England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE Case No.97/1454

Royal Courts of Justice

Strand

London WC2A 2LL

Thursday, 14th May 1998

B e f o r e :

LORD JUSTICE HIRST

LORD JUSTICE HUTCHISON

and

LORD JUSTICE THORPE

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HUSSAIN & ANR.

Respondents

- v -

LANCASTER CITY COUNCIL

Appellant

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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street, London, EC4A 2HD. Telephone No: 0171-421 4040. Shorthand Writers to the Court.)

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MR. R. JACKSON QC and MISS N. JOFFE (instructed by Reynolds Porter Chamberlain) appeared on behalf of the Appellant.

MR. D. BRENNAN and MR. D. WATKINSON (instructed by Bindman & Partners, London, WC1) appeared on behalf of the Respondents.

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JUDGMENT

(As approved by the Court)

Crown Copyright

This case raises issues of some considerable general importance as to whether a local authority can be held liable in nuisance or negligence because it fails to prevent secured tenants and/or members of their households from committing criminal acts of harassment against nearby property owners.

The plaintiffs Malazam Hussain and Linda Livingstone are joint owners of a shop and residential property at No.147 Ryelands Road, Lancaster, which is situated on a housing estate known as the Ryelands estate which is owned by the defendants Lancaster City Council. By their amended statement of claim the plaintiffs allege that the Council have acted negligently and have cause or permitted nuisance to the plaintiffs as follows:-

(1) The Plaintiffs have suffered severe harassment including racial harassment substantially from persons who are tenants of the Defendant on the estate or who are living with such tenants. The harassment comes from a number of identifiable people both men including teenagers and boys and women. At the level of intimidation it takes the form of shouting threats and racist abuse from outside the shop or hanging around outside, drinking and glaring at the occupants. A group of men have deliberately played football outside the shop kicking the ball against the door and windows causing the glass to shatter inside while customers including children were there. Stones and bricks have been thrown at the shop and garage. On 4/11/91 there was an attempt to burn them out by putting a lighted mattress against the shop door. While they were away over Christmas 1991/2, their garage door was broken in, the security shutters on the shop windows broken and ripped down and their bedroom windows smashed. Two individuals in particular frequently come into the shop, drunk, are threatening and abusive. In January 1993 the garage door was again broken. In September 1995, half a tree was put in the shop doorway. On 11/11/95 the roof and wall were set alight with a petrol bomb. On 5/11/96 the shop was attacked with petrol bombs and on 10/11/96 a mattress was put up against the shop door and other combustibles against the rest of the shop front and the mattress was set alight. Delivery men have been harassed, their stock stolen and demands for protection money made. Police have been called on numerous occasions but the perpetrators usually leave before they arrive and return after. Some including Craig Callaghan, Trudi Weighell, Peter Bull, Diane Noon, and Mark Patterson have been prosecuted for breach of the peace or criminal damage on various dates in 1994 and 1995 but only fines or bind-overs have been the result, (the Plaintiffs refer to pages 35, 37, 43 and 46 of Schedule 1 attached hereto) nor of course do the criminal courts have the power to remove them from the estate. On one occasion the 1st plaintiff Mr. Hussain himself was charged with assaulting a principal perpetrator and was subsequently acquitted.

For further details of the Incidents and the identities of the perpetrators and where they reside the Plaintiffs refer to Schedule 1 attached hereto.

Many of the above incidents have involved gatherings of numbers of the same person on common parts of the estate in particular outside the shop on the pavement or highway for the purpose of harassing, abusing or assaulting the Plaintiffs or damaging their property or such gatherings have led to such behaviour. It is averred gatherings for such a purpose or when such behaviour at gatherings occurs constitutes a trespass on property belonging to or within the power of the Defendant as highway authority.

(2) The Defendant has been fully aware of the suffering inflicted on the Plaintiffs from 1991 onwards by constant contact with both officers and Councillors and by reports in the local press and radio and television. The officers were Mr. Hanna, Principal Housing Officer, David Watmore, Assistant Area Housing Manager, Andrew Leigh, Ian Lockley, Tracey Adams (successive Area Managers) and Neil Emery, Estate Manager. There have also been six meetings attended variously by the 1st Plaintiff and Councillors, Council officers, police, community workers and some tenants since October 1994

(3) The Defendant has taken no possession proceedings or effective action against the perpetrators despite a letter of 3/5/95 stating that "clearly where the Council has evidence of breach of the tenancy agreement the Council will act and this could ultimately lead to possession proceedings being taken against the tenants who are perpetrating the harassment and nuisance" and despite a 3 month "special patrol" in about January to April 1993 having proved ineffective (although Notices of Intention to seek Possession Proceedings have been served in late 1995 and one perpetrator one Craig Wareing has been the subject of injunction proceedings in the autumn of 1996, which has not prevented him from continuing to harass the Plaintiffs).

It goes without saying that the maltreatment to which the plaintiffs contend they have been subjected (and which we must assume for present purposes is accurately portrayed since this is a striking out application) is atrocious by any standard, as of course the Council freely acknowledge though they make it clear that many of the allegations which assert inadequate response on their part will be strongly contested if the case goes to trial.

In support of their case the plaintiffs rely on a clause in the Council's standard form of tenancy agreement which provides that the tenant is:-

"... to make sure that you, the people who live with you and your visitors:

show proper consideration towards other residents in the area;

do not do anything which may cause discomfort, annoyance, or nuisance from noise, unreasonable or anti social behaviour;

do not discriminate against or harass any residents or visitors."

They also rely on the Council's equal opportunities policy which states:-

"... [the Council] views any form of racial harassment as a serious offence and we will take action against anyone who harasses others."

They also rely on Schedule 2 ground 2 of the Housing Act 1985 and section 84 which provide that:- a court may order possession in respect of a secure tenancy if it considers it reasonable to do so, and "the tenant or a person residing in the dwelling house has been guilty of conduct which is a nuisance or annoyance to neighbours".

The amended statement of claim proceeds by alleging

the following failures on the Council's part:-

"Has failed to cause the nuisance and acts of violence towards the Plaintiffs to cease.

Has failed to institute and pursue possession proceedings and/or appropriate injunction proceedings or take any or any effective steps against the perpetrators of the nuisance and acts of violence.

Has failed as set out above despite ample information being available from the Plaintiffs, the police and from its own officers or agents that would enable it to do so."

The pleading concludes with a claim for damages including aggravated damages, and for an injunction requiring the Council to cause or take reasonable steps (which are then spelt out) to cause the nuisance to the plaintiffs to cease.

There follows a schedule covering over 150 pages which lists several hundred alleged incidents between June 1991 and April 1997 involving no less than 106 alleged culprits.

On 15 July 1997 Master Rose ordered that the statement of claim be struck out and the action dismissed on the ground that it disclosed no reasonable cause of action.

This order was reversed on 2 October 1997 by Mr. Harry Wolton QC sitting as a deputy judge in the Queen's Bench Division, and it is against this latter order that the Council presently appeals.

The Ryelands estate was originally laid out by the Council, and comprises about 500 residents, the majority of whom are still secure tenants of the Council, though some occupants have purchased their houses under the right to buy legislation. The plaintiffs own the freehold of their shop and residential property at No. 147 Ryelands Road.

The Lancashire County Council are the highway authority in Lancaster, but by an agency agreement dated 24 November 1993 it was agreed that the Lancaster City Council should exercise on behalf of the County Council a number of their highway responsibilities and it was provided that in exercising such functions the Lancaster City Council would:-

"Within the limits of any restriction whether financial or otherwise imposed by the County Council take such precautions for the protection of the public and private interests as would be incumbent upon them if the District Council were the principal authority and subject thereto the County Council shall indemnify the District Council against all claims for damages and compensation arising out of the exercise of the said functions which may be brought against the District Council."

The agreement also provided that the Lancaster City Council were empowered to exercise all the powers in part IX of the Highways Act 1980, including section 130(1) and (2) which provide as follows:-

"(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.

(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it."

The proceedings against Craig Wareing referred to in paragraph (3) of the particulars of negligence and nuisance in the amended statement of claim seeking injunctive relief prohibiting him from entering the Rylands estate, using abusive or threatening language, or gathering on the public highway other than for the purposes of passage and re-passage, were brought under section 130(2) above.

In this judgment I shall consider the issues which arise under the following headings:-

1. The Judgment.

2. The Rival Submissions.

3. The Relevant Authorities in Detail.

4. Analysis and Conclusions.

The judge concentrated on the claim in nuisance, and rightly approached the case on the footing that a striking out order should only be made in a plain and obvious case where the claim is bound to fail. He then focused particularly on the Court of Appeal decision in Page Motors Ltd. v. Epsom and Ewell Borough Council [1982] LGR 337 to which I refer in detail below, and concluded that it was reasonably arguable that the Council could be held liable in nuisance because as the owner of the Rylands estate it had adopted express powers to deal with racial harassment, and therefore had powers which might entitle it to take possession proceedings against culpable tenants; secondly, that the Council might well be the occupiers of the common parts of the estate (i.e. the highways) from which much of the trouble emanated.

On behalf of the Council, Mr. Rupert Jackson QC first put forward as a general principle that, in a claim in respect of damage deliberately caused by third parties, whom the defendant failed to restrain, the law leans against imposing such liability save in special circumstances ( Smith v. Littlewoods [1987] 1 AC 241).

Mr. Jackson first focused on the claim in negligence, and submitted that, in the light of Smith v. Littlewoods , if he was right on negligence he should succeed also in nuisance.

This led him to place particular reliance on the decision of Pennycuick V-C in Smith v. Scott & Ors. [1973] 1 Ch. 314, where one of the defendants, the Lewisham Borough Council, was cleared of liability for both negligence and nuisance, in a case where it had placed as tenants in a house next door to the plaintiff's house a troublesome family who committed several acts of nuisance against the plaintiff. Mr. Jackson submitted that the very narrow limitations placed by the Vice-Chancellor on the landlord's liability both in nuisance and in negligence in those circumstances applied mutatis mutandis in the present case, and he further submitted that the decision had been approved in relation to both negligence and nuisance in subsequent Court of Appeal decisions.

Mr. Jackson then proceeded to consider the "fair just and reasonable" test in the context of negligence, and submitted that the position of a local authority like the Council in the present circumstances is akin to that of the County Council in X v. Bedfordshire CC [1995] 2 AC 633, where the House of Lords held that this test was not satisfied in a child abuse case raising, he submitted, comparable considerations to the present case.

He emphasised that the essence of the question here was whether the Council had failed to exercise their statutory powers under the Housing Act, which, so far as relevant, it is common ground can be summarised as follows:-

"(i) The power to provide housing accommodation under Part II of the 1985 Act.

(ii) Until 20th January 1997 the duties to homeless persons provided by Part III of the 1985 Act.

(iii) After 20th January 1997 the duties to homeless persons Part VII of the 1996 Act.

(iv) The duty to respect secured tenancies unless it recovers possession under Part IV of the 1985 Act.

(v) Since 1st September 1997, the power to apply for injunctions against anti-social behaviour pursuant to section 152 of the 1996 Act."

Also in this connection he relied on the very narrow criteria laid down by the House of Lords in Stovin v. Norfolk County Council [1996] AC 923 for claims based on the alleged negligent exercise of statutory powers.

A further important consideration here, he submitted, was one of public policy, in which he submitted that the Council's position was comparable to that of the police, whose immunity in respect of their decisions in relation to crime prevention, crime detection and allocation of resources was established by Hill v. The Chief Constable of West Yorkshire [1989] AC 53.

Turning to nuisance, he contended that as a matter of general principle the essence of the tort of nuisance is that the defendant's use of the defendant's land interferes with the plaintiff's enjoyment of the plaintiff's land ( Hunter v. Canary Wharf Ltd. [1997] AC 659 per Lord Goff of Chieveley at page 687 to 688 citing Professor Newark's classic article on "The Boundaries of Nuisance" [1949] 65 LQR 480); this was also borne out by the approach of several speeches in the leading House of Lords authority of Sedleigh Denfield v. O'Callaghan [1940] AC 880, and reemphasised in an article in the Cambridge Law Journal by Professor Gearty (1989) 48 CLJ 214, which Lord Goff also referred to in Hunter v. Canary Wharf (supra) at p.692.

Where land has been let by a landlord to a tenant, he submitted, the landlord is not liable for acts of nuisance committed by the tenant unless the landlord has specifically authorised them ( Rich v. Basterfield [1847] 4 CB 781, Malzy v. Eichholz [1916] 2 KB 308, Smith v. Scott (supra), Elizabeth v. Rochester on Medway City Council (CA 26 April 1993 Lexis transcript), and various text book authorities).

This principle, he submitted, still held good today and was not affected by the later authorities on which the plaintiffs relied.

On behalf of the plaintiffs, Mr. Daniel Brennan QC placed primary reliance on their claim in nuisance, the claim in negligence being a second string to his bow based on the special facts of this case. He encapsulated his submissions in three basic propositions as follows:-

"(1) A landlord (or at least a local authority landlord) who knows or ought to know of a nuisance being committed by his tenant in the neighbourhood of the demised premises but who fails to take such steps as are reasonable in all the circumstances and within a reasonable time to control or prevent the nuisance may thereby be held to have caused, continued or adopted that nuisance. So the landlord may be liable to any other tenant or neighbour who suffers damage because of the nuisance.

(2) When nuisance has been committed on the landlord's land not held on tenancies but for which he is responsible then the Defendant landlord may be liable as in (1) above whether the nuisance has been committed by his tenant, those residing with the tenant or the tenant's visitors.

(3) Where a local authority knows or ought to know of conduct on land for which it is responsible by tenants or other likely to cause physical damage or personal injury to another a duty of care in negligence arises when

(i) They have so conducted themselves as to assume responsibility to take steps to stop that conduct.

(ii) Have led the person likely to be injured to rely on them to take such course.

(iii) They have effective means of controlling the conduct.

(iv) They have failed to exercise those powers within a reasonable period of time despite the severity of the conduct.

Such a duty may be breached by failure to take reasonable steps to stop the conduct when such failure causes such damage."

On nuisance he, like the judge, placed particular reliance on the decision of this court in Page Motors (supra), which he contended marked the inception of a trend whereby Smith v. Scott had been overtaken by a less restrictive doctrine.

This trend he submitted, had been carried further forward by two very recent Court of Appeal cases, Northampton BC v. Lovatt [1998] 7 EG 142 and Chartered Trust plc v. Davis [1997] 49 EG 135, which, he submitted, fully vindicated his first two basic propositions.

Thus in the present case the Council should be treated or at least arguably treated as having adopted or continued a nuisance originally perpetrated by the culprits.

On negligence, he submitted that the first two main ingredients, namely knowledge and proximity, were plainly satisfied in the present case. In relation to the alleged failure by the Council to exercise their powers (basic proposition 3 sub paragraph (iv)), Mr. Brennan relied first on their powers under the tenancy agreement to evict persons who have been guilty of conduct which is a nuisance or annoyance to neighbours; and secondly on their powers under section 130(2) of the Highways Act 1980 to bring injunctive proceedings against the culprits in relation to misconduct on the highway similar to those already invoked against Craig Wareing.

On the fair just and reasonable test, Mr. Brennan put forward a number of considerations which he submitted, at least arguably, satisfied that criterion.

At the conclusion of his argument, Mr. Brennan rightly stressed the very strict criteria for striking out, relying in particular on the well known passages in Lonrho plc v. Fayed [1992] 1 AC 448, and also more recent dicta in X v. Bedfordshire CC (supra). I shall return to this aspect of the case in the final section of this judgment.

The Relevant Authorities in Detail .

Smith v. Littlewoods (supra) was a Scottish case where the defenders were exonerated for liability in negligence in circumstances where vandals had broken into their unattended cinema building which was about to be demolished, and had started a fire which burnt down not only the cinema but also the pursuers' adjoining building. Lord Goff of Chieveley (with whom Lord Keith agreed) stated as follows at page 270:-

"Now if this proposition is understood as relating to a general duty to take reasonable care not to cause damage to premises in the neighbourhood (as I believe that the Lord President intended it to be understood) then it is unexceptionable. But it must not be overlooked that a problem arises when the pursuer is seeking to hold the defender responsible for having failed to prevent a third party from causing damage to the pursuer or his property by the third party's own deliberate wrongdoing. In such a case, it is not possible to invoke a general duty of care; for it is well recognised that there is no general duty of care to prevent third parties from causing such damage. The point is expressed very clearly in Hart and Honore, Causation in the Law 2nd ed. (1985), when the authors state, at pp. 196-197:

´The law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it... But up to now no legal system has gone so far as this ...'"

He then proceeded to give a number of examples where there are special circumstances in which a defender may be held responsible in law for injuries suffered by the pursuer through a third party's deliberate wrongdoing, including the following at page 274:-

"There is another basis upon which a defender may be held liable for damage to neighbouring property caused by a fire started on his (the defender's) property by the deliberate wrongdoing of a third party. This arises where he has knowledge or means of knowledge that a third party has created or is creating a risk of fire, or indeed has started a fire, on his premises, and then fails to take such steps as are reasonably open to him (in the limited sense explained by Lord Wilberforce in Goldman v. Hargrave [1967] 1 AC 645, 663-664) to prevent any such fire from damaging neighbouring property. If, for example an occupier of property has knowledge, or means of knowledge, that intruders are in the habit of trespassing upon his property and starting fires there, thereby creating a risk that fire may spread to and damage neighbouring property, a duty to take reasonable steps to prevent such damage may be held to fall upon him. He could, for example, take reasonable steps to keep the intruders out. He could also inform the police; or he could warn his neighbours and invite their assistance; If the defender is a person of substantial means, for example a large public company, he might even be expected to employ some agency to keep a watch on the premises. What is reasonably required would, of course, depend on the particular facts of the case. I observe that in Goldman v. Hargrave , such liability was held to sound in nuisance; but it is difficult to believe that, in this respect, there can be any material distinction between liability in nuisance and liability in negligence."

In Smith v. Scott (supra) the plaintiff was the registered owner of a dwelling house in a street which was being acquired by the Lewisham Borough Council to house homeless families: the Council placed as tenants in the house adjoining the plaintiff's house a family known by the Council to be likely to cause a nuisance, but on conditions of tenancy that expressly prohibited nuisance. There followed numerous acts of nuisance by the new tenants. The plaintiff relied on both nuisance and negligence, and these two causes of action were considered successively by the Vice-Chancellor as follows at pp 321 - 322:-

"It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance: Harris v. James (1876) 35 L.T. 240. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: Rich v. Basterfield (1847) 4 C.B. 783 and Avers v. Hanson Stanley & Prince (1912) 56 S.J. 735; and see generally Clerk & Lindsell on Torts 13th ed. (1969), p. 805, para. 1426; Salmond on the Law of Torts, 15th ed. (1969), p.89 and Winfield and Jolowicz on Tort, 9th ed. (1971), p.348. I have used the word ´certain' but ´certainty' is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is ´virtual certainty' which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect. Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority: see in particular the judgment of Blackburn J. in Harris v. James , 35 L.T. 240. 241. The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let No. 25, Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance.

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The principle of the duty of care has been evolved in a series of modern cases, commencing with Donoghue v. Stevenson [1932] AC 562. If this were virgin territory it might be argued that a landowner owes a duty of care to his neighbours when selecting the person to whom he will let as a tenant, but I do not think it is open to the court - certainly a court of first instance - to apply the principle in such circumstances. I will quote a passage from the speech of Lord Reid in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004, 1026:

´In later years there has been a steady trend towards regarding the law of negligence as depending on principle so that, when a new point emerges, one should ask not whether it is covered by authority but whether recognised principles apply to it. Donoghue v. Stevenson [1932] AC 562 may be regarded as a milestone, and the well known passage in Lord Atkin's speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion. For example, causing economic loss is a different matter; for one thing, it is often caused by deliberate action. Competition involves traders being entitled to damage their rivals' interests by promoting their own, and there is a long chapter of the law determining in what circumstances owners of land can and in what circumstances they may not use their proprietary rights so as to injure their neighbours.'

In the last words which I have cited from that passage, Lord Reid treats the rights and liabilities of landowners as determined by a long chapter of the law, and that passage seems to me strongly to support the view that the law cannot in this respect now be reshaped by a reference to the duty of care. I should add that the relationship of landowner, tenant and neighbour is, in its nature, of the most widespread possible occurrence, and the introduction of the duty of care in this connection would have far reaching implications in relation to business as well as to residential premises."

The Vice Chancellor's conclusion on negligence was expressly approved by the Court of Appeal (Ackner and Dillon LJJ) on very similar facts in the case of O'Leary v. London Borough of Islington [1983] 9 HLR 81 at page 87.

The passage on nuisance was approved by the Court of Appeal (Nourse, McCowan and Roch LJJ) in Elizabeth v. Rochester on Medway City Council (supra), refusing leave to appeal in a case where the City Council had been sued as landlords in similar circumstances.

Nourse LJ in the Elizabeth case also approved Rich v. Basterfield (supra) a decision of the Court of Common Pleas which is the foundation of the quotation in the following paragraph in the current (17th) edition of Clerk and Lindsell at paragraph 18 - 54 as follows:-

"Landlord's liability in other cases. The owner is liable if he has let the premises to a tenant for the purpose of doing an act likely to cause a nuisance, for example burning lime, if he has authorised his tenant to do an act which is likely to cause a nuisance, or if he has let the premises with a nuisance on them. On the other hand, "If a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are used or not, the landlord cannot be made responsible for the acts of the tenant. Where the owner is liable, that does not relieve the occupier from liability."

In Malzy v. Eichholz [1916] 2 KB 308 the Court of Appeal reached a decision to the same effect, epitomized in the following passage from the judgment of Lord Cozens- Hardy MR at page 315:-

"It is quite a novel doctrine to me that permission by a lessee to use demised premises for a purpose which may or may not involve or create a nuisance is a wrong act on the part of the landlord, and that the landlord can be rendered liable merely because a person does carry on that business in such a manner as to create a nuisance. It would be different, of course, if it were let for a purpose which necessarily involved a nuisance, but this letting did not necessarily involve a nuisance. That is quite plain from the plaintiff's own evidence. He says there was no ground for complaint until the Dents came into possession. Then it is said, Oh, but you knew of it and you have been receiving the rent from Castiglione, which he could not have paid unless he got it from the Dents, and therefore you knew the business was being carried on, and that would amount to consent or assent - it is put both ways - to what was done, and rendered you, Eichholz, an active participator in the nuisance which was being carried on. That proposition, to my mind, has only to be stated to show how fallacious it is. It cannot be that a landlord who according to the settled authorities is not bound to commence any legal proceedings to abate a nuisance is in this position, that unless he does commence those proceedings he cannot recover any rent, or if he does receive the rent he is to be taken to have sanctioned everything that the wrongdoer has done."

Pickford LJ and Neville J. delivered concurring judgments.

Sedleigh Denfield v. O'Callaghan (supra) is authority for the proposition that an occupier of land continues a nuisance if with knowledge or presumed knowledge of its existence, he fails to take reasonable means to bring it to an end where he has ample time to do so, and that he adopts the nuisance if he makes any use of the erection or artificial structure which constitutes the nuisance. The nuisance in question was caused by flooding from a pipe or culvert installed by a trespasser in the occupier's ditch of which the occupier subsequently became aware, and then used it for the draining of his own field.

Lord Wright stated as follows at pp 903 and 904:-

"The forms which nuisance may take are protean. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances. But where, as here, a plaintiff is damaged by his land being flooded, the facts bring it well within the sphere of nuisance. Such a case has a certain similarity with those to which the rule of Rylands v. Fletcher applies, but there are obvious differences in substance. There are indeed well marked differences between the two juristic concepts. This case has therefore properly been treated as a case of nuisance. It has affinity also with a claim for negligence, because the trouble arose from the negligent fitting of the grid. But the gist of the present action is the unreasonable and unjustified interference by the defendant in the user of his land with the plaintiff's right to enjoy his property. Negligence, moreover, is not a necessary condition of a claim for nuisance. What is done may be done deliberately, and in good faith and in a genuine belief that it is justified. Negligence here is not an independent cause of action but is ancillary to the actual cause of action, which is nuisance."

Similar statements are contained in the speeches of Viscount Maugham at page 894 and Lord Porter at page 919, the latter stating:-

"Such a liability is, I think, inconsistent with the contention that the occupier is not liable for the acts of a trespasser of which he has knowledge, though possibly it might be contended that he is responsible for the acts of his predecessor in title but not for those of a trespasser. However this may be, the true view is, I think, that the occupier of land is liable for a nuisance existing on his property to the extent that he can reasonably abate it, even though he neither created it nor received any benefit from it. It is enough if he permitted it to continue after he knew or ought to have known of its existence. To this extent, but to no greater extent, he must be proved to have adopted the act of the creator of the nuisance."

Professor Newark's article, which was approved expressly by Lord Goff in Hunter v. Canary Wharf (supra), states at page 489 as the first of the theses which he was "prepared ... to nail .... to the doors of the Law Courts and to defend against all comers" the following:-

"The term ´nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land."

Professor Gearty's article which was referred to by Lord Goff in the same case, stated as follows:-

"D owes P a duty to take reasonable care to avoid causing damage to his property. The duty is not one to manage a business well, or to operate an efficient factory: it is to avoid damage to land. There are only a few very particular situations where no such duty attaches to the conduct of D. The cases usually treat the matter as one of negligence though nuisance is often referred to and may sometimes be the preferred head of liability ............

This duty of care should properly belong to the tort of negligence. The label "nuisance" should play no part in its formulation or application. That it has is a reflection of the difficulty the courts have had in moving the principles of Donoghue v. Stevenson sideways into the law on neighbours. Private nuisance should be restricted to the protection of property from non-physical damage, i.e. noxious fumes and noise and the like. With its independence assured, and freed from negligence's debilitating concern with the yardstick of the reasonable defendant, there is no reason why nuisance (and consequently environmental protection) should not thrive once again. It is submitted that the cases have now reached the point where this move is possible. It is also desirable because it accords with principle and greatly simplifies the law."

I now come to Page Motors v. Epsom & Ewell Borough Council (supra), which is the first of the trilogy of cases particularly relied on by Mr. Brennan. The plaintiffs were tenants of business premises on the Council's estate, adjoining a piece of open land belonging to the Council on which gypsy caravans had for several years camped illegally. The gypsies burnt rubbish and rubber which caused smoke, obstructed access to the plaintiff's premises over their rights of way, failed to control dogs which attacked the plaintiff's customers, and did other acts such as smearing tar over the adjoining roadways immediately outside the plaintiff's premises and on the locks to the gates to their premises, and driving lorries round the access roads in such a way as to cause damage to the plaintiff's fencing.

Giving the leading judgment, Ackner LJ stated as follows at pages 345:-

"The legal position of the borough council

It is of course common ground that the council owned the land upon which the gypsies created the nuisance. They had an immediate right to possession of that land and were in a position in law, and indeed in fact to control the property. The responsibility, if any, which attaches to them in these circumstances is by virtue of their being the occupiers of that land.

I see no virtue, nor was any suggested in the course of argument in citing from each of the speeches in Sedleigh-Denfield v. O'Callaghan [1940] AC 880. I therefore quote one brief passage from the speech of Lord Wright which to my mind most clearly embodies the law. He said, at p.904:

The liability for a nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser, or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately, did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land.'

In my judgment the judge was wholly correct in concluding that the council adopted and continued the nuisance constituted by the activities of the gypsies on the Nonsuch Estate. He stated that a ´primary motive' for not enforcing the possession order was the possibility that the gypsies might have moved to another site within the borough. That was making use of the gypsy encampment on the Nonsuch Estate, even though the motive may merely have been to buy time to enable a solution to be found. He rejected, rightly in my judgment, the submission of Mr. Schiemann, for the council, that a defendant cannot be held to have ´adopted' a nuisance unless there is proved a positive desire on his part to use for his own benefit that which is causing a nuisance to the plaintiff. He concluded that by not taking steps to remove the gypsies from the Nonsuch Estate the council were enabled to contain the borough council's gypsy problem during the five-year period described above and which elapsed before the solution was found. That they were allowing the site to be used as an unsupervised caravan site pending a decision as to the removal of the gypsies is clear from the evidence of Mr. Schofield, the only officer of the council to give evidence. He confirmed that a water supply was made available to the gypsies by the provision of a standpipe, and skips were put on the site, presumably at convenient points, for the disposal of their refuse. Moreover so far as sewage disposal was concerned, there were disposal points for the contents of elsans and these were dealt with from time to time by the council."

In relation to Smith v. Scott , Ackner LJ stated at p.347 that:-

"Smith v. Scott [1973] Ch.314 was essentially a claim brought against a local authority on the basis that as landlords they expressly or impliedly authorised the nuisance complained of, Sedleigh-Denfield v. O'Callaghan (supra) does not appear to have been cited nor, apparently, was any point taken that the non-enforcement by the council of their covenant against the commission of a nuisance by their tenant could have resulted in their adopting his tortious behaviour."

Fox LJ and Sir David Cairns delivered concurring judgments.

In Northampton Borough Council v. Lovatt (supra) the Council successfully obtained an order for possession against their tenants pursuant to section 84 and grounds 1 and 2 of Schedule 2 to the Housing Act 1985 on the ground that the tenants and their children were guilty of persistent anti-social and criminal activities amounting to nuisance and annoyance to their neighbours.

Giving the leading judgment Henry LJ stated at page 145:-

"Next, Mr. Wood submits that the conduct complained of must emanate from the demised premises. He points out that most nuisances consist of unreasonable use by an occupier, and so such a limitation should be read into the Act.

Again, I do not agree, Even if the phrase ´nuisance and annoyance' were used technically here (and I do not think it is: see Megarry, The Rent Acts, 11th ed. at p.404) you do not have to occupy land to be liable for nuisance (e.g. flying noisy model aeroplanes in a public park - Hall v. Beckenham Corporation [1949] 1 KB 716 at p.728). There is no warrant for reading the first part of ground 2 as if after the word ´conduct' the qualifying words ´at the dwelling house' were read in. There would be no sense in a law which prevented you from playing your music at maximum volume in the middle of night from your home but permitted you to walk round your neighbourhood with your ´ghetto-blaster' at full pitch."

Chadwick LJ stated at pp 149 to 150:-

"The council require protection, in this respect, not because the conduct is a direct cause of nuisance or annoyance to them in their own enjoyment of neighbouring property or because the conduct damages their interest in the reversion of the demised premises, but because, whether reasonably or unreasonably - but, in my view, incontrovertibly - those who live or work on a council estate and are affected by the conduct of council tenants on that estate will expect the council to do something about it. The housing department will receive complaints which will have to be addressed. That will take management time and will cost money. Further, the council will find it that much the more difficult to relocate other applicants in need of housing into properties on an estate which is perceived to be out of control....

The conduct against which ground 2 must have been intended to provide the council with some protection is not confined to what is being done by their tenants and those residing with them on the demised property itself, but extends to what is being done within the area in which persons affected may fairly regard the council (as local housing authority and landlords) as responsible for the amenities and quality of life, including freedom from harassment, enjoyment of which they are entitled to expect."

Pill LJ dissented.

In Chartered Trust v. Davies (supra) landlords of a shopping mall were held liable both in nuisance and for derogation from their grant to a tenant in circumstances where they had let an adjoining shop to a pawnbroker. The pawnbroker's offending conduct was described by Henry LJ giving the leading judgment with which Staughton LJ agreed as follows:-

"It was the manner in which this pawnbroker's business was carried on that caused the main difficulties to the Davies. Their windows on to the mall were obstructed so you could not see into the pawnbroker and thus no light from them came out on to the passage. More importantly, entry to the premises was restricted to one customer at a time, on the door being unlocked for him. For this reason, potential customers (who by the fact they found it necessary to go there, would not be likely to have money to spend on the sort of items the defendant sold) would wait in the passage, occasionally sitting at the coffee house's tables while waiting or entering Miss Davies' shop. The largest number waiting at any time was 10 and numbers up to six were not uncommon. These groups of young men waiting had a deterrent effect on people who might otherwise have used the mall as a pedestrian way and on people who might have window shopped. It meant that effectively there was no passing trade at all. Miss Davies said:"

Later on at page 85 Henry LJ proceeded as follows:-

"The central point to be got from the circumstances surrounding the lease at the time that Mr. Davies took it was that what the landlords were marketing was not just a separate and independent retail unit, but such a shop in its place in a shopping arcade or (in the modern usage) mall. That was the ´particular purpose for which the land was hired'. The lease makes that clear. The mall was described in the lease as being ´the Centre', the common parts (including the passages required for access and the cloakrooms) were defined and kept within the responsibility of the landlords, who were entitled to charge a service charge therefore. It was implicit in the form of the lease that other tenants would be subject to similar forms of lease, as the pawnbroker was. All tenants were obliged to keep open during shop opening hours. They could not, without the landlords' consent, make any alterations or additions to the property. They could not use the property for ´any use ... similar to any other use for the time being permitted in any other part ... of the Centre'. There was a covenant restraining tenants from committing a nuisance. They could not obstruct the windows without consent. The landlords retained a rule-making power for better use of the centre and, in particular, the common parts and the power to make the tenants obey such rules. It was plain from the surrounding circumstances that the uses to which other units were put, the manner in which other tenants carried on their business and the impact of those matters on the user of the common parts, could have a great influence both on the business of the individual tenants and on the success of the development itself ....

From the lease, one gets a clear recognition by the landlords that the enjoyment of the benefit that the tenant took under the lease here depended, in part, on the actions of the landlords in letting and controlling the remaining units in, and the common part of, this small retail development."

Henry LJ then considered a number of the authorities cited above, in particular Malzy v. Eichholz , O'Leary v. Islington BC , and Smith v. Scott and concluded at p.88:-

"Where a landlord is granting leases in his shopping mall, over which he has maintained control, and charged a service charge therefor, it is simply no answer to say that a tenant's sole protection is his own ability and willingness to bring his individual action. Litigation is too expensive, too uncertain and offers no proper protection against, say, trespassing and threatening members of the public. The duty to act should lie with the landlord.

Here it is plain, as the pawnbroker's lease makes clear, that the landlords must have consented to the sign placed as it was, dominating the entrance to the arcade. Though the pawnbroker was not permitted to obstruct his windows without the landlords' consent, I do not think that that consent can safely be inferred; it seems to me just as likely that the pawnbroker simply did it. But neither of those points are central. What is clear is that the landlords could have acted to stop the pawnbroker's clientele queuing in the access and, if necessary, could have cleared the tables and chairs obstructing that access. Then the back shops might have had a chance. This could have been done either directly under the lease, enforcing the covenant against causing a nuisance, or by making rules ensuring that the passageway was kept clear. This might have involved the pawnbroker rearranging the interior of her premises, but that was her problem. Instead, the landlords prevaricated and did nothing. They could have acted effectively and they should have done so. Instead they chose to do nothing, and thereby made the premises materially less fit for the purpose for which they were let. in failing to act to stop the nuisance, in my judgment, the landlords continued the nuisance and derogated from their grant."

I now come finally to the two very recent House of Lords authorities which bear directly in the claim in negligence in the present case.

In Stovin v. Wise and the Norfolk County Council [1996] AC 923 the plaintiff, who was seriously injured in motor accident, complained that the Council were guilty of negligence and breach of statutory duty in failing to remove a bank on a dangerous bend which they knew to be a source of danger because it restricted the road user's view. The majority judgment was given by Lord Hoffmann, with whom Lord Goff and Lord Jauncey agreed. Lord Slynn and Lord Nicholls dissented.

Under the heading "Negligent conduct in the exercise of statutory powers" Lord Hoffmann, having cited the

relevant authorities, concluded as follows:-

"In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory ´may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as ´general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare.

In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."

In X v. Bedfordshire County Council (supra) the facts as summarised in the headnote were as follows:-

".... five plaintiffs , who were born between 1982 and 1990, claimed damages for personal injury arising out of breach of statutory duty and negligence by the defendant council. By their statement of claim the plaintiffs alleged that between 1987 and 1992 they had suffered parental abuse and neglect; that the council had received serious reports of such treatment but had failed to investigate the matter adequately or protect the plaintiffs from further harm; in particular, that prior to October 1991 the council had failed to exercise its powers to institute care proceedings under the Children and Young Persons Act 1969 and the Child Care Act 1980 and thereafter, on the coming into force of the Children Act 1989, had failed to exercise their statutory duties to identify children in their area who were in need and to take measures to protect them from harm."

In relation to the discretionary exercise of a statutory power, Lord Browne-Wilkinson (giving the leading speech with which the other members of the appellate committee agreed) stated as follows at p.736:-

"Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability.

That this the law is established by the decision in the Dorset Yacht case [1970] AC 1004 and by that part of the decision in Anns v. Merton London Borough Council [1978] AC 728 which, so far as I am aware, has largely escaped criticism in later decisions. In the Dorset Yacht case Lord Reid said [1970] AC 1004, 1031:

´Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The persons purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to person who do that.'"

He then considered a number of authorities and concluded at p.738:-

"From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion; nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist."

Later in his speech Lord Browne-Wilkinson considered whether the fair just and reasonable test had been met, and held that it had not on the following grounds:-

(i) a common law duty of care would cut across the whole statutory system set up for the protection of children at risk, involving close inter-disciplinary co-operation.

(ii) the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate.

(iii) if liability in damages were to be imposed it might well be that local authorities would adopt a more cautious and defensive approach to their duties.

(iv) other remedies are available for maladministration of the statutory system for the protection of children

(v) no category of case had been cited in which a duty of care had been held to exist which was in any way analogous, so that there was no basis for proceeding incrementally and by analogy with decided categories as required by the Caparo case [1990] 2 AC 605.

Lord Browne-Wilkinson concluded this passage by stating at p.751 that:-

"To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases had it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill v. Chief Constable of West Yorkshire [1989] AC 53 and Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] AC 175. In the latter case, the Privy Council whilst not deciding the point said, at p.198, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability ´would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few.' In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."

It was of course the position of the police as a body charged with the task of protecting society from the wrongdoings of other which led the House of Lords in Hill v. The Chief Constable of West Yorkshire (supra) to lay down the very well known policy considerations militating against actionability in negligence against the police (per Lord Keith at page 63).

I shall first consider the claim in nuisance, seeing that this is the cause of action which Mr. Brennan places in the forefront of his argument, leaving aside for the moment Mr. Jackson's submission, based on Smith v. Littlewoods and Professor Gearty's article in the Cambridge Law Journal, that in cases of physical damage the tort of nuisance should be subsumed in negligence.

As will be apparent from the submissions summarised above, two main questions arise in connection with the claim in nuisance, using that word in its technical tortious sense, first as to its scope, and secondly as to the ambit of responsibility of landlords for their tenants acts of nuisance.

So far as the scope of the tort is concerned, Professor Newark's statement of general principle that its essence is that the defendant's use of the defendant's land interferes with the plaintiff's enjoyment of the plaintiff's land is amply vindicated not only by Lord Goff's approval in Hunter v . Canary Wharf , but also by the passages I have quoted above from the Sedleigh Denfield case, where Lord Wright refers to "the interference by the defendant in the user of his land " and Lord Porter to the occupier's liability for "a nuisance existing on his property ". Mr. Brennan in answer sought to rely on Henry LJ's dictum in the Northampton case, but in my judgment the word nuisance when used in combination with annoyance in the Housing Act 1985 must (as Henry LJ himself recognised) be interpreted in its non-technical sense.

In the present case the acts complained of unquestionably interfered persistently and intolerably with the plaintiffs' enjoyment of the plaintiffs' land, but they did not involve the tenants' use of the tenants' land and therefore fell outside the scope of the tort.

Turning to the ambit of the landlord's responsibility for his tenants' acts of nuisance, Smith v. Scott is decisive authority in favour of Mr. Jackson provided it still holds good.

Mr. Brennan seeks to discount the approval given in Elizabeth v. Rochester on Medway District Council , on the ground that the judgment was no more than a refusal of leave to appeal. I myself would not be prepared to dismiss the Elizabeth case on that footing, quite apart from the fact that Smith v. Scott is in line not only with Rich v. Basterfield (which as noted above is cited as good law in the current edition of Clerk and Lindsell) but also with the Court of Appeal's decision in Malzy v. Eichholz .

It seems to me, therefore, that Mr. Brennan's contention on this part of the case depends on his succeeding in showing that this very well established doctrine has been overtaken by Page Motors and the other two recent cases on which he specifically relies, to which I now turn.

The conduct of the gypsies in Page Motors clearly constituted nuisance in the technical sense, since in all its various manifestations it involved use (or rather misuse) of the council's land which the gypsies had been occupying over a period of several years; on that footing alone, it is plainly distinguishable from the present case. So far as the Council's responsibility for the gypsies' acts of nuisance is concerned, it seems to me that Mr. Jackson is right in submitting that the key to that case is the fact that, as specifically recorded in Ackner LJ's judgment, the Council deliberately continued the gypsies' possession of the land on policy grounds, and provided them with a water supply, skips, etc. thus in effect adopting the gypsies' nuisance. No similar adoption occurred in the present case.

The Northampton case concerned the eviction by the council of its tenant on Housing Act grounds, and was in no way concerned with the question of the responsibility of a landlord for his tenants' acts, and is therefore in my judgment not presently in point: Chadwick LJ's statements, to which Mr. Brennan attached particular importance, are very valuable in the context of the facts in the Northampton case, but to my mind have no real bearing on the present case.

Chartered Trust v. Davies is, like Page Motors , a true nuisance case, since the pawnbroker's conduct in the use of his premises impinged directly on the land of the plaintiff as his next door neighbour. But here again, as in Page Motors , the adverse decision against the landlord was attributable to the special circumstances of that case on which Henry LJ laid strong emphasis, namely the landlord's special role in the management of the shopping mall in which both premises were situated.

I am therefore unable to accept Mr. Brennan's submission that this trilogy of cases has overtaken the previous well established basis on which landlords are to be held liable for their tenants' nuisance, thus undermining the foundation of his propositions (1) and (2).

Turning now to negligence, the essence of Mr. Brennan's proposition No.(3) is that the Council were negligent in failing to exercise their powers under the Housing and Highway Acts, from which I have already quoted the relevant provisions conferring statutory powers upon the Council. The very narrow and restricted scope for claims for negligence in relation to the exercise of statutory powers was laid down by the House of Lords in X v. Bedfordshire County Council , echoed in Stovin v. Wise and Mr. Brennan quite plainly does not come within either of the special categories identified by Lord Hoffmann in Stovin v. Wise .

Mr. Brennan is also confronted by the further difficulty that he cannot bring himself within the limitations of a claim in negligence based on use of land laid down by the Vice Chancellor in Smith v. Scott , as expressly approved by the Court of Appeal in O'Leary v. London Borough of Islington .

Even if Mr. Brennan had been able to overcome these two obstacles, he would still have to satisfy the fair just and reasonable test in the circumstances of this case.

On this Mr. Jackson cited a number of considerations which he submitted were comparable to those relied on in X v. Bedfordshire County Council . He submitted that to deal effectively with racial harassment involves cooperation between a number of agencies, the police, the probation service, local housing authorities, organisations representing the ethnic communities, social services department, youth services department, education authorities and schools. It was unreasonable, he submitted, to impose liability in negligence upon any or all of the above agencies for failing to achieve a successful outcome. Moreover, it would cut across effective multi-agency working if one of the agencies involved is required by injunction to take specific steps. If claims of the type advanced in this case were permissible, the scarce resources of the Council would, in part, be diverted to defending such actions in the County Court which might involve hearings extending over days rather than hours. In Metropolitan areas where there is a large ethnic community, the local authority might find itself involved with many problems of racial harassment simultaneously, so that if any one victim could obtain an injunction forcing the authority to take certain steps, that might cut across the Council's general policy and adversely affect other victims. At the end of the day, it was for the Council not the court to decide matters of policy such as how much of the Council's resources should be allocated to this particular problem, and what steps if any the Council should have taken and at what juncture in relation to the various incidents.

Mr. Brennan countered by the following considerations on which he relied:-

(1) In their own published policy on racial harassment, the Council stated in terms that they would take action.

(2) Over a period of 5 to 6 years the Council's representatives had regularly met the plaintiffs for discussions, and had led the plaintiffs to believe that the Council would take action and to rely on the Council to do so.

(3) Some action had in fact already been taken in the case of Craig Wareing, and there was no reason why similar action should not be taken against the other culprits.

(4) The Council had in fact effective means of control by issuing timely warnings, and exercising their powers under the Housing and Highways Acts.

Mr. Jackson further submitted that, in the Highways Act context, it would not be fair just and reasonable to impose upon a Highway Authority liability in negligence, since it would then be necessary for them in effect to police the entire highway system within their area of responsibility, which would place an intolerable burden on them, particularly in widespread rural areas.

While I see the force of the considerations advanced by Mr. Brennan, I am quite satisfied that, for the reasons given by Mr. Jackson, it would not be fair just and reasonable to hold the Council liable in negligence in the circumstances of this case; to my mind Lord Browne-Wilkinson's concluding words in the relevant passage of his judgment in X. v. Bedfordshire County Council apply with equal force here:-

"In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."

Finally I return to Mr. Jackson's opening submission on the relationship between nuisance and negligence in the modern law of tort. Having regard to Smith v. Littlewoods , and to Lords Goff's references to Professor Gearty's article in Hunter v. Canary Wharf , it seems to me clear that the law is now moving strongly in the direction favoured by Professor Gearty, viz., to assimilate the law of nuisance into that of negligence in cases involving physical damage; but in view of my conclusion on nuisance in the present case, it is not necessary to decide whether Professor Gearty's goal has yet been reached.

It follows that, in my judgment, the plaintiffs do not have viable causes of action either in nuisance or negligence, and that therefore the appeal must be allowed unless Mr. Brennan succeeds in his final argument that this is an inappropriate case in principle for striking out.

In Lonrho plc v. Fayed (supra) it was stated as follows by Lord Bridge of Harwich at p.469 in a passage on which Mr. Brennan relied:-

"It may sometimes be appropriate, where proceedings to strike out have reached this House on appeal and have been fully argued, to relax the rigour of these criteria in exceptional circumstances: see, for example Williams and Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd. [1986] AC 368. But here the only possible reason for departing from the application of the ordinary tests would be if the House were satisfied that it was possible to distil from the pleadings a clearly defined issue of law which it would have been appropriate to determine as a preliminary question if the correct procedure to that end had been followed and which can be answered in a way which disposes of the action. But here it is important to remember how frequently the House has protested, where parties have agreed the terms of a preliminary question of law, at being required to answer difficult questions of law on hypothetical and disputed facts stated in general terms. In the course of the argument, counsel for the appellants were invited to formulate the terms of any question of law which they were able to submit would have been appropriate for preliminary determination, but I do not believe that any of the formulations suggested would have been accepted as appropriate for preliminary determination if a contested application had come before the court under Ord. 33 r.3. In a passage which seems to me peculiarly apt to the circumstances of this case, Lord Wilberforce said in Allen v. Gulf Oil Refining Ltd. [1981] AC 1001, 1010 - 1011:

´My Lords, I and other of your lordships have often protested against the procedure of bringing, except in clear and simple cases points of law for preliminary decision. The procedure indeed exists and is sometimes useful. In other cases, and this is frequently so where they reach this House, they do not serve the cause of justice. The present is such an example ... The fact is that the result of the case must depend upon the impact of detailed and complex findings of fact upon principles of law which are themselves flexible. There are too many variables to admit of a clear-cut solution in advance'"

This theme was also taken up by Lord Browne-Wilkinson in X. v. Bedfordshire County Council as follows:-

"Striking out

In all these cases the defendants are seeking to strike out the claims at an early stage, before discovery has taken place and before the facts are known. It is therefore necessary to proceed on the basis that the facts alleged in the various statements of claim are true. It must be stressed that these allegations are not admitted by the defendants.

Actions can only be struck out under R.S.C. Order 18 r. 19 where it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts. But I agree with Sir Thomas Bingham M.R. ante, p. 694B-D that there is nothing inappropriate in deciding on these applications whether the statutes in question confer private law rights of action for damages; the answer to that question depends upon the construction of the statutes alone.

Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases. There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist. But in other cases the relevant facts are not known at this stage. For example, in considering the question whether or not a discretionary decision is justiciable, the answer will often depend on the exact nature of the decision taken and the factors relevant to it. Evidence as to those matters can only come from the defendants and is not presently before the court. I again agree with Sir Thomas Bingham M.R. that if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered."

In my judgment this case falls on the same side of the line as X. v. Bedfordshire County Council . The law is plainly established, and nothing which could come out in the evidence in the trial could paint a more appalling picture of racial abuse than the allegations contained in the amended statement of claim, which for present purposes we are accepting as true.

Mr. Brennan stressed at the close of his argument how aggrieved his clients will feel if they are not entitled to carry their case to its conclusion against the Council, and I can well understand their attitude, seeing that the remedies they undoubtedly have against the individual perpetrators would be difficult to pursue, and might well prove fruitless. However, all that would be achieved would be a long and expensive trial doomed to certain failure. Thus in the end they would gain no worthwhile advantage and the public would suffer considerable disadvantage through the waste of precious court time and resources in trying a hopeless case.

For all these reasons I would allow this appeal and reinstate the order of the Master.

Lord Justice Thorpe:

I have had the advantage of reading in draft the judgment of my lord, Lord Justice Hirst, and am in complete agreement with all that he has written. I was particularly impressed by two considerations: first that the plaintiffs have been the victims of racial harassment much of which measures high on the scale of criminality. In the multi-disciplinary response the police would seem to be the agency with primary responsibility. Second the perpetrators of these crimes are legion and in some instances clearly not in legal relationship with the city council. For instance Craig Wareing, referred to in the amended statement of claim, is described elsewhere as ‘a person of no fixed abode, who is believed to have connections in Newcastle and Skipton, but who spends some of his time in Lancaster, either staying with friends on the Ryland Estate, or sleeping in his car on the estate’.

Although these considerations may be said to be more relevant to trial than to a strike out application, they fortify the conclusion that the wrongs which the plaintiffs have suffered must be fought by multi-disciplinary co-operation and not by civil suit against one of the relevant agencies.

I agree with both judgments.

Orders: Appeal allowed; order nisi against legal aid fund with nil contribution; costs below before judge and master not to be enforced without leave of the court; application for leave to appeal to the House of Lords refused.