Case No: A1/2007/2601
Neutral Citation Number: [2008] EWCA Civ 473
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT 
(MR JUSTICE RAMSEY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 18th March 2008

Before:

LORD JUSTICE SEDLEY
and
LORD JUSTICE HUGHES

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Between:

	DOBSON & ORS	Appellant
	
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THAMES UTILITIES	
Respondent

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Mr R Gordon QC and Mr R Weir (instructed by Messrs Hugh James) appeared on behalf of the Appellant.

Mr M Daiches (instructed by Messrs Osborne Clarke and Ofwat) appeared on behalf of the Respondent.
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Judgment
Lord Justice Hughes:

1.	This application for permission to appeal is made by claimants in group litigation against a water authority.  It is made in relation to an interlocutory judgment upon preliminary issues which were submitted to the judge by the parties.  The trial is set for February 2009 with a time estimate of six weeks.  The complaint in the action is of smell and mosquitoes emanating from the defendant’s sewerage works and affecting the claimants who live nearby.
2.	We have been told that there are approximately 1,300 claimants.  Of those, we are told, approximately 800 are people who have a legal interest in the properties in which they live, but approximately 500 are people who occupy properties allegedly affected by the sewage works but without proprietary interest.  Of those approximately 500, virtually all, we are told, are either dependant children or non-property owning spouses.  There may be a very small number of claimants in a different category who are lodgers or in some position comparable to that.
3.	Among many questions relating to both liability and damages which arise in the action, several were submitted to the judge for decision upon preliminary issues.  He was, it needs to be noted, invited to rule upon all these issues on assumed facts which were agreed for the purpose of the preliminary hearing but which are not agreed and in large part remain to be proved (or not) at the trial.  However, amongst the issues were some relating to damages, should the claims get that far, and among the damages issues there are three in relation to which the claimants now seek leave to appeal against the judge’s interlocutory ruling.
4.	Issue 9, as it was before the judge, was presented to him in these terms:
“Do, or might, damages for nuisance confer a sufficient remedy on those with a legal right to occupy such as to disentitle those living in the same household without such a legal right to a separate remedy under Article 8 [of the European Convention] and/or the Human Rights Act 1998?”  
In other words the question posed was whether the award of damages in nuisance to the property owner would or might amount to “just satisfaction” of any Article 8 claims made by a non-property owner, part of the same household.  By written argument, clearly considered and placed before the judge, the claimants said among other things:
“As far as non-proprietary partners or children are concerned, it is accepted that an award of damages in nuisance to the partner or parent(s) who have a proprietary interest in the home is a matter to be taken into account for the purposes of section 8(3)(a) [of the 1998 Act]” 
[and there followed a reservation as to the possible position of foster children with which we are not now concerned].
5.	The claimants, however, went on to contend in respect of the sole case of a child member of the household which was pleaded out and who lived with his property-owning parents, that that child remained a victim for the purposes of his Convention claim and ought to recover separate damages under Section 8 of the Human Rights Act.  On that issue the judge’s findings were these.  First, at paragraph 209 he held that when the court awards damages for nuisance to those with a legal interest that would usually (my emphasis) afford just satisfaction to partners and children.  Next, he held that there might (my emphasis) be circumstances where they would not.  Thirdly, he held, in the case of the one child whose claim was properly before him at that stage, that that child was living in the same household as parents who would receive damages for the loss of amenity in their property and those damages would afford that child just satisfaction.  He went on to say that there might be circumstances where others without a legal right to occupy may have a right to a separate remedy under Article 8 and/or the Human Rights Act 1998 for which there would not be just satisfaction by an award of damages for nuisance to the property owner.  
6.	Having made those findings, the judge formulated his answer to Issue 9 in these terms.  
“I therefore consider that the appropriate answer to Issue 9 is that damages for nuisance might [my emphasis] confer a sufficient remedy on those with a legal right to occupy such as to disentitle those living in the same household without such a legal right to a separate remedy under Article 8 and/or the Human Rights Act 1998 but whether they do will depend on the facts.” 
7.	What troubled Toulson LJ when dealing with the application for permission on paper was that on the face of it, under that last formulation of the judge’s answer to Issue 9, it appeared, at the least, that it was open to each non-property owning claimant to make his case for an award under Article 8, unaffected by, and independently of, the claim in nuisance made by the property-owning householder in the house in question.  That also has troubled me.  The second thing that troubled Toulson LJ, and has troubled me, is that the judge was being asked to decide this issue in a vacuum without any proper facts on which to hang his decision.  It has troubled me that if permission were granted to the claimants this court would be at risk of finding itself in the same position.  
8.	For those reasons and at very short notice we took the course yesterday of inviting the defendants to attend today if convenient to them.  We are extremely grateful to Mr Daiches who has been able, with limited instructions, to come.  Mr Daiches’ stance is, as it seems to me, of some importance.  First, he accepts that within Issue 9 there lies an issue of pure principle.  Second, he accepts that it would be helpful in the management of this litigation for that issue to be resolved.  The issue, which I do not attempt to formulate with the kind of precision which would be necessary for a decision either upon a preliminary issue or by way of ground of appeal, is in effect this.  If it be the case that, following the decision of the House of Lords in Hunter v Canary Wharf [1997] 1 AC 655, damages in nuisance are (1) recoverable only by a property owner, (2) measured by loss of amenity value of the property and (3) indifferent to the number of occupants in the house, does that mean that an award on that basis to the property-owning householder will not normally afford just satisfaction to an Article 8 claim advanced by a non-property owning member of the same household?  Alternatively is the law that such an award of damages in nuisance will, or will normally, afford just satisfaction to a non-property owning claimant on the ground that such remedy will bring the infringement of the claimant’s Article 8 rights to an end and separate compensation of all occupants is not necessary within the meaning of s.8(3) of the Human Rights Act 1998 ?  Now given that Mr Daiches accepts that that rather approximate formulation of the issue does state an issue of general principle where does one go from there ?  
9.	The next thing that Mr Daiches tells us is that his stance on behalf of the defendants is that, given the judge’s ruling, it will not be open to the claimants to advance individual claims for damages under Article 8 on behalf of non-property owning residents.  He relies on the judge’s decision in relation to the child whose case was before him.  
10.	It follows from those two parts of the defendants’ stance that, contrary to the impression which Toulson LJ had, and which I at first had, there does appear to arise an issue of genuine principle on the claimant’s application for permission to appeal and one which is capable, albeit with some difficulty, of being resolved even in the absence of found facts.
11.	 The further difficulty which stands in the way of the claimants is the concession which I quoted earlier.  Mr Daiches helpfully tells us that the defendant’s stance is not to give him instructions to permit the claimants to withdraw from that concession either in this court or, were permission to be refused, in front of the judge at trial or on a further directions hearing in future.  As it seems to me, once it be accepted that there exists the issue of principle that I have attempted to identify, it is an issue of principle which can only be resolved if the claimants are permitted to withdraw from the concession which I have quoted.  
12.	With some hesitation I come to the conclusion that the stance of each party does demonstrate that, however unsatisfactory it may have been for preliminary issues to be put before the judge without found facts, the only way of resolving this issue is firstly to accept that the claimants must be entitled to withdraw the concession and secondly to give permission to appeal on the point which I have attempted to identify.  Accordingly, in relation to Issue 9 that is the order that I would propose.
13.	The next issue was Issue 11B:
“If damages for nuisance are lower than those a Claimant with a legal interest in his or her home could obtain under the [Human Rights Act] 1998, can these damages be ‘topped up’ under that Act?”
As formulated, that issue comprises at least two different cases.  The first is of joint property owners whose claim in nuisance, it is argued, is a single one for loss of amenity pursuant to Hunter v Canary Wharf.  In respect of those claimants Mr Gordon QC submits each could only recover his or her share of the damages for loss of amenity and that might well leave, he submits, an outstanding compensation claim under Article 8.

14.	Quite apart from that is the possible case which Mr Gordon also advances, though as I understand it less strongly, of the single owner who might contend that his Article 8 entitlement extended beyond loss of amenity.  Those are two quite separate issues.  They are, however, both of them, I accept, issues of principle.  The judge’s ruling in relation to Issue 11b was, on the face of it, to leave the question largely open (see paragraph 235).  He did, however, hold at paragraph 234 that it was unlikely that further damages would be necessary to give just satisfaction and he also coupled his answer to Issue 11b with a repetition in paragraph 236 of his proposition that damages of nuisance to those with a legal interest in the property would usually afford just satisfaction to partners and children.  Although, strictly, the position of non-property owning partners and children have nothing to do with Issue 11b it does appear that the judge has resolved the issue of principle which is contained in Issue 11B substantially against the claimants.  
15.	Once again, as it seems to me, there is an issue of principle for the same reasons that I have given in relation to Issue 9 and on the basis once again of Mr Daiches’ helpful statement of the stance of the defendants, I would give permission to appeal in relation to that issue.
16.	The third issue was Issue 10.  The judge was asked whether alternative non-pecuniary remedies, which are available to people who are neighbours of an alleged nuisance, are relevant to the question posed by Section 8(3) of the Human Rights Act: namely whether damages are necessary to afford just satisfaction.  Those alternative remedies are these. (1) The right of an individual to seek from the magistrates an abatement order under Section 82 of the Environment Protection Act 1990, coupled with compensation under the provisions of the criminal law.  (2) The power of the local authority to issue a different kind of abatement notice under Section 80 of the same Act; such an order does not carry any right to compensation, but it does require cessation of the nuisance and such an order had been issued in the present case.  (3) The right of an individual to complain to the water authority and regulator that the water company is in breach of its statutory duty under Section 91 of the Water Act.  The regulator then has extensive powers designed to get the statutory duty fulfilled though that also does not include power to award compensation.
17.	In respect of this issue, there was a concession made in the claimants’ written submissions to the judge similar to the concession which was made in relation of Issue 9, namely that such alternative remedies “may be relevant.”  The judge’s conclusion was that the alternative remedies were relevant, and whether they constituted appropriate and sufficient redress or, to use the language of the statute, “just satisfaction” he was unable to answer that question without found facts.  The claimants now wish to contend that these alternative remedies are always irrelevant to any Article 8 claim.  That is contrary to the concession which was previously made.  However, in the same way and for the same reasons that I have attempted to give in relation to the other issues I am satisfied that there does exist an issue of principle and that the resolution of that issue of principle is likely, in case management terms, to be of advantage to the progress of this group litigation.  For the same reasons that I have given in relation to Issue 9 I would accordingly say that it is plain that the claimants must be entitled to withdraw their concession and should have permission to argue the point which I have identified.  I should add that in relation to both the issues where the claimants’ right to appeal depends in effect on being able to withdraw the concession made below that may of course have cost consequences which will have to be investigated hereafter. Those are not questions which need to be addressed at this stage.

Lord Justice Sedley: 
18.	I agree.  I would, I confess, have preferred to refuse permission to appeal and to let the legal issues be reargued at large once facts had been found.  The judgment below would then have enabled this court, if necessary, to reach conclusions concretely and not in the abstract.  But now that rulings have been given, and even though they are largely and inevitably in Delphic form, it is arguable that to proceed to trial on them would be to proceed on a legally false or at least a legally shaky basis.  This is especially the case where the judge’s conclusions incorporate or acknowledge concessions of law which arguably should not have been made.  
19.	Thanks to Mr Daiches’ attendance, for which I also express my gratitude, we are in a position to decide how to proceed without unfairness to either side.  I agree with my Lord that we can and should permit the claimants’ concessions to be withdrawn for the purpose of the appeal which I agree Mr Gordon should have permission to bring before this court.

Order: Application granted