Fawcett & Ors v Phoenix Inns Ltd. & Anor

In a private nuisance claim, liability depends on proof that water originated on the defendant’s land, the defendant knew or ought to have known the relevant facts, reasonable steps to eliminate the nuisance were not taken, and the complained-of loss was caused by that failure. Knowledge of the facts constituting a nuisance is sufficient; knowledge of the legal characterisation is unnecessary. On appeal, the court reviews the judgment with the evidence and submissions. It dismisses the appeal where the reasons and a valid basis for the decision are apparent. Where more than one cause contributes to damage, the trial judge may make a reasonable evidential assessment of the proportion caused by the nuisance. A continuing nuisance may justify damages for necessary future repairs.

The claimants owned premises adjoining the defendants’ hotel and alleged that foul and surface water escaped from the hotel drains, crossed the party wall and entered their cellar. Her Honour Judge Moir found a continuing nuisance, granted an injunction and awarded damages for repairs and past and future loss of rent. The defendants appealed, challenging the findings on the source of the water, knowledge, reasonable remedial action, the form of the injunction, causation of damage and loss of rent. They also sought to adduce further dye-test evidence. The central issue was whether the judge’s findings and reasons provided a lawful basis for the orders made.

1. Disposition. Aikens J gave the judgment of the court. Arden LJ and Schiemann LJ agreed. The appeal was dismissed.
2. Appellate approach. Under CPR Part 52.11(1), the appeal was confined to review because no rehearing was sought. Under Part 52.11(3), the appeal could succeed only if the judgments below were wrong or unjust because of a serious procedural or other irregularity. Applying English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, the court reviewed the judgment alongside the evidence and submissions. The reasons were sufficiently apparent and provided a valid basis for the decision.
3. Liability. The judge’s findings established a route for water from the hotel to the cellar, defects in the hotel drainage, the defendants’ awareness of the relevant facts, and the availability of reasonable remedial works. The defendants did not need to know that those facts constituted a nuisance as a matter of law.
4. Injunction. The injunction was sufficiently certain. The identified areas were to be investigated and any leaks repaired. If investigations disclosed no leak in a particular area, the defendants could apply to the court for appropriate relief.
5. Further evidence. The later dye-test evidence was refused. It could readily have been obtained before trial, no adequate explanation for the delay was given, and admission would have required further testing and expense for the claimants.
6. Damages. The judge properly kept causation in view while recognising groundwater as a further source of damage. Her percentage deductions were reasonable inferences from the evidence. The future repairs were attributable to the continuing nuisance, and no error was shown in the loss-of-rent findings.
7. Procedural guidance. Counsel should draw deficiencies in an order or judgment to the trial judge’s attention promptly and assist with the formulation of a clear order, even where instructions are limited. Arden LJ agreed with that general guidance but made no criticism of counsel in this case. The order extended compliance with the injunction to 14 May 2003, awarded the claimants a further £4,680 for lost rent, and granted liberty to apply.

1. Newcastle upon Tyne County Court. Her Honour Judge Moir found the defendants liable in private nuisance, granted an injunction and subsequently awarded damages for completed repairs, future repairs, past loss of rent and future loss of rent.
2. Court of Appeal (Civil Division). The court dismissed the appeal, upheld the liability and damages judgments and upheld the form of the injunction: [2003] EWCA Civ 128.