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

Life and Style
A monstrous idea? Body transplants might no longer be science fiction
Science An Italian neurosurgeon believes so - and it's not quite as implausible as it sounds, says Steve Connor
Demba Ba (right) celebrates after Besiktas win on penalties
footballThere was no happy return to the Ataturk Stadium, where the Reds famously won Champions League
Arts and Entertainment
Natural beauty: Aidan Turner stars in the new series of Poldark
arts + ents
Mia Freedman, editorial director of the Mamamia website, reads out a tweet she was sent.
arts + ents
Arts and Entertainment
The write stuff: masters of story-telling James Joyce, left, and Thomas Hardy
arts + ents...begging to differ, John Walsh can't even begin to number the ways
Image from a flyer at the CPAC event where Nigel Farage will be speaking
Finacial products from our partners
Property search
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs Money & Business

    Recruitment Genius: Telesales / Marketing Executive - B2B - OTE £25,000

    £17000 - £25000 per annum: Recruitment Genius: An opportunity to join this new...

    SThree: Trainee Recruitment Consultant

    £18000 - £21000 per annum + OTE £45,000: SThree: SThree Group have been well e...

    SThree: Trainee Recruitment Consultant

    £20000 - £25000 per annum + OTE £45,000: SThree: SThree Group have been well e...

    Recruitment Genius: Business Control Manager

    £36000 - £44000 per annum: Recruitment Genius: Encouraging more businesses to ...

    Day In a Page

    HIV pill: Scientists hail discovery of 'game-changer' that cuts the risk of infection among gay men by 86%

    Scientists hail daily pill that protects against HIV infection

    Breakthrough in battle against global scourge – but will the NHS pay for it?
    How we must adjust our lifestyles to nature: Welcome to the 'Anthropocene', the human epoch

    Time to play God

    Welcome to the 'Anthropocene', the human epoch where we may need to redefine nature itself
    MacGyver returns, but with a difference: Handyman hero of classic 1980s TV series to be recast as a woman

    MacGyver returns, but with a difference

    Handyman hero of classic 1980s TV series to be recast as a woman
    Tunnel renaissance: Why cities are hiding roads down in the ground

    Tunnel renaissance

    Why cities are hiding roads underground
    'Backstreet Boys - Show 'Em What You're Made Of': An affectionate look at five middle-aged men

    Boys to men

    The Backstreet Boys might be middle-aged, married and have dodgy knees, but a heartfelt documentary reveals they’re not going gently into pop’s good night
    Crufts 2015: Should foreign dogs be allowed to compete?

    Crufts 2015

    Should foreign dogs be allowed to compete?
    10 best projectors

    How to make your home cinema more cinematic: 10 best projectors

    Want to recreate the big-screen experience in your sitting room? IndyBest sizes up gadgets to form your film-watching
    Manchester City 1 Barcelona 2 player ratings: Luis Suarez? Lionel Messi? Joe Hart? Who was the star man?

    Manchester City vs Barcelona player ratings

    Luis Suarez? Lionel Messi? Joe Hart? Who was the star man at the Etihad?
    Arsenal vs Monaco: Monaco - the making of Gunners' manager Arsene Wenger

    Monaco: the making of Wenger

    Jack Pitt-Brooke speaks to former players and learns the Frenchman’s man-management has always been one of his best skills
    Cricket World Cup 2015: Chris Gayle - the West Indies' enigma lives up to his reputation

    Chris Gayle: The West Indies' enigma

    Some said the game's eternal rebel was washed up. As ever, he proved he writes the scripts by producing a blistering World Cup innings
    In Ukraine a dark world of hybrid warfare and murky loyalties prevails

    In Ukraine a dark world of hybrid warfare

    This war in the shadows has been going on since the fall of Mr Yanukovych
    'Birdman' and 'Bullets Over Broadway': Homage or plagiarism?

    Homage or plagiarism?

    'Birdman' shares much DNA with Woody Allen's 'Bullets Over Broadway'
    Broadchurch ends as damp squib not even David Tennant can revive

    A damp squib not even David Tennant can revive

    Broadchurch, Series 2 finale, review
    A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower: inside the mansion of Germany's 'Bishop of Bling'

    Inside the mansion of Germany's 'Bishop of Bling'

    A Koi carp breeding pond, wall-mounted iPads and a bathroom with a 'wellness' shower