Issa v Hackney London Borough Council

The court held that a statutory penal provision does not, by implication, create a private civil cause of action for persons harmed by the statutory nuisance unless the statute and its context satisfy established conditions for implying such a remedy. The Public Health Act 1936, Part III, including section 94(2), does not create a private right of action for those harmed by statutory nuisances. Where Parliament has provided a self-contained enforcement code and ordinary private law remedies or landlord covenants historically existed, courts should not imply a further civil remedy.

The plaintiffs were children who alleged that damp and mould in local authority tenanted premises aggravated their asthma. The assistant recorder found causation and held that the defendants' conviction under the Public Health Act 1936 and the criminal enforcement machinery gave rise to civil liability to persons harmed, awarding damages. The defendant local authority appealed on the point whether Part III of the 1936 Act gave rise to a private civil remedy. Leave to appeal was granted and the Court of Appeal heard argument limited to the legal question of whether the statutory scheme implied a civil cause of action.

1. Disposition: The appeal was allowed. The assistant recorder's awards of damages and interest were discharged and the plaintiffs' actions were dismissed.
2. The court held that the question depends on construction of Part III of the Public Health Act 1936 as enacted. The general rule from authority is that when a statute creates a new obligation and a special enforcement mechanism, courts should not imply additional remedies absent clear indicia.
3. The court applied the established conditions (as articulated by Shaw LJ) for implying a civil remedy from a penal statute: (1) the offence must consist of failure to perform a defined duty; (2) the duty must be imposed for the benefit of a class including the claimant; and (3) without an implied remedy the claimant would be without any effective remedy. The court found these conditions not satisfied in the present case.
4. The court emphasised two decisive points: (a) the effect of Part III must be judged as at enactment, when landlord covenants to keep premises fit for habitation commonly existed; and (b) the present facts are unusual because many who suffer loss from statutory nuisances will already have common-law causes of action. Given these considerations, Parliament was unlikely to have intended to create an additional private civil cause of action in Part III.
5. The court considered and placed limited weight on authorities and academic commentary relied on by the plaintiffs. It concluded there was no sound basis to transform the statutory penal machinery of section 94(2) into a free-standing civil cause of action in favour of persons such as the plaintiffs.
6. Practical outcome: appeal allowed; damages and interest set aside; actions dismissed. Legal aid taxation ordered for respondent plaintiffs.

• Court of Appeal (Civil Division): appeal allowed; assistant recorder's awards of damages and interest discharged and both actions dismissed ([1996] EWCA Civ 998).
• Central London County Court: trial before Mr Assistant Recorder Crawford; preliminary ruled criminal conviction rendered defendant civilly liable; awards made (discharged on appeal).