Case No: A2/2012/2754
Neutral Citation Number: [2013] EWCA Civ 815
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARDIFF DISTRICT REGISTRY
WYN WILLIAMS J
REF. NO: OCF90256
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2013
Before :

LORD JUSTICE RICHARDS
LORD JUSTICE DAVIS
and
LORD JUSTICE LLOYD JONES
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Between :

	MERTHYR TYDFIL CAR AUCTION LIMITED 	Appellant	
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	COLIN AND SANDRA THOMAS	Respondents	

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(Transcript of the Handed Down Judgment of
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Gregory Jones QC and William Upton (instructed by Burges Salmon LLP) for the Appellant
Jeremy Hyam (instructed by Richard Buxton  Environmental and Public Law) for the Respondents

Hearing date : Tuesday 25th June, 2013.
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Judgment
LORD JUSTICE LLOYD JONES : 
1.	This is an appeal by Merthyr Tydfil Car Auction Ltd. against the Order of Wyn Williams J. dated 8 October 2012, awarding the Respondents, Colin and Sandra Thomas, damages for nuisance in the sum of £9,000.00.
2.	The Respondents own the house and surrounding land known as Rhosbren Fach, Llewellyn Street, Dowlais, near Merthyr Tydfil.  They purchased the land in January 1989, built the house and then moved in in August 1989.  
3.	The Appellant operates a business on land near the Respondents’ home.  It holds auctions at which many kinds of vehicles including heavy goods vehicles are sold.  The business started in the 1970s on an area of land adjoining Pant Road, some way to the north of the land on which the Respondents were later to build their home.  That site is referred to in these proceedings as the upper yard.  In about 1995 the defendant began to carry out part of its business activities on the lower yard which is land adjoining the land on which the Respondents’ home is situated.  
4.	The present proceedings were commenced in June 2010.  The Respondents alleged that since about 1995 the Appellant had conducted its activities in the lower yard so as to commit a nuisance.  The Respondents’ complaint was essentially one of excessive noise but also included a complaint of harmful fumes.  The proceedings, as originally constituted, included a claim for an injunction to restrain those activities which constituted a nuisance.  However, the Respondents maintain that shortly after the commencement of proceedings the Appellant modified its practices so that the nuisance abated.
5.	Following entirely appropriate case management directions which were aimed at the completion of the trial in the space of two days, the trial took place on 23rd and 24th July 2012 at the Cardiff Civil Justice Centre.  Final submissions were lodged in writing thereafter.  Wyn Williams J. handed down his judgment on 8th October 2012.
6.	The judge’s principal conclusions may be summarised as follows:
(1)	The judge concluded that during the six year period preceding the commencement of the proceedings the Respondents had been subjected to noise through revving of engines, use of high pitched reversing bleepers, the continued idling of vehicle engines and high impact bangs and crashes emanating from the lower yard.  While the judge had grave reservations about whether the noise from the use of reversing bleepers could constitute a nuisance, he considered that it was not necessary to treat this aspect discretely as there were many complaints of vehicle noise not associated with the noise from bleepers.  The judge was satisfied that the noise from the lower yard had occurred with a frequency which amounted to a nuisance.
(2)	The judge also found that the noise nuisance generated from the Appellant’s premises was worse in 2009 and 2010 on account of guard dogs barking during the night. He was satisfied that on many occasions the barking woke the Respondents or disturbed their sleep.
(3)	The judge was not satisfied that the fumes from the Appellant’s premises unduly interfered with the Respondents’ enjoyment of their home.  While he found that there were occasions when fumes were emitted, such emissions were so infrequent and for such a short duration that they did not amount to an actionable nuisance.
(4)	The judge awarded general damages to compensate for the noise nuisance endured in the six year period ending with the issue of the proceedings in the sum of £9,000.00.
7.	On behalf of the Appellant Mr. Gregory Jones QC advances the following grounds of appeal.
(1)	The judge erred in law or in fact in his approach to the evidence of eight witnesses whose statements were relied upon by the Appellant but who, by agreement, were not called.
(2)	The judge erred in law or in fact in his assessment of the character of the area and the reasonable user of the Appellant’s property.
(3)	The judge erred in his assessment of the Respondents’ evidence.  
Ground 1: The judge erred in law or in fact in his approach to the evidence of eight witnesses whose statements were relied upon by the Appellant but who, by agreement, were not called.
8.	Eight witnesses made statements in which they stated that they lived in the vicinity of the Appellant’s premises and that they were not disturbed by noise or fumes from those premises.  The Appellant duly served those statements on which it proposed to rely at trial.  However, on 12th July 2012 the Respondents’ solicitor wrote to the Appellant’s solicitor stating that these witness statements could be read and asking for confirmation as to which statements on behalf of the Respondents could be taken as read.  This case had been carefully case managed by His Honour Judge Seys-Llewellyn QC.  It was in the interests of both parties that the case should be concluded within two days.  The agreement that these witness statements could be read was made in that context.  
9.	The effect of this agreement was that the witness statements of the eight witnesses were part of the evidence in the case.  Each was evidence before the court of the truth of its contents. 
10.	In his judgment the judge referred to three witnesses who lived in the locality who had been called to give oral evidence: Mrs. Beverley Davies who had been called on behalf of the Respondents and Mr. Shaun Mahoney and Mr. David Hughes who had been called on behalf of the Appellant.  The judge also referred to the fact that, in addition, each party relied upon written witness statements from other residents of the area.  The judge proceeded to rule on a conflict of evidence between Mrs. Davies, on the one hand, and Mr Mahoney and Mr. Hughes, on the other, and concluded that Mrs. Davies’s complaints of excessive noise, at least in general terms, were accurate and sufficiently reliable to provide support for the Respondents’ case.  He then stated in the following paragraph:
“54.  I attach little weight to the statements of other residents.  They were untested by cross examination.”

11.	On behalf of the Appellant, Mr. Jones submits that paragraph 54 of the judgment demonstrates that the judge had fallen into error as to the status of this evidence.  He submits that the clear meaning of these two sentences is that the judge attached little weight to the statements of the eight witnesses because they were untested by cross examination.  He submits that such an approach might be appropriate where Civil Evidence Act notices had been served in respect of a statement but that it was wrong in law in the present case because it had been agreed that the statements should be part of the evidence in the case.
12.	Mr. Hyam for the Respondents submits that this was an impermissible reading of paragraph 54.  He submits that the judge was merely stating that he attached little weight to the statements and that that was simply followed by the accurate statement that they had not been tested in cross examination.  There were, he submits, other obvious reasons why the judge attached little weight to the statements, most notably the fact that those witnesses did not live in the immediate vicinity of the lower yard.  
13.	To my mind the stark juxtaposition of the two sentences which make up the entirety of paragraph 54 strongly suggests that the second sentence was intended to provide the reason for the conclusion stated in the first.  On the reading for which the Respondents contend, no reason would be provided for that conclusion.  Moreover, if the second sentence is not intended to explain the conclusion in the first, it is, whilst accurate, an odd statement to make and adds nothing to the reasoning.  Accordingly, I have come to the clear view that the meaning intended by the judge was, as the Appellant submit, that he attached little weight to the statements of other residents because they were untested by cross examination.  
14.	Furthermore, I consider that as a matter of law this is incorrect.  The contents of the witness statements were in evidence by agreement.  That, in itself, is not a reason for attaching less weight to their contents than might be the case if each witness had been called and cross examined.  As Mr. Jones points out, were that so, parties who agree that witnesses need not be called in the interests of effective case management could be seriously disadvantaged.  Notwithstanding the agreement of the other side, no party could safely afford not to call a witness for fear that the judge could give the evidence less weight for that reason.  This situation is to be distinguished from that where a Civil Evidence Act notice has been served in respect of a statement and where the judge may decide to attach less weight to it because the witness had not been cross examined.
15.	It is therefore necessary to consider the effect this error of law may have had on the judge’s reasoning and conclusions.  The evidence of the eight witnesses was clearly relevant generally to issues in the case.  It is necessary to consider whether the judge’s decision to attach little weight to this category of evidence has been material to the outcome and, in particular, whether that outcome might have been different had the judge considered that evidence on the correct basis.
16.	The evidence of the eight witnesses who were not called may be summarised as follows:
(1)	Trisha Baigrie lives at 23 Llewellyn Street.  She stated that the only noise that she heard coming from the Appellant’s premises was the occasional use of the Tannoy system for announcements.  The Appellant’s site is directly opposite her house but, other than the faint sound of the Tannoy on auction nights, she did not hear a thing.  She was not bothered by auction nights.  She had never heard the guard dog bark.
(2)	Alan Davies lives at 22 Llewellyn Street.  (He is to be distinguished from the director of the Appellant who has the same name).  He stated that he was often in the house during the day when the Appellant’s business was operating.  His sleep during the day was not disturbed by it.  The noise from the Appellant’s business was very much in the background and was nothing worse than the noise from the main road.  Pant Road and the Heads of the Valleys Road were noisier than the Appellant’s business.  He was not bothered by auctions which only went on for a couple of hours.  He could not hear anything in the house.  He might hear a bit when he was at the front door or in the garden but it was very quiet and not a problem.  He never heard the guard dogs barking.
(3)	Evelyn Davies lives at 43A Llewellyn Street.  She stated that she did not have a problem with the Appellant’s business.  Her bedroom faces the business and if there was a lot of noise she would hear it in her bedroom but there was none.  She never heard the guard dog barking.
(4)	Corinne Kellar lives at 17 Llewellyn Street.  She stated that if you walk up towards the auction you can sometimes hear the auctions but it was not something which bothers her.  She could not hear it at home.  She did not hear the guard dog from her home, but there were lots of other dogs in the area that did bark.  She did not hear vehicles moving in the yard at the Appellant’s business at all.  The only thing she heard was the Tannoy system occasionally and only when she was outside the house.
(5)	Tyrone Kellar also lives at 17 Llewellyn Street.  He stated that the Appellant’s business had never bothered him day or night and the auction did not cause him or his wife a problem.  There was more noise from the children’s playground than there was from car auctions.  This is a built up area with shops, traffic and the busy Pant Road so he did not see how the auction was a problem compared with the rest of the noise in the area.
(6)	Cynthia McCarthy lives at 16 Llewellyn Street.  She stated that she did not hear vehicles on the auction site.  Sometimes on a summer evening if she was in the conservatory or if the doors were open she could hear the Tannoy system on an auction night, but it is very quiet.  She could not hear the vehicles moving around the yard.  The biggest noise in the area was the Heads of the Valleys Road.  She thought that Llewellyn Street was really quiet, especially compared with Pant Road where she had previously lived.  When her dog barked at the guard dog, the guard dog may bark back but apart from that she never heard the guard dog barking.  She never heard it barking in the night.
(7)	Adrian Sinnett lives at 9 Beacons View.  He stated that he was out of work so he was at home 90% of the time.  The car auctions business had no impact on him at all.  The only time that he was aware of it was when he heard snatches of the Tannoy system but that was only every now and then and was very much in the background.  He did not hear the guard dogs barking.  
(8)	Mandy Thomas lives at 43 Llewellyn Street.  She stated that the car auctions business had no impact on her whatsoever.  She was not troubled by noise from the site.  She might occasionally hear a vehicle being moved but it is no noisier than the traffic.  The greater noise in the area is the Heads of the Valleys Road, but that did not bother her either.  The guard dog might bark if there were youngsters hanging around but it did not do it very often.  It was not a noisy dog.
17.	Each of the eight witnesses’ statements is accompanied by a map showing the home of the witness and its proximity to the Appellant’s premises.  While it is correct they all live around those premises, they all live in the vicinity of the upper yard and at a considerably greater distance from the lower yard than is the Respondents’ home which is 10 – 15 metres from the lower yard.  It is, of course, the activities in the lower yard of which the Respondents complain and which have given rise to these proceedings.  It also appears from the photographs that the homes of the eight witnesses are on a higher level than the Respondents and the lower yard. 
18.	The distance from the lower yard at which the eight witnesses live distinguishes their evidence from that of the three neighbours of the Respondents who were called, Mrs. Beverley Davies for the Respondents and Mr. Mahoney and Mr. Hughes for the Appellant.  In these circumstances, it is inconceivable that the evidence of the eight witnesses whose evidence was read could have influenced the outcome of the case on the issue of the level of noise emanating from the lower yard.  The material evidence on that issue was that of the Respondents and their family, the three immediate neighbours and the representatives of the Appellant.
19.	However, the Appellant submits that the evidence of the eight witnesses is material in a different regard.  The contention both at trial and on this appeal is that it is material to the issue of the character of the locality and whether the activities were a reasonable user of land.  In his closing submissions on behalf of the Appellant at the trial, Mr. Upton submitted that the evidence of these eight witnesses had been provided so that the court might have a fair picture of the neighbourhood.  He submitted that the evidence was relevant because most of the witnesses live much closer to the main activities of the Appellant in the upper yard where the bulk of the vehicles are located and moved on a daily basis.  He submitted that they also form part of the same neighbourhood and the picture that their evidence presents is that this is a reasonable user of land and that the Respondents are unduly sensitive.  Accordingly, on this appeal the Appellant submits that the judge failed to attach the appropriate weight to evidence which had or might have had an important bearing on the character of the area.  Furthermore the Appellant submits that this, in turn, had an important bearing on the conflict of evidence between the three neighbours who were called as witnesses in relation to the noise emanating from the lower yard.
20.	It is well established that the character of a locality is highly relevant to the question whether an activity constitutes a nuisance.  The best known formulation of the principle is probably that in Sturges v Bridgman (1879) 11 Ch. D 852, 865 where Thesiger L.J. observed:
“Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong.”
21.	The judge had clearly in mind the importance of the character of the locality.  He stated that his task was to adjudicate upon whether the Respondents had proved that the Appellant had unduly interfered with Respondents’ comfortable and convenient enjoyment of their land on account of noise generated from the Appellant’s premises and fumes emitted therefrom.  This, he considered, was a question of degree as to whether the interference was sufficiently serious to constitute nuisance.  That had to be determined by reference to all the relevant circumstances of the case.  In the context of this case, important factors to be taken into account were the nature of the locality and the duration of the alleged interference.  He addressed the question of the nature of the locality in detail and came to the following conclusion:
“69.  In my judgment, the locality within which the claimants’ residence and the defendant’s business were contained in 1997 was mainly residential.  However, as was typical of residential areas in this part of South Wales at that time, there were business uses and busy roads nearby.  The traffic upon the roads, in particular, would generate noise which could be heard by a number of residents of the locality.  That said, I accept the evidence of the claimants and Mrs. Davies that noise from the A465 did not intrude upon their enjoyment of their homes.
70.  The grant of planning permission in 1997 and the defendant’s implementation of that permission did not alter the character of the locality.  The rationale of the Inspector’s decision in 1997 was that the activities undertaken upon the lower yard (for which planning permission was sought) were compatible with the nature and character of the locality in which the yard was situated.  Essentially the character of the locality is the same now as it was in 1997.”
22.	Mr. Jones, on behalf of the Appellant, goes so far as to submit that the evidence of the eight witnesses is of such importance to the issue of the character of the locality that had the judge given it the weight it deserved, the Respondents could not have succeeded below.  However he also submits that he does not need to go so far and that it is sufficient for present purposes to show that the judge might have reached a different conclusion had he taken proper account of those witness statements. 
23.	I am unable to accept either of these submissions.  I am quite unable to see how anything in the evidence of the eight witnesses summarised above could possibly have led the judge to a different view as to the character of the locality.  In approaching this question it is important to bear the following matters in mind.  First, the judge’s conclusion was not simply that the locality was “mainly residential”.  He immediately went on to qualify that description by stating that as was typical of residential areas in this part of South Wales there were business uses and busy roads nearby.  Secondly, he drew attention to the fact that the rationale of the Planning Inspector’s decision in 1997 was that the activities undertaken upon the lower yard for which planning permission was sought were compatible with the nature and character of the locality.  The judge also concluded that a degree of noise from the upper and lower yards was inevitable given the authorised uses upon those areas, not just during the Appellant’s tenure but previously. Thirdly, he began his discussion of the impact of noise in the locality by stating that residents of this part of Dowlais cannot and should not expect a noise-free environment. 
24.	It was against this background that the judge assessed whether the activities in the lower yard constituted an actionable nuisance.  To my mind, the eight witness statements add nothing significant to this picture of the locality.  They in fact show that these witnesses experienced little or no interference from noise in the locality.  I consider therefore that the eight witness statements could not have led the judge to any different conclusion as to the levels of noise and disturbance which were normal and accepted as such in this locality.
25.	The Appellant further submits that the evidence of the eight witnesses was material to the conflict of evidence between the three near neighbours of the Respondents who were called, Beverley Davies on the one hand and Shaun Mahoney and Davies Hughes on the other.  All three live much closer to the Respondents’ home than the eight witnesses who were not called.
26.	The judge considered the evidence of these three witnesses in detail.  Beverley Davies’ evidence was that she often heard noise emanating from the yard as a consequence of the revving of engines.  The judge accepted that Mrs. Davies’s evidence was not precise and that her assertions that the revving of engines took place frequently after 6.30pm was not supported by the Respondents’ written records.  However, he considered that Mrs. Davies was a witness who was trying her best to be both accurate and objective.  By contrast, Mr. Mahoney and Mr. Hughes both said that they were unaware of any noise nuisance from the yard.  The judge did not accept the suggestion that Mr. Mahoney’s evidence was motivated by a close connection with the defendant.  However, he did conclude that Mr. Mahoney did not strike him as a man much concerned about noise from his surroundings.  Similarly, with regard to Mr. Hughes who bought his home in 2007, the judge concluded that he had no doubt that he purchased in the belief that he was unlikely to be troubled by the noise which came from the Appellant’s business.  The judge observed that at first blush it was difficult to reconcile the evidence given by these three witnesses.  He considered that the most likely explanation for their differing accounts was that each had quite different tolerance to noise.  Having reflected upon the matter he was satisfied that Mrs. Davies’s complaints of excessive noise, at least in general terms, were accurate and sufficiently reliable to provide support for the Respondents’ case.
27.	On this appeal it is submitted on behalf of the Appellant that the judge failed to address whether the tolerance of Mrs. Davies was reasonable or unduly sensitive having regard to all the relevant factors including the nature of the area.  The Appellant submits that the unchallenged evidence of the eight witnesses went straight to that issue and weighed heavily against the Respondents’ case.  I consider that there are two fundamental difficulties with that submission.  First, as explained above, the evidence of the eight witnesses showed that they experienced a relatively low level of interference from noise in the locality. They add nothing significant to the picture of general level of noise. Secondly, the witnesses live closer to the upper yard and at some distance from the lower yard.  Their evidence could not have assisted the judge in his evaluation of the conflicting evidence relating to the level of noise emanating from the lower yard or its reasonableness.
Ground 2: The judge erred in law or in fact in his assessment of the character of the area and the reasonable user of the Appellant’s property.
28.	This ground of appeal overlaps to a considerable extent with the first ground.  Accordingly, I propose to deal with this ground relatively briefly.
29.	The principal submissions of the Appellant under this Ground may be summarised as follows:
(1)	The judge erred in his conclusion on the character of the area as being “mainly residential” rather than one that also included the Appellant’s business use as well.  In particular it is said that there is no assessment in the judgment as to whether the Appellant’s business and working hours were a reasonable user of its property.
(2)	The Appellant points to the Planning Inspector’s assessment of the area in the 1997 appeal decision letter and complains that the judge erred in omitting to consider the history of the business uses on the Appellant’s land.
(3)	It is said that the judge appears not to have accepted that the reason given by the Inspector for imposing the planning condition which restricted the hours of use to the working week was in order to balance the competing uses and to protect residential amenity.
(4)	The complaint is made that the judge made no finding about whether there was a reasonable user of its land by the Appellant.
30.	The judge directed himself correctly as to the relevance of the nature of the locality referring to Barr v Biffa Waste Services Limited [2012] 3 All E R 380 per Carnwath L.J. at para 36.  He also directed himself correctly as to the relevance of the planning permission, referring to Lawrence v Fen Tigers Limited [2012] 3 All E R 169 per Jackson L.J. at para 65.  In short, the grant of planning permission cannot authorise the commission of a nuisance but it may, following its implementation, change the character of the locality.  If the character of a locality is changed as a result, the question whether activities constitute a nuisance must be decided against the background of its changed character.
31.	The judge addressed the character of the locality in detail.  He considered the locality as it was in 1997 by reference to the Planning Inspector’s decision letter of 21 February 1997.  He also addressed the nature of the locality in the period 2004 to 2010.  He expressly addressed the question whether the implementation of the planning permission had had the effect of changing the nature of the locality.
32.	Contrary to the submission of the Appellant, the judge’s conclusion as to the nature of the locality was not simply that it was “mainly residential”.  As stated above, he went on immediately to qualify that statement by emphasising that, as is typical of residential areas in this part of South Wales, there were business uses and busy roads nearby.  In coming to this conclusion he took full account of the Planning Inspector’s assessment.  He acknowledged that a degree of noise from the upper and lower yard was inevitable given the authorised uses upon those areas not just during the Appellant’s tenure but also previously.
33.	The judge gave effect to his view of the nature of the locality in his conclusion that the residents in this part of Dowlais cannot and should not expect noise-free environment.  Furthermore, contrary to the submission of the Appellant, the judge’s entire approach to this issue was directed at whether what had actually taken place was a reasonable user of land.
34.	Accordingly the judge made an accurate finding as to the nature of the locality and this finding was reflected in his conclusions as to the degree of amenity which residents are entitled to enjoy.  He then held that there was a degree of interference with the Respondents’ amenity which constituted a nuisance.  In my view, he was clearly entitled to come to that conclusion on the evidence.
35.	I should add that one matter which appears to have carried considerable weight with the judge, as it does with me, is the reduction in the level of noise which the judge found occurred after these proceedings were commenced.  It was the evidence of the Respondents that the vehicular noise was minimized because the Appellant used the lower yard far less frequently for parking heavy goods vehicles.  The records kept by the Respondents show that in 2010 there were 121 recorded instances of alleged noise nuisance on account of heavy goods vehicles. However, during October, November and December 2010 the numbers of such recorded instances were respectively 8, 13 and 1.  Similarly, in that year the total number of recorded instances of nuisance through dogs barking was 146; in the last three months the numbers were respectively 9, 0 and 0.  In 2011 and 2012 there were no recorded instances of dogs barking.  In those years the recorded instances of noise from heavy goods vehicles were 47 and 18 respectively.  I consider that all of this shows that it was possible for the Appellant to carry out its business on the land in accordance with the planning permission without the intrusion on their amenity which the Respondents had suffered.
Ground 3: The judge erred in his assessment of the Respondents’ evidence.  
36.	The Appellant complains that the judge treated the complaints of the Respondents directly as evidence of nuisance.  I accept that there is a distinction between a truthful witness and an accurate witness (see e.g. Burnett v Lynch [2012] EWCA Civ. 347).  However the judge made no such error here.  He accepted that the Respondents were truthful witnesses.  He took account of the credibility of the Respondents in assessing whether the records they had kept were likely to be accurate.  That approach was entirely appropriate.  He also considered the evidence of their sons to be impressive and “largely accurate”.  He evaluated this evidence in the context of the other evidence in the case and came to conclusions which were clearly open to him.
37.	The Appellant then complains that the judge failed to apply an objective standard set according to the circumstances and locality of the neighbouring properties in question.  In part this is a re-run of the submissions in relation to the relevance of the character of the locality, which have been addressed above.  It is clear to me that, in his most careful judgment, the judge evaluated the complaints of the Respondents against the appropriate objective standards and the applicable legal tests.  It is significant that the claims succeeded only in part, the judge doubting the claim in respect of noise from warning bleepers on reversing lorries and rejecting the claim in respect of fumes.
38.	There is no error of law in the judge’s approach.  There is no basis on which this court could properly interfere with the result.
Conclusion.
39.	For these reasons I would dismiss the appeal.
LORD JUSTICE DAVIS :
40.	I agree.
LORD JUSTICE RICHARDS :
41.	I also agree.