As England’s cricketers savour victory in the Ashes, James Wilson examines the centuries-old relationship between the “gentleman’s game” and property
In 1598, John Parvish became involved in a property dispute with the Free School (the present day Royal Grammar School) in Guildford. At the time, it would have seemed an unremarkable case: Parvish had enclosed a plot of land that he intended to use as a timber yard. The Free School claimed to be the true owner of the land and demanded Parvish abandon his plans. Witnesses were called to give evidence about how the land had been used historically. One of them, John Derrick, the 59-year-old Queen’s Coroner for Surrey, gave testimony which ensured that the case would live forever. He testified that, half a century earlier, “being a scholar in the free school of Guildford, he and divers of his fellows did run and play there at cricket and other plays”.
Derrick’s testimony appears to be the earliest recorded use of the word “cricket”. There may be others as yet undiscovered: Derrick clearly stated that he had played the game decades earlier, and it is evident that the word was well enough known to be used in the report of the case without explanation. Until an earlier reference is found, however, the law of property will continue to hold a unique place in the history of cricket.
Over the next few centuries, other mentions of the game appear in legal texts, although usually the general law rather than specifically property law. There are unfortunate cases of people being injured or even killed while playing; medieval prohibitions on the game; puritanical banning of playing on the Sabbath; and, particularly from the eighteenth century, disputes relating to gambling.
Betting on the sport became an obsession in pre-Victorian times. There is a respectable argument that cricket evolved from an informal leisure pursuit into a properly organised game with fixed rules precisely in order to facilitate gambling. If true, that lends a bitter touch of irony to the modern match-fixing scandals, which continue to threaten to destroy the game that gambling once helped create.
Negligence and nuisance
Of greatest relevance to property lawyers are cases involving balls being hit out of the ground and giving rise to claims of negligence or nuisance. These can be found from as far back as 1731, but for the modern law the most important are those coming after Donoghue v Stevenson [1932] UKHL 100. In Bolton v Stone [1951] AC 850, Bessie Stone sued Cheetham Cricket Club after she was struck by a ball when standing outside her house on the opposite side of the street from the club’s boundary fence.
The case went to the House of Lords. It was accepted that the club owed a duty to its neighbours. But Stone’s claim ultimately failed, because the hit had been of such freakish force that it was not foreseeable and not reasonable for the cricketers to have taken any more steps to avoid it. Since the ground had been reconfigured in 1910, only a handful of such hits had occurred.
At least three interesting cases at county court level followed in the 1960s, two of which were resolved when the club and the neighbours agreed to put up a better fence. Much more significant, though, was a case from the 1970s, when Lord Denning wrote himself into cricketing, as well as legal, immortality.
Miller v Jackson
In June 1970, John and Brenda Miller bought a new house in the village of Lintz in County Durham. On the other side of the back fence was Lintz Cricket Club, which had existed since 1906. Before the row of houses in which the Millers lived was developed, the land had been used as agricultural fields, and hence no difficulties with the cricketers had ever arisen. Shortly after she moved in, however, Mrs Miller became highly distressed by the number of balls being hit into her property (it was a much shorter boundary than that in Bolton). In response to her complaints, the club built a higher fence, but not high enough to stop every ball. Eventually the exasperated Millers resorted to the drastic step of bringing a claim in the High Court. They sought damages for the distress they had suffered and the cost of various house repairs, but more importantly, they sought a mandatory injunction stopping cricket being played there altogether. They succeeded in the High Court and the club appealed.
Both sides would have been anxious awaiting the result. The club faced closure if the injunction was maintained, while Mrs Miller had testified about the great stress the random sixes had caused her. She had also testified about how rude she found the cricketers when they asked for the ball back. The club denied the latter point, highlighting that only one other neighbour had supported the Millers.
It is easy to imagine the respective reactions on reading the beginning of the Court of Appeal’s judgment ([1977] QB 966), which contained Lord Denning’s famous paen to village cricket (see below). Had it been up to Lord Denning, he would have thrown the case out and damned the Millers’ impudence. But because the club had “very generously” offered a sum for damages, he allowed the Millers that minor victory. On the most important question – that of the injunction – he ruled emphatically in the club’s favour. The injunction, as an equitable remedy, was up to the discretion of the court, and Lord Denning was adamant that the public interest in the cricket outweighed the private interest of the Millars.
Cumming-Bruce LJ agreed that the injunction should be discharged (Geoffrey Lane LJ, dissenting, would have dismissed the appeal completely), leaving the club substantially the victor. It won a moral victory too, since all three judges went out of their way to hold that Mrs Miller was the one lacking manners when it came to returning the ball and had been paranoid about the whole affair.
The club was overjoyed, whereas Mrs Miller said she felt “numb”, and eventually moved, despite her fears that the judgment might have affected the value of her house. Ironically, the club has since solved the problem by installing telegraph poles with netting strung between them, reaching a height that even former West Indies captain Chris Gayle might struggle to clear.
Lord Denning’s judgment has provided rich entertainment for lawyers for a generation. In legal terms, the two interesting points from the case were: (i) the emphasis on the injunction (as an equitable remedy) being a matter of discretion; and (ii) the rejection of the club’s defence that the Millers had “come to the nuisance” since the cricket long predated the houses. The latter point was based on a desiccated 19th century authority which the Court of Appeal felt was too old to overturn.
Later cases
In the years since, there have been several other cases of neighbourly cricket disputes at the county court level, and some extra-judicial resolutions too, including one where an Isle of Wight resident drove his car onto the pitch and left it there.
In 2014, Miller was discussed by the Supreme Court in the context of a neighbourly dispute over a speedway (Lawrence and another v Coventry (t/a RDC Promotions and others [2014] UKSC 13; [2014] 1 EGLR 147). Lord Neuberger agreed that the rule that coming to the nuisance was no defence was too well established to be overturned. But he indicated some softening of its application: if, he said, an activity had been perfectly lawful for some years, it should not become unlawful overnight because the neighbour built a house next to the boundary. Instead it should be considered part of the “character of the neighbourhood”. That seems a sensible approach, and echoes what Lord Denning said about all the trouble stemming from the developers of the Millers’ house being granted permission to build houses too close to the ground.
Epilogue: what are sixes and fours?
Nearly 40 years after Miller, a decision of East Hampshire District Council to grant planning permission for a housing extension next door to a cricket ground was challenged in the High Court by a cricketing association. During the course of argument, counsel for the association mentioned the number of sixes and fours being hit towards the relevant area. “I don’t know what those are,” said the confused judge, Lang J, who said she knew nothing of the laws of cricket.
The media had fun with the judge’s admission. Yet the non-cricketing judge still upheld the cricketers’ challenge (R (on the application of East Meon Forge and Cricket Ground Protection Association) v East Hampshire District Council and another [2014] EWHC 3543 (Admin)), enabling “the delight of everyone” to continue. No doubt cricket in general will also continue to intertwine with English law, as it has done for over 400 years.
Lord Denning, Miller v Jackson [1977] QB 966:
“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. 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 weekends. 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, I am sorry to say, feels that the cricket must be stopped: with the consequences, 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 bought a house there next to the cricket ground.”
James Wilson is an independent legal author and consultant. He is the author of Court & Bowled: Tales of Cricket and the Law (WSH, 2014). His new book, Trials & Tribulations, will be published in September.
