Neil Martin v Ian Cooper

In assessing laches, the court must undertake an equitable evaluation of the length and explanation of the delay, the acts done during the interval, and the resulting balance of justice or injustice. Delay alone will not ordinarily defeat equitable relief.

A continuing nuisance caused by an ongoing state of affairs gives rise to a fresh cause of action on a continuing basis. Damages in lieu of an injunction may compensate reasonable remedial expenditure needed to prevent future injury and bring the nuisance to an end. Such expenditure is not necessarily time-barred as past damage under the six-year limitation period.

The claimant owned 2 Gleaston Lane and the defendant owned the neighbouring property. The claimant succeeded in the County Court on claims concerning sewage escaping from the defendant’s land and damage to a garden wall caused by raised soil levels and garage construction.

The defendant appealed on limited grounds. He argued that laches barred the injunction concerning sewage and that the award of £13,800 plus VAT for a retaining wall was statute-barred, because the relevant damage had occurred in 2011 or between 2011 and 2013.

1. Appeal dismissed. The County Court judgment was upheld.
2. The Judge correctly applied the equitable principles stated by Lord Selborne LC in Lindsay Petroleum Company v Hurd. The relevant assessment included the length of the delay, the explanations for it, the nature of the acts done during the interval, evidential prejudice, and the prejudice to the claimant if the injunction were refused. The delay was not sufficient, and the evidential prejudice was not particularly serious. The defence of laches therefore failed.
3. The appellate court should not interfere with factual findings or evaluations properly open to the trial judge. That principle applied to the Judge’s assessment of the evidence and the balance of prejudice.
4. The claim concerning the wall was not abandoned. A claim for damages in lieu of an injunction under Senior Courts Act 1981, section 50, could coexist with a claim for common-law damages. Abandonment required a clear and unequivocal representation or conduct.
5. The soil build-up and garage foundations constituted a continuing nuisance and an ongoing state of affairs. Unlike the isolated escape considered in Jalla v Shell International Trading and Shipping Co Ltd, the lateral loading continued and created medium- to long-term instability. A fresh cause of action accrued on a continuing basis.
6. The retaining wall was required to prevent future instability and to bring the continuing nuisance to an end. The award was therefore for remedial expenditure and future consequences, rather than merely for past damage accruing more than six years before proceedings. The limitation defence under section 2 of the Limitation Act 1980 failed.
7. The cost of the retaining wall was a reasonable measure of the necessary remedial works. There was no basis for a deduction for betterment, since the retaining wall was required because of the continuing tort and was not an improvement voluntarily sought by the claimant.

1. High Court (King’s Bench Division) — The appeal against the order of HH Judge Dodd was dismissed and the County Court judgment was upheld.
2. County Court at Barrow-in-Furness, sitting at Carlisle — Judgment was entered for the claimant on the sewage and garden-wall claims. The defendant was restrained from permitting sewage or foul effluent to escape onto the claimant’s property, and £16,560 was awarded for the retaining wall expenditure.