Cocking & Anor v Eacott & Anor [2016] EWCA Civ 140

Case Nos: B2/2014/1896 & 2021[2016] EWCA Civ 140
IN THE COURT OF APPEAL (CIVIL DIVISION)
Case No 2IR60588
ON APPEAL FROM THE WORCESTER COUNTY COURT
HIS HONOUR JUDGE PEARCE-HIGGINS QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/03/2016
Before
LADY JUSTICE ARDENLORD JUSTICE McFARLANELORD JUSTICE VOS
Between
Brynley John CockingClaimants/Diane CockingRespondents(1) Kim EacottDefendants/Appellants(2) Angela WaringAppellant
Mr Hamish MacBean (instructed by Gabb & Co) for Appellant/2 nd DefendantMiss Catherine Doran (instructed by PM Law Solicitors) for Respondents/ ClaimantsHearing Hearing date: 4 th February 2016
Judgment

Introduction

[1]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 2011. Mrs 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 2011. She 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”.[2]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

[3]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.[4]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.[5]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”.[6]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.[7]On 16th 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 22nd February 2012. On 21st 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 18th 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 16th July 2012.[8]On 7th 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.[9]Judge Pearce-Higgins decided the liability issues after a two-day trial on 18th and 19th July 2013. His reserved judgment was reflected in an order dated 14th November 2013. There was then a remedies hearing on 9th 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 30th 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.[10]On 30th September 2014, Lewison LJ granted Mrs Waring permission to appeal on the two main issues that I have mentioned.[11]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 9th July 1981, and Mr Justice Astill’s decision in Winch v. Mid Bedfordshire District Council transcript dated 22nd 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.[12]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 7th 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

[13]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 14th 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.[14]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 land which provides a right to possession indicates the ability to exercise control over it.[15]Mr MacBean drew attention to the fact that in Page, Ackner LJ had cited Lord Wright in Sedleigh-Denfield v. O’Callaghan & others [1940] A.C. 880 at 904-905 where he had said that:
“If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it”
(emphasis added).[16]Mr MacBean submitted that the judge made no express finding that Mrs Waring had unduly delayed in abating the barking nuisance; he simply found her liable from July 2011. Moreover, the judge made no finding that Mrs Waring had adopted or continued the nuisance. Mr MacBean sought also to rely on the evidence that Mrs Waring was estranged from her daughter and had been warned by the police at the relevant times not to contact her. She had, however, written to Ms Eacott advising her to conduct herself in a neighbourly fashion.[17]Mr MacBean was able to point to the recent Supreme Court decision in Lawrence v. Fen Tigers Ltd (No. 2) [2014] UKSC 46, [2015] AC 106, where the decision was delivered on 23rd July 2014, some time after Judge Pearce-Higgins’s decision in this case. Lewison LJ referred to this case in granting permission to appeal on paper. At paragraph 11 of Lawrence, Lord Neuberger referred to Lord Millett’s statement in Southwark London Borough Council v. Mills to the effect that the general principle where activities constituted a nuisance was that the persons directly responsible for the activities in question were liable “but so too is anyone who authorised them”. Landlords are not liable simply because they were aware of the nuisance and took no steps to prevent it; they “must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property”. Lord Neuberger then dealt in paragraph 12 with the authorisation of a nuisance by letting a property, before turning in paragraphs 13 to 30 to the question of what is meant by a landlord “participating” in a nuisance by acts or omissions subsequent to the grant of the lease. He held, in short, that the law was still as stated by Lord Cozens-Hardy MR in Malzy v. Eichholz [1916] 2 KB 308 at 315-316 namely that there had to be actual, active or direct participation by the landlord or his agents, and the fact that a landlord does nothing to stop or discourage a tenant from causing the nuisance cannot amount to participating in it.[18]In oral argument, Mr MacBean made an alternative submission on the basis that Sedleigh-Denfield and Pagesupra were applicable. In that event, he submitted that the judge had been wrong to decide that it was reasonable for Mrs Waring to have acted to abate the nuisance in the period of 9 months from the letter before action (i.e. by July 2011). She had no way of knowing whether the allegations were true.

Mr and Mrs Cocking’s argument in response on liability

[19]Miss Catherine Doran submitted for Mr and Mrs Cocking that the judge was right to acknowledge that there are two tests in nuisance, one for a landlord and one for an occupier. Here, Mrs Waring was an occupier and was, therefore, correctly held liable for the period after she had become aware of the barking nuisance and failed to take reasonable steps to abate it. Ms Doran submits that there is every justification for treating a licensor in Mrs Waring’s position differently from a landlord. The licensor has a right to immediate possession and is in a position in law and in fact to control the property.[20]In Mrs Waring’s submission, the essential components extracted from Sedleigh-Denfield and Pagesupra were that(a) the defendant was aware of the nuisance or should, with ordinary and reasonable care, have become aware of it,(b) the defendant was able to take reasonable steps to abate the nuisance, and(c) the defendant did not take those steps within a reasonable time or at all. It was clear that the judge had properly applied these tests to the facts of the case. Miss Doran contended that the golden thread running through the authorities was the concept of possession and control over the property. It was irrelevant that the licensor/owner had no control over the licensee. She referred us to a number of passages in the authorities describing an occupier as someone who is in possession and control of the property (see, for example, Lord Wright at pages 903 and 905 in Sedleigh-Denfield supra and Evans LJ citing Clerk & Lindsell on Torts at page 56H in Lippiattv. South Gloucestershire County Council [2000] QB 51.

Discussion on the licensor’s liability for nuisance

[21]When I first looked at this case, I thought that there might be a lacuna in the law in relation to the liability for nuisance of a licensor of residential property. But on a more careful reading of the authorities, it seems to me that the law in this area is well-established and relatively clear. There are, as Mr MacBean was ultimately constrained to accept, two possible tests: one for those in “occupation” of property and one for “landlords” of property. His main contention was that a licensor of residential property should be treated as a landlord rather than an occupier.[22]In considering who is liable for nuisance, it is important to understand the nature of the tort. It is an action in respect of some condition or activity (normally undertaken on one property) that unduly interferes with another person’s use or enjoyment of another property (see Clerk and Lindsell 21st edition at paragraph 20-01). The persons that may be sued for nuisance are divided by the editors of Clerk & Lindsell into three classes:(a) the wrongdoer,(b) the occupier, and(c) the landlord and tenant.[23]The rules applicable to the liability of a landlord for nuisance are not directly applicable where no tenancy exists. But it is instructive to examine the nature of the landlord’s liability because it impacts to some extent on the nature of the occupier’s liability. As Lord Neuberger explained in Lawrence supra, landlords do not become liable for their tenant’s nuisance by simply failing to enforce a covenant, and conversely, if they would otherwise be liable they cannot escape liability just by including a covenant in the lease. To be liable for nuisance, a landlord must either participate directly in the commission of the nuisance by himself or his agent, or must be taken to have authorised the nuisance by letting the property. The fact that a landlord does nothing to stop a tenant from causing the nuisance cannot amount to participating in it.[24]The landlord has limited liability because the tort looks to blame the person or persons who causes the nuisance. In cases arising after the start of the tenancy, a landlord will not cause the nuisance unless he directly participates in it. He has neither control over nor possession of the property from which the nuisance emanates. The fact that he could, but did not, bring proceedings which would result in an abatement of the nuisance has been definitively been held not to be a ground for holding the landlord liable.[25]An occupier has, however, been held to be in a different position. He will normally be responsible for a nuisance even if he did not directly cause it, because he is in control and possession of the property. The cases show that an owner may be regarded as an occupier of property for these purposes even if he has allowed others to live or undertake activities on his land. In Sedleigh-Denfield supra, Lord Wright made clear at pages 903 and 905 that the liability attaches to an occupier because he has possession and control over the property. There was a debate before us as to whether the principle to be extracted from Sedleigh-Denfield was either(i) that an occupier is liable if he continues or adopts the nuisance by failing to abate it without undue delay after he became aware of it or with reasonable care should have become aware of it (as Lord Wright said at pages 904-905), or(ii) that an occupier is liable if he continues the nuisance by failing to take any reasonable means to abate it after he became aware of it or should have done so (which was how Viscount Maugham at page 894 and Lord Romer at page 913 put the matter). In fact, both Lord Atkin at page 899 and Lord Porter at page 919 formulated their propositions in a similar way to Lord Wright, so I think that Mr MacBean’s submission that the obligation on an occupier was limited to taking “reasonable means” to abate the nuisance was ill-founded. Rather, Ackner LJ was right in Pagesupra at page 11 to cite only Lord Wright’s formulation, since he was in the majority.[26]In these circumstances, it remains to consider whether a licensor in the position of Mrs Waring was correctly regarded as an “occupier” of the property for the purposes of the application of Lord Wright’s test in Sedleigh-Denfield. In my judgment, she was on the facts of this case. The judge held that Mrs Waring was in control of the property, notwithstanding that she did not live there. She allowed her daughter to live there. She knew of the nuisance in 2009, but the judge only held her liable for the period starting in July 2011, 9 months after the delivery of the letter before action in September 2010. That might have been regarded as generous, since she was defending her daughter’s misconduct from as early as July 2009. The judge did not think that the falling out that seems to have occurred between mother and daughter after January 2012 made any difference to Mrs Waring’s liability. These proceedings commenced shortly after the fall-out and Mrs Waring reacted by terminating Ms Eacott’s bare licence and obtaining an order for possession against her. She could then have abated the nuisance by enforcing the possession order but chose not to do so; instead she defended the legal proceedings contending that she had no legal liability for her daughter’s nuisance.[27]On the judge’s findings, Ms Eacott never had more than a bare licence. She had no right to exclude Mrs Waring from the property, and within 8 months of Mrs Waring’s liability beginning, she had terminated any licence that Ms Eacott may have had. Mrs Waring was in possession of the property in the same sense as the Court of Appeal held the Council to be in occupation of the land in Page supra. Moreover, there were other similarities on the facts. In Page, the Council took a policy decision to leave the travellers on their land, when they could have removed them. Mrs Waring did something very similar. The Council in Page obtained an order for possession against the travellers, but then chose not to enforce it, just as Mrs Waring did. Moreover, the Council provided the travellers with facilities on the site, just as Mrs Waring paid Ms Eacott’s utility bills.[28]In my judgment, Mrs Waring was, in the requisite sense, both in possession and control of the property throughout her daughter’s residence there, and the judge was therefore right to hold her liable for the nuisance as he did. The judge did indeed decide that Mrs Waring had been able to abate the nuisance but chose to do nothing “notwithstanding her daughter’s unreliability”. He found that the nuisance could easily have been abated “by removal of the dog or the occupier both of which were easily achievable” by Mrs Waring. The judge determined that an allowance of 9 months from the date of the letter before action was sufficient to allow Mrs Waring to abate the nuisance. I agree. The position is, as I have already said, analogous to that of the Council in Page supra.[29]I should not leave this topic without making it clear that the judge’s decision was entirely based on the facts as he found them to be. It would, perhaps, be possible to imagine cases where an arrangement called a licence was either held to be a tenancy, or found to be so much akin to a tenancy that the licensor could not properly be regarded as an occupier in the relevant sense. This was certainly not such a case. Accordingly, further examination of the position in such a situation can await a case in which such facts arise.

Discussion on the costs appeal

[30]Mr MacBean submitted that Mrs Waring should only have been liable for part of the costs since she was not held responsible for most of the incidents of nuisance that were alleged. The Scott Schedule was not, for the most part, proved against Mrs Waring. The claim should have been treated as a small claim, and the diminution of value claim ought not to have been pursued as the barking nuisance found proved against Mrs Waring was inherently transitory in nature.[31]In my judgment, the costs order that the judge made was entirely justified. Mrs Waring was always a necessary party to the claim as she was the only person who could ultimately abate the nuisance, which is what she eventually did by agreeing to remove Ms Eacott from the property. The fact that Mrs Waring was not liable for each and every act of nuisance alleged did not affect the underlying rationale for the proceedings which were brought to force Mrs Waring to do something about the persistent conduct of her licensee, of which she was, as the judge found, aware for a number of years. Mrs Waring’s approach was to argue that she had no responsibility and to reject the reasonable attempts by Mr and Mrs Cocking to compromise the proceedings and to save the costs of fighting the action. I can see no grounds for suggesting that the costs order made by the judge was not squarely within the discretion accorded to him in applying the principles enshrined in Part 44.2 of the CPR.

Disposal

[32]For the reasons I have given, I would dismiss Mrs Waring’s appeal on the issues of both liability and costs.[33]I agree.[34]A landlord who has granted a tenancy is not in general liable in nuisance if his tenant commits that tort. Mrs Waring let her daughter into her property and allowed her and her dog to live there without executing a tenancy. The dog’s persistent barking caused a nuisance to the neighbours. Mrs Waring now accepts that the barking amounted to a nuisance: she seeks only to argue that she should not be liable for the tort of her daughter and that she should be in the same position as if she had granted a tenancy.[35]In my judgment, in agreement with Vos and McFarlane LJJ, that argument is wrong in law and the appeal should be dismissed. I agree with the judge that Mrs Waring was liable in law for the nuisance caused by her daughter’s dog because as licensor she is to be treated as in occupation of the property. She is not in the same position as a landlord who has parted with possession of the property.[36]Further, in my judgment, that proposition is supported by decided authority and not only a matter to be deduced by analogy from Page Motors Ltd v Epsom and Ewell BC, which concerned the liability of the owner of land for the acts of trespassers, not licensees.[37]Thus in White v Jameson (1974) 18 Eq 303, cited by Pennycuick J in Smith v Scott, above, the court applied the same principle as was applied in Page Motors to the acts of trespassers to the acts of licensees.[38]White v Jameson concerned a claim in nuisance brought against the owner of a shipyard in Widnes, a Mr Jameson. He had given a revocable licence to a person to remove clay and operate a kiln on his property. The kiln caused a nuisance. Mr Jameson’s defence was that he had given authority to the third party to take away the clay and make bricks and that he had neither power to direct how the burning of the clay should take place nor taken any active part in the third party’s activities. Sir George Jessel MR (sitting at first instance), in a characteristically concise judgment, held that Mr Jameson was liable for the acts of the third party because he (the owner) remained the occupier. Mr Jameson had not demised his land to the third party but simply given him a licence.[39]Sir George Jessel MR (at 305) relied on the dictum of Littledale J in Laugher v Pointer (1826) 5 B & C 547, 560: [T]he occupier ought to be chargeable [in nuisance] when occasioned by any acts of persons whom he brings on to the premises.[40]So the principle which the judge applied in this case to Mrs Waring as licensor is not new. The judge applied the correct legal principle. Astill J applied the same principle to licensees in Winch v Mid-Bedfordshire District Council. It is true that this Court distinguished Page Motors in Hussain v Lancaster County Council on a different basis, namely that the owner of the land had adopted the nuisance. The principle which I consider to be correct would have led to liability in Page Motors without reliance on any adoption of the acts of the trespassers but the matter was in any event obiter in Hussain v Lancashire County Council and not essential to the decision, which concerned the liability of a landlord for a nuisance committed by his tenants.[41]In this case, the licence was a bare licence. It was probably also a non-contractual licence given the family relationship. But no-one argued that it was a tenancy.[42]Licence and tenancy are not, however, watertight concepts. I associate myself with Vos LJ’s coda that the terms of the licence in a particular case might lead to a different result from the result in the present case.[43]So too might the terms of a tenancy. Suppose, for example the landlord had agreed with the tenant to inspect and clean the drains on the demised property at regular intervals and a nuisance developed because of the tenant’s use of the drains and the landlord’s failure to perform his covenant. I doubt whether in those circumstances the landlord could escape liability by arguing that he had parted with possession to the tenant.[44]If Mrs Waring had granted a tenancy to her daughter, she would have to have taken care not to incur liability under the exceptions laid down in Lawrence v Fen Tigers (and explained by Vos LJ at paragraph 17 above). She would also have to have taken care, whether as landlord or licensor, not to incur liability under the principles of joint liability in tort: see the recent decision of the Supreme Court in Sea Shepherd v Fish [2015] AC 1229. In short, a person may be liable for assisting another to commit a tort if they both acted pursuant to an express or implied common design to secure the acts which constituted the tort. The principle of joint liability may indeed cover the same ground as at least one of the exceptions in Lawrence v Fen Tigers.[45]In this case the Cockings did not suggest there was joint liability in tort and did not rely on it.[46]On the costs appeal, I agree with my Lords that it should be dismissed for the reasons given by Vos LJ.