Why suing your neighbours for harassment should always be a last resort

In McGill v Stewart & Anor [2020] EWHC 3387 (QB), Master McCloud made her feelings about neighbour disputes clear:-

“…In the modernising legal system one hopes that such fallings-out will be less painful when resolved away from formal court settings. The courts themselves have limited resources, and whilst I appreciate that neighbour disputes are significant to the parties, it must be borne in mind that such disputes compete for time with cases such as those one sees daily in this court concerning brain damage and other life changing injuries, death and the very gravest of historic child abuse. Alternative dispute resolution for residential disputes is therefore desirable in terms of wider court resources especially in the High Court but I suspect also generally.”

Whilst McGill concerned a land dispute between neighbours, these sentiments are equally applicable to neighbour harassment claims.  The judge’s views are no doubt shared by the majority of the judiciary and are ones that prospective litigants should take heed of.  Below we look at how one can try and avoid neighbourhood disputes in the first place and if they do occur how they should be handled - firstly without legal assistance and then, if necessary, with it.

A problem with limited solutions

Disputes can arise in any area of our lives, but a conflict with our neighbours can significantly affect quality of life because it takes place in or near to our home.  Herein lies the problem and the solution.  The problem is that unless someone intends to move, the parties are stuck living on each other’s doorstep.  The solution is in learning how to get along in a way that satisfies both parties.

Be nice, stay calm, give your neighbour the benefit of the doubt and try to avoid an escalation

A man or woman’s home is of course their castle and instinctively most of us feel compelled to stand up to any perceived attack on it.  However, ‘going to war’ with one’s neighbours may actually do more to harm a happy home than the trigger event itself.

The origin of neighbourhood disputes are often innocents misunderstandings over relatively trivial matters.  For example, which bin should be used for recycling or where a car should be parked.  In nuisance-type claims, an individual may not even realise that their music or late-night Joe Wicks fitness session is audible in the flat below (and might be horrified at the thought they were upsetting a neighbour).

Existing good neighbourly relations can pay dividends.  If an issue does arise, it’s much easier to discuss it with someone you know (even if it's just to say hello to) rather than making a complaint your first social interaction.  Where it is necessary to raise something with a neighbour, it is normally best done in person, and in a polite and friendly way (accompanied by an abundance of friendly small talk, almost as if the issue is a Columbo-style afterthought).  Most people will be only too happy to help.  Even where your neighbour has a below average level of charm and sophistication and/or is plainly inconsiderate (to use a euphemism), politeness will invariably get you further.  If they become aggressive, staying polite can bamboozle them - pouring cold water on their heat - and avoid an escalation/breakdown in the relationship.

If the matter is dealt with by way of a bald complaint (a badly-pitched oral complaint, a written note or broom to the ceiling) this can often provoke the wrong reaction.  An accusation can prompt defensive behaviour, with the complaint itself being seen as oppressive, unreasonable and an act of harassment.  It can result in a frosty relationship and create fertile ground for counter-allegations.  Matters often snowball from there, with a complete breakdown in cordial relationships making life a living hell for one or both parties.  In extreme circumstances, a feud can result in an embarrassing article in the Daily Telegraph or the MailOnline about the neighbours who spent their life savings on legal fees arguing over a wheelie bin.

Take advice from a sensible and dispassionate friend and don’t jump the gun

Our home is our sanctuary from the outside world and when we feel it is being disturbed or threatened, it can be difficult to see matters objectively.  It is too personal.  For this reason, it can be helpful to discuss the matter with a sensible friend.  In other words, a friend who isn’t simply going to agree with you and rile you up further in a misguided attempt at being supportive, but rather one who will give you their honest view on whether you are overreacting and possibly some sage advice on how to try and resolve matters.  On occasion, your fears may be premature.  For example, a noisy house party, may be a genuine one-off, meaning a complaint the following day may do more harm than good.  One needs to be sure that they are facing a genuine ongoing problem that requires intervention, otherwise the intervention itself may create unnecessary friction for the future (there is rarely any sense in complaining for the sake of it).  Where intervention is required, as above, a friendly discussion is normally the best approach in the first instance.  Such discussions are often better after the event if possible, with the benefit of hindsight, so that the issue is raised in a proportionate and objective way.  This is particularly so where an incident has caused anger or frustration or stress in the short-term and tempers are frayed.  A little time can provide perspective.

Obtain and preserve evidence in a responsible manner; avoid providing a commentary on social media 

When a clear course of conduct has developed, you should keep a diary of events and preserve relevant evidence.  However, you should be mindful of how you do this.  Holding a phone camera up to a neighbour or pointing a CCTV camera at their property may well make matters worse and could give rise to a counterclaim for harassment and/or breach of privacy/data protection rights.  There are strict rules regarding the retention and use of personal data.  Whilst it is generally fine to preserve data for use in legal proceedings it should be kept securely.  You should not pass it to third parties (aside from your lawyers) and you should definitely not post it on social media.  Whilst some sympathetic comments and 'likes' might make you feel better in the short term, in addition to breaching data protection legislation you may be exposing yourself to counterclaims for libel (if the evidence is accompanied by allegations), the misuse of private information and harassment, as well as provoking the defendant into prolonging the conduct.  This will also count against you if the matter ends up in court; judges generally take a dim view of litigants who play to the social media gallery.

When being nice doesn’t work contact decent solicitors for expert advice and help on resolving the matter

The focus of the above advice is on avoiding conflict and so instructing lawyers might seem counterintuitive. However, the role of a solicitor in these situations is often misunderstood.  Instructing solicitors does not necessarily involve suing, releasing proverbial rottweilers, or even the sending of a nasty letter.  In the first instance, a solicitor's role will be to understand what has happened, to give you some practical advice on how to handle the situation and to set out your various options (some of which will be legal options).  As with the hypothetical sensible friend above, their advice will be dispassionate.  The lawyer will normally have the additional benefits of having dealt with hundreds of similar cases and knowing the legal position.  A good lawyer won’t tell you what you want to hear or agree with you simply to prove they are ‘on your side’; they will give you their honest expert opinion.   A client should avoid being committed to a particular course until they have considered the various options a solicitor has presented and properly understood the pros and cons of each one.  One common option is for a solicitor to prepare a ‘cease and desist’ type letter.  This is normally sent by the firm of solicitors on their letterhead, although on rare occasions a client may want a letter drafted for them to send in their name.

The choice of solicitor and framing of a letter can make all the difference.  Any lawyer can make hyperbolic threats of legal action, and whilst a very firm letter might be appropriate in some cases, the skill is in pitching a letter that is most likely to quickly persuade the defendant to cease the conduct complained of.  In many instances, a more measured letter will be called for, to avoid a dispute moving to the legal arena where every missive costs hundreds of pounds.  If your budget allows, instruct a specialist firm, rather than generalists.  If it does not then a reputable high street firm is a good second choice.  Whilst price is always important, sourcing the cheapest lawyer available is not normally advisable.  Avoid 'professional McKenzie Friends' and unqualified legal advisers like the plague.  They often do more harm than good (their USP is that they are cheap, but they tend not to have a proper standing of the law or procedure, and adopt overly aggressive strategies),

When a cease and desist letters doesn’t work, going to court is the nuclear option - injunctions don't grow on trees

One of the most common enquiries we receive is ‘Can I take out an injunction on my neighbour?’ or ‘I need to take a court order out on my neighbour’.  This conjures up an image of a deli counter, with injunctions being tickets that lawyers can pull from a roll, seal and hand to a client.  The reality is far from it. To obtain an interim injunction one must normally (a) comply with the pre-action protocol (i.e. send a protocol-compliant letter of claim and consider any response; a decent cease and desist letter might suffice), (b) issue a court claim (i.e. sue), (c) issue an application notice, file and serve witness evidence and documentary exhibits and (d) attend (or preferably instruct lawyers to attend) a hearing of the application and persuade a judge to grant the injunction by reference to the facts and substantive and procedural law.  An application for an injunction may be opposed and they are not given out lightly; after all they are draconian, effectively creating bespoke criminal offences (if breached the defendant can be imprisoned for contempt of court).  The process is expensive; rarely below £10,000.  And that is just the start of it.  In this area of law, there are no ‘standalone injunctions’.  Thus, if you get your interim injunction you must progress your claim to a full trial - unless the claim settles or is undefended.  This means a disclosure process, witness statements and then another hearing.  If you lose or abandon your claim, the interim injunction will fall away and you are likely to be ordered to pay your opponent’s legal costs.  The cost of bringing or defending claims of this nature often exceeds £50,000.  Where the situation is factually-complicated, the conduct is ongoing and/or it is necessary to bring committal proceedings (i.e. to enforce a breach of an injunction), costs can exceed £100,000 on each side.   This is before one takes into account the time and stress involved in court proceedings, and the risk of adverse publicity/potential embarrassment from having to 'wash your dirty linen in public' (nearly all hearings are public hearings).

Thus, litigation is a high stakes option and should nearly always be a last resort for resolving disputes of this nature.  That is not to say there is not a time and place for it.  We regularly act for clients who effectively have no choice but to go to court.  A claimant who goes to court and wins can seek their costs from their opponent (although they are rarely recovered in full).  They are also entitled to an order for damages for any distress they have suffered, as well as damages for any consequential financial loss that is reasonably foreseeable.  An injunction, if granted, is normally targeted at the mischief and will prohibit specific acts.  Claimants need to be realistic about what a court can order.  A civil judge dealing with an harassment claim will not grant a mandatory injunction forcing a defendant to move home in response to a claim brought by a neighbour (although neighbours from hell should be aware that a claim brought by a landlord for breach of a lease/contract containing clauses that prohibit anti-social behaviour etc. could result in forfeiture/termination).  If the harassment is so bad it has forced a claimant to move home then in theory the costs incurred associated with this might be recoverable from a neighbour, although this will be extremely rare in practice.

The high stakes cut both ways; whilst bringing a harassment claim will cause a claimant to incur significant upfront cost and carry some risk, if the claim succeeds then the outcome could be financially ruinous to the defendant.  Indeed, if the defendant owns their home a successful claimant with a significant damages judgment/costs order may be able to seek a charging order on it and, if the debt remains unpaid, then an order for sale (thus indirectly forcing their neighbours to move).  Bankruptcy is an alternative option, which could ultimately also put the defendant’s home at risk.

As with all civil litigation, the costs dynamic is designed to encourage a defendant to settle a good claim as early as possible.  In a harassment claim (assuming the complaint is bona fide), a sensible defendant should realise upon receipt of solicitors’ letters that they have crossed a line and will normally heed the warning to cease and desist.  The letter may offer them the chance to escape liability for damages and costs if the harassment stops immediately – making them aware that if they force a claimant to sue that their financial liability could be considerable.  Conversely, a properly advised claimant should be aware that bringing an unfounded or weak harassment claim could have dire financial consequences if they lose and are ordered to pay their opponent’s costs.

Complications can arise where a party is impecunious.  This can disturb the above dynamic.  A defendant who does not own their home or have any other assets may be sanguine to the risk of a damage judgment, costs order and even bankruptcy.  Claims in these circumstances can be costly even in the event of victory.  Nevertheless they are still frequently brought because a party wants to seek injunctive relief (if an injunction is breached a defendant can be imprisoned regardless of their means).

How does one win a harassment claim?

As a harassment claim should normally be a last resort, it follows that only strong claims should be issued – where the harassment is serious and persistent/ongoing.  The legal threshold for harassment is high and not necessarily analogous with the everyday meaning of the word (we all feel harassed at times, but harassment means more than annoyance or irritation).  The conduct must be serious enough to sustain criminal liability.  The defendant should know, or ought to know (based on objective standards), that their conduct amounts to harassment.  It must be conduct that can reasonably be said to be likely to cause alarm or distress.

Other legal causes of action may apply in neighborhood harassment claims, including nuisance, trespass and conversion/unlawful interference with property.

Those considering taking legal action should always seek specialist legal advice on the merits of a claim, particularly before issuing a claim.  Unfortunately, the internet has made a lawyer of everyone and the availability of court forms online means that litigants frequently issue weak and/or defective claims without having a proper understanding of the law and procedure (and in particular that they are committing themselves to litigation which may result in a significant costs order being made against them even if they do not have legal representation).  Whilst not everyone can afford legal representation throughout a case, a one-off consultation with a lawyer before a decision is taken to sue can be invaluable.  At this firm, we are regularly instructed to strike out or defend weak or defective claims issued by bullish and overconfident litigants-in-person who have spent a weekend on Google.  This has resulted in substantial costs orders being made against them.

Many judges dislike harassment claims, no doubt because they often have to try weak and/or poorly presented claims, counterclaims and claims that smack of ‘six of one/half a dozen of the other’.  Where these are brought by litigants-in-person the quality of written evidence can be terrible (much of it irrelevant).  Correspondence between the parties (and sometimes to the court) tends to be lengthy and vitriolic.

A party bringing a harassment claim is putting themselves in a much stronger position if they can show that they have been reasonable, both in their attempts to resolve matters informally and in their communications with the defendant once litigation is underway.  This means that claimants need to be judicious in how they respond to communications from defendants, and to take the moral high ground where possible.  Assuming they have a good claim, this will highlight the unreasonableness of the defendant’s conduct and make the judge’s job much easier.  Of course, if you instruct good lawyers then they will ensure the litigation is conducted properly, but this advice applies to any communication that might end up in evidence (e.g. text messages with witnesses or the defendant and posts on social media).  It is often said by lawyers, never write anything you wouldn’t want a judge or your mother to see.

Its because so many harassment claims are a mess of finger-pointing and diatribes that judges are normally keen to highlight the virtues of mediation, to which we now turn.

Mediation and alternative dispute resolution – underused and underappreciated, but perfect for neighbour disputes

Mediation takes many forms, but always involves a trained mediator attempting to negotiate common ground in order to reach a compromise acceptable to all.  It normally takes place over a day at a neutral venue, with one room for each of the parties and a larger room for joint sessions chaired by the mediator.  The mediator will shuttle between the parties’ respective rooms, convening joint meetings where appropriate.  Mediations are confidential and ‘without prejudice’, meaning what is said cannot be referred to in court.  This allows the parties to talk freely without worrying about making binding admissions or concessions.  The parties are normally represented by their lawyers at mediation and do not need to speak themselves if they don’t want to.  Indeed, they can stay in their respective rooms if they don't want to face each other.

Harassment litigants often refuse to mediate because they believe their opponent is unreasonable and won’t agree to sensible terms.  In practice, this is often wrong.  Mediation has an astonishingly high success rate.  A day of going through a case with lawyers and a truly independent third party can help focus the parties' minds on the issues and the alternatives (a never-ending feud with your neighbours, spending tens of thousands litigating the case in court and/or being ordered to pay even more in damages and costs).  It can put pride and egos into check.  If successful, by the end of the mediation, the mediators and lawyers will have helped the parties negotiate a workable agreement that governs their relationship going forward.  A mediation can even lead to a handshake and the eventual defrosting of relationships.

Mediation can take place alongside litigation, but it can also be entered into prior to the onset of the legal proceedings (before the parties have expended considerable sums litigating).

If the cost of mediation is off-putting, then alternative dispute resolution can take other simpler forms.  The parties can attend a ‘without prejudice’ meeting conducted by their lawyers.  Whilst this doesn’t have the benefit of a neutral mediator trying to pull the parties towards a compromise, if there are good lawyers on both sides they should be able to ensure that the discussion is constructive and explore any scope for settlement.  These meetings can also take place without clients (i.e. lawyers only) or without lawyers (i.e. clients only), although the latter would be unusual and risky in a harassment claim.  Finally, lawyers can speak on the telephone on a ‘without prejudice’ basis and/or set out settlement offers in writing.  In harassment cases, these are often offers of undertakings (legal promises - either contractual or to the court) moderating one or more parties’ behaviour.  Where settlement is not possible a party’s attempts to resolve the matter by making offers or mediate, may provide some costs protection (i.e. mean that at the end of a trial they are awarded costs on a more favourable basis or even escape liability for some or all of their opponent’s costs despite losing the case).  Conversely, an unreasonable refusal to mediate or accept a reasonable offer may mean a party is deprived of some or all of their costs, even if their claim is successful.  Early open offers, if reasonable, may assist a party at trial by showing the judge that they are reasonable and have attempted to resolve the matter.

Other options – the police and the local authority

In addition to incurring civil liability, harassment is also a criminal offence and individual incidents may amount to any number of other offences (e.g. using threatening words and behaviour or criminal damage).  Where the conduct is very serious and/or you believe you are in danger then you should always contact the police.  However, where the conduct is relatively minor (e.g. removing a wheelie bin), it may be worth considering other options before contacting the police.  This is because contacting the police is a surefire way of escalating a feud and, if the complaint is trivial or you have gilded the lily, this may harm your credibility down the line (or in extreme cases cause you your own legal problems – making false complaints or wasting police time are breaches of the criminal law).  A solicitors’ cease and desist letter that warns that conduct may amount to a criminal offence and that a police complaint might be made if it is repeated, may be a far more powerful tool.  The same applies for complaints to local authorities and housing associations.

Click here to find out how our harassment solicitors can help you if you are being harassed by your neighbour