England and Wales Court of Appeal (Civil Division) Decisions

Case No: CCRTI/2000/2171/B1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WANDSWORTH

COUNTY COURT

His Honour Judge Walker

Royal Courts of Justice

Strand, London, WC2A 2LL

Thursday 21 December 2000

SIR CHRISTOPHER STAUGHTON

1. Mrs Mowan is a widow and lives in a flat at 1 Holgate Avenue, London SW11. She is a tenant of the London Borough of Wandsworth under a long lease granted in 1988. Mrs Mowan had previously been a secure tenant of the borough, either at Holgate Avenue or elsewhere, and obtained the lease in return for payment under the Right to Buy legislation.

2. The flat above Mrs Mowan, 5 Holgate Avenue, is occupied by Miss Abrahart, the Second Defendant in these proceedings. She has lived there since 1940, at first with her mother and thereafter on her own. She is a secure tenant, having succeeded to the tenancy of her mother. Miss Abrahart has a mental disorder, as it is called nowadays. We are told that she has been sectioned under the Mental Health Act 1983, although there is a difference of view as to which section was involved in her case. The police, who have received frequent complaints from Holgate Avenue, have advised the Council that Miss Abrahart should be in a care home; but the Council, no doubt for the best of reasons so far as she is concerned, take the view that she should live in the community.

3. Mrs Mowan complains of Miss Abrahart's behaviour in flat 5, and of how it affects her enjoyment of flat 1. In her Amended Particulars of Claim dated 17 September 1999 the complaint is as follows:

"3. Since 1988 the Second Defendant has carried on acts which have caused a nuisance to the Plaintiff.

PARTICULARS OF NUISANCE

(i) the Second Defendant has regularly blocked the toilet of the neighbouring flat so as to cause the property to flood with sewage;

(ii) the Second Defendant has regularly left taps on in the neighbouring flat so as to cause the property to flood with water;

(iii) the Second Defendant regularly jumps up and down in the neighbouring flat so as to cause noise to permeate the ceiling of the property;

(iv) the Second Defendant regularly conducts activities, including banging chanting and moaning late at night, pursuant to her activities as a clairvoyant so as to cause noise to permeate the ceiling of the property;

(v) the Second Defendant has claimed to have received psychic messages from the Plaintiff's late husband;

(vi) the Second Defendant has threatened to kill the Plaintiff."

The grounds upon which the London Borough of Wandsworth is said to be liable for that behaviour of Miss Abrahart are these:

4. Further, at all material times the First Defendant knew or ought to have known of the existence of the nuisance. In particular between 1988 and 1999 on occasions too numerous to particularise the Plaintiff reported the nuisance to the First Defendant by telephoning the First Defendant's offices.

5. By reason of the matters aforesaid the First Defendant has breached the duty owed by it to the Plaintiff and has caused nuisance to the Plaintiff in that since 1988 the First Defendant has adopted the nuisance caused by the Second Defendant and/or has failed to abate the said nuisance and/or has permitted the said nuisance to continue.

PARTICULARS

(i) the First Defendant has failed to institute possession proceedings and/or appropriate injunction proceedings or take any effective steps against the occupant;

(ii) the First Defendant has failed to cause the nuisance towards the Plaintiff to cease;

(iii) the First Defendant has failed as set out above despite ample information being available from the Plaintiff, from residents in the neighbourhood of the Plaintiff and the occupant, from the police, and from its own officers or agents that would enable it to do so. In particular in or about June of 1997 the residents of 3, 7, 9 and 11 Holgate Avenue petitioned the First Defendant in writing requesting that they stop the nuisance."

6. Mrs Mowan claims, as against both the Council and Miss Abrahart, an injunction and damages. She asserts that her "enjoyment of and value in the property has diminished". That may be a not unimportant feature in this case. If Mrs Mowan could sell her property and move elsewhere, it may be that she would be only too pleased to do so. But who would buy her flat if Miss Abrahart were likely to continue her distressing conduct above it?

7. The Council applied to strike out the claim against them under the Civil Procedure Rules, on the ground that it must fail. Deputy District Judge Iller in Wandsworth County Court rejected that application, but an appeal succeeded before Judge Walker. Mrs Mowan now appeals to this Court.

8. For the purposes of the application, and again for this appeal, we must assume that the facts pleaded in the Amended Particulars of Claim are true. On that basis there has certainly been the tort of nuisance by Miss Abrahart, from which Mrs Mowan has suffered serious harm. If it comes to the exercise of discretion by the Court, she has a most powerful claim. The question is whether in law she has a remedy against the Council. It is said that they are liable on two grounds, that is to say (1) nuisance, and (2) negligence. There were thirty cases cited for our consideration in the volume of authorities before us.

(1) Nuisance

9. The Council maintains that by long-established law a landlord is not liable for nuisance by his tenant unless it was authorised by him, which was not the case here.

10. I start with the case of Sedleigh-Denfield v O'Callaghan (1940) AC 880. That, as it seems to me, decides that an occupier of land is liable for the continuance of a nuisance created by others if he continues or adopts it. Viscount Maugham (at p.894) adds:

In my opinion an occupier of land "continues" a nuisance if with knowledge or presumed knowledge he fails to take any reasonable means to bring it to an end.... He "adopts" it if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.

11. Lord Atkin, however, said this, (at p.896):

"For the purpose of ascertaining whether as here the plaintiff can establish a private nuisance I think that nuisance is sufficiently defined as a wrongful interference with another's enjoyment of his land or premises by the use of land or premises either occupied or in some cases owned by oneself". (My emphasis)

12. Thereafter there is a strong trend in the cases in favour of the landlord who is not an occupier. Thus in Smith v Scott (1973) Ch 314 at p.321 Sir John Pennycuick VC said:

"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 Ayers v Hanson, Stanley & Prince (1912) 56 S.J. 735; and see generally Clerk and Lindsell on Torts, 13^th ed. (1969), p. 805, para. 1426; Salmond on the Law of Torts, 15^th ed. (1969), p. 89 and Winfield and Jolowicz on Tort, 9^th ed. (1971) p.348".

13. That decision was approved and followed in this court by Nourse, McCowan and Roch LJJ in Elizabeth v Rochester City Council (26^th April 1993) unreported. It was again followed by the Court of Appeal in Hussain v Lancaster City Council (2000) QB 1. In that case Mr Brennan's argument (at p.10) was that a landlord, or at least a local authority landlord, who knows or ought to know of a nuisance being committed 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 prevent or control the nuisance, may thereby be held to have caused, continued or adopted that nuisance. Hirst LJ rejected that proposition, saying (amongst other things) that Smith v Scott was decisive authority against it. My own conclusion as to the effect of that decision is to be found in Lippiatt v South Gloucestershire Council (2000) QB 51 at p.64.

14. Lastly there is Southwark London Borough Council v Tanner (1999) 3 WLR 939. Lord Hoffmann (at p.950) quoted the passage from Sir John Pennycuick's judgment in Smith v Scott which I have already set out. And Lord Millett said (at p.956):

"Once the activities complained of have been found to constitute an actionable nuisance, more than one party may be held legally responsible. The person or persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. Landlords have been held liable for nuisance committed by their tenants on this basis. It is not enough for them to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property; see Malzy v Eichholz (1916) 2 K.B. 308."

15. It is true that those views may be said to be ob iter, as it was held that there was no nuisance by anybody. However, the principle is well founded on authority, as I have sought (briefly) to show.

16. There are other cases where the landlords have been occupiers of the land on which, or from which, a nuisance was created by others. Into that class come Hilton v James Smith & Sons (Norwood) Ltd (1979) 251 EG 1063, Page Motors Ltd v Epsom & Ewell Borough Council (1981) 80 LGR 337, Chartered Trust v Davies (1997) 2 EGLR 83 and Lippiatt v South Gloucestershire Council (2000) QB 51. And in Sedleigh-Denfield's case the respondents were owners and occupiers. For good or ill, those are a different class of case.

17. It is said that a human rights point arises, even though we are concerned with events which occurred before the Convention was brought into force in this country. As I understood it, the argument was that the Council's version of the law of nuisance was incompatible with a human right, that is to say Mrs Mowan's right to respect for her private and family life; that being so, we should interpret the common law as providing her with an effective remedy against the Council, if we can do so. It is said that otherwise Mrs Mowan has no remedy. I am not convinced as to that, and consider the point further at the end of this judgment.

18. I say nothing as to whether the conduct alleged of Miss Abrahart constitutes a breach of Article 8; it is certainly a breach of Mrs Mowan's rights, and I would hope of her human rights too. But I fear that we cannot accept the invitation to bend the common law so that it affords a remedy against the Council. The principles are too well established for that. If they are to be altered, that must happen elsewhere. Accordingly I hold that there is no case for holding the Council liable in nuisance.

(2) Negligence

19. This is not pleaded nor particularised, but I would not hold that to be an insuperable obstacle. I can guess without much difficulty how the case would be put. It would be said that the Council owed a duty of care to Mrs Mowan as their tenant to protect her from nuisance created by other tenants, and that they had failed to protect her. If asked for particulars as to how they had been careless, the answer would be that the lack of care lay simply in failure to act when they should have done. No doubt the council had taken immense care over the affair of Mrs Mowan and Miss Abrahart; it was not said that they had been careless, but that they had failed to do what they should have done.

20. That to my mind shows that the argument of negligence is simply nuisance by another name. The forms of action are ruling us from their graves if that leads to a different result.

21. However, that is only my own view of the situation. It is not put forward by Mr Lowe for the Council as his main argument. He prefers to enter upon the law as to when a statutory duty, or the actions of a statutory body, give a private law right to the individual, citing X -v- Bedfordshire County Council (1995) 2 AC 633 and Stovin v Wise (1996) AC 923. Mr Luba for Mrs Mowan relies in answer on Phelps v Hillingdon London Borough Council (2000) 3 WLR 776.

22. Without entering too deeply into those cases, it is in my judgment enough to say that an argument of negligence was rejected in each of Smith v Scott, O'Leary v London Borough of Islington (1983) 9 HLR 83 and Hussain v Lancaster City Council. At least the last of those three cases is binding upon us. I therefore reject the argument that Mrs Mowan has a cause of action in negligence.

23. Again it is said that we should have regard to the Human Rights Convention in considering this part of the case. The argument was based on the decision in Osman v United Kingdom (1998) 29 EHRR 245. Two views of that case were canvassed; the first is that to strike out a claim before trial is contrary to Article 6(1) of the Convention, because the Claimant does not get a fair trial; the second, that there is a breach of the Convention if the Claimant falls under what is called an exclusionary rule.

24. It was not clear to me whether Mrs Mowan's case was that these issues should be decided now, or whether we were having a trailer for the next action which will relate to facts after 2^nd October 2000. If and only if it is to be decided now, I express my views upon it.

25. As to the first point, there is recent authority that striking out an action because it is bound to fail has not been altogether outlawed by Osman's case; see Jarvis v Hampshire County Council (2000) FCR 310, Palmer v Tees Health Authority (1999) Lloyd's Law Reports Medical 351.

26. The second point raises the question what is meant by an exclusionary rule. If it means any rule of law which leads to the result that the claimant's claim fails, then every action must succeed. A more glorious doctrine for claimants would be difficult to imagine. I cannot believe that to be what was decided in Osman's case. It seems to me that an exclusionary rule is a rule which applies when the plaintiff has a cause of action, but it fails against a particular class of persons (such as policemen), either in all cases or in a particular type of case (misfeasance or non-feasance in the course of police activities). I do not think that there is such a rule in issue in the present case. The rule which impedes Mrs Mowan's action for negligence is that she is owed no duty of care by the Council, or that they are not in breach of duty. We are not saying that she has a cause of action but is excluded from enforcing it.

(3) Conclusion

27. I would hold that Mrs Mowan's action cannot succeed, and that her appeal should be dismissed. I find this a deplorable result; but the law in this court has already been stretched as far as it will go in the two previous decisions to which I was a party, Chartered Trust and Lippiatt. Now a remedy must be sought elsewhere.

28. We have discussed whether Mrs Mowan has any other remedy under the existing law. It is said to be unlikely that an injunction would be granted against Miss Abrahart, in the light of the decision in Wookey v Wookey (1991) Fam. 121. I am by no means sure of that conclusion. Alternatively there is the possibility of public law proceedings against the Council. I do not believe that such proceedings are necessarily bound to fail, by a long chalk. But that is only a matter of first impression, without the benefit of argument.

PETER GIBSON L.J.:

29. On the basis of the facts which are pleaded in the Amended Particulars of Claim and which we must assume to be correct, Mrs. Mowan, as the owner of her flat, suffered what the Judge rightly described as very distressing nuisance for more than ten years as a result of the troubled behaviour of Ms. Abrahart in the flat above Mrs. Mowan's flat. There can be no doubt but that on those facts she has a good cause of action in nuisance against Ms. Abrahart, and she would appear to be entitled to the injunction against Ms. Abrahart which she claims, unless it be the case that Ms. Abrahart's mental condition is such that the court would give no injunctive relief against her, a point to which I will return later. But I emphasise that we have not heard what Ms. Abrahart has to say.

30. The only question for this court is whether the Judge erred in striking out Mrs. Mowan's claim against the Council. If Mrs. Mowan can show that her claim was not bound to fail, then the Judge's decision cannot stand.

31. The primary ground advanced by Mr. Luba Q.C. for Mrs. Mowan is that the Council authorised the nuisance. He accepted that the general rule is that it is only the occupier of land who causes a nuisance that is liable for the nuisance and that in the case of land which is let the responsibility is that of the tenant rather than the landlord. But he rightly pointed out that that rule is subject to an exception if the nuisance arises from action which the landlord has expressly or impliedly authorised. That exception, he submitted, applied here. He pointed out that a landlord may be liable for a nuisance not only if he lets property in circumstances where the nuisance is certain to result from the purposes for which the property is let but also if having let the property in other circumstances the landlord gives express or implied authority for the nuisance which is caused by the occupier. He suggested that different considerations applied to the two types of case.

32. Mr. Luba properly drew our attention to the decision of this court in Malzy v Eichholz [1916] 2 KB 308, the headnote of which accurately reflects what this court decided:

"A lessor is not liable in damages to his lessee under a covenant for quiet enjoyment for a nuisance caused by another of his lessees because he knows that the latter is causing the nuisance and he does not himself take any steps to prevent what is being done. There must be active participation on his part to make him responsible for the nuisance. A common lessor cannot be called upon by one of his tenants to use for the benefit of that tenant all the powers he may have under agreements with other persons."

33. Mr. Luba submitted that this decision no longer represented the law and that we should not follow it. But in the most recent decision put before us, Southwark London Borough Council v Tanner [1999] 3 WLR. 51 at p. 956, Lord Millett, in a speech with which Lord Slynn, Lord Steyn and Lord Clyde agreed, referred to Malzy with approval in the passage cited by Sir Christopher Staughton. Further, Lord Hoffmann, in a speech with which Lord Slynn, Lord Steyn and Lord Clyde also agreed, referred with express approval to the remarks of Sir John Pennycuick V-C in Smith v Scott [1973] Ch. 314 at p. 321 which again Sir Christopher has cited. Those remarks are wholly consistent with Malzy. True it is that in Southwark there was no nuisance capable of being authorised, so that what was said on authorising a nuisance was obiter. But it is clear that the views expressed represent what their Lordships considered to be the law. True it is also that in Smith the unsuccessful argument was that the landlord knew that by letting the property a nuisance would be caused by the tenants. But the rationale for holding a landlord liable for a nuisance which is certain to result from the purposes for which the property is let seems to me to be that thereby the landlord impliedly authorised the nuisance. In other words I see in such a case no difference in substance from a case where the nuisance, whilst not certain to result at the time of the letting, occurs as a result of subsequent authorisation by the landlord.

34. Mr. Luba acknowledges that the decision of this court in Hussain v Lancaster City Council [2000] QB 1 might be seen as an obstacle to his submissions. But he pointed out that this court found that the acts of interference by the tenants with the plaintiffs' enjoyment of their land were not done on the tenants' land and so were held to fall outside the ambit of the tort of nuisance. Nevertheless this court went on to consider whether the landlords could be held liable for their tenants' nuisance and applied what was said in Malzy and Smith as still being good law. Mr. Luba further drew attention to the fact that the decision of this court in Hilton v James Smith & Sons (Norwood) Ltd. (1979) 251 EG 1063 was not cited in Hussain nor was a decision of the Queensland Court of Appeal, Aussie Traveller Pty. Ltd. v Marklea Pty. Ltd. [1998] 1 Qd R 1. But Hilton was a case where the tenants' action against their landlord succeeded because the landlord was in possession and occupation of a roadway on which other tenants caused obstruction to the access to the claimants' property. On a straightforward application of the principle laid down by the House of Lords in Sedleigh - Denfield v O'Callaghan [1940] AC 880, the landlord had a duty to act to clear the obstruction. I cannot see that the Hilton decision, if cited in Hussain, would have led this court to a different conclusion. As for the Aussie Traveller, as Mr. Lowe Q.C. pointed out, Smith was not cited in that case, and unfortunately it appears that the law of Queensland has now diverged from English law, in that there a landlord may be held liable for the nuisance caused by the tenant if at the time of the letting it was reasonably foreseeable that the tenant would commit the nuisance. That is not the law of England.

35. Mr. Luba placed chief reliance on the decision of this court in Chartered Trust v Davies [1997] 2 EGLR 83. In that case the landlord of a shopping mall, who had special responsibilities for the management of the common parts, was held liable to a tenant for a nuisance caused by customers of another tenant through their behaviour in the common parts. But that case was considered in detail in Hussain, Hirst L.J. saying of it that the adverse decision against the landlord was attributable to the special circumstances of that case, namely the landlord's special role in the management of the mall in which the premises of each tenant were situated. I do not accept that this case justifies a new approach inconsistent with the well-established line of authorities to only some of which I have referred.

36. Mr. Luba then submitted that there have been two important developments since the Hussain case which should lead this court to conclude that the law has moved on.

37. One was the decision of this court in Lippiatt v South Gloucestershire Council [2000] QB 51. In that case it was held that the owner/occupier of land could be liable in nuisance for the unlawful activities of his licensees or persons based on his land which took place off his land, where such nuisance consisted of repeated acts committed on the victim's land to the owner/occupier's knowledge and interfered with the victim's use and enjoyment of his land. But that was not the case of a landlord being liable for his tenant's nuisance, and it was not suggested in Lippiatt that the well-established principles followed in Smith and Hussain, to both of which reference was made, were no longer the law. Those cases were in effect distinguished. Since Lippiatt the remarks in the Southwark case, to which I have referred, were made in the House of Lords, suggesting that the law as to the liability of a landlord for his tenant's nuisance has not changed.

38. The other development to which Mr. Luba referred was the coming into force of the Human Rights Act 1998. He submitted that the duty under s. 6 (1) of this court as a public authority was to give effect to rights under the European Convention on Human Rights and he relied on Mrs. Mowan's right under Article 8 of the Convention to respect for her private and family rights and home. He said that this court should not produce a situation where Mrs. Mowan would be left without protection for that right. He argued that if the common law would otherwise not provide Mrs. Mowan with an effective remedy, then this court should change the law.

39. The premise of that submission is that Mrs. Mowan is left without a remedy by English law. It is said that if Mrs. Mowan tries to obtain an injunction against Ms. Abrahart, no such relief would be granted because it would be against a person lacking understanding. In Wookey v Wookey [1991] Fam. 121 this court said that an injunction ought not to be granted against a person who was found within the meaning of the M'Naghten Rules to be incapable of understanding what he was doing or that what he was doing was wrong. There is no evidence before this court to show that Ms. Abrahart lacks that understanding. Mr. Luba told us that it was thought that this was Ms. Abrahart's position because in the Council's Defence it was pleaded that the Council brought proceedings for possession and an injunction against Ms. Abrahart in late 1998 but that the possession proceedings were suspended while she was "sectioned" and a decision was taken not to obtain possession following social services involvement and treatment of Ms. Abrahart. Even if, which I doubt, it were permissible to take this into account, we were told by Mr. Lowe that Ms. Abrahart was "sectioned" under s. 135 Mental Health Act 1983 (entitling a magistrate, to whom it appears that there is reasonable cause to suspect that a person believed to be suffering from mental disorder is unable to care for himself and is living alone, to authorise the removal of that person to a place of safety). That does not show that Ms. Abrahart was then, still less is now, incapable of understanding within the meaning of the M'Naghten Rules. Further, although that Defence is dated 13 May 1999, inconsistently with Mr. Luba's submissions Mrs. Mowan's Particulars of Claim were amended by order dated 17 September 1999 to claim the injunction against Ms. Abrahart. We do not have the material to support Mr. Luba's submission that no injunction would be granted.

40. Mr. Luba also said that judicial review does not provide an effective remedy against the Council in this case. I do not see why we should assume that to be the case. However, the Council, in deciding not to pursue its proceedings for possession of Ms. Abrahart's flat, might well have taken into account not only property-management considerations as landlord but also social services considerations, and as Mr. Lowe said, judicial review provides an appropriate forum for considering the legality of the decision taken by the Council.

41. For these reasons I do not accept that the Convention requires this court to change the law by allowing Mrs. Mowan relief against the Council in nuisance.

42. The second ground on which Mr. Luba submits that Mrs. Mowan has an arguable case is her claim in negligence. The first difficulty facing Mr. Luba is that the Amended Particulars of Claim do not include a claim in negligence. True it is that it is said in para. 5 that the Council, by reason of the matters pleaded earlier, "has breached the duty owed by it" to Mrs. Mowan. But the matters pleaded earlier are acts described as having caused a nuisance to Mrs. Mowan and the Council's knowledge of the existence of the nuisance. In the circumstances I cannot read the single bare reference to "the duty" as meaning a duty of care.

43. In any event even if Mr. Luba were to apply to amend to plead negligence properly (and he made no such application), for the reasons given by Sir Christopher Staughton, the claim would be bound to fail. I would add that I do not accept that there is any breach of Article 6(1) of the Convention through English law not recognising that a landlord owes a duty of care to a tenant in a situation like this. There is no exclusionary rule comparable to the public policy rule under English law giving the police investigating crimes immunity from suit which was held by the European Court of Human Rights in Osman v United Kingdom (1998) 29 EHRR 245 to breach the Convention. Mrs. Mowan has adequate remedies, for the reasons already given, against the tenant causing the nuisance or against the Council by an application for judicial review. It is also to be borne in mind that English law recognises the liability to a tenant of a landlord who directly causes or authorises a nuisance, derogates from his grant or breaches the tenant's right of quiet enjoyment.

44. The third ground mentioned by Mr. Luba, but, as I understand him, not pursued at this stage, relates to the Human Rights Act 1998. He accepted, I believe, Mr. Lowe's submission that as the claim against the Council relates to its actions prior to 2 October 2000 when the Act came into force, reliance on the Convention can only be placed if the common law is uncertain (see DPP v Jones [1999] 2 WLR 625). For the reasons given, it is not. Mr. Luba was merely giving notice that if the appeal were allowed, he would be applying to amend to raise a point under the Act, and that if the appeal were dismissed, new proceedings raising the point would be brought.

45. For the reasons which I have given, despite my very considerable sympathy with Mrs. Mowan in the appalling situation in which she finds herself and notwithstanding Mr. Luba's careful and well-marshalled arguments, I think that the Judge reached the right conclusion. I too would dismiss this appeal.