protection from Harassment Act 1997 [530].
The defendants’ counterclaim in harassment was also dismissed.
39 Essex Chambers' barrister David Mitchell acted for the claimants instructed by Sally Marsden of Arch Law.
