ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE SIMPKISS (SITTING AS A HIGH COURT JUDGE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOMLINSON
SIR HENRY BROOKE
| PAMELA THORNHILL
TREVOR FOULKES &
|- and –
|(1) NATIONWIDE METAL RECYCLING LTD
(2) ROUNDWOOD RESTORATIONS LTD
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Christopher Stoner QC (instructed by Birketts LLP) for the first defendants
Hearing date: 18. July 2011
Crown Copyright ©
Sir Henry Brooke:
2.The history of the dispute
3. The claimants' appeal
"129. Although I consider that there has been some exaggeration by the claimants of the position since April 2009 for understandable reasons given their disappointment at not closing the scrap yard altogether, I am satisfied that the activities of NMR on the site prior to the erection of the barriers did constitute a nuisance but that it was only marginally over the threshold. The noise from the crane is intrusive and there is no warning when it will start up. It lasts for a significant period of time but it does not interfere with evening and weekend use of the gardens.
130. What, in my judgment, tips this case over the edge is the failure of the defendants to place any barrier between the noise and the claimants until earlier this year. For commercial reasons (no doubt sound) the defendants have approached the problem by continuing to work the site rather than waiting until remedial measures had been considered, evaluated and put into place – with or without the agreement of the neighbours. This is not a plain case of nuisance but taking all of the above matters into account I find that between those dates there was a nuisance.
131. I also find that since the barriers have gone up, and provided that use of the crane is regulated to the extent that it has been recently, then there is no nuisance. The level of noise inside is much reduced and the noise level outside is reduced. It is only in the second claimant's study that the reduction is minimal and this can be reduced by closing his windows when the crane is operating. The balance tips in favour of the defendants now that the barriers are up."
|Ferrous Yard||Before barriers erected||After barriers erected|
|First floor level||63.8||52.3|
|Second floor level||63.8||60.4|
The judge added that the noise affecting Station House, which was further away, was lower.
"117. The expert evidence is inconclusive and not much help to me in deciding the real issues in the case. Even putting [the claimants' expert's] figures at their highest, the case for the ground floor noise at Station Lodge is weak. Other factors are relevant to the higher floors as I will now turn to."
"83. The second claimant agreed that there were benefits in not being able to see the yard since the barrier went up, but this did not apply when he was in his study, as he could see over the top. The top of the crane was, when raised, visible at ground level when it was in operation.
84. When asked if the operations were subjectively quieter since the barriers were put up, he agreed that they must be "but I have been out there when there was noise and I was disappointed." He said that he couldn't perceive any difference, while acknowledging that logic told him that it must make a difference. From his study he didn't think it made much difference.
85. In my judgment, a significant bit of evidence came out when the second claimant was cross-examined about this. He had said that he thought that there had only been two collections of scrap since the barrier had gone up. He said that when he was working in his study it was the noise that alerted him to the collections. It is clear from the documents that I have referred to above that there have been several collections since the beginning of March 2010. He was asked to explain how he hadn't noticed collections and his reply was: It is possible that I have not noticed a delivery because I have been concentrating on my work… This last few weeks I have started a new job and nearing the financial year I'm working harder. I have a lot of phone calls."
86. Two points arise from this answer. Firstly, when he is working hard the noise does not stop his concentration and secondly, now that the barrier is up he is not able to see quite so much of what is going on in the yard. It was also clear that on the site visit that the noise in his study is much lower when the window is closed.
87. It is right to say that there was no loading activity between 15th March and 25th March 2010 but the barriers outside the ferrous yard provided shielding from the ferrous yard from the end of February 2010."
"In the case of nuisances 'productive of sensible personal discomfort' the action is not for causing discomfort to the person, but as in the case of the first category, for causing injury to the land. True it is that the land has not suffered 'sensible' injury, but its utility has been diminished by the existence of the nuisance. It is for the unlawful threat to the utility of his land that the possessor and occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation."
4. The defendants' appeal on costs
(1) That because the claimants expressly refused to engage with the Practice Direction (Pre-Action Conduct) in circumstances where such engagement could and arguably should have avoided the proceedings altogether, costs should have been awarded in the defendants' favour;
(2) The judge erred in principle by completely failing to consider awarding the claimants only a proportion of their costs (as opposed to all of them) taking into account their conduct, including their pre-action conduct and the serious criticisms of the claimants and their expert in the substantive judgment.
"to reassure [them] that [the defendants] wished to be good neighbours and had no intention of causing excess noise or other disturbance."
He added in that letter:
"I also discussed in detail [the defendants'] proposals for reducing the impact of its operations by installing an acoustic barrier or alternatively by moving operations to the southern end of the site and housing the plant and machinery inside a new building and invited your clients' observations and thoughts on these two alternative proposals. Mrs Foulkes did not believe that the acoustic barrier would provide an adequate sound barrier. She preferred the latter option. I have enclosed a proposed plan which I intend to take to the council for their opinion with the view to seek a planning consent. I welcome your comments on this."
"Whilst we do not accept that any of the operations we carry out give your client[s] any right to sue for nuisance, we are anxious to minimise the visual and sound impact of our operations on neighbouring properties in the interest of maintaining good neighbourly relations, and avoiding expensive and in our view entirely unnecessary litigation."
They had therefore instructed a noise expert and asked if arrangements could be made whereby he might be afforded reasonable access to the claimants' properties.
"It is our intention to be, as I said, 'good neighbours' and welcome the input from Mrs Thornhill and Mr & Mrs Foulkes on the future development of the site."
"We note your comments that you wish to be a good neighbour. However, our instructions are that since SITA left the Swann's Road site just over two weeks ago, your activities at the site are already causing unacceptable noise. In the circumstances, we would be grateful if you could stop any noisy or nuisance activities at the site immediately. It is our views that any scrap metal operations at the above site are almost certain to cause a nuisance, simply because of the nature of the operation.
If you do not stop all noisy activities within 21 days from the date of this letter (i.e. by 27 May 2009) we will advise our clients to seek an injunction from the Court to order you to stop. We hope that matters do not come to this and look forward to confirmation that you will stop all noisy operations at the site, by return."
"Our clients will resist any application to the Council to develop the site as a scrap yard. Further, our clients object to the development of any temporary barrier at the site by stacking containers; this will be visually offensive, detrimental to amenity and ineffective in reducing noise at our clients' homes."
"Our clients have been reviewing the level of activity from your scrap yard operations since May to see whether you were, as you said, going to act as a reasonable neighbour and operate at a level that it did not annoy or interfere with our clients' use and enjoyment of their homes.
Regrettably, the level and intensity of the works at Swann's Road continue to be a nuisance. Moreover, we are of the view that, taking into account the continued nuisance operations over the last three months, [you] are incapable of carrying on your operations without causing a noise nuisance, such pollution being inherent in scrap metal operations."
"In our view it is quite premature of your clients to embark upon litigation at this stage. Paragraph 6.1(1) of the Practice Direction states that '…unless the circumstances make it inappropriate, before starting proceedings the parties should – (1) exchange sufficient information about the matter to allow them to understand each other's position and make informed decisions about settlement and how to proceed; (2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.'
To date, your clients have failed without good reason to provide our clients with copies of any of their expert evidence … As set out in Mr Edwards' letter of 13 May 2009, Mr Edwards visited your clients on 24 April 2009 to reassure them that [the defendants] wished to be good neighbours and had no intention of causing excess noise or other disturbance and to discuss some details relating to [the defendants'] proposal for reducing the impact of its operation. Unfortunately, Mr Edwards' efforts to avoid dispute and litigation received short shrift from your clients. To put it bluntly, neither you nor your clients have made any effort to resolve the matter without the need for proceedings.
Your clients' reluctance to observe the Practice Direction is a serious matter and in the event that proceedings are issued without due regard to the Practice Direction our clients reserve the right to draw the matter to the court's attention particularly in relation to costs, and/or to apply to stay the proceedings until the Practice Direction has been complied with."
"In our view, an interim injunction is quite inappropriate in the circumstances and we invite you now to withdraw it. That said, we are happy to agree to directions to have the matter listed for trial quickly."
"21. If all the claimants had recovered was an award of damages of £10,000 then that might have been so disproportionate to the amount of costs as to enable the court to find that the claimants had not succeeded. That is not the case as they have achieved much more. They have stopped the nuisance that was going on until March 2010. I accept that steps were taken to try and sort out some planning matters in relation to placing this inside a building, but that proved to be economically unviable. There has not until late 2009 been a serious attempt to put up a barrier, but what shines out above all else in this case is that the defendants continued their operation. I may have found that this was for good commercial reasons, but that is not relevant to the question of whether or not the claimants have succeeded. A way of meeting that problem might have been for the defendants to say:
'We are concerned about how this business is going to be perceived by you and we are anxious to ensure that we are good neighbours, and what we propose is that we will not carry on any noisy works on the site until we have worked out a solution with you.'
And if the claimants had said at that point:
'We are not interested in discussing anything'
then one can see that that would have a significant effect on the costs, but what the defendants chose to do was to go straight in and start work and use the crane, and commit nuisance against the background that I have described. In these circumstances I think it is quite clear that the claimants have succeeded.
22. Of course in considering costs I can consider a number of other matters as to whether or not I should not let costs follow the event. The general rule is that costs should follow the event having found that the claimants have succeeded.
23. The first thing is that the claimants have acted unreasonably in failing to negotiate with the defendants at an early stage. The claimants were in rather a difficult position in that the noise was continuing, and that must have affected their confidence. No positive proposals were put forward to them about the barrier, other than a suggestion that this would be done, until they were told that one was going to be put up in December. Furthermore even today that barrier has been put up without planning permission, and it is common ground that it is therefore from a planning point of view unlawful. It was not a solution which is sufficiently powerful for the claimants to be deprived of costs for not engaging more positively than they did."
1.1 The aims of this Practice Direction are to –
(1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
(2) support the efficient management by the court and the parties of proceedings that cannot be avoided.
1.2 These aims are to be achieved by encouraging the parties to –
(1) exchange information about the issue, and
(2) consider using a form of Alternative Dispute Resolution ('ADR').
2.1 This Practice Direction describes the conduct the court will normally expect of the prospective parties prior to the start of proceedings….
3.1 In this Practice Direction… –
(3) 'ADR' means alternative dispute resolution, and is the collective description of methods of resolving disputes otherwise than through the normal trial process; (see paragraph 8.2 for further information); and
(4) 'compliance' means acting in accordance with, as applicable, the principles set out in Section III of this Practice Direction, the requirements in Section IV and a relevant pre-action protocol. The words 'comply' and 'complied' should be construed accordingly
4.1 The CPR enable the court to take into account the extent of the parties' compliance with this Practice Direction or a relevant pre-action protocol … when giving directions for the management of claims … and when making orders about who should pay costs (see CPR rule 44.3(5)(a)).
4.2 The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.
Assessment of compliance
4.3 When considering compliance the court will –
(1) be concerned about whether the parties have complied in substance with the relevant principles and requirements and is not likely to be concerned with minor or technical shortcomings;
(3) take account of the urgency of the matter. Where a matter is urgent (for example, an application for an injunction) the court will expect the parties to comply only to the extent that it is reasonable to do so.
Examples of non-compliance
4.4 The court may decide that there has been a failure of compliance by a party because, for example, that party has –
(1) not provided sufficient information to enable the other party to understand the issues…
(3) unreasonably refused to consider ADR.
Sanctions for non-compliance
4.5 The court will look at the overall effect of non-compliance on the other party when deciding whether to impose sanctions.
4.6 If, in the opinion of the court, there has been non-compliance, the sanctions which the court may impose include –
(2) an order that the party at fault pays the costs, or part of the costs, of the other party or parties.
6. OVERVIEW OF PRINCIPLES
6.1 The principles that should govern the conduct of the parties are that, unless the circumstances make it inappropriate, before starting proceedings the parties should –
(1) exchange sufficient information about the matter to allow them to understand each other's position and make informed decisions about settlement and how to proceed;
(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of ADR in order to do so.
8. ALTERNATIVE DISPUE RESOLUTION
8.1 Starting proceedings should usually be a step of last resort, and proceedings should not normally be started when a settlement is still actively being explored. Although ADR is not compulsory, the parties should consider whether some form of ADR procedure might enable them to settle the matter without starting proceedings. The court may require evidence that the parties considered some form of ADR (see paragraph 4.4(3)).
8.2 It is not practicable in this Practice Direction to address in detail how the parties might decide to resolve a matter. However, some of the options for resolving a matter without starting proceedings are –
(1) discussion and negotiation;
(3) early neutral evaluation…
(1) They ignored Mr Edwards's suggestion that they should engage in discussion or negotiation;
(2) They failed to provide information about their noise expert's findings, when requested to do so;
(3) They failed to comment on the plan for reducing the noise on site which Mr Edwards sent to them;
(4) They failed to accede to Mr Edwards's request that his noise expert might be allowed access to the claimants' properties;
(5) They failed to respond timeously to his request for a copy of a transcript of the judgment in the SITA action.
"24. The second point is that I have criticised the claimants for overstating their case on the basis that they were extremely disappointed having succeeded against SITA to find that they had not stopped the noise. In my judgment while they have overstated the noise and effect of the barrier – or at least the lack of effect of the barrier – it is not sufficient for me to say that this is a claim that is so exaggerated that that should be reflected in costs. They wanted to stop the nuisance and they have succeeded in doing that in obtaining the [undertakings]."
I see no grounds for disturbing this assessment by the judge who saw and heard all the witnesses. The judge was plainly alive to the possibility of awarding the claimants only a proportion of their costs.
Lord Justice Tomlinson:
Lord Justice Ward: