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

Neighbour nuisance. These are often difficult and indeed expensive cases. And always there are those affected who believe that a landlord is liable for their tenant’s nuisance (which they just aren’t, save for the extremely rare case in which the landlord has participated in or, by letting the property authorised their tenant’s nuisance – Lawrence v. Fen Tigers Ltd (No. 2) [2014] UKSC 46, [2015] AC 106,).

Yet sometimes, things are different, as in this appeal…

Ms Eacott occupied a property. Ms Eacott had a dog. The dog barked, apparently loudly and quite a lot, “between 5 and 10 times per month from August 2008 onwards”. In addition, Ms E was found to have commited:

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.

Ms Waring is Ms E’s mother. Ms W owned the property in which Ms E lived and from which the dog barking came. Mr & Mrs W were neighbours and had brought a claim in nuisance against Ms E and Ms W.

At first instance Ms W was found jointly liable for the nuisance of the barking, despite not living at the property. She was not found liable for the shouting on the basis that she did not know of it. Ms W was found to be Ms E’s licensor and liable on that basis, with joint and several liability for costs.

Ms W appealed on the basis that the Judge was wrong to find her liable for the nuisance when she did not live at the property and was Ms E’s licensor.

The factual findings below were not disputed. Ms W had granted Ms E a bare licence to live at the property on no rent, with Ms W paying the bills and maintaining the property. It was found that Ms W had known of the noise from the dog from 2009 and indeed in July 2009 wrote a letter “defending her daughter against the barking allegation and making counter-allegations against the neighbours who had complained”.

Following a letter before action in September 2010, Ms W denied liability on the basis that a landlord was not liable for tenant nuisance and she was not involved in the incidents.

The claim was issued in February 2012.

On 21^st 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 18^th 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 16^th July 2012.

In her defence, Ms W asserted that she and her daughter were estranged and she had not been to the property since January 2012. An offer by the Claimants to settle on a drop hands basis on condition Ms E was evicted was not accepted.

At first instance, the Court found Ms W liable for the barking dog nuisance, but not the shouting, “by analogy with the Court of Appeal’s decision in Page Motors Limited v. The Borough Council of Epsom and Ewell CA transcript of 9^th July 1981, and Mr Justice Astill’s decision in Winch v. Mid Bedfordshire District Council transcript dated 22^nd July 2002″. The court ordered that she pay the Claimant’s costs jointly and severally with Ms E. Damages of £3,500 payable by Ms E and £1,000 payable by Ms W.

Ms W appealed, arguing that the first instance Judge was wrong to find her liable as licensor.

The argument was that the position of a licensor was the same as  landlord. As per settled case law, no liability arose save “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”.

The reliance on Page and Winch was wrong.

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.

Then as per Sedleigh-Denfield v. O’Callaghan & others [1940] A.C. 880, on a property owner’s liability for nuisance:

“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”

In support, Ms W pointed to Lord Neuberger’s comments in Lawrence v. Fen Tigers Ltd (No. 2) [2014] UKSC 46 that a landlord “”must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property”.

On failure to abate, or adopting and continuing, Ms W argued 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.

In response, the claimants argued that Ms W was an occupier, not a landlord, and

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.

(…) the essential components extracted from Sedleigh-Denfield and Page supra 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 (for the claimants) 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.

Held:

A licensor was not a landlord and, generally, remained in possession and control of the property. On the facts of this case Ms W did so remain. Ms E had a bare licence and no right to exclude Ms W from the property. If anything, the Judge below had been generous in assessing Ms W’s period of liability as from July 2011, because she was defending her daughter’s misconduct as early as July 2009. Ms W had obtained a possession order but did not enforce it.

On the interpretation of Sedleigh-Denfield, where there were different phrasings of when the occupier’s liability for nuisance arose across the various judgments:

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.

The majority was with Lord Wright, so the test was ‘failing to abate it without undue delay after he became aware of it or with reasonable care should have become aware of it’. ‘Reasonable means’ was not the test.

On costs:

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.

Appeal dismissed.

It is worth noting in passing that this was a decision on the specific facts of the licence arrangement.

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.

It is also worth noting the comments of Arden LJ (at 42-43):

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.

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.

This strikes me as exactly right, just as a breach of a landlord’s section 11 repairing obligations to one flat would arguably make them liable in nuisance for a relevant defect causing a nuisance to another flat.