Casualties in a border skirmish

The Swainstons are more than pounds 20,000 out of pocket after a length y legal battle with a neighbour. Stephen Ward puts the case for a cheaper system of justice

Roy and Eileen Swainston retired to a bungalow in the small Devon village of Westward Ho. In September 1992 their tranquillity was shattered with the arrival of 33-year-old Clark Fox, a former double-glazing salesman, with his wife and family.

Fox played his music and radio at high volume; his dogs howled in the garden day and night. According to the Swainstons' account to the court, he tore down their rear fence, let his dogs foul their garden, and drained their water butt, claiming it was a health risk to his children. They say he scrawled insulting graffiti on his garage, and abused Mrs Swainston. He threatened to tear up the mains electricity cable to their house, because it ran under his land.

The conventional remedy is to have a word with the neighbour and try to sort it out amicably. Mr Swainston waited three weeks, then complained to Mr Fox. It was no use. "If the hedge had not been between us, I think he would have hit me."

The Swainstons complained to the police, and were told it was a civil matter. "They were sympathetic," Mr Swainston says, "and they did come out a few times when I complained about his radio, but they couldn't do anything about it." Torridge district council sent a dog warden, which only angered Mr Fox even more. The only alternatives to legal action were violence or moving out.

Mr Swainston consulted his solicitor, Andrew Charles, who wrote to Mr Fox telling him that if the nuisance continued, proceedings would be instigated against him. Mr Fox tore up the letters. Mr Charles suggested they get a counsel's opinion. A barrister, John Virgo, in Bristol, suggested taking the case to the county court but to a circuit judge, rather than a district judge who could award only pounds 5,000 damages. Mr Swainston, on advice from his solicitor, began compiling a list of transgressions in his diary.

Later the barrister suggested transferring down to a district judge, where the damages are limited but the hearing would be quicker. The case was not heard until early 1995. They had understood from their counsel that they were bound to win, and because Mr Fox owned his house, that they would get their damages and costs back.

Mr Swainston's solicitor had told him that the case was likely to cost between pounds 6,500 and pounds 8,000, and updated his estimates as it went along. But the big hike, to Mr Swainston's solicitor unforeseeable, was when the case suddenly lengthened when it reached court. The judge refused to accept a synopsis of the allegations against Mr Fox, and he had to go through his 1,000 recorded incidents almost one by one. He allowed the defence to introduce medical evidence during the trial.

Mr Fox had legal aid, and had hired a barrister, so the pensioners felt they had to do the same, for what they at that time thought would be a two- to three-day hearing. The hearing took 11 days, and the total bill for the Swainstons was pounds 27,635.

The couple actually got most of what they wanted: Mr Fox was ordered to pay them damages of pounds 4,000, plus three-quarters of their costs. The judge ordered that Mr Fox should only play his radio with the doors closed, should not touch the boundary fence, and must not let his drainpipe overflow into his neighbour's garden. So far he has paid practically nothing, because he is on income support; moreover, he was legally-aided and his own costs were therefore met by the taxpayer.

The Swainstons' barrister's fees amounted to pounds 8,430, including VAT. With such a long trial, the pounds 600 plus VAT daily refreshers more than doubled the costs.

Mr Charles's final bill was pounds 18,183, an amount that included disbursements to the court, payment to surveyors who had to define the boundaries of the two properties (pounds 931, higher than expected because they spent an extra day waiting to be called), and the cost of seeking various injunctions against Mr Fox. The judge made a counter-award of pounds 500 compensation from the Swainstons because he deemed Mr Swainston's methods of collecting evidence to have been intrusive and "clinical".

The Foxes' house was sold for pounds 15,000 less than the Swainstons had hoped it was worth. Half the equity in the house went to Mrs Fox. Only pounds 2,451 equity remained to go to the Swainstons. Mr Fox, who is unemployed and lives in rented accommodation, still owes them more than pounds 20,000. If the Swainstons asked the court to recover the money, they would have to spend another pounds 3,000 having their costs taxed by the court, and if Mr Fox really has no assets, they would still get nothing back.

Additional reporting by Isabel Wolff.

Independent Partners; Do you need financial advice on your investments, pension or insurance? Book a free consultation with an independent Financial Adviser at VouchedFor.co.uk

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