Baddeley & Anor v Barker

A court must not finally dismiss a nuisance or negligence claim by concentrating only on whether the nuisance can be wholly removed in future. It must also determine the pleaded claims for damage caused before the hearing, including whether reasonable earlier remedial works would have prevented or reduced that damage.

Where those issues depend on disputed evidence about flooding, drainage and the effect of works, a summary disposal without prior notice or a proper opportunity to call evidence is unjust. Once a claimant proves that a nuisance emanated from land in the defendant’s possession or control, the defendant may bear the burden of establishing a defence, including that all reasonable preventative steps were taken.

The claimants owned a cottage repeatedly flooded by water collecting on the defendant’s adjoining land. They alleged nuisance and negligence, contending that inadequate drainage from a pond on the defendant’s land caused floods between 1993 and 2000. They sought damages and an injunction.

The Stoke-on-Trent County Court dismissed the claim at a listed trial after treating the joint expert’s report and witness-statement material as sufficient. The judge held that only the highway authority could construct the culvert needed to remove the drainage problem.

The claimants appealed. The central issue was whether the judge could dismiss the whole claim without hearing evidence about past flooding, the adequacy of works undertaken in 1998 and November 2000, and the burden of proving reasonable steps to abate the nuisance.

1. Appeal allowed unanimously. Lord Justice Ward, with whom Lord Justice Buxton and Lord Justice Mance agreed, held that the dismissal could not stand. The judge focused on whether the nuisance could be completely removed as at the expert report in October 2001. He did not determine the claims for damage caused by earlier floods.

2. The relevant factual questions included whether the November 2000 work, if undertaken earlier, would have wholly or partly prevented flooding from the defendant’s land, and whether the later flooding instead came from the highway. The joint expert’s report described the November 2000 work as an improvement. Evidence from the claimants could also have shown that no further flooding came from the defendant’s land after that work. Those matters required evidence and findings; they could not fairly be resolved summarily.

3. The court also held that the allocation of the burden of proof required consideration. It drew attention to [2002] QB 929, which stated that, once a claimant proves a nuisance emanating from land under the defendant’s possession or control, the defendant must establish a defence, including that reasonable steps were taken. That issue might materially affect a case in which evidence of the effect of remedial works was sparse.

4. The procedure adopted at the purported trial was unsatisfactory. The judge had effectively considered a summary process under Part 24 without a proper prior application or notice. The matter was remitted to the County Court for rehearing, with an early case management conference. The respondent was ordered to pay costs, and the parties were directed to use their best endeavours to mediate.

• Court of Appeal (Civil Division): Allowed the claimants’ appeal, set aside the dismissal, and remitted the matter for rehearing.
• Stoke-on-Trent County Court: His Honour Judge Krikler dismissed the claim for nuisance or negligence on 4 March 2002.