Lord Denning. Photo courtesy Wikimedia Commons
Lord Denning. Photo courtesy Wikimedia Commons

April 6, 1977. The Court of Appeal delivered a judgement that is considered a significant victory for the game of cricket. Arunabha Sengupta recalls the case that contained one of the most lyrical opening paragraphs in the departments of law and cricket.

A stirring opening statement

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket.

Thus began the judgement of Lord Denning, often hailed as the greatest English judge of modern times.

Alfred Thompson Denning was born a draper s son, and was a judge by 45 and in the Court of Appeal by the exceptionally young age of 49.

It was as the head of the inquiry into the Profumo political scandal in 1963 that he came into limelight. And thereafter he made a series of judgements hailed by the public.

He was the first judge to treat cohabiting couples as though they were married. He was one of the pioneers to rule that a wife in a divorce case was entitled to an equal share of her husband s wealth. It was his judgement that allowed Sir Freddie Laker the right to compete with British Airways, paving the way for cheap transatlantic flights.

When he passed away, the then British Prime Minister Tony Blair voiced, His judgments were a model of lucidity. He was prepared to use the law for its true purpose in the interests of fairness and justice. He had a tremendous feel for ordinary people.

However, he was more than that. His judgement could be model for the lyrical as well. He had a tremendous feel for cricket too. Along with that a fine head for numbers and statistics.

Miller vs Jackson

The case in question went down as the infamous Miller vs Jackson showdown of 1977.

The centre of controversy was the Burnopfield ground, Durham, the home of Lintz Cricket Club.

Cricket had been played in the ground since 1905. During those early days, and for most of the subsequent years, the ground had been surrounded by agricultural fields, and therefore there had been a few issues with neighbours.

But, idyllic nooks and corners have to bow to the march of progress. In 1965, parts of the surrounding pasture land were sold to the local council. Five years later, in 1970, the same was sold to property developers.

It was followed by a grant of planning permission for residential houses adjacent to the ground.

The club objected strongly against this, but their voice was drowned in the din of construction. A line of houses was built next to the ground.

To prevent future controversies, the club installed a six-foot high concrete fence around the boundary. Yet, some well struck sixes did fly over the barricade. Unlike the Bolton vs Stone controversy, the ball did not really have to be struck a long, long way to land in these houses and their gardens.

In 1972, a house on the fringe of the ground was bought by the Millers. New to the village, the couple was definitely lured by the open spaces around the house. The new building was constructed on an area where till a very short time ago only cattle grazed. And now, having taken possession, the Millers started complaining about incidents of the balls landing in their property, doing actual damage, and increasing fear of personal injury.

As a reaction, in 1975, the club increased the height of the boundary fence to almost 15 feet. Yet, some balls kept flying over and landing in adjacent properties, which of course included the home of the Millers.

Claiming to be at their wits end, the Millers brought forth an action against the club.

The defendant was Bob Jackson, the club chairman. The newcomers sought damages for negligence or nuisance. They also sought an injunction to restrain the club from playing cricket on the ground before taking steps to prevent balls being stuck out of the ground into their house or garden.

The Millers were in receipt of legal aid. And therefore, financially, the litigation was quite a challenge for the club.

However, TCCB stepped in, providing funds to fight the legal battle. The club also established a fighting fund , which was successful enough to raise a 3,000 surplus.

The High Court Injunction

In the High Court, the Millers listed 13 incidents of balls being hit into their property between July 1972 and July 1975. These had resulted in damages to the roof tiles and window hinges, and had otherwise created nuisance by landing repeatedly in the garden.

In response, the Club denied negligence. They stressed that they had volunteered to fit shutters and unbreakable glass at the rear of the Miller residence, but the owners had refused their help.

They also argued that after increasing the height of the fence in 1975, only one ball had been hit over it.

But the Millers were not mollified. They insisted the cricketers often banged on the door and rudely asked for the ball. At this allegation, the club responded that generally Mrs Miller was the rude party, refusing to return the ball unreasonably and often.

Mr Justice Reeve, who heard the trial, found in favour of the Millers. 174.14 was awarded in damages, consisting of 24.14 for physical destruction and 150 for the personal inconvenience caused, at 30 per annum for five years, paid because of the restriction and interference of enjoyment of their own home and garden.

However, while the club was financially capable of paying the damages, the crippling blow to cricket came in the form of the injunction order. With the long tradition of village cricket on the ground in danger of being terminated, the club appealed to the Court of Appeal.

The decision hung on the evaluation of three judges: Lord Denning, Lord Justice Geoffrey Lane and Lord Justice Cumming-Bruce.

Just before the hearing at the Court of Appeal, club secretary John Cromarty suffered a heart attack. The stress of the case was cited as one of the reasons for the affliction.

Lord Denning s Discourse

The decision was split.

The three judges gave separate judgements and each did their best to determine whether the club was liable in negligence and nuisance.

It was Lord Denning who started with that wonderful opening paragraph, the most cherished piece of prose lying in the overlap between cricket and law.

After the portion already quoted above, he continued:

This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

After this stirring opening statement, his Lordship approached the problem scientifically.

In the first three years 1972, 1973 and 1974 quite a number of balls came over or under the boundary fence and went into the gardens of the houses: and the cricketers went round to get them. Mrs Miller, the second plaintiff, was very annoyed about this. To use her own words, When the ball comes over, they [the cricketers] either ring or come around in twos and threes and ask if they can have the ball, and they never ask properly. They just ask as if they can have the ball back, and that s it They have been very rude, very arrogant and very ignorant and very deceitful and that to get away from any problems they made a point of going out on Wednesdays, Fridays and the weekends.

However, Lord Denning dismissed Mrs Miller s complaint as most unfair. The cricketers, he was sure, had done their very best to be polite.

Further, he argued, the damage had mostly been done before 1974. The club had subsequently built the higher fence and urged the players to follow Bradman s maxim of trying to hit the ball for four rather than six.

The householders had spotted an opportunity to reduce rates because of the cricket club and the possibility of balls coming into the premises, but after the construction of the higher fence, the local authority had withdrawn the rates reduction clause.

Having gone through these points, Lord Denning turned to statistics. He used the help of the local scorer, in some opinions the local equivalent of Bill Frindall : Despite these measures a few balls did get over. The club made a tally of the sixes hit during the seasons of 1975 and 1976. In 1975 there were 2,221 overs, that is 13,326 balls bowled. Of them there were 120 sixes hit on all sides of the ground. Of these only six hits went over the high protective fence and into this housing estate. In 1976, there were 2,616 overs, that is 15,696 balls. Of them there were 160 six hits. Of these only 9 went over the high protective fence and into the housing estate.

Demonstrating the limited number of balls prone to fly into the houses, Lord Denning turned to law, speaking forcefully.

In support of the case, the plaintiffs rely on the dictum of Lord Reid in Bolton v Stone [1951] AC 850, 867: If cricket cannot be played on a ground without creating a substantial risk, then it should not be played there at all. I would agree with that saying if the houses or road was there first, and the cricket ground came there second. We would not allow the garden of Lincoln s Inn to be turned into a cricket ground. It would be too dangerous for windows and people. But I would not agree with Lord Reid s dictum when the cricket ground has been there for 70 years and the houses are newly built at the very edge of it. I recognise that the cricket clubs are under a duty to use all reasonable care consistently with the playing of the game of cricket, but I do not think the cricket club can be expected to give up the game of cricket altogether. After all, they have their rights in their cricket ground. They have spent money, labour and love in the making of it; and they have the right to play upon it as they have done for 70 years. Is this all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it? Can the developer or a purchaser of the house say to the cricket club: Stop playing. Clear out? I do not think so.

In Lord Denning s view, playing cricket was not just a reasonable option, but the right one.

He concluded, Mrs Miller is a very sensitive lady who has worked herself up to such a state that she exclaimed to the judge, I just want to live in peace. Have I got to wait until someone is killed before anything can be done? If she feels like that about it, it is quite plain that for the sake of peace in the future, one or the other has to move. Either the cricket club has to move: but goodness knows where. I do not suppose for a moment that there is any field in Lintz to which they could move. Or Mrs Miller must move elsewhere. As between their conflicting interests, I am of opinion that the public interest should prevail over the private interest. The cricket club should not be driven out. In my opinion the right exercise of discretion is to refuse an injunction, and of course to refuse damages in lieu of an injunction. Likewise, as to the claim of past damages. The club was entitled to use the ground for cricket in the accustomed way. It was not a nuisance, nor was it negligent of them so to run it. Nor was the batsman negligent when he hit the ball for six. All were doing simply what they were entitled to do.

Lord Denning, left to himself, would have thrown the case out altogether. However, he noted that the club had very fairly agreed to pay past and future damage, and he fixed the amount to 400 to cover both. The important thing was that the injunction was refused.

The Third Umpire

Lord Justice Lane, however, was not that pro-cricket. He summarised that since it was a case of repeated incidents, the appeal should be dismissed. The only stipulation he agreed to was that to lessen the blow on the club the injunction should be suspended for one year to allow time for it to find new premises.

The casting vote therefore rested with Lord Justice Cumming-Bruce. The third son of Baron Thurlow and the younger of identical twins, he would be shortly joining the Privy Council. Now, he heeded both the summaries of his esteemed colleagues, and concluded:

So on the facts of this case a court of equity must seek to strike a fair balance between the right of the plaintiffs to have quiet enjoyment of their house and garden without exposure to cricket balls occasionally falling like thunderbolts from the heavens, and the opportunity of the inhabitants of the village in which they live to continue to enjoy the manly sport which constitutes a summer recreation for adults and young persons, including, one would hope and expect, the plaintiffs son.

Saying this, he stressed that the Millers had bought the house knowing fully well that there was a cricket ground next door. They had to have realised that there was a risk of balls being hit into the backyard.

As it turns out, the female plaintiff has developed a somewhat obsessive attitude to the proximity of the cricket field and the cricketers who visit her to seek to recover their cricket balls. The evidence discloses a hostility which goes beyond what is reasonable, although, as the judge found, she is reasonable in her fear that if the family use the garden while a match is in progress they will run risk of serious injury if a great hit happens to drive a ball up to the skies and down into their garden. It is reasonable to decide that during matches the family must keep out of the garden. The risk of damage to the house can be dealt in other ways, and is not such as to fortify significantly the case for an injunction stopping play on this ground.

Lord Justice Cumming-Bruce therefore agreed with Lord Denning that the club s appeal against the injunction had to be allowed. The Millers were left to make do with 400 damages.

Cricket in progress at the Lintz Cricket Ground, Burnopfield, Durham. Note the high concrete fence. Pic courtesy: Lintz Cricket Club, subsequently used on the cover of the book Court & Bowled     Tales of Cricket and the Law
Cricket in progress at the Lintz Cricket Ground, Burnopfield, Durham. Note the high concrete fence. Pic courtesy: Lintz Cricket Club, subsequently used on the cover of the book Court & Bowled Tales of Cricket and the Law

What Followed?

 

Shortly after the decision, the Millers moved.

The fence was later raised even higher by means of using netting between telegraph poles.

Bob Jackson served 35 years as Club Chairman before retiring early in the first decade of this century.

The club continues to prosper.

Miller vs Jackson continues to safeguard the interests of numerous cricket clubs against disgruntled householders after all, a county court cannot really challenge a decision of the Court of Appeal.