Corby Group v Corby Borough Council

Damages for personal injury remain recoverable in public nuisance. The rule was not impliedly reversed by Hunter v Canary Wharf Ltd [1997] AC 655 or Transco plc v Stockport MBC [2003] UKHL 61, which concerned private nuisance and the rule in Rylands v Fletcher; their observations did not decide public nuisance. Public nuisance protects the public against unlawful acts or omissions endangering life, safety or health, whereas private nuisance protects interests in land. The Court of Appeal had to apply the established law. A claim should be struck out at the pleading stage only where it has no real prospects of success.

Eighteen claimants alleged that exposure during pregnancy to toxic materials released during the Council’s reclamation of contaminated land caused upper-limb deformities. Their group claim initially pleaded negligence. Additional points of claim later introduced public nuisance, to which the Council objected on the ground that damages for personal injury were unavailable.

Master Leslie dismissed the Council’s application to strike out the public nuisance claim on 25 June 2007. Permission to appeal was granted by Foskett J. The central issue was whether the decisions in Hunter v Canary Wharf Ltd [1997] AC 655 and Transco plc v Stockport MBC [2003] UKHL 61 had altered the law so that personal injury damages could no longer be claimed in public nuisance.

1. Appeal dismissed. Lord Justice Dyson delivered the judgment. Lady Justice Smith and Lord Justice Ward agreed. The refusal to strike out the public nuisance claim was upheld.
2. The Council accepted that the amendment could be refused only if the public nuisance claim had no real prospects of success. The issue was a developing and important question of law, and the Council did not allege prejudice from the amendment.
3. Damages for personal injury cannot be recovered in private nuisance because that tort protects rights in or enjoyment of land. The same principle applies to the rule in Rylands v Fletcher, treated as a species of private nuisance. But neither Hunter nor Transco concerned public nuisance or a claim for personal injury damages in public nuisance. Their relevant observations were therefore obiter in that context. Lord Goff’s reference in Hunter to a developing school of thought was neutral and did not endorse a change in the law. Lord Hoffmann’s observations concerned private nuisance, and the equivalent passage in Transco concerned the rule in Rylands v Fletcher.
4. The established principle that personal injury damages are recoverable in public nuisance had not been impliedly reversed. The Court of Appeal could not change that law merely because the House of Lords might later adopt Professor Newark’s contrary view.
5. Public nuisance and private nuisance protect different interests. Public nuisance concerns unlawful acts or omissions endangering the life, safety, health, property or comfort of the public. It does not necessarily involve interference with land. Even without the constraint of precedent, the Court would have allowed the issue to proceed to full argument after trial rather than strike it out on the basis of the existing authorities and academic criticism.
6. The claim had real prospects of success. The forthcoming trial would not be substantially lengthened by retaining it. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 463: appeal dismissed. The Court upheld the refusal to strike out the public nuisance claim.
• High Court of Justice, Queen’s Bench Division — Master Leslie dismissed the Council’s strike-out application on 25 June 2007, holding that the claim could not be said to have no real prospects of success.