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|Our 3G mast from Hell.||United Kingdom|
|Contamination level: Severe illness! Forced to abandon a home.|
|Author: Agnes Ingvarsdóttir||Created: 4 May 2005||Updated: 24 Jan 2006||Viewed: 14569 time(s)|
|A description of how a familys health and life got ruined by a 3G mast hosted by a greedy neighbour, the pub landlord.||This case file has 12 entries and has been commented by 7754 people|
|Monday 230106 is EXECUTION DAY curtesy of H3G UK Ltd!||Created: 22 Jan 2006|
We are going in to "be slaughtered, Executioned" or whatever it can be called, on Monday 230106.
That is when H3G UK Ltd. and us come before the cost-judge at Birmingham High Court, Queens Bench at 12.oo
Judge Kirkham said, H3G UK Ltd. could not use our case as a test case, BUT THEY(H3G) STILL RUN A TESTCASE, and .
with all the expence of a testcase, and they want US to pay.
And why not, we are just ordinary middleclasss UK citizents, no one likes us, especially not our Government, they prefer immigrants. (we are immigrants, but European ones, so that does not count, or if it does it counts against you)
Well, we are foreigners, 1 off Dane + 1 off Icelandic, nothing exotic.
(Our opponent is a lot more exotic, Chinese, supplies arms to the Communists, plus of course, he is filthy rich, so cannot afford to offend him, well Tony, he has already given a job to one kissing cousin, Lord Irvin, a good position in the Hutchison Wampoa UK ports has´nt he, so he´s a good pal.
God only knows what will fall off for the res,t who need good jobs and good steady income. including Tony of course.)
But, somhow I have a nasty feeling , that this is why H3G chose us, to run a test case on, they probably thought we would not even be able to communicate in English (they sure have a hard time themselves) , BUT, WELL WE CAN,in English, and in Danish, and Icelandic, and German, and Swedish, and so on.
Judge Kirkham also said to H3G : be compassionate when claiming expenses.
They sure were.
They presented a bill for some £. 409.000.- I guess that is as compassionate as you can get!
No wonder Mr. Humphrys, their barrister told Judge Kirkham that he did not have the sums, that they were at Freshfields.
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|Dr. Pearce: To whom it may concern||Created: 22 Jan 2006|
|DR J C PEARCE. DR EN SMITH
THE SURGERY. STONE DRIVE..COLWALL. MALVERN
COLWALL Ph:(01684)540323: IFAX (01684)540805
WORCESTERSHIRE. WR 13 6QJ
21St October 2005
To whom it may concern
Re: Mrs Agnes Ingvarsdottir
Glen Lea. Off Chase Road. Upper Colwall
Malvern. Worcestershire. WRI3 6DH
I am writing in support of this lady’s belief that she is adversely affected by the radio waves from the mobile telephone mast that had been situated
very close to her house. As you may be aware the mast was at the level of her bedroom and her whole family had felt ill, once it had been installed, when they were living in the property in Worcester. They therefore moved away from the property on medical grounds and whilst many people
believe that the masts are causing disease and illness — including doctors there simply has been no legal proof that this has been the case.
I can confirm that I saw Agnes on the 18th of October, when she had returned to her old house in Worcester for two hours with the BBC. in September. She had been well before this, but that very night following the BBC visit, developed bilateral palmar dermatosis and became unwell with migraines and nausea. Each time she has returned to the house and when she lived in the house, she suffered rashes, headaches and nausea. which all clear up when she is away from the mast.
Thus, clinically, there is a clear link between such rashes, feeling of nausea and headache and her being in the vicinity of the telephone mast. In her current house, she is no where near a mast and remains well and we only see her rarely.
It might be said that some of these symptoms are psychosomatic or due to stress. I can confirm that we do not see Mrs. Ingvarsdottir for stress and
that she did not feel stressed at the time of the visit and I do not think that the symptoms are stress related or psychosomatic. I do understand that she had had a stressful time with the courts, but while this has been going on, she had been away from the mast and had no symptoms. It is curious that a two hour visit there is enough to start off such “psychosomatic” symptoms. I believe they sit clearly linked to being in the proximity of the mast.
I hope this helps you and her, in deciding what to do about this clearly clear cut case.
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|Notice of Inter Party Detailed Assessment in Birmingham Technical High Court||Created: 8 Jan 2006|
|We have now received the Notice of Inter Party Detailed Assessment in Birmingham Technical High Court, from Hutchison 3G UK Ltd.
which directs that the Detailed Assessment hearing (one hour) is to be heard at 12.00 PM (Would that be a midnight meeting?)
on Monday 23 January 2006.
Hutcison 3G UK Ltd. are, for commercial reasons, eager to reach an out of court settlement.
Deadline to enter into a consent order for payment to Hutchison´s, was by close of business on 6 January 2006.
If we do not enter into a consent order Hutchison 3G UK Ltd. reserves the right to claim the additional costs at the hearing.
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|Finally Hutchison 3G UK Ltd. has come out of the bush and true to life they love spending money, but not their own.||Created: 12 Sep 2005|
|Hutchison 3G UK Ltd. have finally delivered their demand for legal cost.
They have demanded £. 407,398.06 and told us that if we dispute the bill there will be an extra £. 600,00 payable if our objections are not upheld by the assessment.
Making a total of £. 407.998,06 together with interest and of course they will seek to have covered the cost of the assessment hearing.
But I must admit that I feel for the poor things, they must be really hard up, as in the Hotel cost they are also seeking to have covered by us their:
Laundry: £. 7.00
Newspapers: 2.20 and of course the
Bar. £. 19.65
It would be a pity if they could not afford to have their nightly Oveltine?, so I guess I really ought to send them a checque.
But, come to think of it, if they saw fit to bring the dirty laundry this time what will they bring next, the washing-up?
I will update as quickly as I can and post more of the cost demand.
But I will stop here for now
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|Comments to corrections to handing down of judgement case number 4BM 500 28||Created: 1 Jul 2005|
|Comments to corrections to handing down of judgement case number 4BM 500 28
Eirikur Mar Petursson + Agnes Ingvarsdottir: Claimants v/ Hutchison 3G UK Ltd. : Defendant
Comments to point 9:
Mr. Petursson wrote: Your goodwill offer sounds a bit hollow, as it only covers what you have already offered the Worcester Planning Office/Committee if they consented to your application.
Mr. Petursson did have the opinion that Bureau Veritas is on H3G payroll.
(and therefore not independent).
H3G never did the promised pre-installation readings.
Comments to point 16.
Whether this was ill intend Mr. Petursson does not know, but his knowledge of the log is such that he spotted the omission immediately, when being derected to the sentence in the “bundle”.
Comments to point 17.
The continuing claim that the defendant had to travel to Malvern to verify the creation date is untrue.
It was never necessary.
Mr. Petursson never acted dishonestly, the defendant is dishonest pretending not to having received the electronic file.
Copy of Freshfields, Bruckhaus, Deringer letter enclosed.
Comments to point 19.
According to the defendants program of installation work the installation was complete 280703 and fully capable of emitting.
Copy submitted under point 10.
Comments to point 23.
Mr. Peturssons words are being twisted.
The last quote in the paragraph is correct.
Mr. Petursson now had no doubt that the basestation was causing the harm.
Comments to point 24.
For the sake of later paragraphs, and reference to observations alledged on the 060803,
it must be noted that the apparatus panel cannot be observed from 57 London Road.
It is hidden from sight.
To observe anybody working in the cabinet the observer has to leave 57 London Road and walk approximately 20 meters up the Fort Royal Hill, or go into the pub carpark.
It is impossible to observe anybody by the panel from 57 London Road, the pub obscures the view.
Comments to point 26.
Mr. Petursson happens to know that DTMA is a major component in the installation.
It is therefore not an observation, but received information.
The claimants lives changed the 070803, and they were certain that the basestation was the cause of the
life altering action on the 180803.
When they realized that their ill health could be switched “off” and “on” in the base station control panel.
Comments to point 27.
The verdict is a mixture of Mr. Dobsons witness statement and Mr. Navolios cross examination by
There was a lot going on that morning, the house was being emptied of content.
Electrical contractors were working for Mr. Petursson.
Mr. Petursson did not pay attention to the entrance door constantly.
Once again: Mr. Petursson saw a person engaged in the control panel in August.
Namely the 18th of August.
Mr. Petursson had to venture outside the premises onto “Fort Royal Hill” to make this
The base station control panel cannot be observed from 57 London Road, there is a pub
obstructing the view.
Apart from all this, then work parties were abundant on the site over a long period.
They could be seen enter and leaving the site, but what they were doing could not be seen
from 57 London Road.
Comments to point 28.
The event of 180803 is probably the most significant recorded event in the study of base station effects
on humans living in the vicinity of a base station.
Comments to point 39.
There seems to be equality mark between 28 meters, 1500 meters, 120 meters and 190 meters in the
mind of the judge.
Comments to point 40.
Simon of Sican Engineering did sign a witness statement, stating illness.
And later withdrew it.
Comments to point 43.
Illness followed the premises.
Suggestions of connection of ill health and base station were dismissed by doctors.
See medical journals E. Petursson at Worcester Royal Hospital.
Erikur M. Petursson.
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|Corrections to handed down judgement case number 4BM 500 28 Date. 090505||Created: 1 Jul 2005|
|Corrections to handed down judgement case number 4BM 500 28 Date. 090505
Eirikur Mar Petursson + Agnes Ingvarsdottir: Claimants v Hutchison 3G UK Ltd.: Defendant
9. Mr. Petursson did not reject a suggested reading, neither did he accept it.
10. According to the defendant in answers to claimants, 080404, the site was completed 280703, and
thus operational. See point 28.
Copy of “Programme of installation works” enclosed.
14. Mr. Petursson merely states that the mast was erected 200603. see point 20.
No mention of commission.
The claimants did not complain about the symptoms before the 070803.
They recorded that they had headache, nothing more dramatic than that. See point 19.
15. The claimants did not purchase an Acousticom meter.
They purchased a Com Monitor, which is a different instrument with a V/m scale.
Any reference to the use of an “Acusticom” hereafter is wrong.
Mr. Petursson employed a “Com Monitor” regularly after 130803.
Com monitor by Perspective scientific
100 Barker Street
London W1U 6WB
16. It was established that the log translation in the “Bundle” had omitted a whole sentence.
Which altered the record.
17. Mr. Petursson did not seek to conceal the log content on the 090904.
Freshfields, Bruckhaus, Deringer confirm that they had received a Floppy disk with
the complete log copied the 110804.
The first entry being the 200603.
Enclosed copy of Freshfields, Bruckhaus, Deringer letter 090904.
Our solicitor Mr. Edward Holmes has confirmed in writing to Mr. Petursson that he made the statement that the defendant had received a full written record, in error.He has apologized to Mr. Petursson, who has not accepted the apology.
18. Is Mr. Holme´s doing and Mr. Petursson is angry that he (Mr. Petursson) has been ruled a dishonest person.
23. Mr. Peturssons said he was not sure until the 180803 that the mast was operational.
The observation was the proof.
25. Mrs. Ingvarsdottir´s recollection of events are correct.
It is just bad luck that they were not recorded in the right sequence.
It is impossible to observe activity at the base station from 57 London Road.
An observer has to venture outside, up the road to see the basestation cabinet.
Mr. Petursson used a Com Monitor (NOT Acousticom)
26. Mr. Petursson did not see men working on the apparatus 060803.
The apparatus cannot be seen from 57 London Road.
The knowledge of repairs on site 060803 comes from “Programme of installation works”
It is not an observation, but submitted information.
Information volunteered by the defendant.
Quote: 6 August 2003 Faulty DTMA replaced.
See copy of “Programme of installation work”
This point was altered in court 090505, but it is still wrong.
27. This paragraph is a misinterpretation.
It mixes two events, many months apart.
It quotes Mr. Dobson for things he has not written in his witness statement or said in cross examination.
Participants in the two events were mr. Dobson and Mr. Navolio, who have been turned into one
person, namely mr. Dobson!
How can this happen?
Paragraph wholly unacceptable, it is a fabrication.
Therefore verdict not acceptable, and must be dismissed.
Real cycle of events:
210104: Worcester planning office arrange measurement session at 57 London Road, 15oo hours.
Mr. Petursson greets 2 Bureau Veritas employees and H3G UK Ltd. employee Mr. Dobson.
Mr. Dobsons participation had been announced beforehand and therefore expected.
Mr. Dobson and Mr. Petursson were engaged in conversation on the landing inside 57 London Road
for most of the session which Mr. Petursson asked to be terminated at 17oo hours.
Certainly Mr. Petursson mentioned the incident at 180803, which is the most important incident in
Mr. Dobson records “In August” in his witness statement.
180803 is definitively in August.
Mr. Petursson writes letter to H3G the 220104 about session.
Mr. Dobson writes letter to E. Petursson about session the 050304.
43 days after session.
Next event: Worcester planning office arrange another session at 57 London Road the 190504.
Mr. Petursson met Mr. Dobson outside the gate of 57 London Road, and told Mr. Dobson
(whom he knew by sight from the 210104 session) that he could not come into 57 London Road,
because Mr. Petursson does not trust Mr. Dobson.
Consequently Mr. Dobson left.
Mr. Petursson admitted Bureau Veritas employee Mr. Bear (whom he also knew by sight from
the 210104 session).
Mr. Petursson observed that a second person was engaged with Bureau Veritas, giving
instructions to Mr. Bear.
Mr. Petursson expected this to be a Bureau Veritas engineer.
It turned out that this person was Mr. Navolio of H3G UK Ltd. (Head of radio emissions
When Mr. Navolio was leaving, Mr. Petursson was outside the house, on the premises.
Assuming that Mr. Navolio was a Bureau Veritas employee Mr. Petursson struck up a
Mr. Navolio volunteered that he was a H3G employee.
Mr. Petursson did not ask for his name until much later in a request to the defendant.
Enclosed copy of Request 4. where Mr. Navoilos identity is revealed.
In cross examination Mr. Navolio referred to above conversation.
“As a pleasant conversation” and Mr. Petursson confirms that.
28. Conclusion build on wholly fabricated evidence. See point 27.
30. Acousticom: Read Com Monitor.
31. The apparatus cannot be seen from 57 London Road.
Events have to be as described by Mr. Petursson and Mrs. Ingvarsdottir.
It had to be realized that there was no signal.
A person then had to venture outside the building, up the street to be able to see “people working at the
35. Mast “Close to premises” is approximately 1500 metres (1.5 kilometers) away from new premises.
See enclosed map with scale.
41. The mast is approximately 1500 meters away, not 500 meters.
77. There is probably a mix-up of Dr. Hyland and Dr. Chadwick in line 6 of this paragraph.
Mr. Petursson asks permission that Dr. Hyland be allowed to see the expert witness comments.
Permission denied by Mr. Holmes.
Eirikur M. Petursson.
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|The jugdment, second part. And still only HUMAN RIGHTS to Hutchison 3G, NON TO US ! WHO´s HOME THEY POLLUTED!!||Created: 1 Jul 2005|
|91. Dr Hyland relies on the epidemiological evidence contained in the 2003 Santini and Navarro reports. The Santini report concerned a survey study using questionnaires which had been completed by some who lived in proximity to base stations and some who did not. The study group was self-selecting, in that a questionnaire was sent to those who expressed a wish to participate in the study. In December 2004 it was reported that a Swedish radiation protection agency, SSI, had appointed an international independent expert group for electromagnetic fields and health. The group's task was to evaluate the scientific development and advise SSI. That report stated that, at that time, there had been only two studies on base station exposure and symptoms published, namely the Santini 2003 and Navarro reports. It pointed out that neither Santini nor Navarro had reported how participants had been selected. Participants had answered questions about various symptoms such as headaches, concentration difficulties, memory loss, fatigue and sleeping problems. They had been asked to estimate the distance to the nearer base station. The SSI report points out that self-reporting distances to a base station is "a questionable exposure assessment method". It concluded that the design limitations of the Santini and Navarro studies had made it impossible to assess whether their findings were results of bias or real effects.
92. It must be borne in mind that studies based on self-selecting groups and on questionnaires are susceptible to bias. Dr Chadwick reminded the court of the limitations of any experiment not conducted on a double-blind basis.
93. It is not surprising that Dr Chadwick was not prepared to accept a posited theoretical possibility that non-thermal effects might exist in relation to base stations (cf handsets, with their, comparatively, much higher levels of exposure). Given the data collected during 50 years of research concerning RF fields and the low levels of emissions from base stations, including the base station at the Little Sauce Factory, there was no reason at all, in his view, to expect such a possibility.
94. The reports to which I have been taken by both Dr Hyland and Dr Chadwick are extensive. They represent the conclusions of various groups of eminent scientists from around the world. Research is being undertaken in many countries. The reports are detailed and carefully argued. In Stewart 1 the independent expert group considered and discussed, amongst other matters, Dr Hyland's theories as to the biological effects from EMFs. At paragraph 6.35 Stewart 1 recommended that, "as a precautionary approach, the ICNIRP guidelines for public exposure be adopted for use in the UK….The balance of evidence to date suggests that exposures to RF radiation below NRPB and ICNIRP guidelines do not cause adverse health effects to the general population." Stewart 1 recommended, at paragraph 6.40, that "a precautionary approach to the use of mobile phone technologies be adopted until much more detailed and scientifically robust information on any health effects becomes available". At paragraph 6.41 it was said that "On its own, adoption of the ICNIRP guidelines will not allow fully for current gaps in scientific knowledge, and particularly the possibility of, as yet, unrecognised thermal or non-thermal effects at lower levels of exposure." At paragraph 6.44 Stewart 1 referred to the current "uncertainties in scientific knowledge".
95. The NRPB in Mobile Phones and Health 2004 Vol 15 No. 5 2004 concluded: "The Board believes that the main conclusions reached in [Stewart 1] still apply today and that a precautionary approach to the use of mobile phone technologies should continue to be adopted" and "The possibility therefore remains open that there could be health effects from exposure to RF fields below guideline levels; hence continued research is needed".
96. In my judgment, the claimants have not demonstrated on balance that the emissions from the defendant's apparatus at the Little Sauce Factory are capable of causing or contributing to adverse health effects or the claimants' well-being, when viewed objectively. I am not persuaded by Dr Hyland's theory. His theory is in any event based only on a possibility, not a probability.
97. As Mr Eyre for the claimants put it, Stewart 1 was not the last word. It is clear that there is continuing scientific debate and continuing research work and there is widespread recognition that such on-going debate and research is desirable. Mr Eyre submits that, in that context, it is understandable that the test imposed in the Code was the appearance of material prejudice and not solely proof of its existence. The legislature was accepting that determinative proof of material prejudice might be difficult to obtain but was indicating that in a developing field of knowledge the appearance of material prejudice would suffice to bring the court's power into play. I accept that it is right to consider the test set out in the Code in the light of the current evidence and scientific uncertainty of the sort to which I have alluded. However, even in that context, in my judgment it cannot be said that in this case the claimants have demonstrated the appearance of material prejudice. There is no evidence to support the claimants' case except their own perception of harm, and that perception is in my judgment based on no objective evidence of harm but only on their subjective perception that they were harmed by emissions. I have no hesitation in concluding that the claimants have not proved on balance that there is any appearance of material prejudice to their enjoyment of 57 London Road. For those reasons, even if the claimants had the standing to bring their claim, I should have concluded that their claim case must fail.
98. Given my conclusions as to the merits of the claimants' case, it is not necessary for me to deal with the question whether the defendant had, on balance of probabilities satisfied the court of one or more of the matters in paragraph 17(6) (a) - (c) of the Code. I decline to do so.
99. I have no submissions on any human rights issues and have not been invited to consider any Human Rights aspects.
100. The claimants' claim fails.
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|The jugdment, first part. And still only HUMAN RIGHTS to Hutchison 3G, NON TO US ! WHO´s HOME THEY POLLUTED!!||Created: 1 Jul 2005|
|IN THE HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. BIRMINGHAM DISTRICT REGISTRY. TECHNOLOGY AND CONSTRUCTION COURT
Case number 4 BM 50028. BIRMINGHAM CIVIL JUSTICE CENTRE. 33 BULL STREET. BIRMINGHAM B4 6DS
Date of trial: 21, 22 and 23 February 2005. Date of draft judgment: 4 April 2005. Date Of Judgment: 9 May 2005
B e f o r e : Her Honour Judge Frances Kirkham
Between: (1) EIRIKUR MAR PETURSSON (2) AGNES INGVARSDOTTIR Claimants and HUTCHISON 3G UK LIMITED Defendant
Mr Stephen Eyre of Counsel (instructed by Harrison Clark) for the Claimants
Mr R W Humphreys of Counsel (instructed by Freshfields Bruckhaus Deringer) for the Defendant
DATE OF HTML VERSION OF JUDGMENT: 9 MAY 2005. BEFORE HER HONOUR JUDGE FRANCES KIRKHAM. HTML VERSION OF JUDGMENT
1. Until last year, the claimants lived at 57 London Road, Worcester. The claimants claim pursuant to the Electronic Telecommunications Code contained in Schedule 2 to the Telecommunications Act 1984, as amended by the Communications Act 2003. They claim that the defendant's telecommunications apparatus has had substantial adverse effects on their physical well-being and on their enjoyment of their property. They seek an order for the removal or repositioning of the apparatus.
2. The apparatus, in simple terms, is a base station for mobile phone communications and arises following the installation in 2003 of the defendant's 'third generation' - ie 3G - telecommunications system. It comprises a mast with three antennas installed within a flagpole mounted on a pub called the Little Sauce Factory at 55 London Road and a base station which is contained in a cabinet at ground level at number 55. The mast is situated approximately 22 metres from the boundary of that property and approximately 28 metres from the nearest wall of the house. The claimants purchased 57 London Road in December 1999. They both lived at and operated their business from the premises. They moved the business to alternative premises in September 2003 and they themselves moved to a different house in February 2004. They sold the property in August 2004.
3. The claimants served notice under the Code of objection to the siting of the apparatus at the Little Sauce Factory. They require the apparatus to be removed. Their main contention is that there have been adverse effects on their well-being. They say that they, members of their family, their dog and visitors to the property suffered unpleasant symptoms and felt ill, and they attribute this to the effect of the emissions from the antennas. Their case is that their objection under the Code is well founded, the pre-conditions under the Code for the exercise of the court's discretion are made out and that discretion should be exercised so as to require the removal of the defendant's equipment.
4. Initially, the claimants claimed damages for personal injury and for diminution in the value of their property. Those claims for damages were abandoned before trial. Their claim now is solely for removal of the apparatus.
5. So far as relevant Paragraph 17 of the Code provides, as follows:
"17(2) At any time before the expiration of the period of three months beginning with the completion of the installation of the apparatus a person who is the occupier of or owns an interest in
(b) any land the enjoyment of which, or any interest in which, is, because of the nearness of the land to the land on or over which the apparatus has been installed, capable of being prejudiced by the apparatus, may give the operator notice of objection in respect of that apparatus."
"17(5) ...the person who gave the notice may apply to the court to have the objection upheld".
"17(6) Subject to sub-paragraph 7 below, the court shall uphold the objection if the apparatus appears materially to prejudice the applicant's enjoyment of, or interest in, the land in right of which the objection is made and the court is not satisfied that the only possible alterations of the apparatus will:
(a) substantially increase the cost or diminish the quality of the service provided by the operator's network to persons who have or, may in future have, access to it or
(b) involve the operator in substantial additional expenditure (disregarding any expenditure occasioned solely by the fact that any proposed alteration was not adopted originally or as the case may be that the apparatus was unnecessarily installed) or
(c) give to any person a case at least as good as the applicant has to have an objection under this paragraph upheld."
(The provisions of paragraph 17(7) are not relevant here.)
"17(9) If it upholds an objection under this paragraph the court may, by order:
(a) "direct the alteration of the apparatus..."
(b) authorise the installation (instead of the apparatus to which the objection relates) in a manner and position specified in the order, of any apparatus so specified
(c) "direct that no objection may be made under this paragraph in respect of any apparatus the installation of which is authorised by the court".
6. It is common ground that the claimants took procedural steps within specified time limits and on 11 September 2003 gave effective notice under paragraph 17(2).
7. The claimants purchased 57 London Road in December 1999. Mr Petursson is a ventilation engineer. He operates through a company called Aces Dust Control Ltd of which the claimants are directors. From February 2000 until September 2003 they ran that business from 57 London Road. The claimants employ one of their sons, Mr Niels Eiriksson, in their business. Mr Eiriksson did not live at 57 London Road but went there to work every day.
8. Mr Petursson began protesting about the proposed installation as soon as he learned of the defendant's plans. He organised a petition against the installation. The defendant made an application for planning permission for the apparatus. The claimants objected. Worcester City Council granted planning permission for the apparatus on 30 January 2003. Mr Petursson continued to raise concerns both with the local authority after planning permission had been granted, and with the defendant. He wrote to the defendant on 15 February 2003, referring to their successful application for planning permission, and stating that he regarded "your planned Radiation Generator as an intrusion upon my property and livelihood. And of course health, if that becomes affected."
9. The defendant wrote to Mr Petursson on 2 April 2003 seeking to allay his fears. They explained that they adhered to the ICNIRP [International Commission on Non-Ionizing Radiation] guidelines. They quoted from conclusions of the report published in May 2000 by the Independent Expert Group on Mobile Phones, led by Sir William Stewart, to the effect that "the balance of evidence indicates that there is no general risk to the health of people living near base stations on the basis that exposures are expected to be small fractions of guidelines". They offered to arrange for a representative of Bureau Veritas, a company which the defendant used to verify readings from their base stations, to visit the claimants' home and to take before and after non-ionising radiation readings. Mr Petursson rejected the suggestion that Bureau Veritas take measurements, on the ground that they were not independent of the defendant. (In fact, Bureau Veritas did subsequently visit the claimants' property and made measurements - I refer to this later).
10. The defendant completed physical installation of the apparatus on 6 August 2003. The apparatus was integrated into the network, ie became operational, on 7 August 2003.
11. The claimants sent the defendant an effective notice of objection pursuant to paragraph 17(2) of the Code dated 11 September 2003. They began proceedings in December 2003.
12. The claimants' evidence is that a pattern of symptoms emerged quickly after 7 August 2003. They experienced a sense of disorientation, difficulties in concentration and keeping the mind focussed. They also complained of mounting nausea and dizziness throughout the day, peaking in the afternoon when, they believed, the traffic from the antennas was at its heaviest. Mr Petursson's evidence is that, from the time when the apparatus became operational, he suffered dizziness, a heavy pressure on his head and nausea. Mrs Ingvarsdottir's evidence is that, until August 2003, she had been in excellent health with the exception of orthopaedic problems. From 7 August 2003, she began to experience headaches so violent that she lost concentration, had trouble with her eyesight and was sensitive to light. She became nauseous during the day; this became particularly bad during the afternoon. She experienced violent headaches, loss of appetite, nausea, sleeplessness, lack of concentration, bloodshot eyes, brown spots in her right eye (the side facing the apparatus whilst she sat at her office desk) and a prickling sensation on her skull which turned into a smarting sensation inside her head. She suffered badly from sleepless nights. Mrs Ingvarsdottir says that, now that she has left 57 London Road, her symptoms have largely disappeared.
13. The claimants believe that their cocker spaniel dog, Floppy, also suffered ill effects from the emissions. They say that he demonstrated changes in behaviour with loss of appetite, waking in the night and howling, going into hibernation mode and avoidance of some rooms in the property.
14. The claimants' case is that the apparatus has adversely affected their well-being and that of visitors to 57 London Road. The onset of their health problems coincided with the commissioning of the base station on 7 August 2003. Their evidence is that the symptoms they both experienced began on 7 August 2003. They did not know until later that that was the date on which emissions had begun. The defendant's case is that, by 20 June 2003 at the latest, the claimants believed (erroneously as it turned out) that the base station had been commissioned and that emissions had thus begun. They began to complain of the symptoms which they attribute to the emissions before the emissions in fact began.
15. In mid June 2003 the claimants hired an Acousti-Com meter (a device to measure emissions from the apparatus) and purchased nickel-plated netting. They subsequently purchased an Acousti-Com meter. (Mrs Ingvarsdottir did not recollect accurately when this had been ordered by them.) After the Acousti Com meter had been delivered on 13 August 2003, Mr Petursson regularly noted readings he had taken using that meter.
16. Mr Petursson kept a log recording matters relevant to the base station. He wrote it in Danish. The defendant arranged a translation into English. That translation appears to have been given to the claimants in good time before trial. Mr Petursson made his own translation into English, but this was not made available to the defendant until the first day of trial. At trial Mr Petursson claimed that his translation was correct and that in some respects the defendant's translation was incorrect. It is unfortunate that the claimants raised that issue so late that differences could not be reconciled. At trial, we worked on Mr Petursson's translation. I reject Mrs Ingvarsdottir's suggestion, in relation to one entry, that the log was inaccurate. Mr Petursson said that he made entries during the day and it appears to me that it is a contemporaneous and accurate running record.
17. In their particulars of claim, the claimants contended that the installation of the apparatus had been completed by 20 June 2003. Mr Petursson sought to explain that he meant that the physical installation of equipment had been completed but that the apparatus had not by then become operational. In the answers they gave on 9 February 2004 to the defendant's request for further information, the claimants said that they first experienced symptoms on 7 August 2003 and that they had kept a log since that date. In fact, Mr Petursson had begun the log on 20 June 2003. The claimants initially disclosed only part of the log, from the entry dated 7 August 2003 onwards. It was only when the defendant pressed the claimants for disclosure of the hard disk of the computer on which Mr Petursson had written the log that it became apparent that he had begun the log earlier than 7 August, namely 20 June 2003, and those earlier entries were then disclosed.
18. The claimants' approach to the disclosure of the complete log does them no credit.
19. In the log, "Adda" and "Agnes" are references to Mrs Ingvarsdottir, "Eirik" is a reference to Mr Petursson and "Niels" is a reference to Mr Niels Eiriksson, their son. The entries between 20 June 2003 and 7 August 2003 are significant:
20 June 2003: The mast has gone up and we'll see what happens
25 June 2003: Adda headache. Eirik stressed Niels not in the office.
30 June 2003 Adda: headache. It's peculiar that we are feeling ill. I don't think the equipment has started but may be there are test runs.
1 July 2 003 Adda: headache. Peter Yates [of Worcester City Council] sends an email that tells that the transmitter is not active. That is expected late July!
30 July 2003 I think there is periodic service or test runs on the mast. The electrics appear to be finalised but nobody wants to inform about anything.
7 August 2003 Adda has continuous headache, gets sick and vomits. They are working on the transmitter. Either it has started or it is just about to.
Eirik feels dizzy and has a pressure on his head. The transmitter must have started. Niels is on vacation.
8 August 2003 Adda has a headache. Eirik confused."
20. Thereafter, Mr Petursson made regular log entries until August 2004.
21. As Mr Petursson's log entry for 1 July 2003 indicates, Mr Yates of Worcester City Council sent Mr Petursson an email on that date in which he informed Mr Petursson that he had understood from the defendant that the antennas were not yet active; the main equipment cabinet had yet to be installed; the defendant expected the installation to be completed by the end of July and had booked Bureau Veritas to come to do emissions testing at around that time. It is, in my judgment, significant that Mr Petursson wrote nothing in the log between that date and the end of July. On the basis of the information given by Mr Yates, Mr Petursson was expecting nothing to happen during July 2003.
22. One of the complaints made by the claimants has been that they were not formally notified in person when transmissions began. They twice requested a copy of the commissioning notice, on the second occasion by letter dated 13 August 2003. The claimants started to use the Acousti Com on 13 August. No symptoms were noted for that day but Mr Petursson did note, specifically, that the measurement was (only) 2 volts per metre which, as Mr Petursson later described in an email to Mr Yates, "in any body's book would be considered safe".
23. It is common ground that, on 18 August 2003, the apparatus was switched off for a period of time. The claimants' case is that they detected, by their lack of symptoms and physical response to the switching off alone, that transmission had been interrupted. Accordingly, they say, they were able to detect by their physical response when the apparatus was and was not in use. If that were correct, it would constitute significant evidence. Mrs Ingvarsdottir's evidence is that, on 18 August, when she was working in her office, she suddenly felt as though something had happened. There had been what she describes as a terrible storm and then she felt as if she were in a quiet place. She says that she went to speak to her husband. That prompted him to make measurements. These indicated that the transmission had ceased. Mr Petursson said that he did not know until 18 August 2003, when transmission ceased for some two hours, that the mast had become operational some time previously. It was when his wife experienced a violent reaction on that day that they appreciated that the system had been live for a while. Mr Petursson's evidence was that on 18 August 2003 he and his wife could feel the difference between the periods when the antennas were emitting and the periods when there were no emissions. The only proof they had that the antennas had by then became operational was that they could feel the change in effect when the transmission stopped. Mr Petursson made that point in a letter to Mr Yates dated 5 September 2003. He referred to the symptoms of ill health suffered by himself, Mrs Ingvarsdottir and Mr Niels Eiriksson and behavioural changes of Floppy. Initially, he said, he had attributed their discomfort to the heat (it was the time of the heat wave): "I became certain it was the antennas the day they turned it off (18 August 2003) for a number of hours".
24. Mr Petursson's translation of the log entry for 18 August 2003 reads as follows:
"Approx 10.00 o'clock I measured there was no result. I observed there was a technician working in the control panel, which was why it was disconnected.
Approx 1100 -1130 hrs Agnes felt that the antennas got connected again.
She sat in front of her computer.
Agnes describes it like a pressure on the temple along with some confusion.
I checked, the beam is back, and the technician has left.
It is certain that the antennas is operational!
There is no visible announcement in a public place..."
25. I am not persuaded by the claimants' evidence as to the sequence of events on 18 August. As Mr Petursson accepted, if he had thought that the antennas was not transmitting on 18 August he would not have taken readings. It is clear from the log that Mr Petursson saw men working on the apparatus after he had taken Acousti Com readings that day. The log indicates that these events occurred before Mrs Ingvarsdottir experienced the relief from symptoms which she describes. In my judgment it is more likely that Mr Petursson saw the men working on the apparatus and communicated that to his wife who then experienced a change in physical sensations. I do not accept Mrs Ingvarsdottir's evidence that she had felt better that morning and asked her husband to make a measurement using the Acousti Com device. I believe that Mrs Ingvarsdottir experienced the dramatic change in symptoms which she describes after Mr Petursson had seen that men were working on the apparatus.
26. It is clear that Mr Petursson believed the apparatus had become operational in late June 2003, as his early log entries indicate. He then learned from Mr Yates on 1 July 2003 that the apparatus was not yet operational and was likely to become so at the end of that month. During July 2003, no symptoms are recorded in the log. Mr Petursson expected the apparatus to become operational at about the end of July. He saw men working on the apparatus on 6 August. In giving his evidence, Mr Petursson accepted that, as at 25 June 2003, he thought that the mast was probably operational. In giving her evidence, Mrs Ingvarsdottir accepted that she and her husband probably knew by 13 August 2003 that the apparatus had become operational by that date. I do not accept the claimants' case that it was Mrs Ingvarsdottir's startling reaction on 18 August 2003 that led them to conclude that the apparatus had become operational. They knew well before that time that the apparatus had been put into use. They knew from Mr Yates that the apparatus was expected to be put into use at about the end of July. I believe that Mr Petursson, at least, had seen men working on the apparatus on 6 August 2003. In my judgment the claimants knew on 6 August that the apparatus was or was about to become operational. Any symptoms which the claimants experienced or believed they experienced after that date occurred after they had become certain that the apparatus had become operational.
27. My conclusion that the claimants probably knew as early as 7 August 2003 that the apparatus was operational is supported by the evidence of Mr Dobson (employed by the defendant as Regional Community Affairs Manager). On the afternoon of 21 January 2004, Mr Dobson and two representatives of Bureau Veritas visited the claimants' property to make readings. Mr Dobson made a file note recording matters relating to that visit. Mr Petursson's evidence is that Mr Dobson did not introduce himself as an employee of the defendant, but instead gave the impression that he was an employee of Bureau Veritas. On balance I prefer Mr Dobson's evidence as to events that afternoon and I accept that his file note records what Mr Petursson had said. Mr Dobson's recollection is supported by his file note. This records that Mr Petursson and Mr Dobson discussed Bureau Veritas' readings. It goes on to say that Mr Petursson "said to me that although [the defendant] had not told him when the site 'became operational' he saw a group of [the defendant's] people on site in August and that's when he knew".
28. It follows that the events of 18 August 2003 are not as significant as the claimants contend.
29. The claimants also rely on events on 1 September 2003. The log for that day records:
"Control measurement 2.5 V/m
Adda has a small headache and nausea
Erik has pressure in his head
Niels has got an upset stomach
The mast was cut off at 1050 approx
I did not get any measurement on the upper floor, no reaction
Mast was put back on 1120 approx
Measurement appeared to be back at the usual 2.5 V/m
We did not have time to register a difference in the head, it was too short a duration."
30. However, as the log entry indicates, Mr Petursson used the Acousti Com device to discover whether the mast was operating.
31. The claimants' case is that Mrs Ingvarsdottir's reactions on 18 August and 1 September 2003 are of significance because these indicate the reality of a correlation between the operation of the base station and the suffering of symptoms by Mrs. Ingvarsdottir. On the evidence available to me, I do not accept that there is any such correlation. I have already dealt with the events on 18 August 2003. So far as the 1 September events are concerned, again, I am not persuaded that the cessation of Mrs Ingvarsdottir's symptoms alerted the claimants to the fact that transmission had ceased. In my judgment it is probable that, when Mr Petursson saw men working on the apparatus on 1 September, he drew the inference that the transmission may have stopped. His measurement confirmed this. Accordingly, it was not the case that the change in symptoms triggered the realisation; instead, the claimants experienced changes in symptoms after having seen men working on the site, and thus realising that the antennas may not be functioning, or after having measured emissions.
32. It follows that I do not accept that the incidents on 18 August or 1 September 2003 have the significance which the claimants suggest.
33. I heard evidence from the claimants' two sons, Mr Niels Eiriksson and Mr Henrik Eiriksson and from Mr Richard Waghorn, a friend of Mr Niels Eiriksson and a visitor to 57 London Road on 15 January 2004.
34. Mr Niels Eiriksson was with his parents for a family party at the property on 6 August 2003, then left for a holiday. A few days after he had left the UK he contacted his parents by telephone who told him that they were feeling sick and disoriented. After his holiday, Mr Niels Eiriksson returned to work at 57 London Road on 26 August 2003. He found his parents looking unwell and wearing silver foil hats. His evidence is that after a couple of hours he began to feel nausea and dizziness. After he left work and returned to his home, he began to feel better. He says that was the pattern of symptoms for the rest of that week. He then also began to get headaches and a feeling of pressure on his skull.
35. In early September 2003 the claimants asked Mr Niels Eiriksson to find alternative business premises. He did so. The business moved on 16 September 2003 to offices within Malvern District Council premises. In fact, there was a mast close to those premises. Mr Eiriksson said he knew about that mast but did not mention that to his parents. In December 2003 the business moved again. After the claimants moved the business out of 57 London Road, in September 2003, they spent long hours at the new business premises and returned to 57 London Road only to sleep.
36. Mr Niels Eiriksson acknowledged that he and his parents had been concerned about the possible health consequences of the apparatus. As he said, at some point they thought they would all keel over and die of cancer if they stayed in the property. That was what he and his parents expected. He said that he had not expected to experience problems in the short term, nor had he expected the effects to be so drastic.
37. Mr Richard Waghorn is in his early forties. During the afternoon of 15 January 2004 he visited 57 London Road in order to take measurements of ambient audio levels to ascertain whether the apparatus was producing any predominant frequencies. (These do not assist in this case.) His evidence was that he had a dramatic experience: he began to feel nauseous, disoriented and dizzy. The feeling was so pronounced that he had to sit in his car for 20 minutes before he felt confident to drive. He had not experienced anything like it before. He had been really glad to get away from the house. Mr Waghorn suggested that he return with a calibrated analyser system to try to pinpoint the problem. He visited the house again during the afternoon of 18 March 2004, accompanied by two associates. Although they made many measurements, they were unable to pinpoint a problem. Once again he experienced feelings of nausea, but his symptoms on that occasion were not as dramatic as on his first visit.
38. Mr Waghorn came across as a robust man. I accept that he had been genuinely taken aback by his experience on 15 January 2004. Although he thought he was not prone to being suggestible, he very fairly accepted that it was possible that he had experienced the symptoms he described because of suggestion by the claimants.
39. The claimants' son, Mr Henrik Eiriksson, lives in Denmark. His evidence was that he visited his parents for Christmas 2003. He was shocked when he saw his parents: they looked worn out and as if they had aged 10 years over a span of a few months. He stayed with Mr Niels Eiriksson, but visited 57 London Road for four hours on 27 December 2003. While there, he conducted some sound recordings in the house. (These do not assist in this case). After about an hour he felt disoriented and dizzy. He found it difficult to concentrate. He felt increasing tension in his neck and shoulders and felt sick. Most of those symptoms had disappeared shortly after he left 57 London Road. By the time he visited 57 London Road on 27 December, he knew that his parents were not well and he acknowledged that he was very worried about them. Mr Henrik Eiriksson experienced no dizziness or sickness when at his home in Denmark. It was pointed out to him that he lives within 120m of the site of a 3G mast and of a second generation mast and within 120-190m of three other transmission masts.
40. Mr Petursson said that a neighbour, Simon of Sican Engineering, 50 London Road, had experienced symptoms but would not blame the mast for his illness. It was said that the claimants' cleaning lady experienced symptoms attributable to the apparatus, but she has not given evidence. No one else living near to the mast has given evidence that they had similar symptoms.
41. When the claimants' business was moved to Malvern in September 2003, it was located about 500 metres from a free-standing mast operated by four mobile telephone operators and radio and television broadcast services. Mr Niels Eiriksson did not inform his parents of the presence of that mast. It appears that the claimants and Mr Niels Eiriksson worked at those premises (and remained there for long hours) for about eight weeks with no reported symptoms, even though the level of emissions from that mast was greater than the emissions measured by Bureau Veritas in relation to the Little Sauce Factory mast.
42. Mr Dobson and Mr Navolio of the defendant both visited 57 London Road. Neither referred to feeling ill.
43. I believe that the claimants, Mr Niels Eiriksson, Mr Henrik Eiriksson and Mr Waghorn have all experienced the unpleasant symptoms each has described. There is no expert medical evidence available to me. Some of the claimants' medical records have been disclosed. There is no record of symptoms such as those which the claimants say they experienced while living and working at 57 London Road. The claimants did not seek medical help with the symptoms they describe. Both Mrs Ingvarsdottir and her son Niels said that they had no confidence that they would receive any effective medical help or treatment. I have no medical evidence to help me ascertain a cause of the symptoms described.
44. I accept that the claimants believe that the transmissions caused their symptoms. Mr Petursson had, from the beginning, protested about the proposed siting of the apparatus. He was particularly concerned that emissions from the base station would adversely affect
his health and that of his family. The claimants and Mr Niels Eiriksson had followed the public debate about possible adverse effects on health of telecommunications antennas and base stations. They expected to experience difficulties. They were anxious to move out of 57 London Road as quickly as they could. Mr Petursson took steps to try to protect the property by fitting metal netting to the walls of the house adjacent to the apparatus and by hanging nickel coated curtains, which he earthed. They hired then purchased measuring devices. Mr Petursson, his wife and son, Niels, wore foil hats when in the property. It is clear from their evidence that the claimants experienced a high level of anxiety. One can see how this may have been communicated between themselves and to others including their sons and Mr Waghorn.
45. It is clear that as soon as they knew that the defendant proposed to install apparatus, the claimants expected to suffer adverse effects. The claimants and Mr Niels Eiriksson had read about possible adverse health effects from emissions. The claimants were plainly very anxious about having apparatus so close to the house. It is also clear, as I have explained, that the claimants began to experience symptoms in June 2003 as soon as they believed that transmissions had begun, even though in fact the apparatus had not begun to operate. Mr Petursson accepts that, if - as is the case - the apparatus had not become operational by 20 June 2003, the symptoms he describes in his log for the period 20 June until 7 August cannot be said to have been caused by emissions and it was possible that the symptoms were psychosomatic. It seems to me that it is quite possible that the feelings experienced by the claimants, their sons and Mr Waghorn were psychosomatic.
46. The first question is whether the claimants are entitled to seek an order in circumstances where they disposed of their interest is 57 London Road before trial. They moved their business from 57 London Road in September 2003. On 6 February 2004 they completed the purchase of a house in Malvern, to which they moved. The sale of 57 London Road was completed in August 2004.
47. The claimants' case is that they are entitled to seek an order because they have fulfilled the pre-condition laid down by paragraph 17. The fact that they have disposed of the property since the commencement of the proceedings is immaterial. They were entitled to give notice of objection under paragraph 17(2). At that time they were the owners and occupiers of 57 London Road and that was a property capable of being prejudiced by the defendant's apparatus because of its proximity to the land on which the apparatus was situated. Paragraph 17(5) provides for the application to the court to be made by the person who gave the notice under paragraph 17(2) – in this case, the claimants. That paragraph sets out the pre-conditions for bringing proceedings namely that the applicant owned or occupied the relevant land at the time of the notice of objection; that he gave a notice of objection; and that he makes the application within the time limit set out in paragraph 17. There is no indication that a claimant whose application is validly commenced does or can lose his rights because of a subsequent disposal of the property. The paragraph expressly requires the ownership or occupation of the property at the time of the giving of the notice of objection. This is the only stage at which a requirement of ownership or occupation is stated. There is no such express requirement at the time of the commencement of proceedings let alone at that of the hearing. The express pre-condition for the bringing of proceedings is that the applicant has served a valid notice of objection. There is no reference to continuing ownership. The Code does not, for example, contain a requirement that the person making the application must not only have served a valid notice of objection but must also own or occupy the relevant land at the time of making the application. To impose a requirement of ownership/occupation at the time of the commencement of proceedings would be to impose a requirement not laid down in the Code. If ownership/occupation is not required at the time of commencing proceedings then equally it is not necessary for a claimant to have retained ownership/occupation at the time of the hearing. If the proceedings are validly commenced, even though the claimants are no longer owner or occupier at the time of commencement, then the proceedings must be capable of leading to an order upholding the objection. It follows that the ending of ownership/occupation cannot be fatal to the claimants' entitlement.
48. The defendant's case is the claimants have no interest in continuing to seek an order that the apparatus be removed or moved now that they have ceased to occupy the property and sold their interest in it.
49. In my judgement, the claimants are no longer entitled to seek an order that the apparatus be moved or removed. Paragraph 17(6) permits the court to uphold an objection if the apparatus "appears materially to prejudice the applicant's enjoyment of an interest in the land...". That is expressed in the present tense. Now that the land has been sold the claimants cannot demonstrate that it appears materially to prejudice their enjoyment of the land. Further, having disposed of their interest in the land and no longer potentially being affected by it, the claimants can have no interest in continuing to seek an order that the apparatus be moved or removed. No such interest has been demonstrated here.
50. As Mr Humphreys for the defendant points out, paragraph 16 of the Code enables an objector, in the circumstances set out in that paragraph, to claim compensation in the Lands Tribunal for "injurious affection". Accordingly, an objector who moves from premises before his objection comes before the court nevertheless has the right to claim compensation. I accept Mr Humphreys' submission that the provisions of paragraph 16 are consistent with the defendant's case that, when occupation and ownership cease, a claim may be brought only, if at all, in respect of the diminution in value to the interest in land.
51. In my judgment the claimants' claim must fail because the claimants lack the standing to maintain the claim.
52. I nevertheless deal with the question whether the claimants have on balance of probabilities persuaded me that the apparatus appears materially to have prejudiced the claimants' enjoyment of 57 London Road.
Have the claimants demonstrated that the defendant's apparatus appears materially to have prejudiced their enjoyment of 57 London Road?
53. I consider, first, what is meant by appearing materially to prejudice enjoyment of land. The claimants believed that the emissions affected their health. I accept that, in that sense, the claimants' perception of the effects of the apparatus constituted material prejudice to their enjoyment of their property. They have a perception of material prejudice caused by the operation of the defendant's apparatus. That however in my judgment is not sufficient. The test set out in paragraph 17(6) of the Code is, in my judgment, objective not subjective. The claimants' subjective perception is insufficient. In my judgment, the claimants must demonstrate, on balance of probabilities, that the apparatus caused the ill effects of which they complain in order to prove the matters set out in paragraph 17(6) of the Code.
54. The claimants rely on their evidence in relation to what they say is the coincidence of timing and location between their symptoms and the operation of the base station on three occasions: on 7 August 2003 (commencement of operation of the base station, when Mrs. Ingvarsdottir said that she was more sick than she had previously been); on 18 August 2003 (alleged correlation between Mrs. Ingvarsdottir's reaction and the operation of the base station); and 1 September 2003 (when a similar reaction was experienced.) However, as I have set out earlier, I am not persuaded that there is any correlation which demonstrates that the claimants appreciated that the apparatus was operational by reason of their reactions. This point therefore does not assist the claimants.
55. The claimants rely on the evidence of Mr. Waghorn. Whilst I accept that Mr Waghorn experienced a marked reaction while inside 57 London Road, that should be considered in the light of the scientific evidence and of his acknowledgement that he might have been affected by knowledge of the claimants' feelings.
56. The claimants also rely on the coincidence of their worst symptoms with the conditions of lowest traffic at the base station. In his statement, Mr. Navolio describes the variations in power transmission as shown in recorded readings from the antennas. The claimants contend that these support the hypothesis of their expert, Dr. Hyland, that the claimants experience variations in the control channel transmissions. For reasons which I give in more detail later, I reject that hypothesis.
The Expert Evidence
57. I heard evidence from Dr Gerard Hyland for the claimants and Dr Philip Chadwick for the defendant. Dr Hyland holds a PhD in theoretical physics. He is an Executive Board member of the international Institute of Biophysics, based in Germany, and a Trustee of the EM Radiation Research Trust. During the past six years or so Dr Hyland has been concerned with potential health hazards associated with non-thermal influence of exposure to the low intensity microwave radiation used in the GSM (Global System for Mobile Communications) and TETRA (Terrestrial Trunked Radio Access or Trans European Trunked Radio) systems of telecommunications.
58. Dr Hyland gave evidence to the Ripon and Leeds Consistory Court in 2003. I am not bound by the findings in that case, and indeed have approached all the expert evidence anew and without reference to the findings of that court.
59. Dr Chadwick has a PhD in the interaction of electromagnetic fields with people. He has worked for fifteen years in the field of assessment of exposure of people to electromagnetic fields. He is currently technical director of a consultancy specialising in the interaction of electromagnetic fields with people. He is a member of a number of influential bodies including the International Commission on Non-Ionizing Radiation (ICNIRP) which was established in 1992 as an independent international scientific advisory body one of whose functions is to advance non-ionising radiation protection for the benefit of people and the environment and to develop international guidelines on limits of exposure to non-ionising radiation which are independent and scientifically based.
60. Reliable research into the health effects of radiofrequency electromagnetic fields (RF fields) began in the 1940s. There is now a substantial body of evidence upon which guidelines to restrict the exposure of people to RF fields are based. There are clearly established guidelines for the protection of the public from the RF fields emitted by base stations. These guidelines are based on the established thermal effects of exposure. The existence of possible non-thermal and biological effects has been considered by a number of authoritative independent expert groups.
61. There has been substantial, international research into and many papers have been published on the effects of human exposure to the electromagnetic fields emitted by mobile telecommunication base stations. I have been taken to a number of these, including:
ICNIRP 1998: Guidelines on limiting exposure to time-varying electric, magnetic and electromagnetic fields
Independent Expert Group on Mobile Phones (IEGMP) May 2000 (the Stewart report, referred to as Stewart 1).
COST (European Co-operation in the field of Scientific and Technical research): paper November 2001
National Radiological Protection Board (NRPB)'s Advisory Group on Non-ionising Radiation (AGNIR): report Vol 14 No 2 2003 "Health Effects from RF Electromagnetic Fields."
Mobile Phone & Health 2004: Report by the Board of the NRPB Vol 15 No. 5 2004.
Santini: Survey Study of People Living in the Vicinity of Cellular Phone Base Stations, published by Santini et al, 2003
TNO Physics and Electronics Laboratory: Effects of Global Communication system RF fields on Well Being and Cognitive Functions of human subjects with and without subjective complaints, September 2003
Navarro: The Microwave Syndrome: A Preliminary Study in Spain, 2003
62. Stewart 1 concluded that "the balance of evidence indicates that there is no general risk to the health of people living near base stations on the basis that exposures are expected to be fractions of guidelines."
63. ICNIRP published its exposure guidelines in 1998. These recommend relevant exposure levels for the public at the frequency of operation of the defendant's base station at the Little Sauce Factory (2.10GHz) of 10 watts per square metre. Dr Hyland readily acknowledges that the defendant's apparatus is ICNIRP compliant.
64. In a joint statement, Dr Hyland and Dr Chadwick agreed that the base station complied with ICNIRP guidelines and that the conclusion of all international scientific review bodies (eg Stewart 1, AGNIR 2003, Zmirou et al 2001, and Nordic competent authorities) is that, at the levels to which the claimants were exposed, there is no general risk to health, on the basis that the exposure levels are small fractions of the guidelines.
65. They disagreed on (1) the question whether the electromagnetic fields (EMFs) from the base station are capable of causing or were responsible for the health effects experienced by the claimants at 57 London Road and (2) the adequacy of the ICNIRP guidelines and the overall scientific consensus related to possible health effects of EMFs from base stations.
66. In practice, Dr Hyland and Dr Chadwick do not disagree on the following propositions. (1) The scientific consensus, as reflected in UK and international expert review body reports, is, as stated in Stewart 1, that: "the balance of evidence indicates that there is no general risk to the health of people living near base stations on the basis that exposures are expected to be small fractions of guidelines". (2) The levels of exposure to radio frequency (RF) fields measured by Bureau Veritas at 57 London Road on 19 May 2004 are, at worst, approximately 80,000 times lower (rising to 437,724 times lower) than the ICNIRP guidelines (10 W/m2) and also fall below even the more stringent guidelines issued in Italy and Switzerland.
67. Dr Hyland's opinion is that the current safety guidelines afford protection only against adverse health effects provoked by overheating. They leave those exposed vulnerable to adverse health impacts provoked by any other, non-thermal influences that the emissions might exert. He notes that this possibility was identified in Stewart 1 which stated "On its own, adoption of the ICNIRP exposure guidelines will not allow fully for current gaps in scientific knowledge, and particularly the possibility of, as yet, unrecognised thermal or non-thermal adverse effects at lower levels of exposure." Dr Hyland relies on a similar conclusion reached in a review of RF/microwave health literature conducted by the Institute of Social and Preventative Medicine in Basel on behalf of the Swiss Environmental Agency (BUWAL). That report concluded that there was a potential for health effects at levels below the ICNIRP guideline values.
68. Dr Hyland's opinion is that the ICNIRP guidelines protect only against what is not actually a hazard, as the intensity is far too low to entail any degree of heating. His criticism is that the guidelines "ignore the existence of sensitivities contingent upon aliveness – sensitivities that can be accessed by the non-thermal influences that the guidelines do not address. In the case of GSM, these sensitivities have been attributed to the presence of GSM signals of certain (bio-active) frequencies that can interfere with natural electrical bio-rhythms that the body supports when alive, and which are involved in biocommunication and in the control of biological processes essential to well-being."
69. Dr Hyland's theory is based on his proposition that there are a number of rhythmically regular underlying features in the transmitted power, characterised by the frequencies of 100Hz, 1,5Hz and 15kHz, associated with the four control channels which are always transmitted irrespective of the level of call/data traffic, and the primary and secondary synchronisation channels. Dr Hyland sought to explain how the transmissions can affect humans and he suggested that there is credible research based support for his contentions. Dr. Hyland claims that it is possible to identify a regular variation in the 3G signals at a frequency coinciding with endogenous body frequencies and so potentially capable of interfering with those frequencies. He maintains that there is, in the 3G signals, a punctuation or rhythmic variation with a repeated "on/off" variation. In support of this, he relies on the TNO report, the 3G specification and the acceptance by Mr. Navolio of the defendant that there was a repeated on/off sequence.
70. The TNO report expressly addresses the question of emissions from 3G base stations. It identified symptoms similar to those suffered by the claimants. Those symptoms were not attributable to thermal effects. The TNO report was accepted by review bodies as being of high scientific quality. The Health Council of the Netherlands in 2003 stated " …the Committee concluded that the TNO study was of good quality, both in terms of design and execution. The Committee had some comments, however, regarding the interpretation of the data….There is some debate concerning the validity of the questionnaire that was used to measure well-being." The TNO report's conclusions and findings were such as to justify further research, by way of follow up studies, as the Health Council of the Netherlands recognised in its report.
71. In relation to this case, Dr Hyland relies also on what he considered to be the significance of the events of 7 and 18 August and 1 September 2003. For reasons I have given, these do not have the significance contended for by the claimants.
72. Dr Chadwick's evidence is as follows. The current scientific consensus is that the existence of adverse health effects below guideline levels is unproven. Public exposure level to RF fields near base stations are, typically, thousands of times below the guidelines. The levels of exposure measured at 57 London Road are consistent with levels of exposure in homes that are not near base stations. The power per antenna is only 20 watts. The variation in power is from approximately 5W continuous (when there is no call traffic) to a maximum of 20 W (dependent upon the volume of call traffic). The difference between 5W and 20W is a factor of 4. This is less of a variation than occurs through refraction and reflection between the rooms of the property at 57 London Road as shown in the measurements made at the claimants' property by Bureau Veritas on 19 May 2004. The defendant's case is that these points are consistent with the scientific consensus that there is no general risk to the health of people living near base stations as such exposures are expected to be small fractions of guidelines.
73. Whilst the ICNIRP guidelines for the frequency with which this case is concerned (2.10 GHz) seek to protect from thermal radiation, (a) this is the case only because the scientific evidence for non-thermal biological (let alone non-thermal adverse biological) effects at this frequency did not, and does not, exist; and (b) in this case, the base station's emissions do not only comply with ICNIRP but, rather, they are tiny fractions of those guidelines.
74. Dr Hyland lacked balance and impartiality in relation to his evidence in this case. He did not adopt the objective approach which a court expects from an expert witness. Dr Hyland claimed that all the expert bodies (apart from the SSI (Sweden) and Zmirou (France) reviews as to which he had no evidence) lacked honesty, independence and were economical with the truth. This is a bold and startling contention. It would, for example, cast doubt on the integrity of Sir William Stewart (who chaired the IEGMP, and who is now the Chairman of the National Radiological Protection Board) who referred in the foreword to the Stewart 1 report to "the fierce independence" of the group he chaired. I have no hesitation in rejecting Dr Hyland's statement with respect to these eminent and expert bodies. Dr Hyland produced no evidence in support of his contention. His unjustified criticism of national and international groups reflects poorly upon himself and must be viewed in the light of his own partiality in giving evidence in this case. In his reports to this court, Dr Hyland failed to draw attention to the COST 281 Statement. That paper, dated November 2001, is titled Scientific Comment on Individual Statements of Concern About Health Hazards of Weak EMF. It was prepared by an international committee of scientists in response to a submission which Dr Hyland made to the European Parliament. It contains the following: "It is postulated by Dr Hyland that GSM radiation affects the organism. This is supported by the argument GSM 'has rather well defined frequencies' which can interfere with 'a variety of oscillatory electrical biological activities, each characterised by a particular frequency, some of which happen to be close to those used in GSM' in particular 8.34Hz and 2Hz, which 'correspond to those found in the human EEG – especially in the ranges of the alpha and delta brain waves, respectively'. This is non-scientific argument by analogy." The paper sets out those matters, which it says Dr Hyland has ignored, and continues "Therefore postulating that weak GSM signals would affect brain activity just because there is a similarity in the frequency components ignores well-established knowledge.". It goes on to express strong criticism of Dr Hyland's approach eg "not based on generally accepted scientific rules. It is of dubious scientific nature and does not reflect the view of the majority of the accepted scientific experts in the field." This indicates strong condemnation by peers as to his own objectivity and scientific rigour.
75. In cross examination, Dr Hyland was asked about evidence he had given in a case heard by Ripon and Leeds Consistory Court in March 2003. He questioned whether he should have been asked about that evidence. His concern was rather odd. He had in fact referred to it in his own reports and, in any event, his opinion expressed to that court was plainly a matter which would be of relevance and assistance to this court.
76. I consider Dr Hyland's evidence in the light of those concerns.
77. I reject the claimants' submission that the evidence of Dr. Chadwick was flawed and unsatisfactory, on the basis that, as his expertise lies in dosimetry/measurement, then, other than in those fields, he cannot make an informed assessment of the validity of research nor of the views of the various review bodies. Dr Chadwick seemed to me to have a clear understanding of the scientific papers to which both he and Dr Hyland referred. Further, he was better able than Dr Hyland to understand and explain issues including, for example, the nature of the power output from the apparatus. He has a clear understanding of the effects of transmissions on the human body. Dr Hyland, on the other hand, is a theoretical physicist without a similar level of understanding of biological responses. I also reject the claimants' criticism of the conclusions drawn by Dr. Chadwick from the review papers as being over-simplistic. He gave most helpful evidence in relation to the extensive scientific research which has been undertaken and interpreting technical and epidemiological studies.
78. Dr Hyland misunderstood the power output from the defendant's apparatus. Once he had appreciated the true position, he took no further issue with matters arising from the power output. In fact, the variation in power is from approximately 5W continuous (when there is no call traffic) to a maximum of 20 watts (dependent upon the volume of call traffic). The difference between 5W and 20W is a factor of 4. This is less than the variation, of a factor of five, which was found to occur through refraction and reflection between the rooms of the property at 57 London Road. That variation was demonstrated by measurements taken inside 57 London Road by Bureau Veritas in May 2004. Dr Chadwick pointed out, and I accept, that that variation was greater than any variation in emissions from the base station which could possibly be attributed to changes in call traffic levels.
79. Dr Hyland's theory, (which was considered in Stewart 1) has depended upon there being pulsed radio waves, at frequencies within defined ranges of the human body's bioelectrical activities, and which are demodulated or decoded by a receptor in the body. Dr Hyland, under cross-examination, said that his theory does not now require there to be a pulse or pulse modulation. Whilst this is a necessary concession given the facts concerning 3G base stations, it reveals an important flaw in his theory. Dr Hyland has previously relied on the need for pulsed radio waves which are demodulated or decoded by a receptor in the body. That was his position in 2000 when he gave a seminar on the physics and biology of mobile telephony. In an article published in the Lancet Volume 356 dated 25 November 2000 reporting this seminar, it was said that "the purpose of this review is to introduce clinicians to the physics of mobile telephony and to explain how low-intensity, pulsed microwaves can affect living organisms, both thermally and non-thermally". In addition, the judgment of the Ripon and Leeds Consistory Court states that Dr Hyland had "relied on the Freiburger Appeal, …a statement made by a number of medical doctors…..which declared: 'we can see especially after carefully directed inquiry, a clear temporal and spacial correlation between the appearance of disease and exposure to pulsed high-frequency microwave radiation… such as …installation of a mobile telephone sending station in the near vicinity…'".
80. I accept the evidence of both Dr Chadwick and Mr Navolio (the defendant's Head of Radio Emissions Compliance) that there is no pulse emitted from the antennas at the Little Sauce Factory. The power is continuous, at approximately 5W, even when there is no call traffic. The common pilot channel transmits at a constant 3W and the two synchronisation channels, which transmit simultaneously, at 1W each, are merely substituted by the broadcast channel which transmits at 2W. I am satisfied that Dr Hyland was in error in his assertion that power dropped to zero as channels were turned off and on. Reference was made to a graph in Dr Hyland's Reference Document 14. This shows that variations, or slight glitches, occur (because equipment is not perfect). I accept that such variations or glitches are of no more than a half watt, or 10% of the 5W output. This can usefully be contrasted with the power modulation that would be likely to occur with a GSM base station; the power drop would be from between 50-80W to nearly zero, which Dr Chadwick referred to as 'profound' modulation.
81. The claimants contend that Dr Chadwick's evidence as to the nature of 3G signals is unreliable. In describing the nature of the 3G signals, Dr Chadwick stated in his report that the Primary and Secondary Synchronisation Channels (P-SCH and S-SCH) were "not physical, time-modulated channels but rather they are merely pieces of information which form part of the overall 3G signal that is continually transmitted by the base station". However, the 3G specification identifies these channels as physical channels, and both the specification and the evidence of Mr. Navolio show that there is variation. The claimants criticise Dr. Chadwick for having addressed solely the question of variations in power and failing to consider the rhythmic time-related variations in the message transmitted identified by Dr. Hyland. I reject those criticisms. I accept Dr Chadwick's explanation that the reference in his report to physical channels was simplistic. I also accept his explanation that the 3G specification should be read with an eye to the way in which such standards are written, and that is not layman's language. He carefully explained that the three channels do not have a physical existence. They are logical components of a data stream which is continuous. The physical data stream remains the same though it carries different information at different times. If the equipment were perfect, there would be no physical measurable change in the signal. It is not possible to identify, physically, or make a physical separation of the broadcast and data channels. The differences are logical not physical. It follows that when the different logical channels are switched on and off, there is no physical change at all to the physical signal.
82. The periodicity of the modulation which can occur in GSM base stations which, coupled with the profundity of the modulation, gives rise to the description "pulse-like modulation", should be contrasted with the random ("stochastic" was Dr Hyland's description) nature of the 3G power modulation as well as the 'shallowness' of the modulation.
83. I accept that it is clear that the frequency of the signal from the antennas remains the same, namely 2.1 GHz, whatever the power variation. Dr Hyland referred to frequencies of 100Hz, 1.5KHz and 15KHz which he thought also existed within the 'envelope' of the signal. Whilst he admitted that the significance of these frequencies was not apparent, they do not in any event exist within the signal. It appears that Dr Hyland has confused the frequency of the signal (which remains constant) with the rate at which the power or intensity of the signal varies. This variation in power intensity can obviously be measured but that measurement, in terms of the rate at which it occurs (Hz), has nothing whatsoever to do with, and has no bearing on, the frequency of the signal, which is also measured in Hz. Dr Chadwick suggested a helpful analogy of speech to illustrate the point: repetition of the same sentence, first loudly then softly, at the same rate, when the frequency remains the same but the power decreases ie varies.
84. The 3G signal (2.1 GHz) is well beyond the frequencies of the bioelectrical activities within the human body. I accept Dr Chadwick's evidence that the bioelectrical activities lie within a frequency range of 0.1Hz to approximately 1MHz. Their peak is at 20HZ which is a frequency that differs from the 3G signal (2.1GHz) by a factor of one hundred million. Further, their upper frequency limit is perhaps 2000 times lower than the frequency of the 3G signal. Because of this it is very unlikely indeed that the 3G signal would interfere with the human body's electrical systems directly. This is further demonstration of the flaws in Dr Hyland's theory.
85. Dr Hyland admitted that there is no known receptor within the human body that could demodulate the signal so as to affect the body's bioelectrical activities. Dr Chadwick's evidence that RF fields are transparent to the human body at 2.1GHz was not challenged.
86. In the Lancet article to which I have referred, Dr Hyland stated "It is important to stress that the existence even of established non-thermal effects does not make adverse health consequences inevitable". That remains his view. In his opinion, while some human beings will be adversely affected, others will not. In relation to this case, he sought to explain this by suggesting that there may be some genetic factor which made the claimants and their two sons susceptible. When asked about the improbability of alleged health effects being suffered by the Petursson family, Mr Waghorn and (possibly) a cleaning lady, but no one else, Dr Hyland appeared to try to explain the effects on the family as related to the "gene pool" but he accepted that the position would be different in relation to Mr Waghorn and the cleaning lady. Dr Hyland also acknowledged that hypersensitivity, or what he refers to as 'electro-hypersensitivity', is not currently a recognised syndrome or medical condition anywhere in the world except Sweden.
87. The claimants' case is that it has become apparent that the potential for effects from base station transmissions remains an area of scientific debate and investigation. They rely in particular on various research studies identified by Dr. Hyland, and in particular the TNO study, the Navarro and Santini reports and the reaction of the Netherlands Health Council, and on the repeated reviews of the evidence and consideration of the need for further reflection.
88. Dr Hyland advances his theory on the basis of the possibility, not the probability, of adverse health effects. So far as the TNO study is concerned, it was only under cross-examination that Dr Hyland revealed his belief that the GSM signal utilised in the TNO study was not an accurate reflection of an actual GSM base station signal in commercial use. That does not go to his credit. Further, given that the GSM signal was not in his view an accurate reflection of an actual GSM base station, it must be possible that the 3G/UMTS signal used in the study was also flawed. I can have no confidence in the conclusions he seeks to draw from the TNO study. This is supported by the evidence which Dr Chadwick gave. Dr Chadwick was able to demonstrate convincingly that the levels of power attributed to the four channels, as set out in the table in the TNO report do not reflect the working of the 3G base station at the Little Sauce Factory where the power of the two synchronisation channels equals the power of the broadcast channel.
89. The Netherlands Health Council described the TNO study as being "of good quality both in terms of design and execution" and "an initial exploratory study". They raised legitimate concerns as to the validity of the questionnaire used in the TNO study. The council noted that "the results of the TNO study cannot be used to assess whether, and to what extent, there will be any effect on well-being in people's day to day environment". It considered that there were good reasons for replicating the study and stated: "..since the TNO study indicated that UMTS exposure might well produce health effects, the Committee considers it essential that research be carried out into the effects of UMTS signals." The report of the Health Council of the Netherlands did, however, state "The Committee takes the view that it is not possible, on the basis of the results of the TNO study, to determine the existence of a causal relationship between exposure to electromagnetic fields and decreased well-being or adverse health effects".
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|Couple's big mast battle||Created: 1 Jul 2005|
|Couple's big mast battle
A couple who claim they were forced out of their home because a phone mast damaged their health will take their battle to have it pulled down to court today.
Agnes Ingvarsdottir and Eirikur Petursson said they had spent an estimated £300,000 on their legal battle plus a new home and offices because of the 3G mast erected near their Worcestershire house about 18 months ago.
They said they had been plagued with headaches since it was put up and, even though they no longer own the property, they wanted the telecommunications company Hutchison to remove the mast.
They even made sure details of the mast were in the sale contract of their former home, a 200-year-old Grade II listed house near Worcester, so its new owners would not sue them on health grounds.
The case is due before Birmingham District Registry at the city's county court complex today. "We probably will lose because we no longer live next to the mast," said Agnes. "But we have continued with the court battle because we felt so strongly about it. If it makes us sick, what about everybody else?"
Agnes and Eirikur, aged 60 and 62 respectively, moved into the house in 1999 and ran their business designing and making air filtering systems from there.
The mast, which looks like a flagpole, went up on the roof of the Little Sauce Factory Pub during the first week of August 2003, two doors away from their house.
"Within a day of it going up we began to suffer the most awful headaches and nausea," said Agnes. "Our eyes were deep red and swollen in the morning."
The pair petitioned against planning permission for the mast being granted by Worcester City Council and collected 300 signatures from neighbours.
In desperation, the couple rented new business premises and last February they managed to remortgage the house to buy a dilapidated home that was standing empty in nearby Malvern.
When the couple eventually sold the property last August, it was for £50,000 less than the market value. This, they claimed, was because of the proximity of the mast. They have taken the telecommunications company that owns the mast - Hutchison 3G or 3 as the network is now known - to court under Government planning guidance for telecommunications equipment.
They said their aim was not to win compensation, but to have the mast taken down.
A spokeswoman for Hutchison 3G said the case was "unique" because it was going to court, but said she was unable to comment further because of the ongoing legal proceedings.
Feb 21 2005
By Emma Pinch, Birmingham Post
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|The Cost Cap exercise was refused on grounds of Hutchison´s "Human Rights" WHAT HAPPENED TO OURS??||Created: 29 Jun 2005|
| QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
BIRMINGHAM DISTRICT REGISTRY
28 October, 12 November 2004
EIRIKUR MAR PETURSSON AND ANOTHER v HUTCHISON 3G UK LTD
Before Her Honour Judge FRANCES KIRKHAM
Costs capping order - Jurisdiction - Discretion - Factors to take into account - Timing of application - Early application desirable - Retrospective cap - Costs between application and order - Exceptional power - Cap on prospective costs - Human Rights - Fair hearing.
Eirikur Petursson and Agnes Ingvarsdottir, the claimants, owned 57 London Road, Worcestershire in the summer of 2003 when Hutchison 3G UK Ltd, the defendant, who held a license under section 7 of the Telecommunications Act 1984, installed apparatus at 55 London Road.
In December 2003, the claimants issued County Court proceedings against the defendant claiming that they, their family and employees had suffered illness when the level of the apparatus was at its highest, they had been unable to stay at their premises 24 hours a day and they had to find alternative premises for their business. They sought damages in excess of £150,000 and an order that the apparatus be removed or reinstalled. The defendant served its Defence and a Request for Further Information on 26 January 2004. That further information was provided on 6 February 2004.
By letter dated 11 February 2004, the defendant's solicitor, Freshfields Bruckhaus Derringer, wrote to the claimant's solicitor suggesting that the action should be transferred to the High Court, referring to the financial value of the claim, the complexity of the issues, the public importance of the claim and the availability of specialist judges. By letter dated 13 February 2004, the claimant's solicitor agreed to a transfer of the claim to the TCC in Birmingham.
In their Allocation Questionnaires, the claimants and the defendant estimated their costs at £27,394 and £233,000 respectively, with £1,500 and £33,000 respectively incurred to date. On 8 April 2004, the defendant served Further Information requested on 19 March 2004 by the claimants. Directions were given as to disclosure and statements on 7 April 2004; the defendant gave disclosure on 26 May 2004 and the claimants on 4 June, 28 June and 16 July 2004.
At a case management conference on 6 August 2004, a three-day trial was fixed for 21 February 2005; orders for exchange of statements and for expert evidence were made. The claimants indicated that they would inform the defendant whether they intended to proceed with their damages claim by 20 August 2004; they did so. The claimants sold their premises at the end of August. Witness statements were exchanged on 10 August and 14 September 2004. The parties both commissioned reports form experts.
On 5 October 2004, the claimants issued an application seeking an order capping the defendant's costs, limiting the defendant's maximum recoverable costs to a total of £20,000. No prior indication had been given before. There remained the experts' meetings, joint statements and reports to be done as well as two outstanding requests for further disclosure and final preparation for trial.
-Held, by the TCC (HHJ FRANCES KIRKHAM) dismissing the application:
(1) The court has jurisdiction to grant an order of the type requested by the claimant; the court should conduct cases in such a way as to keep costs within proportionate bounds (see para 36);
(2) A costs cap should normally be prospective and not retrospective; it should be made at an early stage; a party should know in advance if its costs are to be capped so that it can tailor its case accordingly (see paras 41 and 42);
(3) It would be unfair for the court to order parties to comply with directions and then impose a retrospective cap; it would breach a party's right to a fair hearing; a retrospective cap would be wholly exceptional (see para 43);
(4) It would be inappropriate to cap the costs for the period between the issue and the hearing of the application (see para 45);
(5) With regard to any prospective costs cap order, the court should take into account the claimants' conduct, in particular their delay in bringing the application, the complexity and novelty of the issues raised and the issue of whether future costs will be disproportionately or unreasonably incurred (see paras 48-52).
The following cases are referred to in the judgment:
AB v Leeds Teaching Hospitals NHS Trust  EWHC 1034;
Adam Musa King v Telegraph Group  EWCA 1766;
Leigh v Michelin Tyre Plc  EWCA 1766;
R v London Borough of Hammersmith and Fulham ex p CPRE London Branch;
R v Lord Chancellor ex p Child Poverty Action Group  1 WLR 347;
R v The Prime Minister ex p CND  EWHC 2712;
Smart v East Cheshire NHS Trust (26 November 2003);
Solutia UK Ltd v Griffiths  EWCA Civ 736;
Various Ledward Claimants v Kent & Medway Health Authority and East Kent Hospitals NHS Trust  EWHC 2551.
Paul Brown appeared for the claimants instructed by Harrison Clark.
Richard Humphreys appeared for the defendant instructed by Freshfields Bruckhaus Derringer.
28 October, 12 November 2004
The Overriding Objective requires the court to have regard to the cost of litigation and in effect to do what is reasonable to secure that the costs are proportionate. Costs capping orders seem to be used relatively rarely in High Court litigation; this may be because both parties to the litigation do not want to be subject to any cap so that, if they win, they can recover the full uncapped amount of their costs. It would be unusual, if not contrary to the CPR, for the court to impose a cap retrospectively.
In the current case, HHJ Frances Kirkham accepted that there was, in principle, a power to lay down a cap retrospectively in respect of costs already incurred. However, this could only be done exceptionally because it would generally be unfair to do so. A party should be allowed to know at an early stage whether there is going to be a cap, so that it can tailor its legal preparation accordingly. Thus, the applicant should usually bring on the application sufficiently early to enable the other party to know where it stands. The judge, in para 43 of her judgment, clearly had in mind Article 6 of the Convention on Human Rights (Fair Trial); that must be right because the party responding to the late application will have proceeded initially on the basis that there would not be any cap; suddenly, at a late stage, to impose a costs cap may be perceived as a constraint on that party's right to a fair trial.
It is difficult to see when in construction cases the exceptional circumstances will arise that would justify a cost capping order for retrospective costs already incurred, save possibly for costs incurred between the application and order if prospective costs are going to be capped. There are unlikely to be "group" litigation or "administrative" issues in TCC cases.
The judge identified a number of matters which, typically, might militate against a late application being successful. They included the claimants' delay in bringing the application, the complexity and novelty of the issues raised in the case and whether future costs will be disproportionately or unreasonably incurred. If the responding party has incurred not obviously unreasonable costs at a substantial level (in this case by using what the claimant perceived very high leading London solicitor's legal costs), it would often be unfair to restrict that party at a late stage when it was in practice effectively committed to go on using the same legal team.
Her Honour Judge FRANCES KIRKHAM:
1. This is an application by the claimant for an order for a pre-emptive costs cap so as to limit the defendant's maximum reasonable and proportionate recoverable profit costs to a total of £20,000. It is common ground that the court has jurisdiction to make an order of this nature. In issue is whether it is appropriate for the court to make such an order.
2. The claimants' case is that they had an interest in land at 57 London Road, Worcester from which they carried on their business. The defendant holds a licence under section 7 of the Telecommunications Act 1984 and authorisation under the Communications Act 2003. Telecommunications apparatus was installed at 55 London Road, Worcester in the summer of 2003. The thrust of the claimants' claim is that their enjoyment of their property has been impaired by the effects of the apparatus.
3. On 11 September 2003 the claimants gave the defendant notice of objection under paragraph 17 (2) of the Code contained in the 1984 Act. (The defendant challenges the validity of that notice.) The claimants issued proceedings in December 2003. In their particulars of claim, they claimed that they, their family and employees suffered physical illness, which was at its worst during the hours when they believed the level of activity of the apparatus was at its highest. They claim to have been unable physically to remain in the property for 24 hours a day and to have been forced to find alternative premises for their business. The relief they claimed was an order that the apparatus be removed or be reinstalled in such a way as not to injure them. They also claimed damages, which they said were in excess of £150,000, including the cost of moving to alternative premises, financing charges to meet the cost of moving and diminution in value of the property.
4. The defendant served its defence on 26 January 2004 and, at the same time, made a Part 18 request for further information. The claimants responded to the Part 18 request on 6 February 2004.
5. By letter dated 11 February 2004, the defendant's solicitors Freshfields Bruckhaus Deringer ("FBD") wrote to Hulme & Co, the claimants' solicitors ("H & Co") suggesting that the action be transferred from the Worcester County Court to the High Court in London. In that letter they referred to the criteria for transfer of proceedings from the County Court to the High Court and cited in particular the financial value of the claim (where the claimants were claiming unlimited damages in excess of £150,000) the complexity of the legal issues in the case, that the outcome of the claim was important to the public in general, the fairness of hearing and the availability of specialist judges. So far as the legal issues are concerned, FBD stated that the case raised "complex and novel issues concerning the interpretation and applicability of the Electronic Communications Code and its interrelationship with the planning law regime." So far as the importance to the public in general was concerned, FBD stated
the growth of the third generation of mobile phone services has resulted in large numbers of telecommunications base-stations/masts being erected in the UK over the last few years, with the growth expected to continue for the foreseeable future. As such, the decision in these proceedings has the potential to affect the cost and efficacy of mobile phone services to members of the public; other operators in the mobile phone industry - given that the court's decision on the complex and novel legal issues raised by this case would not only be of significance to our client but to the remaining four mobile phone operators and the wider industry as a whole; and planning and legal issues associated with the siting of mobile phone masts in communities throughout the UK - issues which have been and continue to be of significance to the public in general.
6. By letter dated 13 February 2004, H & Co replied agreeing to a transfer to the Technology and Construction Court in Birmingham. The action was then transferred, by consent, to this court.
7. In mid-February 2004, both claimants and defendant served their Allocation Questionnaires. The defendant's Allocation Questionnaire estimated that its likely overall costs would be in the region of £233,000. That for the claimants showed costs to date of £1,500 and estimated total costs, including disbursements, at £27,394.
8. In April 2004, H & Co enquired of FBD how the defendant's costs were being funded. FBD replied to explain that the defendant was funding its case "in the normal way". FBD went on to say that, if successful, it would be seeking to recover its costs from the claimants.
9. On 19 March H & Co served the claimants' Part 18 request for further information. The defendant's reply to this was served on 8 April.
10. By order dated 7 April 2004 the court gave directions, on the basis of a paper application, as to disclosure and factual witness statements. The defendant provided disclosure on 26 May 2004. The claimants' disclosure was made on 4 June, 28 June, 2 July and 16 July 2004.
11. A case management conference took place on 6 August 2004. The court ordered exchange of witness statements and gave permission to each party to call one expert to give evidence as to whether the defendant's apparatus was capable of causing or contributing to adverse health effects upon persons living or working nearby. The court made orders for those experts to meet and for reports to be prepared. The matter was listed for trial, beginning 21 February 2005 with a time estimate of three, or four, days. At that hearing, the claimants indicated that they were considering whether or not to continue their claim for damages for personal injury and diminution in value of the property. They agreed to inform the defendant, by 20 August 2004, whether or not they intended to proceed with those claims. It appears that the claimants sold 57 London Road towards the end of August 2004. The defendant says it learned of this only very recently.
12. Shortly after the case management conference, H & Co confirmed that the claimants would not be proceeding with any claim for compensation. Mr Brown, counsel for the claimants, has confirmed that the only relief which the claimants now seek is pursuant to paragraph 17 of the Code namely relocation of the apparatus. The claimants maintain that claim even though they no longer have an interest in the property which they say was affected.
13. Witness statements were exchanged on 10 August 2004 and statements in rebuttal on 14 September 2004.
14. Following the hearing on 6 August, the defendant commissioned a report from Dr Chadwick. The claimants instructed an expert, Dr Hyland, about two weeks ago.
15. On 5 October 2004 the claimants issued this application, seeking an order capping costs. No prior indication had been given by the claimants of their intention to seek such an order. Mr Brown, for the claimants, stated in submissions that the question of cost capping had not been considered by the claimants until August, when Mr Coppel, who represented the claimants at the case management conference that day, raised it with the claimants behind the scenes. However, there had been no mention of this at the case management conference.
16. The matter is listed for trial, with a time estimate of three days, beginning 21 February 2005. Prior to trial, the following need to be dealt with:
(a) expert evidence, including a without prejudice meeting between experts, preparation and exchange of reports and preparation by the experts of a joint statement setting out what matters are agreed and what are disagreed. The parties have agreed that these steps be completed by 17 December.
(b) there is an outstanding recent request by the claimants for further disclosure by the defendant, which the defendant will deal with.
(c) there is an outstanding request by the defendant for disclosure of documents relating to the transfer of 57 London Road.
17. That will leave only final preparation for trial.
The claimants' case
18. The claimants' application arises essentially because the defendant had indicated that it expected its total costs to amount to £233,000. Within the ambit of the statutory remedy in this case - namely that objection will be taken to the county court - and given the means of the claimants, such costs are wholly disproportionate to the subject matter of the claim.
19. The costs claimed to have been incurred and yet to be incurred by the defendant are extremely high. By its Allocation Questionnaire, the defendant estimated that it had already incurred £33,000 in costs. On the basis of a three-day trial, the Allocation Questionnaire estimated that the defendant's overall costs were likely to be £233,000 plus estimated disbursements of £33,320, plus VAT on both of those sums. By the time that Allocation Questionnaire was served, the defendant had served a five-page defence and a four-page request for further information. The defendant served a further detailed schedule of costs, which split costs into actual costs incurred up until 26 January 2004 and estimated costs thereafter. By 26 January 2004 the defendant claimed to have spent over 90 hours on documents alone, split between a partner charging £475 per hour and an assistant solicitor (admitted for less than one year) charging £220 per hour. An additional 13.7 hours were shown for attendances on client and counsel. In short, the defendant claimed that a total of 104.2 hours had been spent within four weeks of the claim form being issued. The defendant estimated a further 594 hours to be spent by the solicitors, including 345 hours on documents. The claimants' case is that those figures are wholly out of proportion to the value of the claim, to the complexity of the claim and to the nature of the issues raised.
20. Further, the defendant's costs and time spent are totally disproportionate to the anticipated costs and time of the claimants. As at 13 February 2004, the claimants' costs to date were £1,500 and their estimated overall costs up to and including trial were £27,394, including disbursements. The defendant thus expects to spend over 8.5 times as much on legal fees as does the claimant. The claimants' estimate of costs prepared in connection with this application indicates that the total time, from commencement of the claim to end of trial, is estimated by H & Co to be just under 85 hours. The defendant's solicitors thus expect to spend over 8 times as many hours on the matter as do the claimants' solicitors.
21. The relief sought is, now, limited to an order for removal or moving of apparatus under paragraph 17(9) of the Code. Costs at the level indicated by the defendant are likely to stifle legitimate objection under the Code.
22. Where there is a prospect of costs becoming disproportionate, the proper approach is for the court to exercise control over costs in advance, rather than to approach the matter reactively by waiting until after the case is over and costs are being assessed.
23. The exercise of the court's discretion must be informed by the need to ensure that the claimants' right to institute and continue proceedings is practical and effective: Article 6 of the European Convention on Human Rights and section 6(3)(a) of the Human Rights Act 1998.
24. The disproportionality of the time and legal costs expected to be incurred is underscored by the relative ability to meet such expenses. Mr Petursson, the first claimant, has prepared a statement. He has considered whether the claimants would be able to survive a costs order against them of up to £266,000 plus VAT, plus their own costs. If the defendant's final costs were no more than £70,000 plus VAT (a figure which Mr Petursson puts forward) that sum, added to the claimants' own costs estimated at £30,000, would give a projected sum of approximately £118,000 inclusive of VAT. He says that he and his wife would be able to survive such a claim, albeit with considerable hardship. He goes on to give information as to the claimants' combined income, value of their house, outstanding mortgage balance and funds available to them. He states that if an adverse costs order of £266,000 plus VAT plus their own costs were made, that would bankrupt them.
The defendant's case
25. The defendant's case is that their costs are not disproportionate either in total or in their component parts. The claimants have been aware of the defendant's costs since as early as February 2004 and no objection has been taken before now. The defendant says it has spent £194,000 up to this stage. From its February 2004 estimate, that leaves £40,000 left for preparation for trial and attending the trial itself. Mr Humphreys for the defendant submitted that it was unlikely that that estimate would be substantially exceeded.
26. The defendant has incurred additional cost by reason of the claimants' failures to comply with the court's orders dated April and August 2004. The defendant has thus been put to additional expense, in excess of that envisaged when the costs estimate was prepared. The extra expense has been incurred because:
(a) the claimants failed to apply to the court timeously to arrange for permission to rely on expert evidence;
(b) the claimants were late in making disclosure, and even then did not initially make full disclosure;
(c) the claimants misrepresented the position with respect to the log of symptoms; that led to wasted time and cost in requiring, ultimately, a physical inspection of the computer log;
(d) though a minor point, the claimants were late in serving their updated schedule of loss;
(e) the claimants have delayed in the appointment of an expert.
It follows that the claimants have caused the defendant wasted cost.
27. This application has been made very late, indeed too late. The defendant has already incurred substantial cost. Mr Humphreys makes what he describes as a "firm submission" that it would have to be a wholly exceptional case where it was appropriate for a court to make a retrospective costs cap order.
28. The claimants knew in August, at the case management conference, of the court's jurisdiction to make an order of the type now sought. However, this was not raised at the case management conference. In contrast the claimants did flag up the possibility that they might discontinue parts of their claim.
29. It was reasonable for the defendant to have instructed London solicitors with expertise in the Code objection procedure, especially in circumstances where very few claims have reached court. The fees charged by FBD are in line with City firm rates. FBD have fielded a small team; there has not been duplication between fee earners. The size of FBD's team mirrors that of H & Co. The defendant has properly and reasonably incurred costs proportionate to the amount of money involved, to the importance of the case in both parties, to the complexity of issue and given the financial position of each. Apart from unexpected matters, the defendant does not expect to exceed substantially the time estimate given for preparation for trial and the trial itself.
30. Mr Humphreys submits that the real reason for the making of this application is the claimants' realisation of the weakness of their case.
31. The defendant's human rights must be taken into account. This is a case where the defendant obtained express planning permission to erect the mast and apparatus. They incurred the expenditure in doing so. The claimants' case is that they should, nevertheless, be required to remove the mast and apparatus. Mr Humphreys suggests that this situation may be unique in our planning system.
32. In R v Lord Chancellor ex parte Child Poverty Action Group (1999) 1 WLR 347 Dyson LJ held that the discretion to make pre-emptive orders, even in cases involving public interest challenges, should be exercised only in the most exceptional circumstances. In R v the Prime Minister ex parte CND  EWHC 2712 Admin, Simon Brown LJ, referring to the decision of Dyson J in CPAG and in R v London Borough of Hammersmith and Fulham, ex parte CPRE London Branch, said
Both those decisions emphasised that the discretion to make [a pre-emptive costs capping order] even in cases involving public interest challenges should be exercised only in the most exceptional circumstances.
33. The scope of cases in which the court has been prepared to consider making a pre-emptive costs capping order has widened. For example, in Smart v East Cheshire NHS Trust dated 26 November 2003 (a clinical negligence claim), Gage J concluded that the authorities supported the proposition that the court had jurisdiction to make pre-emptive orders for costs, whilst stating that such orders should only be made in exceptional circumstances. AB v Leeds Teaching Hospitals NHS Trust  EWHC 1034 was a case concerning claims arising out of organ retention; a group litigation order was made. In that case Gage J concluded that the court had power to make a costs cap order. He said that he was fortified by the encouragement provided by the Court of Appeal in Solutia UK Ltd v Griffiths  EWCA Civ 736 to conclude that in appropriate cases, of which group litigation orders are a
prime example, the court should make a costs cap order. Gage J noted that, in the administrative field, it had been held that there should be exceptional circumstances before a pre-emptive order for costs was made - and he referred to ex parte CND. He said, however, that he saw no reason for such a requirement where a costs cap order was sought in a group litigation order particularly where there was a risk that costs might become disproportionate and excessive. In Adam Musa King v Telegraph Group Ltd  EWCA Civ 613 the Court of Appeal approved use of costs capping in a defamation case.
34. In Leigh v Michelin Tyre Plc  EWCA Civ 1766 Dyson LJ commented that there was "much to be said for costs budgeting and the capping of costs". He referred to the decision of Gage J in AB v Leeds Teaching Hospital NHS Trust. He said
whatever the scope of the jurisdiction to make such orders, it is quite different from the jurisdiction that is exercised retrospectively at the stage of costs assessment and when the court is required to decide the amount of reasonable and proportionate costs. We recognise that the use of CPR 43 PD paragraph 6.6 to control costs by taking cost estimates into account at the assessment stage is not the most effective way of controlling the cost of litigation. It seems to us that the prospective fixing of costs budgets is likely to achieve that objective far more effectively.
35. Mr Humphreys has shown me a paper delivered in April 2004 by Carnwath LJ (Journal of Environmental Law, volume 16 issue 3) in which he discussed use of pre-emptive costs orders in the context of public interest cases. Carnwath LJ stated
individual litigants and NGOs need to know in advance what their costs liability is likely to be.It is the certainty of liability that is crucial.None of these developing principles is much use to an applicant unless he know in advance to what extent the court's discretion is likely to be applied in his favour.
36. These authorities indicate, as indeed is accepted by the parties, that the court has jurisdiction to make an order of the type requested by the claimants in this matter. They also demonstrate that costs budgeting and the capping of costs are desirable. The court should conduct cases in such a way as to keep costs within the bounds of the proportionate in accordance with the overriding objective. There has been some guidance as to the matters which the court should take into account when dealing with such an application. Indirectly, some decisions offer guidance as to the stage at which a costs capping exercise should be undertaken and whether it is appropriate for the court to make a retrospective order.
37. In Smart, Gage J said:
It must be remembered that the circumstances in each case were that unless the court was prepared to make a pre-emptive order of "no order for costs" or, as in ex parte CND, a pre-emptive order limiting the potential liability for costs to £25,000, the claimants would not be able to pursue their claims, claims which were said to be in the public interest. In my judgment these cases whilst of assistance are not determinative of the way the court's discretion should be exercised when dealing with costs cap applicationsThe court should only consider making a costs cap order in such cases (as the instant case) where the applicant shows by evidence that there is a real and substantial risk that without such an order, costs would be disproportionately or unreasonably incurred; and that this risk may not be managed by conventional case management and a detailed assessment of costs after a trial; and it is just to make such an order. It seems to me that it is unnecessary to ascribe to such a test the general heading of exceptional circumstances. I would expect that in the run of ordinary actions it will be rare for this test to be satisfied but it is impossible to predict all the circumstances in which it may be said to arise.
38. In Solutia Sir Christopher Staughton referred to the power given by section 65 of the Arbitration Act 1996 to limit costs. That Act provides that this exercise must be done at an early stage so that parties do not find, ex post facto, that they have spent more than the limit.
39. In Musa King, it was suggested that a costs capping order, "if made at an appropriate early stage of the proceedings and effectively policed thereafter, would be the most effective way of exercisingcontrol." Brooke LJ referred to the costs in the Solutia case and said
the fact that the court was uneasy about the sheer size of [the costs] judged retrospectively, led two of its members to draw attention to the desirability of a judge being able to control legal expenditure on a piece of litigation prospectively.This is a power which must be exercised, if at all, at an early stage, so that a party does not find that it has spent more than the limit if a costs cap was directed later on.
Referring to the judgments of Gage J in AB v Leeds Teaching Hospital NHS Trust and Hallett J in Various Ledward claimants v Kent & Medway Health Authority and East Kent Hospitals NHS Trust  EWHC 2551, Brooke LJ said
In my judgment Gage J and Hallett J were correct to consider that the court possessed the power to make a costs capping order in an appropriate caseNeedless to say, in deciding what order to make the court should take the principles set out in CPR 44.3 (which govern the retrospective assessment of costs) as an important point of reference.
Brooke LJ later said
I haveno doubt, for the reasons given by Sir Christopher Staughton in Solutia, that it would be very much better for the court to exercise control over costs in advance, rather than to wait reactively until after the case is over and the costs are being assessed.
He went on to make reference to section 65 of the Arbitration Act 1996 which makes it clear that, while the tribunal may direct that the recoverable costs of the arbitration be limited to a specified amount, any such direction must be done sufficiently in advance of the incurring of costs to which it relates or the taking of any steps in the proceedings which may be affected by it. Brooke LJ said
There are three main weapons available to a party who is concerned about extravagant conduct by the other side at the risk of such extravagance. The first is a prospective costs capping order of the type I have discussed in this judgment. The second is a retrospective assessment of costs conducted toughly in accordance with CPR principles. The third is a wasted costs orderIn my judgment recourse to the first of these weapons should be the court's first response when a concern is raised by defendants of the type to which this part of this judgment is addressed. The service of an over-heavy estimate costs with the response to the Allocation Questionnaire may well trigger off the need for such a step to be taken in future.
Should the court make a retrospective costs cap order?
40. In Smart and Ledward the court ordered a cap which was both retrospective and prospective. In Smart, liability and causation had been compromised. The settlement was approved in September 2003 at which time Morland J gave directions for trial of quantum issues. By the time the matter came before Morland J, the defendant had made an application for a costs cap order. In Ledward the parties agreed the need for a costs cap and that the cap should be retrospective. That retrospectivity, however, covered only the period from the date of the application for the cap until the date of the hearing of that application. It is clear that the element of retrospectivity in those cases was limited, covering either a period when liability had been conceded and before work on liability began, or only the period from the date of making the application until the date on which the application was heard.
41. In my judgment, on a proper analysis, a costs cap should normally be prospective not retrospective.
42. Further, the authorities suggest that the court expects an order capping costs to be made at an early stage. A party should know in advance if its costs are to be capped so that it can tailor its case accordingly.
43. It would be unfair for the court to order parties to comply with directions and then to impose a retrospective cap. In this case, it appears that the defendant has complied with court directions, and indeed has probably spent more time on this action than might otherwise be the case as a result of the claimants' failures to comply with orders. Both sides have the right to a fair hearing. To impose a retrospective limit on costs in this case would, in my judgment, amount to a breach of the defendant's right to a fair hearing. I accept Mr Humphreys' submission that it would be a wholly exceptional case where it was appropriate to order a cap retrospectively. This is not such an exceptional case.
44. The defendant claims to have incurred costs of £194,000 to date. It estimates future costs, assuming nothing unexpected, of about £40,000. To impose a limit on the defendant's profit costs for the whole action of a sum as low as £20,000, as the claimants seek, would be unrealistic. In making his submissions, Mr Brown gave a strong hint that he accepted that that figure might be considered by the court to be too low. The claimants have put forward a figure of about £70,000. A difficulty with that higher sum is that the claimants have not calculated it by reference to what the defendant is likely to need to spend on defending the action. It is based on the claimants' costs, though with adjustments to reflect the fact that the defendant has instructed a London firm.
45. I am not persuaded that it would be appropriate to cap the defendant's costs during the period 5 to 28 October 2004 (ie from issue to hearing of application), but even if it were, the available evidence does not enable me to make any assessment of the costs incurred during that period.
46. I reject the claimants' application for a retrospective costs order.
Should the court make a prospective costs cap order?
47. I next consider whether the court should make an order capping costs from now up to and including trial.
48. In exercising its discretion, the court should take all relevant matters into account. This includes the claimants' conduct. They failed to disclose the full log of symptoms they have kept, and indeed appear to have given the defendant incorrect information in relation to that log. Some, though not great, weight attaches to that matter. The claimants delayed in instructing an expert on the question of risk to health. The claimants delayed in bringing this application, though the possibility of such an application had been drawn to their attention in August. That delay has gone against them in regard to their application for retrospective cap. It also has some relevance when considering a prospective cap.
49. There is a great difference between the figures quoted by the claimants and those quoted by the defendant. It is understandable that the claimants feel intimidated by the defendant's costs estimate and anxious about their exposure to costs. However, H & Co accepted FBD's description of the action as one which involved complex and novel legal issues. The claimants initially claimed damages in excess of £150,000, and in June 2004 they indicated that that sum was rising. It is not surprising that a defendant faced with a substantial claim involving the issues in this case should instruct solicitors with expertise in the field and devote time to it. I understand the claimants' concern at the amount of time which the defendant claims has been and will be incurred: a period some eight times that of the claimants is a matter of surprise.
50. However, in my judgment this is not an exceptional case, if that be the appropriate test. Alternatively, it is not a case where, without a costs cap, the risk that the future costs which will be incurred in this case will be disproportionately or unreasonably incurred or cannot be managed by conventional case management and a detailed assessment of costs after trial.
51. The appropriate time to consider a costs cap is at the early stage of an action when the parties and the court can together plan the steps needed to bring the matter to trial, the costs implications of those steps and whether a cap is appropriate. In this case, that stage has long since passed.
52. I have set out earlier the minimum steps which the defendant will have to undertake in order to prepare for and attend the trial of this matter. It appears that FBD have deployed a similar team, of partner and assistant solicitor, to that deployed by H & Co. The defendant has indicated that it is unlikely that it will exceed the estimate it has given of £40,000 for the remaining work. The claimants take issue with the total time and hourly rates which the defendant has indicated it will claim for the whole action, if successful, but they have not looked in detail at future costs ie between now and trial. The claimants have not attacked the defendant's costs in such a way as to enable me to conclude, even if I had thought it appropriate to do so, that future costs should be capped.
53. None of this should be taken as an indication that this court approves the defendant's hourly rates, deployment of fee earners or estimate of time spent. Those are matters which a costs judge is equipped to deal with at the detailed assessment stage, and which in this case, should be considered by the costs judge, should the defendant be in a position where it is entitled to have some or all of its costs paid. The costs judge will be able to consider proportionality and whether costs have been reasonably incurred.
54. In all the circumstances, I conclude that it would not be appropriate to cap the defendant's future costs. The claimants' application therefore fails.
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|The court case itself||Created: 12 May 2005|
|We lost the case against Hutchison on the 9th of May.
We believe the date was chosen, so it would be after the election, and could not be used as an issue.
We were made to wait for 74 days from receiving the draft judgment, and were prohibited from talking about the result to anyone.
The judge was unbelievably biased for Hutchison.
Our evidence was rubbished by the judge because she mixed up events, persons and dates from Hutchison employees witness statements.
This was deleted on Monday, but she did not change the result.
She also stated as proof, a speculation from one of Hutchisons employees.
And This is not in in his witness statement, but speculated on when he was cross examined by their barrister.imagine,
THEY did not feel bad coming to our house, wonder why, because everyone else did!
So we stopped having visits!
Hutchison also claimed that we had held up evidence and our solicitor failed to produce the evidence, in the form of a letter from their solicitor acknowledging the receipt of this evidence.
She did not have the written judgment ready, (she had been to London all the previous week) and we are waiting for it to arrive, and I will then scan it and put it in a journal in Mast-Victims.
She said Hutchison had used our case as a "Test Case".
Guy´s, that means they can put them even nearer "NEXT TIME" I AM SO SOORY ABOUT THAT, it was never our intention!.
And their barrister mr. Richard Humphreys of Freshfields Bruckhaus Deringer in London totally took over the court proceedings and ran the whole
show from the start.
The judge also rubbished our expert witness Dr. Hyland´s witness statement and cross examination.
We have also been told to pay expenses for Hutchison, which they claimed would be in excess of
£. 280000.- in November, but we have no idea how much it will amount to now.
And then there is VAT on top.
It does not really matter how much anymore, as we have used up all our funds, pensions and so on for solicitor help, and have no means to pay.
They can only take our little house, that is all there is left.
They had a barrister, 5-6 solicitors and 3-4 helpers.
We had a barrister, our solicitors helper and our own solicitor only came to the court on the first half of the first day and on the last day of the hearing.
This was a real case of Rolls Royce versus a Tri-cycle.
The judge refused us the right to appeal in Birmingham, at the advice of Mr. Humphreys, Hutchisons barrister.
We are now applying for permission to appeal, to the court of appeals in London, which we have 14 days to deliver, counting from the 9th of May, and no guaranty for success or to have it granted, but it is worth th try, and in the meantime PLEASE KEEP THOSE RESEARCH RESULTS COMING IN!
They might help us to get the RE-Trial, or appeal.
We did not receive legal help. (even though I have calculated that we would qualify).
So her is advice:
I do not know if you can still live in your house, but one word of advice.
Even if you have to abandon your house and live somewhere else, Do not sell your house.
Try everything to hold on to it.
We had to sell ours in the end (for what little we could get for it) as we could not hold on to it because of the economic burden, as we had to rent accommodation for our little firm and find somewhere to live, as we could not live in our old house. (Which by the way is still standing empty).
You have to have “sufficient interest in the property”
Quote from the PPG8 : Paragraph 17(2) provides for a notice of objection to be given by “a person who is the occupier of or owns an interest in …..any land”
This sentence is in the present tense, and it is up to the judge´s discretion to decide if this present tense counts at the date you raise the objection, or when it finally comes to the hearing, of the case, typically a year or two after you have raised the objection.
The judge in our case decided it counted at the time of the hearing, and so we failed.
Another important thing: Under § 17 in The PPG8 you can only demand that the mast be removed.
It does not allow for a compensation claim, and that will have to be taken to the Lands Tribunal.
We had originally included a compensation claim, but had to dismiss it before the trial.
Also, I would advice you to ask your solicitor to look at the Human Rights act and include this if possible.
1.st part: Article 8, second part Article 1. I have enclosed these.
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
THE FIRST PROTOCOL
PROTECTION OF PROPERTY
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Also, every day new evidence of the harm these masts have on people is being sent out, and you should include as much of that as you can.
If you need more information from our case please do not hesitate to contact us again.
And we will try our best to supply information to help you.
We are all very much alone and abandoned, in the fight against the radiation emission from the masts, and the sickness they cause us, as we are fighting house by house as we get targeted.
But make no mistake.
These people are totally ruthless, and they will lie and cheat and bully and intimidate and humiliate you, and believe it is their god given right to do so, and they do that with the blessing of the government.
Agnes Ingvarsdottir. Glen lea. Upper Colwall. Nr. Malvern. WR13 6DH Pone/Fax. 01684 540 138
P.S. Please put your story on Mast-victims and ask other people you know about to do the same
There is no need to give information about your name or address, everything is voluntary, but
only if we join in can we hope to achieve any results, and the more of us, the more they have to take
us seriously and do something about it.
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|Our Hutchison 3G UK Ltd. Mast from Hell||Created: 4 May 2005|
|The mast that ruined our lives, so that in the end we had to abandon our lives.
My name is Agnes Ingvarsdottir and my husbands name is Eirikur M. Petursson.
We are UK residents, but my native country is Iceland and my husband’s native country is Denmark.
I am 60 years of age and he is 62.
We have two sons, the eldest, Niels (41 years old) lives here in Malvern and is the father of our three grandchildren.
Niels works for us in our small Dust Extraction company (90% exports), with that in mind that he will take over the company when we retired.
The youngest Henrik (31 years old) is a IT consultant, and lives in Copenhagen, Henrik is unmarried.
Our problem is:
In August 2003 Hutchison 3G UK Ltd. started up a mobile antenna/base station that they had installed on the roof of 55 London Road, Worcester, Worcs. a pub next door to our house 57 London Road, Worcester, Worcs. under wild protests from us and the whole neighborhood.
The distance from the antenna to 57 London Road house wall is 28 meters and the antenna is lover than the house, and the microwaves give a full broadside on the side of the house facing the pub, contaminating the whole interior of the house.
Because of Fort Royal Hill´s status as an ancient monument, the area a conservation area, and some of the houses listed houses (57 London Road is a grade 2 listed house) the mobile phone company had to apply for a planning permission from Worcester City Council, which the council at first refused the planning permission, which was then changed to that they were “minded to refuse” because of the health fears of the residents, and if they could be held to account if we got sick, so it was thrown out and we were told planning permission would have to be applied for a fresh.
But later that month it suddenly appeared again, (without a new application, in a thinner design, courtesy of Worcester city Planning Office).
Worcester City planning officers convinced the planning committee that they would lose at an appeal, as health concerns were not a valid issue in the PPG8.
So at the next planning committee meeting the application was approved and Hutchison promised the council an independent preliminary-survey at the site, for radiation.
This survey was never carried out!
We collected and delivered 300 protest signatures to the (then) mayor of Worcester Mr. Rowden, but the planning approval had been given and the installation went ahead.
57 London Road is a 200 years old, large Georgian house and large enough to house both the company and our private dwelling, so mostly Erik and me were there 24 hours a day, and Niels during long working hours.
When the antenna started operating on the 070803 we got really sick.
(We found out that our sickness could be turned “on”/ “off” on the 180803 when H3G UK Ltd. turned off the antenna because of repairs, and our sickness suddenly disappeared, we got the proof for this in December 2004 when we managed to get the activity records from H3G´s solicitors, and could see that the mast had been turned off for a couple of hours) (Erik kept a text log over things happening wit the mast and our sickness and had recorded this event as well as one more approximately a month later which also showed up in their activity records).
(We did not know they had started it up, we had written to 3G and asked them to give us details, but they ignored our letters). (so much, for John Prescott’s “Code of Best Conduct”)
But we were soon to know that violent headache, nausea, sleepless nights, a condition like Tinnitus and terrible pains in the back and legs (which were later diagnosed as vascular cardiac problem) were now the norm of our lives.
Our immune systems seem to be non existent since then, and from having been the healthiest persons on earth, and almost never poorly, we now seem to get every bug there goes around.
And I must admit that is what is hardest to take, to have lost your excellent health.
By the middle of September it had gotten so bad, that we could not work anymore and had to find alternative accommodation for the company in a hurry.
Malvern Hills council felt sorry for us and lent us, for a short while, offices space in a condemned, asbestos ridden annex that they had emptied, and which was to be demolished, until we could find something else. (This annex was demolished in Mai 2004).
We still had to go home to 57 London Road at night, as late as possible, to cook, eat and try to sleep, which got harder and harder (I lost 16 pounds during that time).
The court case proceedings against Hutchison 3G UK Ltd started in early 2003 but the court case did not come up in Birmingham Technical High Court until February 2005.
We have been warned by our solicitors that we are almost certain to lose the case, because of the PPG8, which does not recognize health grounds as a good enough reason for objection against a mast installation, and which is made in such a way, to “CATER” for the mobile companies, (lovely BIG money for the budget they are) that civilian citizens stand no chance of winning over them, but the only way civilian citizens are giving, Is to take out a civil court case against them, and in our case there has been no legal help (we owned a contaminated house we had to abandon and re-mortgage to keep, worth a small fortune in Worcester, but above our means to keep when we had to find a new place to work from and a new place to live in), so that has taken care of our life savings and pension.<br />
We found an old industrial unit in Hanley Swan that was being emptied, and moved the company in there in November 2003.
The unit is un-heated and un-insulated, (old army barrack from world war two) and so, unsuitable for office work where people have to sit and work at a computer all day, but this was the only thing we could find quickly.
All through Christmas and New Year 2003, Erik and I had to go to the unit early every morning and stay there as long as possible to avoid having to go to the home and get sick.
We tried to find somewhere to rent, so we could move out of the house, but we have a pet dog, and I am a cigarette smoker, so no-one would rent to us.
By January 2004 we had found a tiny derelict house that was vacant, and we managed to raise a mortgage for and we moved in there with 2 mattresses on the 5th of February 2004 and only went back to the house for a few hours once in a while, to fetch things we needed, and tried not to stay for so long that the sickness started.
On August 27th 2004 we managed to sell the house for a token price, because of the mast, but it has stood vacant ever since, (we have wondered if it is H3G who bought it through a straw-person, as the buyer tells us about planning applications that do not exist) but I do not know what is happening to my old house, which I miss so much.
We now have 24 years left to pay a mortgage instead of the 7 years we owed on 57 London Road, and we are still 60 and 62 years of age, with no pension and no perspects for the rest of our lives.
Tony Blair has recently been quoted in the Birmingham Post saying that the masts are safe and that he is not going to restrict where they can be installed, be it residential areas or near to schools or hospitals, and that we are all hysterical, but then, neither he, nor John Prescott have got a mast 28 meters from their houses!. Have they?
It cant be true that the government politicians can treat their citizens like this!
Chase us out of our own homes and then tell us “You are on your own, it’s not my table, I do not want to know” I only wrote the LAW, so I am not accountable!
Finally we do know the result of the judgment!
We have been barred though, by the judge to talk about the results until the 9th of May 2005!
The judge has taken herself 74 days to “hand down” the judgment, CONVENIENTLY, 4 days after the ELECTION, and our judgment WILL have a huge consequence for all insensitive mast installations in Britain, while Labour is still in power, as the mobile companies will be able to install the masts ANYWHERE they like without restrictions.
If they get away with it so close by, as with us, they can go closer next time!
I include a drawing which shows how the mast and the microwave beams hit the house from this short distance.
Do you know, the hardest thing of all for ordinary persons, like me, who have all their lives, followed the rules of society, paid their dues, never even had a parking ticket, and have believed, that society was made for us and fair to all, and that the laws were made in such a way, that they made room for all of us, and assured that the state had our (the citizens) concerns as the most important issue on its mind.
But behold, we suddenly find find out, that we, our health, and our lives are for sale, dirt cheap and that we are absolutely expendable, and when the “BIG MONEY” want something, our Government is ready with a sale of the century bargain!
Our health and lives!
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