Steenberg & Anor v Enterprise Inns Plc & Anor

A consent order settling claims of which the parties were aware does not ordinarily bar a later nuisance claim based on a cause of action that had not accrued, or was not known, when the order was made. A private nuisance claim is fact-specific, and a fresh cause of action arises when further actionable damage occurs. A trial judge should not determine an abuse-of-process issue by making concluded findings on disputed facts before the relevant evidence has been heard. A hybrid procedure which effectively strikes out a claim mid-trial may cause serious unfairness.

The claimants appealed against the dismissal of their private nuisance claim by HHJ Mithani in the Derby County Court. The claim concerned alleged kitchen noise, compressor noise and cooking odours from a public house adjoining the claimants’ home.

The defendants relied on a 2001 Tomlin consent order which had compromised an earlier nuisance action. The judge treated the later claim as an attempt to relitigate settled matters, ruled on the issue after part of the claimants’ evidence, and dismissed the claim before the expert and second claimant had given evidence. The central issues were the construction of the consent order, the possible application of its planning-condition exception, and whether the procedure adopted was fair.

1. Appeal allowed. The consent order settled all claims of which either party was aware on 16 January 2001, subject to its express exceptions. The words “all claims howsoever arising” were broad, but the order did not preclude a claim of which a party was then unaware.
2. Awareness of a nuisance claim required, at minimum, knowledge of acts or omissions which, if established, would amount prima facie to actionable interference with ordinary use and enjoyment of property. The claims in the Second Action arose from use of the kitchen from 2002 onwards and therefore post-dated the consent order. The fact that the same premises and substantially the same parties were involved did not make them settled claims.
3. Arden LJ added that a fresh cause of action in nuisance arises whenever further actionable damage occurs: Darley Main Colliery v Mitchell