Tejani v Fitzroy Place Residential Ltd (2022) EWHC 2760 (TCC)

This is another in what appears to be becoming a series (see previous post) of very expensive but failed nuisance claims. I will not go into great detail, but there are two lessons to be drawn.

The claimant was the leaseholder of a flat in a new development in central London, purchased in 2012 for £2,595,000, with the development being completed in 2016. Mr Tejani (or his son) complained of noises from the facade of the building, which despite substantial investigative and remedial works by the developer, were not stopped. The claim was in nuisance, in breach of quiet enjoyment, and in breach of contract (a remedial clause under the lease that required notice within 23 months).

The trouble for the claimant, who described himself and members of his family being woken up by the noises on the intermittent occasions that they stayed at the flat, was that all the expert evidence on the noise found that while there were audible clicks and pops in the living room of the flat, particularly during the summer due to heat expansion of elements of the facade, the decibel level was between 30BB and 45DB. (Recordings at that volume level were played to the court).

45DB is about the level of the click of a computer mouse. The High Court found that the noise levels were simply not high enough to amount to an actionable nuisance

I have therefore concluded that the noise complained of is not such as to awaken the average person when sleeping in the Apartment, let alone frequently. That leaves the question of whether, although the noise is not such as to disturb sleep in any meaningful way, it is still such as to materially interfere with the ordinary comfort of the average person living in the Apartment. I have concluded that it is not. The acoustic expert evidence demonstrates that most of the sounds emanating from the façade are either inaudible or very quiet. Contrary to Mr Tejani’s case, I accept Mr Andersen’s evidence that the vast majority of the sounds complained of would be supressed by a television being on or music playing. That is also in accordance with the evidence of Mr Chinelis to the effect that he would expect a television to be on at a volume of about 60-65DB (thus masking a 50DB sound). To the extent that there are exceedances of 45DB during the day or evening the sounds, best compared to the click of a computer mouse, cannot in my judgment be equated with materially interfering with the ordinary comfort of the average person living in the Apartment. It no doubt goes without saying that in my judgment the suggestion that the Apartment is uninhabitable or unusable is untenable – which no doubt explains why the allegation was removed from the Particulars of Claim.

The claim in nuisance failed on liability.

The claim in quiet enjoyment fell with the nuisance claim – there was no interference with the comfort of the occupant. The contractual claim failed as notice had not been given within the requisite time.

The lesson here is – make sure that something is an actionable nuisance in the degree of interference with the comfort of the occupier, not a minor annoyance, and don’t go to trial if your own expert evidence suggests it isn’t.

The second lesson is that poor expert evidence (here on valuation of property and loss of amenity) doesn’t help, and always check the assumptions. The claimant had evidence from a surveyor valuer, stated to be based on (unspecified) ‘market evidence’. However, following cross examination, the Court found:

It would therefore appear that the market evidence to which Mr Maunder Taylor was referring consisted of three “comparables”: (i) Firstly, an offer made by Ms Cheng for the Apartment in the sum of £2.8 million in the summer of 2018 which Mr Maunder Taylor referred to as conditional on the noise being identified and resolved. However, the offer was not conditional on the noise being identified and resolved it being Mr Tejani’s case that Dexters and Ms Cheng were not told about the noise but instead about a noisy door that was being fixed. Further, it was common ground that the offer was above market value for the Apartment at the time it was made. (ii) Secondly, what happened in flat 901 was a reference to the sale of flat 901 in 2018 at less than market value. This, sale at an undervalue it transpired, Mr Maunder Taylor had attributed to the existence of the noise in flat 901. However, that was entirely speculation. There was no evidence whatsoever that the price achieved for flat 901 in 2018 had anything to do with the existence of any noise. Indeed, the buyer had apparently not been told about the noise. (iii) The third item referred to by Mr Maunder Taylor concerned an email from a previous tenant of Apartment 701 which stated that the noise was “the single largest reason we decided not to extend our lease of flat 701”. However, whilst taking that information into account, Mr Maunder Taylor had not considered the fact that the current tenant of Apartment 701 has made no complaint in relation to the noise despite occupying Apartment 701 since November 2020. The effect of the issues with the “comparables” or “market evidence” used by Mr Maunder Taylor was significantly to undermine the reliability of his valuations of the Apartment.

Multiple experts and a trial in the High Court (TCC)? That is going to cost a lot…