Barnes Davison Thomas lost his appeal on 3 July after the Court of Appeal upheld a £258,500 damages award in a dispute over harm to a falcon breeding business in Cornwall. Lady Justice Whipple, with Lord Justice Moylan and Lord Justice Nugee agreeing, left standing the Bristol High Court ruling in favour of Raptors of Penwith.
The business is run by Martin Nicholas and Scott Nicholas, and the judgment turned on damage said to have been caused during the 2022 breeding season at neighbouring land in Bosavern. The appeal court handed down a 211-paragraph ruling, making clear that the award was not a symbolic one: it was the sum the lower court had calculated for the losses linked to the birds and the breeding operation.
That figure came from the trial judge's findings that three falcons had died and eggs had been damaged, with the losses valued at £258,500 in total. In April 2025, Judge Russen KC found in favour of Raptors of Penwith and held that Thomas had been aware of the risks to the birds between March and May, after evidence of a scaffolding business near the aviary, barn work and a broken-down digger with its raised bucket in the birds' line of sight.
The appeal was not built on a denial of those findings. The appellants accepted the judge's account of what happened, but argued that even if their activities caused deaths and financial loss, commercial falcon breeding was too sensitive to attract protection under nuisance law and should not support negligence liability either. The Court of Appeal rejected that argument and said the lower court had correctly applied the test from Fearn v Board of Trustees of the Tate Gallery, which asks whether the use of land is common and ordinary in the locality rather than special or unusually sensitive.
Whipple said, in substance, that the claimants' use of their land was common and ordinary, not sensitive or special. That mattered because the legal question was not whether the business was vulnerable in practice, but whether its use of the land fell outside the kind of ordinary activity nuisance law protects. The court said it did, and it also dismissed the negligence appeal.
For Martin Nicholas, the ruling leaves the damages award intact and closes off the main challenge to a judgment that treats a working breeding business as entitled to the same basic protection from neighbour interference as other ordinary land use. What remains unresolved is only the split within the £258,500 award between nuisance and negligence, which the court did not spell out in the judgment now on the books.
