Cocking & Anor v Eacott & Anor

Liability for private nuisance depends on the defendant’s legal relationship with the source property. A landlord who has parted with possession is generally not liable for a tenant’s later nuisance unless the landlord directly participates in it or authorises it by letting the property. A licensor who retains possession and control may instead be treated as an occupier, even if not resident. An occupier may be liable for a nuisance created by another where, after actual or constructive knowledge, the nuisance is not remedied without undue delay. Whether an arrangement called a licence leaves the owner in that position is fact-sensitive. Costs may properly be awarded jointly and severally where the owner was a necessary party because only she could secure abatement.

The claimants owned the property adjoining a house occupied by the first defendant, who lived there under a bare licence from her mother, the second defendant. The first defendant’s dog caused a barking nuisance. The County Court held the mother liable from July 2011 because she controlled the property, knew of the nuisance and failed to abate it. She was also made jointly and severally liable for the claimants’ costs, although she was not liable for the separate shouting nuisance.

The mother appealed on liability and costs. The central issue was whether a non-resident licensor should be treated as a landlord who had parted with possession, or as an occupier responsible for abating a known nuisance.

1. Appeal dismissed. All three members of the Court of Appeal agreed that the second defendant was liable for the barking nuisance and that the costs order should stand.
2. Vos LJ held that landlord liability and occupier liability involve different principles. Under Lawrence v Fen Tigers Ltd (No. 2) [2014] UKSC 46, reported at [2015] AC 106, a landlord is not liable for a tenant’s later nuisance merely because the landlord knows of it and fails to intervene. Direct participation or authorisation by letting is required. That rule did not govern a licensor who retained possession and control.
3. The occupier principle in Sedleigh-Denfield v O’Callaghan [1940] A.C. 880 applies where the defendant has possession and control. The relevant inquiry is whether the defendant knew, or ought with reasonable care to have known, of the nuisance and then failed to remedy it without undue delay. The court rejected the suggestion that the obligation was confined to taking reasonable means to abate the nuisance.
4. On the facts, the daughter had only a bare licence and no right to exclude her mother. The mother paid the bills, maintained the property, knew of the barking and could have removed either the dog or the occupier. Her possession order was not enforced. The nine-month period allowed after the letter before action was sufficient. The position was analogous to that in Page Motors Limited v The Borough Council of Epsom and Ewell CA transcript of 9th July 1981.
5. Lady Justice Arden added that White v Jameson (1974) 18 Eq 303 supported treating a licensor as an occupier. The result may differ where the arrangement is in substance a tenancy, or where a landlord has undertaken obligations whose breach contributes to the nuisance. She also noted the possible application of joint tortfeasance principles, although that issue was not relied on in this case.
6. The judge was entitled under Part 44.2 of the CPR to order the mother to pay the claimants’ costs jointly and severally. She was a necessary party because only she could ultimately secure abatement.

1. Court of Appeal (Civil Division) [2016] EWCA Civ 140: appeal on liability and costs dismissed.
2. Worcester County Court: HH Judge Pearce-Higgins QC held the second defendant liable for the barking nuisance from July 2011 and ordered her to pay damages and the claimants’ costs jointly and severally with the first defendant.