Dobson v Thames Water Utilities Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Sedley,Lord Justice Waller,Lord Justice Richards |
| Judgment Date | 11 February 2009 |
| Neutral Citation | [2008] EWCA Civ 473,[2009] EWCA Civ 28 |
| Docket Number | Case No: A1/2007/2601,Case No: A1/2007/2601 + (A) |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2009 |
[2008] EWCA Civ 473
Lord Justice Sedley and
Lord Justice Hughes
Case No: A1/2007/2601
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
TECHNOLOGY AND CONSTRUCTION COURT
(MR JUSTICE RAMSEY)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
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.
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.
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.
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.
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].
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.
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.”
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.
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 ?
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.
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.
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.
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.
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...
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