Hackney London Borough Council v Issa and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE NOURSE,LORD JUSTICE SAVILLE,LORD JUSTICE BROOKE
Judgment Date20 November 1996
Judgment citation (vLex)[1996] EWCA Civ J1119-5
Docket NumberCCRTF 95/1682/E
CourtCourt of Appeal (Civil Division)
Date20 November 1996

[1996] EWCA Civ J1119-5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

(Mr. Assistant Recorder Crawford)

Royal Courts of Justice

Strand, London WC2

Before:

Lord Justice Nourse

Lord Justice Saville

Lord Justice Brooke

CCRTF 95/1682/E

Yasin Issa (Suing by his Next Friend and Father Ali Ahmed Issa)

and

Imran Issa (Suing by his Next Friend and Father Ali Ahmed Issa)
Plaintiffs/Respondents
and
The Mayor and Burgesses of The London Borough of Hackney
Defendants/Appellants

MR. R. DRABBLE and MR. I. LEWIS (instructed by the Director of Law, Administration and Property, London Borough of Hackney) appeared on behalf of the Appellant Defendants.

MISS L. TAGLIAVINI (instructed by Messrs. Moss & Co., London E5) appeared on behalf of the Respondent Plaintiffs.

1

Tuesday, 29th November 1996

LORD JUSTICE NOURSE
2

Shortly stated, the question on this appeal is whether section 94(2) of the Public Health Act 1936 (Power of court to make nuisance order if abatement notice disregarded), by making it a criminal offence to make default in complying with the notice, also renders the person guilty of the offence liable in a civil action for damages at the suit of any person who thereby suffers loss or damage.

3

The plaintiffs, Yasin and Imran Issa, were born in 1975 and 1978 respectively. They are two of the four sons of Mr. and Mrs. Ali Ahmed Issa. Until 1983 the family lived in Lancashire. In November of that year they moved to London and lived at various addresses until 7th April 1985, when Mr. and Mrs. Issa were granted a joint tenancy of 21 Malmsmead House, Kingsmead Estate, London E9, a property owned by the defendants, the London Borough of Hackney. At that time the plaintiffs were aged nine and seven respectively.

4

On 25th October 1988 Mr. Bill Page, an environmental health consultant, made a report based on a visit to 21 Malmsmead House some two and a half weeks earlier, in which he recorded that the premises were severely affected with condensation and associated mould growth and concluded that their condition was such that he was satisfied that they were prejudicial to health and therefore a statutory nuisance as defined by section 92(1)(a) of the 1936 Act. On 12th June 1989 the defendants pleaded guilty at Wells Street Magistrates' Court to an offence under that provision and section 99 of the Act. They were fined £500, with £1,400 compensation and £2,023.80 costs being awarded to Mr. Issa. An order was made for the nuisance to be abated within 56 days, the necessary works being completed in December 1989.

5

In July 1992 the plaintiffs, suing by Mr. Issa as next friend, brought separate actions against the defendants in the Shoreditch County Court which were later transferred to the Central London County Court, where they were tried together by Mr. Assistant Recorder Crawford in August 1995. The plaintiffs claimed damages for ill-health allegedly suffered as a result of the condition of the premises, in particular through the aggravation of the asthma from which they both suffered. On 15th August the assistant recorder decided, as a preliminary issue, that the criminal offence for which they had been convicted rendered the defendants liable for any loss or damage thereby suffered by the plaintiffs. He then proceeded with the trial. On 17th August, having decided the issue of causation in favour of the plaintiffs, he awarded the first plaintiff, Yasin, damages and interest amounting to £5,851.50 and the second plaintiff, Imran, damages and interest amounting to £4,494.50.

6

The assistant recorder refused the defendants leave to appeal to this court. However, leave was granted on consideration of the documents by Lord Justice Beldam as the single judge. Three issues were raised by the notice of appeal: first, the question of law identified at the beginning of this judgment; second, the question whether, if a civil liability arose, there was sufficient evidence of causation to establish liability; third, the question whether the period for which the defendants were liable (if at all) to the plaintiffs terminated with the abatement of the statutory nuisance in December 1989. In opening the appeal yesterday, and for reasons applicable to this case but not necessarily to any other, Mr. Drabble QC, for the defendants, abandoned their case on the second and third issues. Argument then proceeded on the question of law.

7

In dealing with that question it is important to emphasise at the outset that Part III of the Public Health Act 1936, now replaced by Part III of the Environmental Protection Act 1990, is of wide and frequent application as between local authorities as regulatory bodies on the one hand and those who cause, suffer or permit statutory nuisances to occur on the other, whereas the circumstances of the present case, where it is a local authority as landlords who are responsible for the nuisance, must be comparatively rare. But if the Act gives the plaintiffs a civil remedy against the defendants, it must equally give one to all those who suffer loss or damage as a result of statutory nuisances caused, suffered or permitted in the far more numerous cases referred to, most of whom, however, will already have a cause of action at common law.

8

As an introduction to his consideration of Part III of the 1936 Act, Mr. Drabble cited Halsburys Laws of England, Fourth Edition, Vol. 45, para. 1285, headed "Effect of provision of statutory remedy for breach of duty":

"There is a general rule that where a new obligation is created by statute which at the same time provides a special means of enforcing it, that performance cannot be enforced in any other manner. However this rule is subject to the ordinary rules as to the construction of statutes. Where the only manner of enforcing performance for which the statute provides is by means of criminal proceedings, there are two classes of exception to this general rule. The first is where the obligation was imposed for the benefit or protection of a particular class of individuals. The second is where the statute creates a public right and a particular member of the public suffers particular direct and substantial damage other and different from that which was common to the rest of the public."

9

The authorities cited in support of the first sentence are Doe d. Bishop of Rochester v. Bridges (1831) 1 B & Ad 847 at p.859 per Lord Tenterden CJKB and Cutler v. Wandsworth Stadium Ltd. [1949] AC 398. The principal authority cited in support of the third, fourth and fifth sentences is the speech of Lord Diplock in Lonrho Ltd. v. Shell Petroleum Co. Ltd. (No. 2) [1982] AC 173 at pp.185–186.

10

Part III of the Act is headed "Nuisances and Offensive Trades". Under the subheading "General duty of local authority" section 91 provides:

"It shall be the duty of every local authority to cause their district to be inspected from time to time for the detection of matters requiring to be dealt with under the provisions of this Part of this Act as being statutory nuisances within the meaning of the next succeeding section."

11

Sections 92 to 99 then follow under the subheading "Nuisances which may be dealt with summarily". So far as material, section 92 provides:

"(1) Without prejudice to the exercise by a local authority of any other powers vested in them by or under this Act, the following matters may, subject to the provisions of this Part of this Act, be dealt with summarily, and are in this Part of this Act referred to as 'statutory nuisances', that is to say —

(a) any premises in such a state as to be prejudicial to health or a nuisance."

12

Section 93 provides:

"Where a local authority are satisfied of the existence of a statutory nuisance, they shall serve a notice (hereafter in this Act referred to as 'an abatement notice') on the person by whose act, default or sufferance the nuisance arises or continues, or, if that person cannot be found, on the owner or occupier of the premises on which the nuisance arises, requiring him to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose: …"

13

There are then two provisos, which I need not read.

14

I now come to section 94. Subsections (1) and (2) provide:

"(1) If the person on whom an abatement notice has been served makes default in complying with any of the requirements of the notice, or if the nuisance, although abated since the service of the notice, is, in the opinion of the local authority, likely to recur on the same premises, the authority shall cause a complaint to be made to a justice of the peace, and the justice shall thereupon issue a summons requiring the person on whom the notice was served to appear before a court of summary jurisdiction.

(2) If on the hearing of the complaint it is proved that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, then, subject to the provisions of subsections (4) and (5) of this section the court shall make an order (hereafter in this Act referred to as 'a nuisance order') for either, or both, of the following purposes —

(a) requiring the defendant to comply with all or any of the requirements of the abatement notice, or otherwise to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose;

(b) prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent a recurrence;

and may also impose on the defendant a fine not exceeding level 4 on the standard scale.

Where a nuisance proved to exist is such as to render a...

To continue reading

Request your trial
4 cases
  • Morrison Sports Limited And Others V. Scottish Power
    • United Kingdom
    • Court of Session
    • 8 December 2009
    ...Laundry Co Ltd, at page 842 (cited by Neuberger J at paragraph 29 of Todd v Adams and Chope); Issa v Hackney London Borough Council [1997] 1 WLR 956, Nourse LJ at page 962E. Parliament must be assumed to be aware of existing remedies in reparation, and to have provided additional remedies s......
  • Lee v Leeds City Council; Ratcliffe and Others v Sandwell Metropolitan Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 January 2002
    ...or flat … and Parliament has conspicuously refrained from up-dating the limits in the 1985 Landlord and Tenant Acts." In Issa v Hackney London Borough Council [1997] 1 WLR 956, at page 964F-G, Lord Justice Brooke described the statutory covenant to ensure that a dwelling house be fit for hu......
  • Wild Goose Ltd v The Environmental Management Authority of Trinidad and Tobago
    • Trinidad & Tobago
    • High Court (Trinidad and Tobago)
    • 25 June 2021
    ...12; [1998] AC 628 24 [1985] HCA 81; (1985) 159 CLR 550 25 Civil Appeal No. P 169 of 2014 CV No. 2013-00135 26 [2013] 4 All ER 195 27 [1997] 1 All ER 999 28 Exhibit “R.R 1” 29 11 ed at pages 124–125 30 Chapter 3:01 31 [2020] UKPC 13 32 Chapter 15:03 33 CV 2011-02270 34 (1999) 7 BHRC 375 ......
  • R (Islington LBC) v Inner London Crown Court
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 13 October 2003
    ...standard of proof, and Parliament, despite what this court said in the case of Issa and another v Hackney London Borough Council [1997] 1 W.L.R. 956, has still not yet provided a civil remedy for tenants suffering to the extent that the Rooneys have suffered, when the underlying problem is ......
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT