This new statement of The Law of Nuisance by John Murphy is a welcome addition to English law library shelves. In recent years the volume of case law in the English courts has grown significantly. Murphy's clear, logically-structured text charts these developments and integrates them with the underlying conceptual framework of nuisance. He has a clear vision of the “domain” of nuisance in English law, split into overlapping categories of private, public, and statutory nuisance, as set out in chapter 1. Of these it is the first, private nuisance, that receives most of his attention – and that is of most relevance to Scots readers. The range of private nuisance is cast in restrictive terms and does not include the (in)famous English Rylands v Fletcher rule ((1866) LR 1 Exch 265), imposing strict liability for the escape of dangerous substances from land. The interesting question whether this “emasculated” rule retains any potential to develop into an environmental tort is therefore outwith the scope of the book. However, the treatment of private nuisance, with this exclusion, is comprehensive in considering the nature of liability, the interests protected, the parties to nuisance actions, and defences and remedies.
For the Scots lawyer the first point of reference in this area of the law is invariably Niall Whitty's masterly treatment of “Nuisance” in The Laws of Scotland: Stair Memorial Encyclopaedia, volume 14, reissued in 2001. However, that publication came too early to take account of cases such as Marcic v Thames Water Utilities [2004] 2 AC 42, Dennis v Ministry of Defence [2003] EWHC 793 (QB); [2003] EHLR 17, Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28; [2009] HRLR 19 (and most recently – too recently for this book – Barr v Biffa Waste Services Ltd [2011] EWHC 1003). Murphy's treatment of human rights considerations is therefore an aspect of this text which will be of considerable utility to the Scots. And despite Whitty's warning on “cross-border differences between the rules on title to sue actions for nuisance” (“Nuisance”, para 23), Murphy's reassessment of “Who Can Sue”, in the light of the Human Rights Act 1998 is of particular interest (paras 4.13–4.24).
This book does not of course provide direct commentary on Scots cases. Only a small handful are cited, and the leading modern cases, such as Kennedy v Glenbelle 1996 SC 95, do not figure at all, but this is readily understandable. The framework of the Scots law of nuisance must look...
