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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Crossley & Anor v Wallace & Anor [2008] EWHC 2846 (QB) (10 October 2008) URL: http://www.bailii.org/ew/cases/EWHC/QB/2008/2846.html Cite as: [2008] EWHC 2846 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 October 2008

MR JUSTICE OPENSHAW:

1. In this action the Claimants, Mr and Mrs Crossley, seek damages from their neighbours Mr and Mrs Wallace for libel arising from an article published in the Worcestershire News on 23 July 2005. They have also proceeded against the publishers of the paper.
2. On 15 November last, Master Miller, in a detailed and reasoned reserved judgment following a five day hearing, struck out the Claimants' claim against these defendants pursuant to CPR Part 3.4(2)(a) and (b), alternatively pursuant to the inherent jurisdiction of the court on the grounds that the statements of the case disclosed no reasonable grounds for bringing the claim or that the claim was an abuse of the process of the court. The Claimants now appeal with permission of Eady J against that order striking them out.
3. Master Miller also struck out the claim against the newspaper, but the Crossleys have permission to appeal that decision also. It is listed for a three day hearing next month. I have considered whether both these appeals should have been heard by the same judge at the same time, but no one has made that submission to me. I think on the grounds that so far as concerns these defendants, a single day's hearing would suffice and to hear this appeal separately would therefore save costs. That being so, with some misgivings, I agreed to hear and determine this appeal on its own.
4. I heard argument in the case from Mrs Crossley all day yesterday until half past three. I heard Mr Jones of counsel on behalf of the Defendants for half an hour and then gave Mrs Crossley a chance to reply. I adjourned judgment overnight to allow me the opportunity to gather my thoughts. Had I not gently encouraged Mrs Crossley to move the case on it would have gone into today with a further escalation of costs. For her sake I was anxious to avoid that. I should explain that I am sitting a little late this morning, because I wanted to read and consider Mrs Crossley's further submissions, which I have done.
5. There is a long history of trouble between the Crossleys and the Wallaces, which has been set out many times by the many judges before whom Mr and Mrs Crossley have already appeared over the course of the last few years. Mr Jones has gathered together in his skeleton argument a selection of their observations, which I have read. I am of course aware that I must decide this case according to its particular circumstances, but it seems to me that these dicta are not irrelevant when I turn to review Master Miller's findings that these proceedings constitute an abuse of the process of the court.
6. I turn to the background. I draw this brief summary from the findings of his Honour Judge Geddes who heard a trial at Worcester County Court over fully nine days giving a reserved judgment on 4 May 2005. His judgment survived challenge by the Crossleys in the Court of Appeal and later, a petition for permission to appeal to the House of Lords.
7. Mr and Mrs Crossley own, and until recently lived, at Kingsend Cottage, Powick, Near Worcester. Sewerage from the Crossleys' house used to pass into a septic tank, the outflow from which fed into a drainage ditch on land owned by Mr and Mrs Wallace who lived nearby at Pond House. That ditch fed into a seasonal stream, which in turn fed into an ornamental carp pond in the Wallace's garden. In 1996 or 1997 the Crossleys constructed a new sewerage treatment system by which the sewerage, including solids, flowed into a septic tank. The outflow, with reducing levels of solids, passed through two settlement tanks, and the resultant liquid effluent passed through a series of troughs in which reeds were planted and then through various reed bed filters and out into the ditch. There was at the end, a sampling point where from time to time the Environment Agency took samples to measure the incidents of solid particulates in the effluent. The effluent then flowed into the seasonal stream. The stream is shown in diagrammatic form at page 70 in the Appellants' bundles and in various photographs to which Mrs Crossley most helpfully referred me yesterday.
8. No one doubts that the Crossleys genuinely hoped and intended that by this system their sewerage would be naturally filtered, and that before the effluent entered the seasonal stream the solids would have been separated out and the run off effluent would be of an acceptable standard. In order to work well the system required regular maintenance. Although this arrangement may have worked for some time it is plain that quite soon it ceased to do so. The discharged effluent started to smell offensively and an unsightly white sewerage fungus appeared along the ditch. The effluent eventually flowed into the stream and down into the ornamental lake, which caused algae to flourish. The appearance of the fungus and the resultant smell adversely affected the use and occupation of Mr and Mrs Wallace's house and garden and caused an actionable nuisance.
9. On 30 March 2001 Mr Ferguson of the Environment Agency's team management wrote of his recent visit in these terms:

"I confirm that at the time of my visit in February and March conditions in and around the ditch through which effluent discharges from the reed bed trays was such as to constitute, in my view, a statutory nuisance...

It is now my conclusion that the maintenance of the existing system by whatever means that may be attempted, cannot achieve satisfactory resolution to a continual nuisance arising on your land.

I have now therefore served legal notices under the provisions of section 59 of the Building Act 1984 on those persons discharging into the drainage system in question."

The service of that abatement notice led to an appeal by the Crossleys to the Magistrates' Court by way of rehearing, and then to the Crown Court by way of rehearing, then to the Divisional Court on a case stated and then two further applications to the Administrative Court for permission to apply for judicial review. I do not think that I need review those proceedings. Suffice it to say that those courts also concluded that the smell from the effluent constituted a nuisance.

10. An extract from Judge Geddes recital of the evidence in the subsequent County Court action brought by the Wallaces against the Crossleys for nuisance well catches the flavour of the evidence which he heard. The extracts are extensive; I make this selection, paragraph 39:

"Mr Ferguson, the Council's Environment Team Manager, said that on 9 February 2001 that he had visited the ditch with Mr Wallace who had made a complaint of nuisance from the sewage effluent entering his land. He said: "I noticed a strong sewerage odour and also witnessed areas where sewage fungus, (a greyish white slime in appearance) growth was evident. I was shocked at how dramatically the appearance of the system had changed for the worse since my visit with Mr Robinson in June 1999. I began to detect a sewage related odour at the edge of the pond nearest to the sampling point, it increased in effect as I drew closer to the ditch and was very strong within five to ten metres from the ditch. The reeds in the ditch and the trays appeared to be dead and they were brown and withered with no signs of green growth. The stone in the trays was covered with black sludge and there was a noticeable presence of sewage fungus. Effluent was ponding in places down the length of the ditch and black sludge and sewage fungus was also evident. From my observations and from the fact that I could experience related odours up to 30 metres from the ditch I formed the view that the conditions amounted to a statutory nuisance in this area of Pond House."

Paragraph 41:

"He returned on 19 March when the four-week period for maintenance had elapsed. He noticed some minor works of clearance had been carried out: 'However, there was no improvement whatsoever in terms of the appearance or malodours from the section of the ditch between the reed trays and the Environment Agency sampling point, in fact, malodours were more apparent on this occasion and carried further away from the ditch across Mr Wallace's land and was the case on 9 February.'" (Quote unchecked. Upon checking against judgment this bears no relation to the corresponding paragraph of judgment cited)

Paragraph 42:

"He returned again on 21 September 2001... The ditch appeared much cleaner, 'however sewage fungus could be seen emerging where the stone covering was shallower, around the railway sleeper weirs and lower down the ditch. The maintenance attempted is in my view nothing other than a 'cosmetic makeover'. In my view the drainage system is still insufficient and will continue to cause a nuisance."

Paragraph 43:

"Mr Ferguson revisited the site in January 2002, and again in March, July and September 2004. On each occasion he found the conditions 'foul and smelly' although in the September visit the foul odour was more localised. In March 2005 he found the condition of the reed bed 'very poor'. Large amounts of sewage fungus were apparent across the trays and into the reeded ditch. At the sampling point the water was clean and without odour but there was odour where there was sewage fungus. He added, 'depending on the wind direction odour would be transferred from that part of the system to amenity land around it.' Mr Ferguson said that he visited the site about 12 times and had experienced nuisance odour on about 50 per cent of those occasions."

Judge Geddes added;

"I have seen photographs of the system taken at various times between 2002 and 16 April 2005 which in my judgment tend to support Mr Ferguson's evidence."

Paragraph 45:

"Mr Smith, an expert in drainage sewerage, sewerage treatment and environmental engineering, called by the Claimants, visited the site on eight occasions between 13 August 2004 and 21 March 2005. On 13 August 2004 he found that the pond to the south of Pond House was covered with a blue/green algae and he noticed a strong odour of sewage adjacent to the pond. He said: 'I also observed that some recent gravel had been placed on top of the trays and when this was removed there were clear signs of quite heavy sewage fungus evident under the layers of gravel. In several places the outflow pipes from the bottom of the trays were discharging quite crude sewage as further sewage fungus was evident on these outflow pipes. From these observations I would conclude that this vertical flow section reed bed is not working well.'"

And a bit further on in the same paragraph in addition, he sets out a number of further criticisms of the system, although he accepted that in relation to certain tanks those criticisms were unfounded. In relation to the sewage odours which he observed near the pond, Mr Smith pointed out that as the system is sited in a valley any slight wind will tend to blow down the valley and will transmit these odours down the valley towards the pond. He added that the presence of these odours in natural woodland is offensive and will spoil the enjoyment of users of the woodland."

Paragraph 46:

"Mr Smith stated in his report that 'the considerable growth of algae in the pond downstream of this treatment system is caused by eutrophication. This eutrophication is promoted by the build up of nutrients in the liquors being discharged into the pond, and whilst some will be natural nutrients, a considerable amount will be caused by nutrients contained not only the liquids from the treatment system but also by liquids continually leeching through the ground strata into the pond.'"

Paragraph 49:

"Dr Ashurst, a consulting chemist, was called by the defendants. He said he visited Pond House in April 1997 and had noticed the ponds were covered by a green algal growth which had a foaming appearance which he said was 'promoted by the high nutrient content of the water' this he said was partially caused by the effluent."

Those I stress are extracts only from the judge's very detailed review of the evidence.

11. His critical finding on this point is at paragraph 59. I will read it in full:

"I am satisfied on all the evidence that the effluent is at present causing a nuisance on the claimant's land both by its appearance and its smell. I bear in mind the nature of the woodland into which the effluent discharges. It is of outstanding beauty, carpeted with wild flowers in summer and purchased by the claimant's for its amenity value as an extension to their garden. Not surprisingly they like to wander in that wood and to show it to guests. They are entitled to enjoy that land without experiencing offensive smells or the sight of sewage fungus in the ditch. I bear in mind the apparently conflicting evidence of the claimants and their experts in the evidence of the defendants and their experts in relation to nuisance and odour in particular. However in my judgment those witnesses do not necessarily contradict each other. The sewage odour is not apparent every day beyond the immediate vicinity of the reed beds, nor is the sewage fungus visible in the reed beds when Mrs Crossley has added fresh gravel. The claimants on the other hand are at Pond House virtually every day and therefore are in my judgment in a good position to say how often they smell sewage odour and at what distance from the outfall. Equally they have seen the reed beds on an almost daily basis and are well able to give evidence of the condition of the effluent that flows through them. In my judgment the frequency with which the claimants say they experience odour and the intensity of that odour when it is experienced amount to a substantial interference with their enjoyment of the wood."

And paragraph 65:

"I find that the effluent is partly to blame for the algae on the claimants' ponds, but that as the defendants may no longer discharge their effluent through the reed bed system no order needs to be made in relation to this at this time."

It follows inevitably from the judge's finding that effluent from the septic tank has run in from the ditch to the water course and in due course, down into the carp pond and that the whole caused a nuisance, as the judge found.

12. There were other findings adverse to the Crossleys. The Wallaces had claimed that part of the installation had been without their knowledge or consent and that in this respect, from time to time the Crossleys and those working for them had been trespassers. Mrs Crossley contested that and was able to point to certain contemporaneous entries in Mr Wallace's, diary which show that he knew of the work and consented to much of it. The judge's findings on this point are not highly detailed. They are set out in paragraph 62 and read as follows:

"Although in my judgment Mrs Crossley did at least carry out some of the works without Mr Wallace's consent, I find that where he did not give his express consent he did so in impliedly (alternatively acquiesced) but on the clear condition expressed or implied that the system did not cause a nuisance on his land. (I exclude from that the question of the highways pipe). He was as anxious as Mrs Crossley that the effluent flowing onto his land should be clean. He further wished to remain on good terms with his neighbour and to accommodate her wishes whenever reasonably possible. I find that Mr Wallace further agreed that Mrs Crossley could on reasonable notice go onto his land to carry out any necessary maintenance."

13. The judge ordered on the basis of his findings that the Crossleys were to: (1) cease to cause material to drain from the septic tank located on their land at Kingsend Cottage onto the Wallaces' land at Pond House so as to cause a nuisance; (2) that they be restrained forthwith from trespassing onto the Wallaces' land and; (3) that they pay indemnity costs and pay £50,000 on account of costs by 18 July.
14. Mrs Crossley purports to accept Judge Geddes findings but, in truth, she really only pays lip service to it. She claims that the water issuing from the reed beds is so clean that it is fit to drink. She is quite unable to accept that there was an offensive smell except in the immediate area of the reed bed and refuses to accept that the seasonal stream or the carp pond and still less the Wallace's house and garden were affected at all. She repeatedly refers to the low level of solid particulates, as shown in the samples occasionally taken by the Environment Agency, nor does she seem to understand that these occasional readings do not help her if at other times the effluent smelt offensively and contaminated the water course and the pond. And having regard to the comprehensive nature of their victory the judge ordered, as I have already said, that the Crossleys pay the Wallace's costs on an indemnity basis.
15. There was a further costs hearing on 20 June 2005. The Wallaces had by then spoken to a reporter from the Worcester News as, of course, they were quite entitled to do so. But there had, in fact, been a number of articles in the local paper before that time, although Judge Geddes' judgment had not by then been reported at all. The story was run a couple of days later on 23 July. Interestingly, at that time it evoked no response from the Crossleys at all. They now claim that parts of the story were untrue and unfair and they claim that it had been, as Mrs Crossley puts it, profoundly damaging to their reputation. In fact, they made no complaint until many months later. The letter before action was not written until 20 March 2006, and the proceedings were not started until a few days before the limitation period expired, which was, not coincidentally, just a few days after the House of Lords had refused their petition for permission to appeal. It does very much suggest that having failed in one set of proceedings they decided to start another.
16. Mrs Crossley makes various complaints about that article. Her principal complaint is against the caption to the photograph, which shows Mr and Mrs Wallace sitting beside the pond. The caption reads "Gill and Robin Wallace at their stream, which has been used to dump sewage." The answer to that, as against the case brought against the Wallaces, is that they did not write that caption. There is no evidence whatsoever that they used the expression "dumping sewage." That is part of her action against the newspaper. The Wallaces are not and cannot possibly be responsible for that caption. She makes various complaints about what is written in the box headed "What the couples are in dispute about." I think perhaps I should read that section in full, it is quite short:

"The waste from a septic tank runs from Kings End Cottage in Kings End Road, Powick, which is owned, but rented out by the Crossleys, who live in London, down to a stream in woodland on the Wallace's land at their nearby home. The Wallaces claim the Crossleys surreptitiously built a reed bed - an environmentally friendly sewage system - in the woodland after being ordered by Malvern Hills District Council to clean up the mess seeping into their stream. The Wallaces claim the system is ineffective, failing to filter sewage properly, resulting in lingering odours of rotting faecal matter near their house. They also claim the Crossleys trespassed on their land in order to create the reed bed system. The Crossleys argue that the reed bed is the most environmentally-friendly and effective system and that the Wallaces had approved it before it was installed."

Whether the reporter is here properly and fairly setting out what the rival arguments or contentions have been and whether this is actionable as against the newspaper will be for another judge to determine when the next appeal is heard. But I agree with Master Miller in saying that I simply cannot see how this could possibly found an action for libel against the Wallaces. There is no evidence that they said any of that.

17. The case against them depends upon these three paragraphs which read as follows:

"Reacting to the verdict Mr Wallace said: 'We are pleased with the hearing. But we have had so many positive results from court cases and hearings over the past few years, yet still the problems of smell from the sewage, trespass and expense continue. Maybe now, at last, Mrs Crossley will start to accept that she has no right to use our stream bed as a sewage treatment plant,' said Mr Wallace."

Master Miller considered the words of the article. He was right to point out that when carefully examined only in those three sentences of that article were quotations imputed to the Wallaces themselves. The rest of the article is an interpretation by the journalist and the sub-editors who wrote the headline. I think, therefore, that Master Miller was right to confine his consideration of the case against the Wallaces to those three paragraphs. Mrs Crossley said, that these three paragraphs suggest that she and her husband had been deliberately, recklessly and irresponsibly discharging raw and untreated sewage directly into the Wallace's stream, which she points out, is a criminal offence under the Water Resources Act.

18. Master Miller dealt with this contention with some care. He said that no one reading the article could think that this meant that the Crossleys were physically depositing untreated solid human waste into the stream. This was, as Master Miller put it, putting layers of interpretation which the words simply could not bear. He said this:

"In essence in my judgment, the only sting and the one which is only open to any jury in this case that amount to no more than the claimants' sewage treatment system was ineffective in that as the result of bad design, poor maintenance or being overloaded, it failed to filter the sewage and other waste properly resulting in an effluent passing onto the Wallace defendants' land and causing sewage fungus to appear in the reed and obnoxious smells to linger over the reed bed over what constitutes a stream area and the pond, and possibly getting as far as the house; and that the claimants had from time to time trespassed on the Wallace's land."

All those findings are entirely justified by Judge Geddes finding.

19. Mrs Crossley in her further submissions, made overnight, argues that whether a statement is defamatory or not is a matter for the jury and not for a judge. That, of course, is the general rule, but it is subject to the question whether what was said could, in the circumstances of any particular case, be found to be defamatory by any reasonable jury properly directed. Master Miller found that the words used in this case were not capable of such a construction and I agree. Mrs Crossley has sought to examine the particular words used, but Judge Geddes did find as a fact, as I have pointed out, that there was a smell from sewage. He did find as a fact that there had been a trespass. He did find that they had been using the stream bed as a sewage treatment plant and it had caused a nuisance. It is not arguable that any of this is untrue. All these points have already been decided against them.
20. These proceedings for libel are, in my judgment, a flagrant and obvious attempt to re-litigate the same issues all over again. The Wallaces and for that matter the Crossleys themselves, have been put to enormous expense in contesting the case before Judge Geddes. It is simply not reasonable or just that they must do so all over again in a defamation action nor, might I add, is it right that further time of the courts, which is an increasingly scarce and valuable resource, is further taken up with this matter. Because I think that Master Miller was right to confine himself to those three paragraphs, it does not fall to me to consider whether the degree of trespass found to have been proved justified the use of the word, "surreptitious." Or whether in the circumstances that was capable of being defamatory or whether, even if it was or may have been, the principle at stake justifies allowing the matter to proceed at further gigantic expense. That is for another judge to decide in the later appeal. I do not think that it bears upon the case against the Wallaces. The same considerations apply to the other colourful words which pepper the article, the "Saga" of the case; the "Mess" seeping into the stream and; the "Dumping" of sewage. These are not words used by the Wallaces. They are not answerable to them.
21. Another word which particularly troubles Mrs Crossley is the use of the word "stream." She says that they did not direct effluent into the stream, but into the ditch. Perhaps there has been some looseness of language. To most people the words "ditch," "stream" and "water course" are perhaps more or less interchangeable. Mr Jones, however, pointed out yesterday, that in the original agreement between the Crossleys and the Wallaces reference is made, "To the outflow of effluent from the septic tank and the two settlement tanks through the stream." That passage is cited in the judgment of Judge Geddes at paragraph 21, so it would appear that in the past even the Crossleys themselves have called this ditch a stream.
22. I think Mrs Crossley is seeking to put far too much weight on these fine points. Anyway, the article does not refer to the stream, but to the stream bed. I simply do not see how these three paragraphs could possibly found an action for defamation in the light of the adverse and clear judgment of Judge Geddes. Mrs Crossley has been very anxious to argue and no doubt she personally believes that the Wallaces have throughout been motivated by malice. Such a claim would only be relevant if the defence put forward by the Wallaces was fair comment. This may be a live issue on behalf the newspaper, but it plays no part in the real defence put forward by the Wallaces. No doubt the Wallaces did feel strongly about the continuing nuisance to which they were subjected, but Judge Geddes found that the Wallaces had conducted themselves with restraint. In spite of the many and varied incidences upon which Mrs Crossley relies, in my judgment there is no evidence whatsoever to show that the Wallaces were motivated by malice or, that they said anything to the reporter or to the court or indeed to anyone else that they did not honestly and indeed reasonably believe to be true.
23. I entirely reject her repeated submission that there is some sinister significance in the Wallaces taking proceedings against her and not against her other neighbours, two of whom at one time also had septic tanks which discharged into this ditch or into the same tank. The Wallaces no doubt consider that the Crossleys were the principal dischargers. They were unwilling to do the necessary work and they were good for the money. There may be all manner of reasons why the Wallaces sued the Crossleys and not their other neighbours. None establish a case of malice, which I have said already, is not relevant except in the context of fair comment, which does not arise in this case.
24. Master Miller has painstakingly reviewed the authorities on striking out such cases. I do not think I need go beyond Wallace v. Valentine [2001] 1WLR 1840, which decisively rejected the notion that the overriding objectives of the CPR are irrelevant or in some way of no importance when considering an application to strike out libel proceedings. I read from the judgment of the court review the decision of Eady J in the case of Schellenberg v. BBC when he said this:

"Even in a jury action it is regarded under the CPR as a judge's duty to take a realistic and practical attitude. He or she is expected to be more proactive even in areas where angels have traditionally feared to tread. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile."

Lord Justice Murray Stuart-Smith when reviewing that dictum said at paragraph 33:

"I agree with Eady J. And although the judge must not usurp the function of the jury, as was explained by this court in Alexander's case, he is entitled, and indeed bound, to look at the case at its highest from the point of view of the claimant, and ask himself the relevant questions which arise when considering the overriding objective."

25. Mrs Crossley complains that the hearing before Master Miller was rendered unfair, because a number of authorities were cited without warning. I do not think that any of these cases had a real impact upon Master Miller's decision. He was in principal influenced by Wallace v. Valentine, of which she had notice in advance. In any event she now has plenty of time to consider those authorities. I asked for further submissions upon them, she has none. There is nothing, in my judgment, in this point at all.
26. This appeal from the decision of Master Miller is by way of review, it is not a re-hearing. I find his judgment to be a model of clarity and thoroughness. I see no errors of fact or law. He has not, in my judgment, considered anything which he ought not to have considered and he has not omitted anything which he ought to have considered. I am quite unable to say that his decision is wrong. On the contrary, for the reasons which I have outlined I think it is plainly right.
27. I am aware that I have not dealt with every point made and stressed by Mrs Crossley in the course of her lengthy address, but I have sought to deal with those points which seemed to me to bear on the important issues in this case. I have not overlooked the point which she stresses that she and her husband are on low incomes. I do not doubt that this litigation has cost her a huge sum of money. It may even in due course bankrupt her and drive her from her house. It is a pity that she has not heeded the advice of many other judges not to throw good money after bad. Her misfortune does not, I fear, bear directly upon any of the critical points in this case.
28. On the proper analysis, in my judgment, this appeal was entirely without merit and I dismiss it.
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