Jonathan Seitler KC and Lemuel Lucan-Wilson successfully resist appeal in falcons nuisance / negligence case

The Court of Appeal has today dismissed the appeal in Thomas and Upper Cot Estate Limited v Raptors of Penwith Limited [2026] EWCA Civ 847], regarding a claim in nuisance and negligence brought by the proprietors of a falcon breeding business against an adjoining landowner.

Following a nine-day trial, His Honour Judge Russen KC (Sitting as a Judge of the High Court) found in favour of Raptors of Penwith Limited (“ROP”) and held the Appellants liable for nuisance caused in creating excess noise, vibration and visual threats on the neighbouring property which had disturbed the breeding season of the falcons. The Judge also found that the same acts had been negligent and in breach of a duty of care owed by the Appellants. ROP was awarded damages of £258,000 for the loss of three falcons and damage to eggs. Mr Thomas and Upper Cot Estate Limited appealed to the Court of Appeal, on the basis that the Judge had erred in law in finding them liable for nuisance, and that where there was no liability in nuisance there could no liability in negligence.

In a split decision, the Court of Appeal found by a two to one majority (Moylan LJ and Nugee LJ, Whipple LJ dissenting) that there was no claim in nuisance because the falcons were too sensitive to be an ordinary use of the land. By a different two to one majority (Whipple LJ and Nugee LJ, Moylan LJ dissenting), the Court held that the Appellants could still be liable in negligence. On the facts as found by the Judge, the majority considered that a duty of care had existed, and that this had been clearly breached.

The Appeal was therefore dismissed, although it is unlikely to be the last word on the intersection between negligence and nuisance, or the question of the sensitive or non-ordinary use of a claimant’s land.

Jonathan Seiter KC and Lemuel Lucan-Wilson, instructed by Sally Marsden of Arch Law, alongside David Mitchell (39 Essex Chambers) acted for the successful Respondents.

Read the full judgment