Tenant complaining to council landlords of nuisance created by neighbour – Council applying for claim to be struck out – Whether landlords liable for nuisance by tenant – Whether landlords owing duty of care to prevent nuisance by tenant – Whether appropriate to strike out claim – County court striking out claim – Appeal dismissed
In 1988 the first defendant council granted to the claimant tenant a long lease of a flat at 1 Holgate Avenue, London SW11, in return for payment, under the right-to-buy legislation. The flat above was occupied by the second defendant, A, who had a mental disorder. The police received frequent complaints about A from the residents of Holgate Avenue, and advised the council that A should be in a care home. The council, however, took the view that she should live in the community.
The claimant made a complaint to the council, alleging, in particular, that A: (i) regularly blocked the toilet, causing the property to flood with sewage; (ii) regularly left taps running, causing the property to flood; (iii) regularly jumped up and down, causing noise; (iv) regularly made noise late at night; and (v) had threatened to kill her. The claimant sought an injunction and damages against the council, contending that they were liable for the behaviour of A because they had known of the existence of the nuisance and had adopted it by failing to abate it.
The council applied for the claim to be struck out under the Civil Procedure Rules on the ground that it must fail. The county court allowed the application. On an appeal by the claimant, the issue was whether she had a remedy against the council in either nuisance or negligence. The council contended that, by long-established law, a landlord was not liable for nuisance unless it was authorised by him, which, in the instant case, it had not been. The claimant contended, inter alia, that striking out her action before trial was contrary to the European Convention on Human Rights because: (i) contrary to Article 6(1), she was not given a fair trial; and (ii) it amounted to the application of an “exclusionary rule”.
Held: The appeal was dismissed.
1. The person to be sued in nuisance was the occupier of the property from which the nuisance emanated, with one exception: namely that a landlord was liable if he had authorised his tenant to commit the nuisance: see Smith v Scott [1973] Ch 314 per Sir John Pennycuick V-C and Hussain v Lancaster City Council [2000] 1 QB 1. The common law could not be interpreted so as to afford a remedy against the council, even though the conduct alleged might have been a breach of the claimant’s human rights. Accordingly, there was no case for holding the council liable in nuisance.
2. The argument that the claimant had a cause of action in negligence, namely that the council were in breach of a duty of care owed to the claimant, as their tenant, to protect her from nuisance created by other tenants, was also rejected. The court was bound by the decisions in Smith v Scott, Hussain and O’Leary v Islington London Borough Council (1983) 9 HLR 81.
3. Striking out the application was not a breach of the Convention. There was recent authority that striking out an action because it was bound to fail had not been outlawed altogether by the case of Osman v United Kingdom (2000) 29 EHRR 245: see Jarvis v Hampshire County Council [2000] FCR 310 and Palmer v Tees Health Authority [1999] Lloyd’s Rep Med 351.
An exclusionary rule was any rule of law dictating that a claimant, although having a cause of action, failed against a particular class of persons, either in all cases or in a particular type of case. No such rule was in issue in the instant case, since the claimant had no cause of action: the council had not owed her a duty of care and were not in breach of any such duty. It was not the case that the claimant had a cause of action but was excluded from enforcing it.
Jan Luba QC and Charles King (instructed by Flack & Co) appeared for the claimant; Mark Lowe QC and Ranjit Bhose (instructed by DMH Solicitors, of Brighton) appeared for the first defendants.
Thomas Elliott, barrister
