The Nuisance of the Proprietary Interest Lord Cooke's Dissent in Hunter v Canary Wharf Ltd [1997] AC 655

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PART I

TORT LAW

1 The Nuisance of the Proprietary Interest

Lord Cooke’s Dissent in Hunter v Canary Wharf Ltd
[1997] AC 655

2 Re-establishing the Search for Principle

Lord Goff’s Dissent in White v Chief Constable of South
Yorkshire Police [1999] 2 AC 455

3 Loss of Chance

Lord Hope’s Dissent in Gregg v Scott [2005] UKHL 2

4 Do Corporations Have an Immortal Part? – The Need to Prove

Damage in Corporate Libel

Baroness Hale’s Dissent in Jameel v Wall Street Journal Europe
SPRL [2006] UKHL 44

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CHAPTER 1

THE NUISANCE OF THE PROPRIETARY INTEREST

Lord Cooke’s Dissent in

Hunter v Canary Wharf Ltd [1997] AC 655

Neal Geach

1.1 Background 3
1.2 Decision of the majority and the theory of nuisance as a land-based tort 5
1.3 Lord Cooke’s dissent and the alternative principle 6
1.4 Defining the restriction 10
1.5 Influence of Article 8 in deciding the future policy 15
1.6 Conclusion 19

1.1 BACKGROUND

This litigation involved two actions arising out of, first, the construction of the Canary Wharf Tower¹ and the second concerning the construction of the Limehouse Link Road.² Both sets of construction resulted in interference with the use and enjoyment of the surrounding properties. Of concern for present purposes was the issue in both actions as to whether an interest in property was needed to bring an action in private nuisance, and if so, what was the nature of the interest that was required. This was ordered to be tried as a preliminary issue and at first instance the claimants failed, with Judge Richard Harvey QC applying the Court of Appeal decision of Malone v Laskey.³ This was reversed

¹ Hunter v Canary Wharf Ltd.

² Hunter v London Docklands Development Corporation.

³ Malone v Laskey [1907] 2 KB 141.

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4 Part I – Tort Law

by the Court of Appeal,⁴ which applied its decision in the case of Khorasandjian v Bush⁵ over Malone.

As Lord Goff noted:

The question therefore, arises whether your Lordships should be persuaded to depart from established principle, and recognise such a right in others who are no more than mere licensees on the land.⁶

The established principle in question is, of course, that for a person to bring an action in private nuisance, he or she must have a proprietary interest in the land or at the very least be a licensee with exclusive possession. It was the view of the majority⁷ that this should remain the case. Lord Cooke was a lone dissenting voice stating that:

Where interference with an amenity of a home is in issue there is no a priori reason why the expression should not include, and it appears natural that it should include, anyone living there who has been exercising a continuing right to enjoyment of that amenity.⁸

Ultimately, the issue came down to a decision as to whether the law should remain static but wedded in longstanding principle and true to the nature of the tort, or whether the rule should be adapted to better reflect the more modern understanding of the family home and to give effect to a greater emphasis on human rights. The reasoning of the majority, unsurprisingly in light of its composition, had immense force.⁹ However, it is argued here that Lord Cooke’s reasoning, in practice, would not have resulted in the concerns expressed by the majority and, significantly, would still have maintained the crucial link to land which would keep private nuisance true to its tradition of requiring a sufficient degree of proximity between a claimant and the affected land which forms the basis of the claim. Even if this is wrong, it is further submitted that the growing influence of human rights means that tort law must develop in some way and that Lord Cooke’s opinion provides a simple and coherent way to do so.

⁴ Hunter v Canary Wharf Ltd [1996] 2 WLR 348.

⁵ Khorasandjian v Bush [1993] QB 727.

⁶ Hunter v Canary Wharf Ltd [1997] UKHL 14, [1997] AC 655 at 692D.

⁷ Lord Goff, Lord Lloyd, Lord Hoffmann and Lord Hope.

⁸ Above, n 6, at p 712G–H.

⁹ This is especially so in light of the pre-Human Rights Act 1998 landscape in which the case was heard.

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1.2 DECISION OF THE MAJORITY AND THE THEORY OF NUISANCE AS A LAND-BASED TORT

As Lord Hoffmann stated, the place to start when considering the subject-matter of the case is what it is that the claimant is seeking standing to sue for. In his Lordship’s view, there had been a ‘fundamental mistake about the remedy which the tort of nuisance provides’.¹⁰ This was held to have arisen from the distinction made by Lord Westbury in St Helen’s Smelting Co v Tipping¹¹

between nuisances which produce material damage to the land and those which just result in sensible personal discomfort, such as through noise and smells. The mistake in Lord Hoffmann’s opinion was to treat the latter type of action as being in respect of the discomfort that the claimant had personally suffered or was likely to suffer. If this was true, the only link to land would be what the defendant is doing on his or her land. In such a situation, there would be no justification for insisting on the claimant having a proprietary interest as the action is concerned with the claimant personally. However, his Lordship highlighted how this was a mistaken view by stating:

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 an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.¹²

In relation to the award of damages:

... diminution in capital value is not the only measure of loss. It seems to me that the value of the right to occupy a house which smells of pigs must be less than the value of the occupation of an equivalent house which does not. In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted.¹³

While consequential losses are recoverable and it was accepted that damages may be affected by ‘the size, commodiousness and value of the property’, damages should not be increased just because a greater level of discomfort was

¹⁰ Above, n 6, at p 705A.

¹¹ St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642.

¹² Above, n 6, at p 706B–C.

¹³ Above, n 6, at p 706D–E.

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caused due to a greater number of people living in the property.¹⁴ Damages are thus awarded to address the overall reduction in the amenity of the land. There can only be one total amount of reduction in the amenity value of the piece of land in question. As such, actions are based on an interference with the use and enjoyment of the land, they are part of a single tort concerned with injury to land. This meant it was ‘logical and, indeed, inevitable’ that a proprietary interest is required.¹⁵

As indicated above, these are strong reasons for reversing the decision of the Court of Appeal and maintaining the position from Malone. Indeed, even as Lord Cooke observed:

Logically it is possible to say that the right to sue for interference with the amenities of a home should be confined to those with proprietary interests and licensees with exclusive possession.

However:

No less logically the right can be accorded to all who live in the home. Which test should be adopted, that is to say which should be the governing principle, is a question of the policy of the law. It is a question not capable of being answered by analysis alone. All that analysis can do is expose the alternatives.¹⁶

1.3 LORD COOKE’S DISSENT AND THE ALTERNATIVE PRINCIPLE

In considering any policy factor which supported the proposed extension of the rule, Lord Hoffmann stated in his opinion that:

… the development of the common law should be rational and coherent. It should not distort its principles and create anomalies merely as an expedient to fill a gap.¹⁷

However, this was in the context of Khorasandjian being a case regarding harassment and the use of a land-based tort to fill a lacuna in the law. As such, the policy considerations of the case were felt by Lord Hoffmann to be ‘quite different’ from those before him in Hunter.¹⁸ Additionally, Lord Lloyd stated

¹⁴ Above, n 6, at p 706H.

¹⁵ Above, n 6, at p 707C.

¹⁶ Above, n 6, at p 717G.

¹⁷ Above, n 6, at p 707G.

¹⁸ Above, n 6, at p 707G.

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that allowing a remedy in private nuisance in response to receiving harassing phone calls ‘would not just be to get rid of an unnecessary technicality. It would be to change the whole basis of the cause of action’.¹⁹ His Lordship felt that as Khorasandjian was incorrectly decided on this point, this removed ‘an essential plank’ of the Court of Appeal’s reasoning. Lord Goff also commented that academics commending Khorasandjian had not considered the desirability or not of changing the rules of private nuisance to provide a partial remedy for harassment.²⁰ It does seem as though any merit in applying the wider proposition to the facts in Hunter was lost in that context and not considered. Overruling Khorasandjian on the nuisance point may have been correct, but an incorrect application of a principle in one case should not necessarily warrant the abolition of the wider proposition or the failure to apply it in circumstances where it would be a more natural fit. The proposed extension of the rule by Lord Cooke, and that is submitted here, is not like what was being undertaken in Kho...