Coventry and others v Lawrence and another

A landlord is liable for a tenant’s nuisance if the landlord directly participates in it or authorises it by letting property where nuisance is an inevitable or nearly certain consequence of the permitted use. Knowledge, inaction, failure to enforce a covenant, mitigation measures, or attempts to protect the reversion do not alone establish participation.

An injunction restraining interference with residential enjoyment may be suspended while the property cannot be occupied, particularly where enforcement would harm the defendant without benefiting the claimant. A court should hear the Government before deciding whether the former conditional-fee costs regime infringed Convention rights.

Homeowners established that noise from a speedway stadium and motorcycle track constituted nuisance. In an earlier judgment, [2014] UKSC 13, the Supreme Court reversed the Court of Appeal’s decision, [2012] EWCA Civ 26, and restored the trial judge’s findings against the operators.

This consequential judgment addressed whether the injunction should remain suspended while the damaged home was uninhabitable; when either party could seek its variation or discharge; whether the landlords had authorised or participated in their tenants’ nuisance; and whether recovery of a conditional-fee success fee and after-the-event insurance premium infringed Convention rights.

1. Disposition. The injunction was suspended until the homeowners’ property became fit for residential occupation. Either side was given liberty to apply at any time to vary or discharge it. By a majority of three to two, the claim against the landlords remained dismissed. The Convention challenge to the costs order was adjourned for a further hearing after notice to the Attorney General and Secretary of State for Justice.
2. Lord Neuberger, with whom Lord Clarke and Lord Sumption agreed, held that a landlord is liable for a tenant’s nuisance where the landlord directly participates in it or authorises it by granting a lease under which nuisance is an inevitable or nearly certain consequence of the permitted use. The racing uses could have been conducted without nuisance. The lettings therefore did not themselves make the landlords liable.
3. A covenant against nuisance does not determine liability. A landlord cannot escape liability for an inevitably authorised nuisance merely by obtaining such a covenant. Conversely, failure to obtain or enforce a covenant does not make a landlord liable where nuisance was not an inevitable consequence of the letting.
4. Participation requires active or direct involvement and depends principally on conduct after the lease. Mere knowledge and inaction are insufficient. Nor did the construction of a noise-mitigation wall, representations to the local authority, an appeal against an abatement notice, or responses to complaints establish participation. Those acts were explicable as protection of the landlords’ reversionary interests and, individually or collectively, did not amount to authorising the nuisance.
5. Lord Carnwath, supported on this issue by Lord Mance, dissented. He considered participation to require a broad, common-sense assessment of all the circumstances. The landlords’ history of involvement, encouragement of the uses, and leading role in negotiations and the abatement appeal made them jointly responsible.
6. The former statutory costs regime produced potentially recoverable costs greatly exceeding the base costs. Whether requiring payment of the success fee and after-the-event premium infringed article 6 or article 1 of the First Protocol was arguable, but could not properly be decided without Government participation. The Aarhus Convention did not assist defendants sued for causing environmental nuisance because its access-to-justice protection concerned members of the public challenging contraventions of environmental law.

1. United Kingdom Supreme Court: In [2014] UKSC 46, varied the operation of the restored injunction, upheld by a majority the dismissal of the claim against the landlords, and adjourned the Convention costs issue.
2. United Kingdom Supreme Court: In the earlier judgment, [2014] UKSC 13, reversed the Court of Appeal and restored the trial judge’s finding that the operators were liable in nuisance.
3. Court of Appeal: In [2012] EWCA Civ 26, held that there was no nuisance and therefore did not determine the landlords’ separate liability.
4. Trial court: Found the operators liable in nuisance, granted an injunction and damages, dismissed the claims against the landlords, and ordered the operators to pay 60% of the homeowners’ costs.