Andrea Clerk v Gas Safe Register

In private statutory-nuisance proceedings, an incorrectly issued civil summons may be a nullity without invalidating the correctly laid information seeking a criminal summons. The defendant must be the statutory “person responsible”, or, where the nuisance arises from a structural defect, the owner of the premises. A body with no right or capacity to enter the premises or carry out remedial works, and which did not install or commission the relevant equipment, will not ordinarily be the person responsible. Costs may be ordered against a litigant who persists in pursuing an obviously wrong defendant after receiving clear notice of the legal defect, where the conduct is unnecessary and improper.

The appellant sought to commence private criminal proceedings under section 82 of the Environmental Protection Act 1990 concerning fumes allegedly emitted from a neighbouring property’s boiler flue. Her correct application for a criminal summons was mistakenly treated by the magistrates’ court as a civil complaint, and a civil summons was issued.

The District Judge held that the civil proceedings were a nullity, declined to issue a criminal summons against Gas Safe Register, and ordered the appellant to pay the respondent’s costs. On appeal by way of case stated, the High Court considered whether the summons and original application were nullities, whether Gas Safe Register could be the person responsible, and whether the costs order involved an error of law.

1. Summons and originating application. The appellant had used the correct procedure by laying an information and applying for a criminal summons under section 82(1) of the Environmental Protection Act 1990. The court mistakenly issued a civil summons. No judge had exercised judicial discretion on whether a criminal summons should issue. The civil summons was therefore a nullity and had to be set aside, but the original application was valid and was not itself a nullity. The magistrates’ conclusion went too far only insofar as it treated the whole proceedings, including the original application, as invalid. This case was materially different from R v Nottingham Justices ex p Brown [1960] 1 WLR 1315, where the originating application itself was defective.
2. Person responsible. The flue formed part of the boiler installed in the house. A defect concerning its position, angle or length was structural. Under section 82(4)(b), the owner of the house, rather than Gas Safe Register, was the proper defendant. In any event, the statutory scheme indicated that Gas Safe Register could not be the person responsible. It had no right of entry, no power or capacity to undertake remedial works, and had not installed or commissioned the boiler. An abatement order against it would be pointless and it would have a reasonable excuse for non-compliance. The respondent therefore could not lawfully be named as defendant.
3. Costs. The magistrates’ court had jurisdiction to order costs under regulation 3 of the Costs in Criminal Cases (General) Regulations 1986. The appellant’s persistence in pursuing the respondent after repeated explanations that it was not the correct defendant justified the finding of unnecessary and improper conduct. The full costs award was within the District Judge’s discretion. The same principles applied to the appeal, which was wholly unnecessary. The appeal was dismissed and the respondent was awarded £4,000 costs, in addition to the £11,241.60 ordered below.

• Willesden Magistrates’ Court: On 16 January 2023, DJ (MC) Bone held that the civil proceedings were a nullity, declined to issue a criminal summons against Gas Safe Register, and ordered the appellant to pay £11,241.60 costs.
• High Court (Administrative Court): The appeal by way of case stated was dismissed. The civil summons was a nullity, but the original application was valid; Gas Safe Register was not the person responsible; and the costs decision disclosed no error of law.