Brynley John Cocking Diane Cocking (Claimants/Respondents) Kim Eacott and Another (Defendants/Appellants)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Vos,Lord Justice McFarlane,Lady Justice Arden |
| Judgment Date | 09 March 2016 |
| Neutral Citation | [2016] EWCA Civ 140 |
| Docket Number | Case Nos: B2/2014/1896 & 2021 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 March 2016 |
[2016] EWCA Civ 140
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WORCESTER COUNTY COURT
HIS HONOUR JUDGE PEARCE-HIGGINS QC
CASE No: 2IR60588
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice McFarlane
and
Lord Justice Vos
Case Nos: B2/2014/1896 & 2021
Mr Hamish MacBean (instructed by Gabb & Co) for the Appellant/2 nd Defendant
Miss Catherine Doran (instructed by PM Law Solicitors) for the Respondents/ Claimants
Hearing date: 4 th February 2016
Introduction
HH Judge Pearce-Higgins QC held that the second defendant, Mrs Angela Waring ("Mrs Waring"), was liable in nuisance to the owners of the next door property, the claimants, Mr and Mrs Brynley Cocking ("Mr and Mrs Cocking"), even though she did not occupy the property from which the nuisance emanated. It was Mrs Waring's daughter, the first defendant, Ms Kim Eacott ("Ms Eacott"), who actually lived at the property at 7 Merryhill Terrace, Haywood Lane, Hereford, HR2 9RT (the "property"). Ms Eacott was held to have created two types of nuisance, first the excessive barking of her dog, Scally, between 5 and 10 times per month from August 2008 onwards, and secondly largely intentional abusive shouting from July 2009 to July 201Mrs Waring was not held liable for the shouting since she did not know of it until late 2010, and it ceased shortly after an ASBO was granted against Ms Eacott in June 201She was, however, held liable for the barking nuisance from July 2011 onwards, of which she was found to have had knowledge, and which she did nothing to abate notwithstanding that the judge found her to be "in complete control of the property".
The main issue in Mrs Waring's appeal is whether the judge was right in law to hold that she was liable for the barking nuisance when she was the licensor of the property, but was not actually residing there. Mrs Waring contends that the position of a licensor is more akin to that of a landlord, who would not be liable for such nuisance, whilst Mr and Mrs Cocking submit that the judge was right to equate Mrs Waring's position to that of a local authority that makes itself liable for nuisance created by travellers occupying the authority's land. It will be necessary to examine the state of the authorities in due course, but I should first say a little more about the factual background. Mrs Waring also appeals the costs order that the judge made requiring her to pay all Mr and Mrs Cocking's costs jointly and severally with Ms Eacott.
Factual background
None of the judge's factual findings are challenged, and in these circumstances, I have drawn the summary that follows from what the judge included in his judgment or from documents to which he expressly referred in that judgment.
Mr and Mrs Cocking have for many years lived in the terraced Victorian house adjoining the property. Ms Eacott was found to be a fragile nervous kind of person who had been unable to work for the previous 6 years; she had little in common with Mr and Mrs Cocking, who had themselves understandably perhaps become somewhat obsessed with these proceedings and their complaints. The walls between the neighbouring properties may not have been very well insulated against sound. Mr and Mrs Cocking complained that the barking nuisance began in 2004, and they began detailed logs of the barking nuisance in August 2008, and of the shouting nuisance in July 2009.
The judge found that Mrs Waring had granted Ms Eacott a bare licence to live at the property and that Mrs Waring paid all the bills and maintained it. Ms Eacott paid no rent to her mother. Mrs Waring's statement alleged that she was estranged from her daughter as at March 2013, and that she had neither seen her nor visited the property since January 2012, although Mrs Waring had spoken to Ms Eacott on the telephone. The judge commented that Mrs Waring had fallen out with Ms Eacott but that it appeared "from their conduct sitting together in Court that relations have improved".
The complaints began before August 2008, but the judge found that Mrs Waring was aware that Mr and Mrs Cocking were alleging that her daughter was creating a nuisance from as early as complaints made in July 2009 and March 2010. Indeed, in July 2009, Mrs Waring wrote a letter "to whom it may concern" defending her daughter against the barking allegation and making counter-allegations against the neighbours who had complained.
On 16 th September 2010, Mr and Mrs Cocking's solicitors wrote a letter before action. Mrs Waring responded rejecting the claim, saying a landlord was not liable for nuisance committed by a tenant, and that she was not personally involved in the alleged incidents and requiring proof of them. These proceedings were issued on 22 nd February 2012. On 21 st March 2012 (some 2 months after the period of estrangement seemingly began), Mrs Waring served a notice to quit on her daughter, and then on 18 th June 2012, she obtained a possession order in respect of the property which would have taken effect, had Mrs Waring chosen to enforce it (which she did not), on 16 th July 2012.
On 7 th May 2013, Mr and Mrs Cocking's solicitors wrote to Mrs Waring's solicitors "without prejudice save as to costs" offering a drop hands settlement if Mrs Waring permanently evicted Ms Eacott from the property. That offer was not accepted.
Judge Pearce-Higgins decided the liability issues after a two-day trial on 18 th and 19 th July 2013. His reserved judgment was reflected in an order dated 14 th November 2013. There was then a remedies hearing on 9 th May 2014, at which the damages were agreed at £3,500 payable by Ms Eacott and £1,000 payable by Mrs Waring. It was also agreed in a Tomlin part of the order that Mrs Waring would use her best endeavours to complete the purchase of a replacement property for Ms Eacott to occupy by 30 th June 2014, and that Ms Eacott would vacate the property within 7 days of that completion and would not return. Ms Eacott did indeed vacate the property in accordance with the order, thus bringing the unhappy neighbourly relationship to a close.
On 30 th September 2014, Lewison LJ granted Mrs Waring permission to appeal on the two main issues that I have mentioned.
The judge's judgments
In substantive terms, the judge held that Mrs Waring was liable for the barking nuisance by analogy with the Court of Appeal's decision in Page Motors Limited v. The Borough Council of Epsom and Ewell CA transcript of 9 th July 1981, and Mr Justice Astill's decision in Winch v. Mid Bedfordshire District Council transcript dated 22 nd July 2002. The fact that Mrs Waring had to terminate her daughter's licence by a 28-day notice before she was entitled to possession was not a significant difference from the tolerated trespasser. The judge drew the conclusion that "[l]iability attaches once the owner knows or is deemed to know of the nuisance and has failed after a reasonable time to abate it". He held that "the possession of the power … brings with it the duty to abate the nuisance. If the owner chooses to do nothing he then becomes liable for it with the actual creator. In the present case the nuisance was easily abated by removal of the dog or the occupier both of which were easily achievable". He held that the relief should be abatement of the nuisance and relatively modest damages to reflect Mr and Mrs Cocking's loss of enjoyment of their land, but no diminution in the value of their property once the nuisance was abated.
In relation to costs, the judge decided that in reality Mrs Waring had had to be pursued because she was the owner of the property, in control of it, and there was going to be no satisfactory resolution without her presence in the proceedings. The letter to Mrs Waring dated 7 th May 2013 showed a real aspiration on Mr and Mrs Cocking's part to settle the claim at minimal cost to the parties, but the correspondence demonstrated that Mrs Waring had always taken the view that in fact and in law she had no liability. The claim was never going to be a small one, because of the diminution in value of the property that was sought. This claim was vindicated by Ms Eacott leaving the property. Thus, although the sums awarded turned out to be modest, there was no alternative to a trial in which Mrs Waring participated. The judge concluded that it would be artificial to separate out costs that were incurred as against Ms Eacott and as against Mrs Waring. They were both equally liable.
Mrs Waring's case in support of her appeal on liability
Mr Hamish MacBean, counsel for Mrs Waring, submits that it is settled law that a landlord bears no liability for a nuisance committed by his tenant, save in defined circumstances that do not arise in this case. The circumstances in question are where the nuisance has either been expressly authorised by the landlord or is certain to result from the purposes for which the property has been let (see Smith v. Scott & others [1973] 1 Ch. 314 at pages 321–322, and Hussain & another v Lancaster City Council CA transcript 14 th May 1998 per Hirst LJ). Mr MacBean submits that the judge ought to have applied the tests applicable to a landlord to Mrs Waring as licensor.
The judge was wrong, says Mr MacBean, to rely on the Page and Winch decisions supra. First, in Page, the travellers were trespassers rather than licensees, and, as Hirst LJ remarked in Hussain, the key to that case was that the Council had deliberately continued the travellers' possession as a matter of policy and had provided them with facilities such as water and skips, so in effect adopting the nuisance. In Winch, Astill J held at paragraph 48 that the person with an interest in...
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