Mowan v London Borough of Wandsworth & Anor

A landlord is generally not liable in nuisance for acts of a tenant unless the landlord authorised the nuisance or was an occupier of the land from which it emanated. Mere knowledge of the nuisance and failure to use contractual or possession proceedings do not amount to authorisation. The same complaint cannot be recast as negligence where it alleges only a failure to prevent the nuisance, particularly where established authority recognises no relevant duty of care. The Human Rights Act 1998 and Convention rights do not require the Court of Appeal to alter settled common-law principles retrospectively. Other possible remedies, including relief against the tenant or judicial review of the landlord’s decision, may remain available.

Mrs Mowan owned a long-lease flat above which Miss Abrahart, a secure tenant of the London Borough of Wandsworth, lived. Mrs Mowan pleaded serious and persistent nuisance caused by Miss Abrahart’s conduct and alleged that the Council was liable because it knew of the nuisance, failed to abate it and did not pursue possession or injunction proceedings.

The Council applied to strike out the claim as bound to fail. The application was initially refused but succeeded on appeal before Judge Walker in Wandsworth County Court. Mrs Mowan appealed, arguing that the Council was liable in nuisance or negligence and that Convention rights required an effective remedy.

1. Appeal dismissed. The pleaded facts established an actionable nuisance by Miss Abrahart, but the claim against the Council was bound to fail.
2. In nuisance, the ordinary rule is that liability rests with the occupier of the land from which the nuisance emanates. A landlord may be liable where it expressly or impliedly authorised the nuisance, including where the nuisance was certain to result from the purpose for which the property was let. Mere knowledge of a tenant’s nuisance, coupled with failure to take steps under the tenancy, is insufficient. Sir Christopher Staughton and Peter Gibson LJ treated Smith v Scott and Hussain v Lancaster City Council as establishing that rule, consistently with Malzy v Eichholz and the relevant reasoning in Southwark London Borough Council v Tanner.
3. The cases concerning landlords who were also occupiers, or who had special management responsibilities over common parts, did not extend the rule. Lippiatt v South Gloucestershire Council, Hilton v James Smith & Sons (Norwood) Ltd and Chartered Trust v Davies were materially distinguishable. The Court rejected the suggested Queensland approach that reasonable foreseeability at the time of letting was enough.
4. The Human Rights Act 1998 and Articles 6 and 8 of the Convention did not justify changing the common law. The Court was not required to treat settled rules as an impermissible exclusionary rule. The possibility of an injunction against the tenant had not been excluded, and judicial review could provide an appropriate forum for examining the legality of the Council’s decision.
5. The negligence claim was not properly pleaded. In any event, a claim alleging only failure to prevent the tenant’s nuisance was nuisance by another name and disclosed no duty of care or breach. The order striking out the claim was therefore upheld. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): [2000] EWCA Civ 357 — appeal from the decision of Judge Walker in Wandsworth County Court dismissed; application for permission to appeal to the House of Lords refused.
• Wandsworth County Court: Judge Walker allowed the Council’s appeal against the refusal of the strike-out application.
• Wandsworth County Court: Deputy District Judge Iller initially rejected the Council’s application to strike out the claim.