Lloyd v Symonds & Ors Respondent

Damages for private nuisance compensate the claimant for the actual loss of enjoyment suffered. They do not punish the defendant and should not be reduced merely because the claimant invoked available legal or statutory remedies.

A quia timet injunction ordinarily requires a strong probability that the threatened conduct will cause actionable nuisance and irreparable harm. Where an abatement notice already prohibits recurrence, the court should intervene with particular caution and upon cogent evidence that the statutory powers are ineffective.

A cross-undertaking protects against the injustice inherent in interim relief. Compensation is appropriate where facts established at trial show that the restraint would not have been imposed had those facts been known when the injunction was granted.

The appellants kept and bred dogs at premises adjoining the respondent's home and poultry-rearing business. The county court found that excessive barking constituted an actionable nuisance from late November 1995 until the end of May 1996, but that the nuisance had ceased before proceedings began. An abatement notice under section 80 of the Environmental Protection Act 1990 already prohibited its recurrence.

His Honour Judge Hall awarded the respondent £875 damages and imposed a permanent injunction regulating the number and accommodation of dogs. He declined to award the appellants compensation under the cross-undertaking supporting an earlier interim injunction which had required removal of all dogs.

The appellants challenged the permanent injunction and the refusal to enforce the cross-undertaking. The respondent cross-appealed for increased nuisance damages. The central issues were the proper assessment of compensatory damages, the requirements for a quia timet injunction, and the operation of a cross-undertaking after the facts had been determined at trial.

1. Appeal allowed and cross-appeal allowed in part. Chadwick LJ delivered the judgment of the court. Waller and Millett LJJ agreed. The nuisance award was increased from £875 to £3,000, the permanent injunction was discharged, and £2,400 was awarded to the appellants under the cross-undertaking.

2. Damages for nuisance compensate the claimant for the loss actually suffered; they are not imposed to mark or punish the defendant's conduct. The analogy drawn in Bone v Seale [1975] 1 WLR 797 between loss of enjoyment caused by nuisance and loss of an amenity through personal injury supported that approach. The respondent's decision to involve the local authority and solicitors was not a proper reason for reducing compensation. Nor were remedial efforts relevant unless they actually reduced the nuisance. An award of £3,000 fairly reflected six months of nuisance which was more severe at the beginning than at the end.

3. The finding that the nuisance had ceased by the end of May 1996 was one of fact and degree. The trial judge had heard the witnesses and recordings and had viewed the premises. His conclusion was supported by evidence and was not perverse, so the Court of Appeal would not interfere.

4. Since no nuisance existed when proceedings began or when the final order was made, the permanent injunction was quia timet. Such relief ordinarily requires a strong probability that the threatened conduct will produce actionable nuisance and irreparable harm which cannot be prevented by an immediate interlocutory injunction or adequately compensated in damages. The existing abatement notice strengthened the need for caution. The judge should have asked whether the appellants were strongly likely to breach that notice and thereby cause grave and irreparable damage. Those requirements were not met.

5. A cross-undertaking addresses whether the facts ultimately established show that the defendant endured an interim restraint which would not have been imposed had those facts been known initially. It does not depend upon whether the interim judge acted correctly on the evidence then available. As no nuisance existed when the removal order was made, compensation was due for the July boarding costs. The recoverable amount was assessed at £2,400. No later-period damages were awarded because the appellants failed to prove that they could have kept more dogs without breaching the abatement notice.

6. The awards were set off, leaving £600 payable by the appellants to the respondent. The costs orders below were varied, and there was no order for costs in the Court of Appeal.

• Court of Appeal (Civil Division): The appeal was allowed and the respondent's cross-appeal was allowed in part. The nuisance damages were increased to £3,000, the permanent injunction was discharged, and £2,400 was awarded under the cross-undertaking, producing a net award of £600 to the respondent.
• Nottingham County Court: His Honour Judge Hall found that an actionable nuisance had existed but had ceased before proceedings began. He awarded £875 damages, granted a permanent injunction regulating the keeping of dogs, and declined to enforce the cross-undertaking.