Damian Ferko v Ealing Magistrates Court & Ors

On a submission of no case to answer, magistrates must give brief but sufficient reasons explaining why the prosecution evidence could not support a conviction. They must apply the Galbraith test to the matters the prosecution had to prove and to the evidence relied upon.

For statutory nuisance under the Environmental Protection Act 1990, “but for” causation is unnecessary. A defendant may be responsible where their act or default materially contributes to the nuisance, even if another person also contributed. Structural disrepair is not a prerequisite. Notice need identify the nuisance complained of, enabling inspection and remedial action; it need not diagnose particular defects. Later additional reasons cannot cure a failure to give adequate reasons when judgment was delivered.

The appellant prosecuted the respondents under section 82 of the Environmental Protection Act 1990, alleging that damp and mould at rented premises constituted a statutory nuisance. The respondents included the lessee and property manager and the registered freeholders.

After the prosecution evidence, including expert evidence concerning condensation, inadequate insulation, defective ventilation and windows, the magistrates ruled that there was no case to answer. They later added reasons in correspondence and in the case stated. The appeal concerned the adequacy and timing of those reasons, causation, structural disrepair, fitness for human habitation, notice, and whether the evidence was sufficient to require a trial.

1. Outcome. The appeal by case stated was allowed. The magistrates’ decision was set aside and a new trial was ordered.
2. Reasons. Magistrates accepting a submission of no case to answer must give reasons sufficient to explain why the application succeeded. The reasons may be brief, but must identify what had to be proved, the prosecution evidence relied upon, and why that evidence was insufficient. The reasons given for the lessee and property manager merely recited the Galbraith test and were inadequate (paras [40]–[43]).
3. Reasons must be given when the decision is delivered. Later additions may amplify or reformulate existing reasons, but cannot introduce new reasoning to support the result. Retrospective reasoning is procedurally improper because it may involve, or appear to involve, post-rationalisation (paras [44]–[48]).
4. Under section 82(5) of the Environmental Protection Act 1990, “but for” causation is unnecessary. Liability may arise where a defendant’s act or default materially contributes to a statutory nuisance. A tenant’s contribution does not exonerate others unless it shows that the tenant was the sole source of the nuisance (paras [49]–[56]).
5. The prosecution expert’s evidence established a sufficient connection between the state of the premises, including inadequate insulation and ventilation, and the mould and condensation. The evidence was not tenuous or weak and should not have been rejected at the close of the prosecution case (paras [52]–[56]).
6. Structural disrepair is not a threshold requirement under section 79 or section 82 of the Environmental Protection Act 1990. A statutory nuisance may arise from a matter or thing prejudicial to health or a nuisance, including conditions caused by poor thermal qualities or other defects. Expert evidence was also relevant to fitness for human habitation under section 9A of the Landlord and Tenant Act 1985; the magistrates could not replace that evidence with an arbitrary assessment (paras [57]–[67]).
7. Notice under section 82(6) need specify the matter complained of sufficiently to permit inspection and remedial action. It need not itemise works, identify every defect, or diagnose causation. Complaints of damp and mould and the notice of intended proceedings were sufficient (paras [68]–[70]).
8. The evidence disclosed a case requiring trial against each respondent. The magistrates’ findings on causation, notice, structural disrepair and fitness for habitation were legally and factually unsustainable (paras [71]–[75]).

• Ealing Magistrates’ Court: On 27 and 28 July 2022, the magistrates ruled at the close of the prosecution case that there was no case to answer against the respondents.
• High Court (Administrative Court): The decision was set aside on appeal by case stated, and a new trial was ordered: [2024] EWHC 2592 (Admin).