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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Fouladi v Darout Ltd & Ors [2018] EWHC 3501 (Ch) (19 December 2018) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2018/3501.html Cite as: [2018] EWHC 3501 (Ch) |
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Neutral Citation Number: [2018] EWHC 3501 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
APPEALS (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Date: 19/12/2018
Before :
MR JUSTICE MORGAN
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Case No: CH-2018-000135
Between:
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SARVENAZ FOULADI |
Claimant/ Respondent |
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- and –
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(1) DAROUT LIMITED (2) AHMED EL KERRAMI (3) SARAH EL KERRAMI |
Defendants/ Appellants
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(4) ST MARY ABBOTS COURT LIMITED
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Additional Defendant to the Original Claim (but not party to the First to Third Defendants’ appeal) |
AND
Case No: CH-2018-001136
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
APPEALS (ChD)
Between:
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SARVENAZ FOULADI |
Claimant/ Appellant |
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- and –
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|
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ST. MARY ABBOTS COURT LIMITED |
Defendant/ Respondent |
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Mr Edwin Johnson QC (instructed by Bircham Dyson Bell LLP ) for the Claimant
Mr Gordon Wignall (instructed by BLM LLP ) for the First to Third Defendants
Ms Philomena Harrison (instructed by Gordon Dadds LLP ) for the Fourth Defendant
Hearing dates: 4-7 December 2018
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................
MR JUSTICE MORGAN
MR JUSTICE MORGAN:
Introduction
2. St Mary Abbots Court is a late twenties/early thirties mansion block development in London W14. The dispute concerned the leases of two flats in Block B. The Claimant is the lessee of Flat 62 and occupies that flat with her mother (“Mrs Fouladi”). The First Defendant is the lessee of Flat 66 and the Second and Third Defendants are the occupiers of that flat. Flat 66 is on the top floor in Block B and Flat 62 is directly below. The Fourth Defendant is the landlord. The flats are held on long leases on the same terms. Both flats are toward the higher end of the London market, the valuers agreed £2,400,000 as the expected value of Flat 62, and the leases refer to them as “high-class”. The First Defendant is a Maltese registered company which the Second Defendant described as being a family asset holding vehicle.
4. The Second and Third Defendants denied the allegations of excessive noise. The Second Defendant explained that he and his family did all they could to reduce the noise they made because they were aware of how upset it made Mrs Fouladi. They did not wear shoes in the house, their chairs had dampening caps on the feet, devices such as the shower, washing machine and dishwasher were not used at unsociable hours. The Second Defendant accepted that he quite often came in late at night but denied being particularly noisy at those times, although he did watch television. He accepted that the Third Defendant would have friends over and that sometimes they would stay late but denied there would be any drum playing or singing. The children were children and so would run around sometimes but not from early in the morning to late at night: they would be too tired and besides had nursery and school to get up for and be alert at. The Royal London Borough of Kensington and Chelsea (“RBKC”) witnessed the alleged noise nuisance and in February 2011, after certain works had been done to the sewage drainage system and shower pumps, decided there was no continuing nuisance.
The judge’s conclusions
7. Following a 8-day trial and a site visit in December 2017, the judge gave a reserved judgment on 28 February 2018. The judgment runs to 46 pages, typed single-spaced. Later in my judgment, when I am considering the challenges made to the judge’s findings, I will need to refer to parts of his judgment in considerable detail. For the present, I will record the essential conclusions which he reached.
An outline of the appeals
Grounds of appeal by First to Third Defendants
Appeals on fact
16. The principles which are to be applied by an appeal court dealing with an appeal against a finding of fact are well established and have been considered in a large number of cases. As it happens, they have been considered twice recently by the Supreme Court in McGraddie v McGraddie [2013] 1 WLR 2477 and Henderson v Foxworth Investments Ltd [2014] 1 WLR 2600. In the second of these cases, Lord Reed said at [67]:
“67 It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
17. In addition, there is a helpful summary of the relevant principles in Fage UK Ltd v Chobani UK Ltd [2014] ETMR 26 at [114], as follows:
“114 Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The best known of these cases are: Biogen Inc v Medeva Plc [1997] RPC 1 ; Piglowska v Piglowski [1999] 1 WLR 1360 ; Datec Electronics Holdings Ltd v United Parcels Service Ltd [2007] UKHL 23; [2007] 1 WLR 1325 ; Re B (A Child) (Care Proceedings) [2013] UKSC 33; [2013] 1 WLR 1911 and most recently and comprehensively McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 . These are all decisions either of the House of Lords or of the Supreme Court. The reasons for this approach are many. They include:
i. The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed.
ii. The trial is not a dress rehearsal. It is the first and last night of the show.
iii. Duplication of the trial judge’s role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
iv. In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.
v. The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).
vi. Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.
115 It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted. These are not controversial observations: see Customs and Excise Commissioners v A [2002] EWCA Civ 1039; [2003] 2 WLR 210 ; Bekoe v Broomes [2005] UKPC 39 ; Argos Ltd v Office of Fair Trading [2006] EWCA Civ 1318; [2006] UKCLR 1135 .
116 I make these points not out of any criticism of the judge. Quite the reverse. His judgment was admirably economical. But in their “replacement skeleton argument” Chobani criticised him for not having dealt in detail with particular evidential points on which they wished to rely in this court; and attacked a number of his detailed factual findings. The judge heard evidence over seven days and read a mass of material. I would therefore be most reluctant to disturb any of his findings of fact (whether primary or evaluative) unless compelled to do so. …
117 In addition some criticism was levelled at the judge for not having dealt more comprehensively with the ingredients that needed to be proved in order to maintain a successful claim in passing off. But the judge’s judgment must be read against the background of what was actually in dispute between the parties. He dealt with the matters that were in dispute, and if he did not dot every “i” and cross every “t” in relation to what was not disputed, I do not consider that that is a valid ground of criticism.”
Ground 1
18. Ground 1 is in these terms:
(1) “The judge was wrong in his approach to the assessment of the evidence of the Claimant and her mother (Mrs Fouladi). He was wrong in that he considered that he could determine to an acceptable “level of generality” the existence of a noise nuisance from the everyday living sounds of Flat 66 by assessing the evidence of the Claimant and her mother on the basis that, although the quality of the evidence they provided was often exaggerated or otherwise not to be believed, the quantitative effect of that evidence alone was probative. He was also wrong in that, having decided that much of the evidence of the Claimant and her mother could not be accepted, he could and should have tested the extent to which there was a nuisance by reference to the opinion evidence which was available to him, in particular that of Dr Latham. (The assessment of the “Nature and Extent of the Noise Nuisance” is at J/143-185; see also the Further Particulars below.)”
“182. Conclusions on Nature and Extent of Noise Nuisance I find that the occupants of Flat 62 could hear day to day living noise coming from Flat 66 to a level which has and continues to have a detrimental impact on the Claimant’s occupation of Flat 62. I find that the noises are the noises associated with everyday living. I find also that those noises include on occasion late night parties but that such parties (even if they do include singing and drumming) are not frequent. I find that the noises include those of children playing and running around, including late at night. The impact of the noise is sufficiently loud to be invasive and disturbing to an objective standard.
183. My summary reasons for these findings are:
(a) Broadly I accept the basic core allegations contained in the diary and emails of day to day living noise. I reject however the exaggerations in the diary. My use of the phrase day to day is intended to exclude such exaggerations and to exclude the allegations of deliberate noise making to annoy (necessarily not part of the everyday).
(b) Furthermore, and even allowing for exaggeration, I accept the evidence of both the Claimant and Mrs Fouladi that they have found living in Flat 66 difficult and disruptive of their day to day lives. This disruption does not prove the nature and extent of the noise nuisance itself but it is consistent with such extent being significant.
(c) These basic core allegations are supported by the RBKC statements, with which they are consistent, and are not undermined by the determination that there was no statutory nuisance. I do not know what criteria RBKC were applying but it seems likely to include the proposition, without more, that day to day noise is not actionable as a statutory nuisance.
(d) My finding that requirements under the lease for noise transmission reduction were not complied means that the barrier between Flats 66 and 62 was not one which was inherently likely to exclude noise transmission.
(e) The failure of the kitchen and bathroom floors to meet building regulation requirements supports my conclusions on the noise transmission issue. Likewise the closeness to the regulatory limit of the wooden floors, combined with the absence of any acoustic mitigation in those floors, also supports those findings (the point being made is simply one of inherent probability).
(f) The recordings as heard by the experts provide some support for the conclusions both as to the day to day nature of the noise and for its level being towards the lower end of what would be bothersome (this being consistent with the agreed statement at paragraph 14).
(g) The criticisms made of the evidence relied on behalf of the Claimant, although successful in some respects, fail to undermine that evidence to the extent that would be required for me to reject what I regard as the core claim – of day to day disturbance from the sounds of day to day living.
184. It follows that I find as a fact that the following material allegations in paragraph 31(2) of the particulars of claim are made out to the extent stated, the Claimant has experienced significant and substantial noise transmission from Flat 66 including the following: noise from the bathrooms; noise from the kitchen; footfall noise, including children running; noise of furniture being moved; noise from voices; doors banging; general unidentified noise transferred from the floor.
185. I also find that these noises can be heard throughout the day and night. The noises that can be heard include the noises from parties, when they occur.”
(1) their answers in cross-examination;
(2) whether they were satisfactory witnesses (he held they were not);
(3) the medical evidence about them;
(4) the fact that they were hyper-sensitive to noise;
(5) the diaries which revealed their personality and their perceptions; their perceptions were in many cases patently untenable; some statements in the diaries were dramatic but worthless; the diaries showed considerable exaggeration and obsessive reactions;
(6) the fact that there had been no demonstration carried out to evidence to the judge on his site visit the extent of the transmission of noise;
(7) the evidence as to the position before the 2010 works;
(8) the arguments about “stacking”, the term used to refer to rooms above each other being used for the same purposes; and
(9) the evidence from the Second Defendant.
“163. However, what I also conclude and this is borne out by the many entries which describe basic domestic activity on the part of the occupants of Flat 66 – cooking and cleaning, children running and playing, people walking, using chairs, watching television and washing – is that the general day to day activity from Flat 66 was audible in Flat 62. I do not consider these many entries are made up and while some of Mrs Fouladi’s conclusions about what sounds are, such as angry breathing, deserve no weight, other conclusions, such as footsteps, washing and voices, are likely accurate because they are the consequence of everyday living in Flat 66.
164. For these matters, and when stripped of its rhetoric and subjectivity, these type of entries comprise the bulk of the potentially relevant material in the diary, the relevant forensic options are either (a) fabricated because there is no sound or (b) these are what was being heard. So far as the diary is concerned (and without at this stage reaching a conclusion about how intrusive these sounds are) I prefer (b).”
“170. I conclude that everyday noises of the type described by the officers could be heard to a disturbing level in Flat 62 coming from Flat 66 and such noises, even at midnight for example, could include children playing. This is what officers recount. Nothing happened to the flooring or otherwise at Flat 66 during the period in question that might have stopped that level of sound from being audible between the two flats. It follows that the basic core of what the Claimant alleges (the everyday type living sounds set out at paragraph 31(ii) of the particulars of claim) could have been audible in general because they were audible by those officers on those particular occasions. Exaggeration, whether in general or otherwise, does not alter this core level of potential disturbance. The logic is:
The RBKC officers provide reliable statements about their own impressions, albeit those occasions are limited and there are other occasions when officers come and hear nothing remarkable.
However, the fact that RBKC officers record everyday sounds being heard at all strongly indicates that such sounds were audible in Flat 62 from Flat 66.
If the sounds were audible on those occasions then it is unremarkable (since the flooring and other relevant context remained the same) that similar sounds caused by everyday living would have been audible on other occasions.
To a great extent that is what the diaries and emails record and to that extent it is not unlikely, once the RBKC officers evidence is accepted.”
“ Material Findings from the Acoustic Experts
98. By the conclusion of their oral evidence, there was a large degree of common ground between the acoustic experts. Perhaps the most significant area of disagreement was over whether it was sufficient, so far as nuisance was concerned, for the various floors in Flat 66 to meet the nearest equivalent building regulations for sound transmission or not. In reality this sufficiency issue is not an expert issue but rather a question of law or fact as to whether meeting the standards is what is required to comply with the contractual obligations set out in the Flat 66 Lease or as a measure of what might or might not be acceptable noise disturbance for the purpose of common law nuisance.
99. The standards most often referred to within the expert reports were the regulations for converted premises and the regulations for new builds. These provide limits of 64 db and 62db respectively for impact sounds and 45 db and 43 db for airborne sounds. After testing the experts agreed that the kitchen and bathroom floors of Flat 66 would not meet either standard for impact sounds. The living room wooden floor was measured at 62db and so would meet the standard. All floors would meet the airborne standard, except where adjacent to the lightwell.
100. The experts did not agree as to whether the standards, of themselves, represented a good level of sound insulation. It seems to me this is too limited a question to be helpful. The court must reach a view as to the nature and extent of the noise interference which, in the present case, is largely derived from the accounts of the Claimant and Mrs Fouladi. The test results have an impact on the assessment of that evidence but the court’s findings must take all the relevant evidence into account (which includes the test results). It is not sufficient to avoid having to address the real issue by simply applying standards.
101. The experts disagreed as to whether the noise from the ensuite shower pump or the bathroom shower pump were such as to warrant replacement. Dr Latham, essentially, considered these were not intrusive enough to require any remedial action. Mr Clarke considered that since the Claimant and Mrs Fouladi found them intrusive and because they could be easily remedied then they should be. For present purposes I note that neither expert considered that the noise from the shower pumps was that loud – Mr Clarke was concerned that it was more intrusive during night use.
102. In his oral evidence, Dr Latham, described the impact noise from Flat 66’s kitchen as one of the worst he had ever tested – a tap could be heard from the Flat 66 kitchen in the Flat 62 living room.
103. In his oral evidence, Mr Clarke emphasized that sound transfer within buildings is complex and changing elements within a structure can have unpredictable consequences.
104. Mr Clarke selected a trial sample of the recordings made by the Claimant and Mrs Fouladi. Both experts listened to those recordings and agreed comments which are set out in Appendix B to their joint report. Looking through these comments the following features appear most significant:
(a) On occasion no sound can be identified as relevant, on others only external traffic can be heard (which is the same evidentially as no sound);
(b) Much of the sounds heard are described as low-level;
(c) The types of sound are often shower pump or running water;
(d) The activities identified are everyday – having showers, footsteps, voices, a child crying, the kitchen floor being swept.
105. Mr Clarke had proposed a solution to the flooring issue which was agreed between the experts to be one which if a best practicable scheme was required throughout Flat 66 would meet such a standard but subject to review of suppliers and practical constraints. It was also agreed, however, that more practicable solutions might be found for the kitchen floor.”
30. Mr Wignall submitted that if I considered the report of Dr Latham, I would see that there was evidence there which the judge ought to have regarded as helpful when considering matters of historic fact. One difficulty with that submission is that Mr Wignall only showed me the report of Dr Latham and did not show me a transcript of the evidence he gave in cross-examination. I was told by Mr Johnson that Dr Latham was cross-examined by reference to the evidence which he gave to the court when acting as the single joint expert in the case of Stannard v Charles Pitcher Ltd [2003] Env LR 10. Mr Wignall did not disagree with what Mr Johnson told me. If I were to form my own assessment of the relevance of the opinions expressed in his report, I would necessarily be looking at only a part of his evidence.
33. It follows that I do not accept Ground 1.
Ground 2
34. Ground 2 is in these terms:
“The judge was wrong to have concluded that “the substance of the noise disturbance that I have found Flat 66 [i.e. Flat 62] to be suffering from has resulted from the changes to Flat 66 carried out by the First Defendant” (J/187). There was no evidence in support of this conclusion, the Claimant having elected to call no expert or other evidence to support this part of its case.”
36. The judge’s finding which is challenged by Ground 2 was in paragraph [187] where he held:
“187. I am satisfied that but for the new floor being as it is, the noise disturbance that I have referred to as present would not have been so. Although I consider that there was noise audible from Flat 66 within Flat 62 prior to the changes to Flat 66 by the First Defendant (either actually or potentially) I am also satisfied that the substance of the noise disturbance that I have found Flat [62] to be suffering from has resulted from the changes to Flat 66 carried out by the First Defendant. In this respect it is telling that: (a) Mr Birch described the changes as having no acoustic strategy; (b) that Mr Birch and Mr Neskovic in their email discussions of May 2011 plainly considered there to be a problem as result of the work done; (c) the RBKC officers, having heard the noise, attributed it to 75% (correcting the 85% slip) to poor noise insulation; (d) the experts agree that a scheme as proposed by Mr Clarke would be the best practicable scheme for mitigating noise transfer, thus necessarily implying that such a scheme would achieve improvement over what was done in 2010; and (e) in the immediate run up to trial the First to Third Defendants made an open offer to carry out some part of these works (not I think to the kitchen or bathroom) which, if nothing else, demonstrates a recognition on their part of a link between the state of the floor and the potential (albeit disputed) noise disturbance, otherwise the open offer would just be wasted expense.”
40. It follows that I do not accept Ground 2.
Ground 4
41. I will take Ground 4 before Ground 3. Ground 4 is in these terms:
“The judge was wrong to have construed clause 3(f) of the Flat 66 Lease, clause 3(f)(i) of which required the tenant “not without the consent in writing of the Landlord [to] carry out or permit to be carried out any addition or alteration to the Premises”, in such a way that provision for a replacement floor had expressly to be included in the licence governing the works. The judge was wrong not to have accepted the submission of the First Defendant, that in all the circumstances, the Fourth Defendant had impliedly licenced the partial replacement floor and therefore given its consent within the meaning of clause 3(f). (See J/108(a)(ii), 120, 133-138.)”
42. By Clause 3(f) of the lease of Flat 66, the lessee covenanted that it would:
“3(f)(i) NOT without the consent in writing of the Landlord carry out or permit to be carried out any addition or alteration to the Premises or any part thereof and not to alter or cut any of the principal walls or timbers thereof nor erect or build any additional or substituted building whatsoever upon the Premises or any part thereof nor carry out or permit to be carried out any alterations to the heating system the hot water system the general plumbing systems and/or any conduits connected thereto without the previous consent in writing of the Landlord (not to be unreasonably withheld)
(ii) IN the event of such consent as aforesaid being granted and the works thereby authorised being commenced carry them out in accordance with any conditions which may be reasonably imposed by the Landlord and complete them in a good and workmanlike manner to the reasonable satisfaction of the Landlord.”
44. As Ground 4 points out, the judge dealt with the question of a breach of clause 3(f) at paragraphs [133]-[138] of his judgment. He rejected various arguments as to why permission under clause 3(f) was not required. Those arguments have not been repeated on this appeal. He held that a Deed of Licence dated 22 February 2010 did not include a permission for the works to the floor. He also held that permission had not been given orally or by any other written communication.
(1) Adjust corridor;
(2) Adjust kitchen;
(3) Adjust size of bedroom 3;
(4) Adjust layout of reception room;
(5) Adjust corridor and internal door width.
47. In the case of each of the five matters referred to in the Second Schedule to the Deed of Licence, the matter is said to be shown on a Plan annexed to the Deed. The Plan is A4 size and very unrevealing. There is no marking on the plan which could be understood to be stating that there was to be any work to the floor of Flat 66.
“THE Tenant will cover and keep covered the floors of the Premises with carpet and an underlay other than the floors of the kitchen and bathroom which shall be properly and suitably covered with suitable material to avoid the transmission of noise.”
Ground 3
52. Having dealt with Ground 4, I will now deal with Ground 3 which is in these terms:
“The judge was wrong to have concluded that if the First Defendant had applied for a licence expressly permitting the new floor, then the Landlord is likely to have required an acoustic strategy, whether or not it was one which would have been consistent with the acoustic strategy which the Claimant’s expert proposed (J/188 and 189). There was no evidence to that effect, the judge not even purporting to rely on any.”
53. The relevant finding of the judge is at paragraph [188] where the judge said:
“I am also satisfied that in not obtaining permission for the new floor, the First Defendant avoided a situation where it would have been required to meet, among other things, Regulation 26 so far as the new floor was concerned. On the balance of probabilities complying with Regulation 26 (and/or otherwise obtaining permission) would have required an acoustic strategy and this is likely to have led to a floor along the lines that the Claimant’s expert proposes (and which in substance was also put forward by Mrs Fouladi in an email of September 2010 and was referred to by Mr Birch in his email discussions with Mr Neskovic).”
Ground 5
59. Ground 5 is in these terms:
“The judge erred in failing to apply the law relating to the recovery of damages in contract. He failed to conclude that it was not in the reasonable contemplation of the First Defendant as the holder of the lease that the works which it undertook might cause noise transference to Flat 62. In the alternative he failed to conclude that the First Defendant had not assumed any liability for noise transference on the renewal of the floor of Flat 66. There was no reason for the First Defendant to have supposed that there had been a re-organisation of flat 62 by the Claimant which might subsequently result in everyday living sounds from flat 66 becoming invasive and disturbing.”
63. Regulation 14 required the lessee to cover and keep covered the floors of the flat in specified ways. The obligation is a continuing one. If, as seems likely, Regulation 14 was not complied with when the First Defendant took an assignment of the lease of the flat, then the First Defendant immediately came under an obligation to cover and keep covered the floors in the specified ways. It was not argued on this appeal that anything in the history of the matter had led to any qualification of this obligation. It was not said that the obligation in Regulation 14 had been modified or varied or waived or that there was any impediment to the Claimant as the lessee of Flat 62 enforcing Regulation 14 against the lessee of Flat 66 under the letting scheme which included Regulation 14.
73. Mr Wignall contended that the result of the Claimant’s changes in around 2004 is that First Defendant was not liable to pay damages for its breaches of contract. This argument on any view goes much too far for at least three reasons. First, the judge held that noise from Flat 66 could be heard throughout Flat 62. Putting the point about the bedroom in Flat 62 being below the kitchen in Flat 66 on one side, the First Defendant has no answer to a claim for damages for the effect of noise on the other rooms in Flat 62. Secondly, the 2010 works in Flat 66 placed a bathroom in Flat 66 above what had been a bedroom before 2004 and remained part of a bedroom after 2004. Any noise from the bathroom into the bedroom below ought to be the subject of an award of damages. Thirdly, Mr Wignall appeared to assume, without any finding to this effect in his favour, that if the room in Flat 62 which was below the kitchen in Flat 66 had remained a kitchen, there would be no nuisance in relation to that kitchen in Flat 62.
An additional point
78. The judge held that the transmission of noise from Flat 66 to Flat 62 constituted a nuisance to Flat 62. He also held that most of the noise was transmitted by activities in Flat 66 which were the result of the ordinary use of a residential flat. At the hearing of the appeal, Mr Wignall referred to Southwark LBC v Mills [2001] 1 AC 1 for the proposition that in the ordinary case, in the absence of some other relevant feature, the ordinary use of a residential flat cannot give rise to an actionable nuisance even if the noise generated by that nuisance constitutes a considerable interference with the use of another flat above or below or adjoining the first flat. How then did the judge conclude that the ordinary use of Flat 66 did constitute an actionable nuisance? The answer was that he held that the nuisance was created in this case by reason of the work done to the floor in 2010 when the pre-existing floor which provided good insulation against sound transmission was taken up and replaced by a new floor which did not provide good insulation against sound transmission.
Ground 6
81. Ground 6 is in these terms:
“The judge was wrong not to have concluded that by re-organising flat 62 the Claimant had rendered the flat and her perception of noise unduly sensitive, with the result that there was no liability on the part of the First to Third Defendants in private nuisance. In the alternative, the judge was wrong not to have concluded that it was not reasonably foreseeable by the First Defendant that the works executed in Flat 66 might cause the Claimant to perceive sounds of day-to-day living from Flat 66 to such an extent that she found them invasive and disturbing.”
(1) the judge held that noise from Flat 66 could be heard throughout Flat 62 and not just in the bedroom below the kitchen;
(2) the 2010 works in Flat 66 placed a bathroom in Flat 66 above what had been a bedroom before 2004 and remained part of a bedroom after 2004;
(3) Mr Wignall appeared to assume, without any finding to this effect in his favour, that if the room in Flat 62 which was below the kitchen in Flat 66 had remained a kitchen, there would be no nuisance in relation to that kitchen in Flat 62.
86. As Ground 6 fails on the facts, I do not need to consider some interesting submissions made by Mr Wignall as to the continued existence of a defence of special sensitivity on the part of a claimant and whether that defence has been replaced by a test of foreseeability as explained by the Court of Appeal (and in particular by Buxton LJ) in Network Rail Infrastructure Ltd v Morris [2004] Env LR 41. I also do not need to consider the further submission that if the defence of special sensitivity has been superseded in the case of a nuisance which causes physical damage it has not been superseded in the case of a nuisance which causes of diminution in the amenity and enjoyment of the use of land.
Ground 7
88. Ground 7 is in these terms:
“The judge was wrong to have concluded that the Second and Third Defendants are liable in private nuisance “because they have occupied [flat 66] without regard to the First Defendant’s lease obligations in circumstances where it would necessarily be the consequence of ignoring those obligations that the noise of their day to day activities will be an unreasonable interference with the use of flat 66 [meaning flat 62]” (J/194).”
89. This Ground arises out of what the judge said when he was considering the claim in nuisance. He set out the principles as to the law of nuisance at paragraphs [121] – [125]. At the trial, the Claimant had relied very heavily on the decision in Stannard v Charles Pitcher Ltd [2003] Env LR 10. That case had similarities with the present case in that the lessee of the flat above the claimant’s flat had altered the floor of the flat above in a way which increased the transmission of noise into the claimant’s flat below. In Stannard , the lease of the upper flat contained a covenant which specified certain standards to be achieved in relation to floor coverings in the flat. The judge in that case held that both parties had agreed that this clause was part of the material background against which it fell to him to determine whether what had been done to the floor was reasonable for the purpose of the law of nuisance. He then explained at [23]:
“23 As stated above, it does seem to me that one of the important features of the overall circumstances of this case is the obligation upon the sixth defendant under his lease, in relation to minimisation of noise. The fact that the covenant is not enforceable by Mr Stannard is of course unfortunate and I should be careful to avoid equating specific obligations owed under the lease with setting the standard for what would constitute noise nuisance. The lease assigned to Mr Al Sharekh, by clause 3, establishes a covenant in the following terms: “In accordance with the said general scheme and for the benefit of the lessees of the other flats comprising the building the lessee hereby covenants with the lessor and the company and the lessees for the time being of the other flats comprised in the building and with each of them that the lessee will from time to time and at all times hereafter during the said term: … (c) observe and perform all and singular the reservations and obligations set out in the fourth schedule hereto.”
The fourth schedule contains this provision:
“16. To keep the floor of all living rooms bedrooms and entrance halls in the said flat covered with carpet or other suitable materials and the floors of the kitchen bathroom and toilets covered with linoleum or other suitable material so as to minimise the penetration of sound into other flats in the building.” ”
90. In the present case, the judge referred to Stannard at [122] when he said:
“The terms of the leases were undoubtedly relevant to the decision in Stannard . They were described by the judge as one of the very material circumstances that applies… . Mr Wignall agreed with the general proposition that the terms of leases are relevant to the assessment of what is lawful or not lawful as a matter of potential liability in nuisance between flats. Mr Wignall did not disagree with the description of the law in Stannard but distinguished it on the facts: it was an example of a defendant doing an obvious and excessive step which made their actions unreasonable in the context of nuisance. The Defendants here, it was said, did no such thing.”
“193. I have set out the relevant legal requirements above. In the present context the “situation specific” assessment of the standard required is informed by the following considerations:
(a)These are residential flats which are part of a letting scheme;
(b) All leases have within them provisions designed to provide some protection from noise transfer;
(c) The role of the Fourth Defendant includes being able to regulate issues which are relevant to noise transfer and its reduction (Regulation 26 being the most pertinent example);
(d) Plainly the flats are intended for residential use and all other things being equal residential use will not amount to a noise nuisance;
(e) However, all other things being equal, in context, includes the expectation of all owners and occupiers of the block that their co-owners and occupiers will comply with the mutual lease obligations;
(f) This, just as much as the give and take necessary for adjacent residential occupation, is part of that which must be done in order to be considerate to the appropriate standard and is part of convenient reciprocity;
(g) The description of the flats within the lease as high-class does not add anything in the present case;
(h) Building regulations, of themselves, are of no assistance in this respect. What matters for nuisance purposes is the consequence to the neighbour’s property and whether that consequence is within or without that which in the circumstances is acceptable.
194. It follows that I find that the First to Third Defendants have committed nuisance to the Claimant, as owner of Flat 62, throughout their occupation of Flat 66. This is because they have occupied without regard to the First Defendant’s lease obligations in circumstances where it would necessarily be the consequence of ignoring those obligations that the noise of their day to day activities will be an unreasonable interference with the use of Flat [62].
195. No attempt has been made to distinguish, in argument, the nuisance claims against the First Defendant, the Second Defendant and the Third Defendant.”
94. Mr Johnson objects to the Second and Third Defendants being permitted to argue a new point on appeal. I agree that the point is a new point. Mr Johnson relied on the decisions in Jones v MBNA International Bank (Court of Appeal, 30 June 2000, unreported) and Crane v Sky In-Home Ltd [2008] EWCA Civ 978. Those cases explain the attitude which an appeal court should take to a point being raised on appeal when that point was not raised at the trial. Mr Johnson submitted that if the Second and Third Defendants had raised this point in the course of the trial, then it would have given rise to fact sensitive questions which were not addressed as the point had not been taken.
98. So far, I have not discussed whether the terms of the lease of Flat 66 were relevant to the liability of the Second and Third Defendants in nuisance. Indeed, although Mr Wignall did not argue this, it might be said that the terms of the lease were also not relevant to the liability of the First Defendant in nuisance. Whether the First Defendant had or had not committed a breach of contract (by failing to comply with a contractual standard) is not obviously relevant when one is considering the standard which is laid down by the law of nuisance and whether an occupier has complied with that standard. However, I can say that I am inclined to take the view that the fact that a lease lays down a contractual standard for conduct does not tell one very much, if anything, as to what the law of nuisance should impose as the relevant standard. There will no doubt be cases where certain conduct would not amount to an actionable nuisance but yet the contracting parties can expressly agree, if they wish, that one of them will be given a higher degree of protection pursuant to an express contract. If that is right, I would also be inclined to hold that the requirements of the law of nuisance should apply equally as regards the First Defendant who is bound by the contractual provision and the Second and Third Defendants who are not so bound.
Ground 8
99. Ground 8 is in these terms:
“ The judge was wrong to have ordered the Appellants to pay £40.18 damages per diem up to the completion of the Scheme of Works which he had ordered. When the Second and Third Defendants are out of Flat 66 at the commencement of the works, or on holiday or otherwise absent, there will be no sounds of ordinary daily living and therefore no loss. Given that the judge had decided that an award of general damages should affect interference with amenity value (J/221), he was wrong to have ordered damages to be recoverable after the date of his Order without proof of damage (Order, para.3(2).) ”
100. The judge dealt with the assessment of damages at paragraphs [213] to [229] of his judgment. His approach to assessment was the same for the claim in nuisance and the claim for breach of contract. At [221], he held he would consider the extent to which the amenity value of Flat 62 was damaged by the nuisance. He held that the noise from Flat 66 was “a real and constant presence” for the occupiers of Flat 62. At [223], the judge referred to the periods when the Claimant’s (and her mother’s) diaries and emails did not record noises from Flat 66. In that respect, the judge did not think that these periods showed that there had been a difference in the nature or extent of the nuisance. At [226], the judge held that damages should be assessed at £281.25 per week from 6 November 2010 when the Second and Third Defendants moved into Flat 66.
105. I have explained that when the judge awarded damages for a period in the past, he was not asked to deduct from the period for compensation the days when the Second and Third Defendants were away from Flat 66. The parties and the judge adopted the same attitude in relation to the period after 3 May 2018. Accordingly, Ground 8 raises a point which was not raised before the order was made. If the point had been made, there could have been various submissions made as to the right response. The judge might very well have taken the view that it was not appropriate to adopt a different attitude for the future as compared with the past. I will not allow the First to Third Defendants to raise this point for the first time on appeal.
106. Mr Wignall raised a further matter at the hearing. He told me on instructions that the Second and Third Defendants had spent many months this year living in their home in Malta and not in Flat 66. Mr Wignall said that the new circumstances meant that even if the order for a daily rate could not be challenged by reference to matters which preceded the order, I should set aside the order in the light of the changed circumstances. Mr Johnson on instructions did not accept that the factual position was as described by Mr Wignall. I was not given any evidence on this disputed question and I am not able to make any finding about it. I therefore cannot consider allowing the appeal pursuant to Ground 8 on the basis of new evidence which was not available when the order was made. I will not comment on the possibility referred to at the hearing of an application being made to the judge for a variation of the order in the light of an alleged change in circumstances.
107. I will not allow an appeal on Ground 8.
Ground 9
108. Ground 9 is in these terms:
“The judge was wrong to have concluded that he was entitled by way of a mandatory order to require the First Defendant to undertake a scheme of works such as that proposed by Mr Clarke or to have made the order in the wide-ranging terms specified (J/230(a)). He was entitled only to grant an order the effect of which would be to require the First Defendant to comply with the terms of its lease. By regulation 14 of the regulations in the second schedule of the lease, carpet and underlay were required as a covering of the floors of Flat 66, save that the kitchen and bathrooms were required to be “covered with suitable material to avoid the transmission of noise” (see (J/108(a)(iii)). The making of the Order was outside the proper exercise of the judge’s discretion.”
111. The judge did not define the required works by his order of 3 May 2018. The Claimant invited him to do so but he explained that, certainly in relation to the contractual obligations on the First Defendant, if there were various different ways of complying with its contract, the choice of method should in the first instance lie with the First Defendant. The judge’s order then laid down a procedure whereby the First Defendant would identify what it intended to do and then the acoustic expert for the Claimant would consider whether to approve the works identified by the First Defendant. If the identified works were approved by the Claimant’s acoustic expert then they were to be submitted to the landlord for permission pursuant to the lease. When approved in that way, the First Defendant was then obliged to carry out the works.
113. One point made by Mr Wignall, as I understood him, was that it was not right that the Claimant’s acoustic expert could withhold approval placing the burden on the First Defendant of arguing that consent had been unreasonably withheld. Such an argument would require the First Defendant to show that no reasonable person in the position of the acoustic expert could withhold approval. That is a much higher threshold to cross as compared with simply persuading the judge to prefer the First Defendant’s scheme of works to that required by the Claimant’s acoustic expert. I recognise the arguability of that point. However, I consider that it is adequately dealt with by paragraph 16 of the Order which gives the parties liberty to apply to the court in connection with the proposed works. I would construe paragraph 16 of the Order as permitting the court to decide on such an application what work it wishes to order to be carried out even without going so far as holding that no reasonable person could take the view adopted by the Claimant’s acoustic expert. Mr Johnson argued the contrary. If I had accepted Mr Johnson’s argument, I might have been more prepared to alter the earlier provision in the order in so far as it allowed the Claimant’s acoustic expert to withhold approval if a reasonable person could withhold approval and even where the court would have taken a different view from the acoustic expert.
The result in relation to the appeal by the First to Third Defendants
115. Having now addressed all nine grounds of appeal put forward by the First to Third Defendants, my conclusion is that their appeal should be dismissed on each ground and the judge’s order should not be set aside or varied. It will, however, be necessary at the hand down of this judgment to reset the timetable in that order for the First Defendant to carry out remedial work.
The Claimant’s appeal
120. The parties did not appear to disagree as to the relevant legal principles, save that they do not agree as to what principle I should derive from the decision of the Court of Appeal in Chartered Trust plc v Davies [1997] 2 EGLR 83. In these circumstances, I will set out a brief summary of the law and then refer further to that case.
121. A landlord is not liable for a nuisance caused by his tenant merely because he does not take steps (which are available to him) to prevent what is being done, even where he knows that his tenant is causing a nuisance: see Malzy v Eichholz [1916] 2 KB 308. Although the continuing authority of this decision was questioned in Chartered Trust plc v Davies , its authority was recognised by Lord Millett in Southwark LBC v Mills [2001] 1 AC 1 at 22A-B; the remarks of Lord Hoffmann in the same case at 15D-E appear to be to the same effect although he did not cite Malzy v Eichholz .
122. Malzy v Eichholz was considered in more detail by Lord Neuberger in Lawrence v Fen Tigers Ltd (No 2) [2015] AC 106 at [11]-[14]. He ruled that the earlier case was still good law. The other members of the Supreme Court agreed; see, in particular, Lord Carnwath at [51].
123. It is clearly established by Southwark LBC v Mills and Lawrence v Fen Tigers Ltd (No 2) that a landlord can be liable for the nuisance of the tenant if he participates in the nuisance or authorises it. Some of the authorities, dealing with the concept of authorisation refer to “authorisation by letting” to the tenant in question. In that context, it has been held that merely granting a lease which does not allow the landlord to prevent the nuisance does not make the landlord liable. The landlord is only held to authorise the nuisance by the letting if the commission of such a nuisance is an inevitable consequence of the letting. But the concept of authorising the nuisance is not confined to a case of authorisation by letting.
124. The concept of “participation” was considered in Lawrence v Fen Tigers Ltd (No 2) . Lord Neuberger said at [18] that such participation must be “active” or “direct”. He also said at [26] that the notion of authorising or participating in a nuisance was not limited to cases of landlords but was a general principle of tortious liability. I interpret this as indicating that what the court should do is to apply the general principles as to when someone is a joint or several tortfeasor and so liable for a tort committed by him with others. My reading of the judgment of Lord Carnwath in that case, at [57]-[59], is to the same effect.
125. In this case, Mr Johnson argues that the conduct of the Fourth Defendant in connection with the works to the floor amounted to the Fourth Defendant participating in the nuisance caused by those works. Before considering that submission further, I comment that it is at first sight very odd, on the facts of this case, that it is being submitted that the Fourth Defendant did not authorise the works to the floor but yet it participated in the nuisance caused by those works.
(1) a landlord failing to take steps to prevent a nuisance when he does not know that a nuisance is being carried out;
(2) a landlord failing to take steps to prevent a nuisance when he does know that a nuisance is being carried out;
(3) a landlord authorising a nuisance; and
(4) a landlord participating in a nuisance.
I do not say that it is impossible to find that a landlord has participated in a nuisance created by his tenant even where he has not authorised the nuisance. A case where that could arise is where, on the particular facts, the landlord is directly involved in the nuisance but cannot be said, separately, to have authorised it because his authority for the nuisance was not needed under the pre-existing terms of the lease. Indeed, in Lawrence v Fen Tigers Ltd (No 2) , it was held that the landlord had not authorised the nuisance by letting the premises to the tenant but the Supreme Court went on to consider whether, on the facts, the landlord was liable on the ground that he had participated in the nuisance.
128. The judge held that the case was governed by the principle in Malzy v Eichholz . He held that the failure of the Fourth Defendant to prevent the works to the floor did not render it liable in nuisance. He distinguished Chartered Trust plc v Davies on the ground that the Fourth Defendant was not in possession and control of Flat 66.
130. Mr Johnson submitted that the Fourth Defendant had control of the works because it had the power to withhold consent to the works or to grant consent subject to conditions. He also stressed that that Fourth Defendant knew that the works were being carried on. He relied heavily on Chartered Trust plc v Davies . Indeed, I do not think that his case would have been arguable but for the reliance he sought to place on Chartered Trust plc v Davies . Mr Johnson pointed out that the landlord in that case was held liable in nuisance for failing to stop the nuisance of which it was aware and which it might have been able to stop.
131. It is clear that some of the reasoning in that case is not consistent with the law as stated in Malzy v Eichholz . It is also now clear that the law is correctly stated in Malzy v Eichholz and that is the law which I ought to apply in this case. Chartered Trust plc v Davies was not cited in Southwark LBC v Mills and the actual decision was explained in Lawrence v Fen Tigers Ltd (No 2) at [14] as being possibly justified on the ground that the landlord in that case was in possession and control of the common parts of the shopping centre. As I will apply the legal principles as stated in Malzy v Eichholz , it follows that I will not apply the incompatible statements of principle in Chartered Trust plc v Davies .
132. It follows that I consider that the judge was right to apply the law as stated in Malzy v Eichholz in this case and, applying that law, was right to hold that what the Fourth Defendant had failed to do, when it did not prevent the First Defendant carrying out works to the floor, did not make it liable for the nuisance which was created. Mr Johnson does not submit that the landlord authorised the nuisance. On the judge’s findings of facts, I consider that he was right to hold that the actions or omissions of the Fourth Defendant did not amount to participation in the nuisance.
134. Accordingly, I will dismiss the Claimant’s appeal against the Fourth Defendant.
A final comment
135. Before parting with the case, I wish to pay tribute to the trial judge for the quality of his judgment in this case. This cannot have been an easy case to try. Emotions plainly ran high on both sides. The judge was not impressed by the evidence given by the Claimant and her mother but he rightly directed himself that he did not have to reject everything that was said on their behalf. Equally, although the behaviour of the First to Third Defendants was open to specific criticisms, the judge used very moderate language in that respect and was not prepared to hold that they had done very much which went beyond using Flat 66 for ordinary purposes. The problem as found by the judge was that the floor laid as part of the 2010 works was not a suitable floor to prevent the transmission of noise and was worse than the floor which was there before the works. As I have said more than once already, the judge’s consideration of the large body of evidence appears to me to have been meticulous and his findings were clearly expressed and he correctly decided all the disputed points of law.