Following the series of podcasts I hosted with Lauren Ashun, of Affiniti Finance, covering Japanese Knotweed claims we’ve had a great response and we are so glad we were able to help firms interested in, or already running Japanese Knotweed claims. During the series we discussed nuisance claims against neighbouring landowners who allow Japanese knotweed to spread as well as misrepresentation claims against sellers and professional negligence claims against surveyors and conveyancers. Hopefully by now you will have listened to the full series and found them interesting and useful!
The leading case on nuisance claims is still Williams v Network Rail  EWCA Civ 1514. I appeared for Mr Williams, claimant, in that case, at the trial and in the Court of Appeal. We won both at trial and on appeal. One important point following the Court of Appeal’s judgment is that to bring a nuisance claim, knotweed needs to have actually encroached onto a claimant’s property. If it is nearby, but has not yet encroached, there isn’t a nuisance. As long as it has encroached, it doesn’t matter whether or not it has caused physical damage, ‘How you can prove encroachment’ is covered in our podcasts.
Another important point following the Court of Appeal’s judgment is diminution in value. This is usually the largest part of any claim, so it is always one of the most hotly contested issues in any case. Many defendants have read the judgment in Williams but misunderstood it. There, it was said that a claimant cannot claim damages “simply” for diminution in value. Defendants will still argue that this means that claimants cannot recover diminution in value. This is wrong, and in fact the Court of Appeal upheld Mr William’s award of damages for diminution in value following that appeal.
The outcome of this judgement means that in essence, the Court of Appeal confirmed that diminution in value without any duty of care and breach of duty is not enough, but that if it is a consequence of a breach of duty (i.e. a nuisance from encroachment which the defendant should have remedied) then it is recoverable. This is something else that Lauren and I also discussed in more detail on the podcast.
Throughout the podcast series, we discussed in detail about when a defendant comes under a duty to treat, what is expected of them when they have that duty, how to show whether a defendant is treating properly and all sorts of issues on causation, limitation and damages.
I have dozens of ongoing knotweed claims and defendants are still fighting them aggressively. There are going to be all sorts of arguments to be had about limitation, causation and loss. RICS originally published guidance on knotweed in 2012. A House of Commons committee considered the impact of Japanese knotweed on mortgage lending in 2019 and RICS is due to publish updated guidance sometime in the future. It was promised in late 2019, then mid-2020, but there is still no end in sight.
I have seen lots of cases where defendants seem to be holding out for the updated guidance, hoping it will give them some ammunition to use against claimants.
I’m sure that when the updated guidance is eventually released, or if there are any other major updates, Lauren and I will be back for a bonus episode(s) of the podcast to summarise what has changed and to help you keep up to speed!
You can view Tom’s profile at: https://www.ropewalk.co.uk/our-people/barristers/tom-carter and contact him at: firstname.lastname@example.org, 0115 947 2581