Private nuisance Noise – Motor sports – Respondents operating motor sport stadium and track – Appellant local residents succeeding in claim against respondents in private nuisance in respect of noise emanating from site – Appropriate terms of injunction – Whether respondents’ landlords also liable – Whether costs order against respondents breaching right to a fair hearing under Article 6 of European Convention on Human Rights – Issues determined accordingly
The respondents organised motor sports events at a stadium and track located on former farmland close to the appellants’ house. The appellants succeeded in a claim against the respondents in private nuisance for noise emanating from the respondents’ site. At first instance, the judge awarded damages and an injunction that imposed limits on the times and levels at which noise could be generated: see [2011] EWHC 360 (QB). That decision was reversed by the Court of Appeal but subsequently reinstated by the Supreme Court: see [2012] EWCA Civ 26; [2012] 1 EGLR 16 and [2014] UKSC 13; [2014] PLSCS 68.
The Supreme Court went on to determine further issues in the case, some of which arose from the fact that the appellant’s property had been damaged by a fire and was unoccupied pending repairs. The Supreme Court determined that the injunction should be suspended until the appellants’ property was once again fit to be occupied, with liberty for any party to apply at any time to have the injunction varied or discharged; in that regard, it took into account that the respondents might wish to argue, in the light of its previous judgment, that damages would be an adequate remedy.
Further issues also arose as to whether: (i) the respondents’ landlords should also be held liable to the appellants in nuisance; and (ii) the terms of the costs order made against the respondents, requiring them to pay 60% of the appellants’ costs in the sum of £640,000, infringed their right to a fair hearing under Article 6 of the European Convention on Human Rights. The appellants’ costs comprised three elements, namely base costs of £398,000 representing an hourly rate plus disbursements, a success fee of more than £319,000 under a conditional fee agreement and an after-the-event (ATE) premium of approximately £350,000 for insurance underwriting their potential costs liability to the respondents had they lost.
Held: The issues were determined accordingly.
(1) (Lord Carnwath and Lord Mance dissenting) A landlord would not incur liability merely by being aware of a nuisance caused by its tenant and taking no steps to prevent it; it had to either participate directly in the commission of the nuisance or be taken to have authorised it by letting the property. There had to be virtual certainty, or a very high degree of probability, that a letting would result in a nuisance before the landlord could be said to have authorised it: Malzy v Eichholz [1916] 2 KB 308, Smith v Scott [1973] Ch 314 and Southwark Borough Council v Mills [2001] 1 AC 1 applied; Sampson v Hodson-Pressinger [1981] 3 All ER 710 and Chartered Trust plc v Davies [1997] 2 EGLR 83 considered.
In the instant case, there could be no question of the respondents’ landlords being liable to the appellants on the ground that the nuisance was an inevitable, or nearly certain, consequence of letting the site to the respondents. The fact that the intended uses of the site were well known to the landlords at the time of the letting, and had in fact resulted in nuisance, was not enough to render the landlords liable in circumstances where those uses could be, and had been, carried on without causing a nuisance to the appellants. Nor were the landlords liable by reason of any active or direct participation in the commission of the nuisance. Whether a landlord had directly participated in a nuisance was largely a question of fact for the trial judge, not a question of law. It would turn principally on what happened subsequent to the grant of the lease, although that might take colour from the nature and circumstances of the grant and what had preceded it. The respondents’ landlords had not participated directly in the nuisance on the facts of the case. During the time when the nuisance was alleged to have occurred, they had had no involvement in the activities on the site, they had not been in possession of that site, they had enjoyed no share of the profits from the respondents’ activities and their actions could not be said to have caused the nuisance in any way. Accordingly, they were not liable for the nuisance.
That conclusion was unaffected by the fact that the landlords had done nothing to try to persuade the respondents to reduce the noise, had placed hay bales around the appellants’ property to limit noise, had co-ordinated dealings with the local authority and the appellants in relation to noise issues and complaints and had appealed against a noise abatement notice served by the local authority. As a matter of principle, even if a person had the power to prevent a nuisance, failure to act on its part did not amount to authorising the nuisance. As to the hay bales, in the absence of very unusual circumstances, the fact that a landlord had taken steps to mitigate a nuisance did not give rise to the inference that it had authorised the nuisance. As to the other matters, the fact that the landlords had played a leading part in seeking to avoid the risk of nuisance abatement measures by the local authority, or claims in common law by the appellants, did not mean that they had participated in the nuisance. Any landlord whose premises were being used for motor car and motorbike racing would naturally wish to avoid or minimise any restrictions on the emission of noise from the premises, imposed either by the local authority or the courts, since any such restriction would be likely to have an adverse effect on the value of its reversion by curtailing the racing activities on the site and therefore the commercial attraction of the premises. Such actions by the landlord did not, on their own, amount to participating in or authorising the nuisance.
Per curiam: It was doubtful whether a landlord could avoid liability by including in the lease a clause prohibiting the causing of a nuisance if, at the time of letting, it was inevitable or close to inevitable that the proposed or permitted uses of the demised premises would result in nuisance.
(2) The appellants’ costs figures were disturbing and gave rise to grave concern, even ignoring the success fee and ATE premium. It was regrettable that it could cost nearly £400,000 in legal fees and disbursements for two people to establish and enforce their right to live in peace in their home. Moreover, the respondents, as relatively small business operators, were having to fund not only their own costs but a substantial amount of the appellants’ costs. Although they had lost, they had had a reasonable case and had been seeking to defend their businesses. Moreover, the base costs in the case were dwarfed by the total potentially recoverable costs. Four regrettable features were that: (i) the appellants themselves had no interest in the level of base costs, success fee or ATE premium that they agreed with their lawyers since, even if they lost, they would not have to pay anything, while the respondents had no say in the costs although they would be liable to pay them if the appellants won; (ii) in many cases, unsuccessful defendants found themselves paying, in addition to the whole of their own costs, three times the claimants’ “real” costs; (iii) while proportionality had a limited part to play when assessing the recoverability of base costs, it was excluded from consideration in relation to the recovery of success fees or ATE premiums, which were simply required to be reasonable; and (iv) the stronger the defendants’ case, the greater their liability for costs would be if they lost, since the size of the success fee and ATE premium should have reflected the claimants’ prospects of success. It was possible that the respondents’ liability for costs, under the Courts and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the CPR, would be inconsistent with their Convention rights. However, the court should not so decide without giving the government the opportunity to address it on the issue. Accordingly, if the respondents wished to maintain their contention, the appeal should be relisted for hearing by the Supreme Court after appropriate notice had been given to the Attorney-General and the secretary of state for justice.
Stephen Hockman QC and William Upton (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellants; Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall & Watson Solicitors, of Cambridge) appeared for the respondents; Edward Denehan and Giselle McGowan (instructed by Hewitsons LLP, of Cambridge) appeared for the respondents’ landlords.
Sally Dobson, barrister
Lawrence and another v Coventry (t/a RDC Promotions) and others (No 2)
Private nuisance Noise – Motor sports – Respondents operating motor sport stadium and track – Appellant local residents succeeding in claim against respondents in private nuisance in respect of noise emanating from site – Appropriate terms of injunction – Whether respondents’ landlords also liable – Whether costs order against respondents breaching right to a fair hearing under Article 6 of European Convention on Human Rights – Issues determined accordinglyThe respondents organised motor sports events at a stadium and track located on former farmland close to the appellants’ house. The appellants succeeded in a claim against the respondents in private nuisance for noise emanating from the respondents’ site. At first instance, the judge awarded damages and an injunction that imposed limits on the times and levels at which noise could be generated: see [2011] EWHC 360 (QB). That decision was reversed by the Court of Appeal but subsequently reinstated by the Supreme Court: see [2012] EWCA Civ 26; [2012] 1 EGLR 16 and [2014] UKSC 13; [2014] PLSCS 68.The Supreme Court went on to determine further issues in the case, some of which arose from the fact that the appellant’s property had been damaged by a fire and was unoccupied pending repairs. The Supreme Court determined that the injunction should be suspended until the appellants’ property was once again fit to be occupied, with liberty for any party to apply at any time to have the injunction varied or discharged; in that regard, it took into account that the respondents might wish to argue, in the light of its previous judgment, that damages would be an adequate remedy.Further issues also arose as to whether: (i) the respondents’ landlords should also be held liable to the appellants in nuisance; and (ii) the terms of the costs order made against the respondents, requiring them to pay 60% of the appellants’ costs in the sum of £640,000, infringed their right to a fair hearing under Article 6 of the European Convention on Human Rights. The appellants’ costs comprised three elements, namely base costs of £398,000 representing an hourly rate plus disbursements, a success fee of more than £319,000 under a conditional fee agreement and an after-the-event (ATE) premium of approximately £350,000 for insurance underwriting their potential costs liability to the respondents had they lost.Held: The issues were determined accordingly.(1) (Lord Carnwath and Lord Mance dissenting) A landlord would not incur liability merely by being aware of a nuisance caused by its tenant and taking no steps to prevent it; it had to either participate directly in the commission of the nuisance or be taken to have authorised it by letting the property. There had to be virtual certainty, or a very high degree of probability, that a letting would result in a nuisance before the landlord could be said to have authorised it: Malzy v Eichholz [1916] 2 KB 308, Smith v Scott [1973] Ch 314 and Southwark Borough Council v Mills [2001] 1 AC 1 applied; Sampson v Hodson-Pressinger [1981] 3 All ER 710 and Chartered Trust plc v Davies [1997] 2 EGLR 83 considered.In the instant case, there could be no question of the respondents’ landlords being liable to the appellants on the ground that the nuisance was an inevitable, or nearly certain, consequence of letting the site to the respondents. The fact that the intended uses of the site were well known to the landlords at the time of the letting, and had in fact resulted in nuisance, was not enough to render the landlords liable in circumstances where those uses could be, and had been, carried on without causing a nuisance to the appellants. Nor were the landlords liable by reason of any active or direct participation in the commission of the nuisance. Whether a landlord had directly participated in a nuisance was largely a question of fact for the trial judge, not a question of law. It would turn principally on what happened subsequent to the grant of the lease, although that might take colour from the nature and circumstances of the grant and what had preceded it. The respondents’ landlords had not participated directly in the nuisance on the facts of the case. During the time when the nuisance was alleged to have occurred, they had had no involvement in the activities on the site, they had not been in possession of that site, they had enjoyed no share of the profits from the respondents’ activities and their actions could not be said to have caused the nuisance in any way. Accordingly, they were not liable for the nuisance.That conclusion was unaffected by the fact that the landlords had done nothing to try to persuade the respondents to reduce the noise, had placed hay bales around the appellants’ property to limit noise, had co-ordinated dealings with the local authority and the appellants in relation to noise issues and complaints and had appealed against a noise abatement notice served by the local authority. As a matter of principle, even if a person had the power to prevent a nuisance, failure to act on its part did not amount to authorising the nuisance. As to the hay bales, in the absence of very unusual circumstances, the fact that a landlord had taken steps to mitigate a nuisance did not give rise to the inference that it had authorised the nuisance. As to the other matters, the fact that the landlords had played a leading part in seeking to avoid the risk of nuisance abatement measures by the local authority, or claims in common law by the appellants, did not mean that they had participated in the nuisance. Any landlord whose premises were being used for motor car and motorbike racing would naturally wish to avoid or minimise any restrictions on the emission of noise from the premises, imposed either by the local authority or the courts, since any such restriction would be likely to have an adverse effect on the value of its reversion by curtailing the racing activities on the site and therefore the commercial attraction of the premises. Such actions by the landlord did not, on their own, amount to participating in or authorising the nuisance.Per curiam: It was doubtful whether a landlord could avoid liability by including in the lease a clause prohibiting the causing of a nuisance if, at the time of letting, it was inevitable or close to inevitable that the proposed or permitted uses of the demised premises would result in nuisance.(2) The appellants’ costs figures were disturbing and gave rise to grave concern, even ignoring the success fee and ATE premium. It was regrettable that it could cost nearly £400,000 in legal fees and disbursements for two people to establish and enforce their right to live in peace in their home. Moreover, the respondents, as relatively small business operators, were having to fund not only their own costs but a substantial amount of the appellants’ costs. Although they had lost, they had had a reasonable case and had been seeking to defend their businesses. Moreover, the base costs in the case were dwarfed by the total potentially recoverable costs. Four regrettable features were that: (i) the appellants themselves had no interest in the level of base costs, success fee or ATE premium that they agreed with their lawyers since, even if they lost, they would not have to pay anything, while the respondents had no say in the costs although they would be liable to pay them if the appellants won; (ii) in many cases, unsuccessful defendants found themselves paying, in addition to the whole of their own costs, three times the claimants’ “real” costs; (iii) while proportionality had a limited part to play when assessing the recoverability of base costs, it was excluded from consideration in relation to the recovery of success fees or ATE premiums, which were simply required to be reasonable; and (iv) the stronger the defendants’ case, the greater their liability for costs would be if they lost, since the size of the success fee and ATE premium should have reflected the claimants’ prospects of success. It was possible that the respondents’ liability for costs, under the Courts and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the CPR, would be inconsistent with their Convention rights. However, the court should not so decide without giving the government the opportunity to address it on the issue. Accordingly, if the respondents wished to maintain their contention, the appeal should be relisted for hearing by the Supreme Court after appropriate notice had been given to the Attorney-General and the secretary of state for justice.Stephen Hockman QC and William Upton (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellants; Robert McCracken QC and Sebastian Kokelaar (instructed by Pooley Bendall & Watson Solicitors, of Cambridge) appeared for the respondents; Edward Denehan and Giselle McGowan (instructed by Hewitsons LLP, of Cambridge) appeared for the respondents’ landlords.Sally Dobson, barrister
