Remedies to private nuisance

Question 1

Common Law Damages

Answer 1

C may recover damages for past harm (material damage) and for inconvenience (unreasonable interference with amenity).
* Damages at common law are appropriate for harm caused on isolated occasions.
* Often priv nuisances are reoccurring or ongoing - claimant will likely want an injunction - C may return to court in respect of further interferences (Redland Bricks v Morris).

Future (Anticipated) Harm:
* 1 Injunction - worst = prohibitory (stop interference - norm what C want) and a mandatory injunction (req D to do something positive e.g. spend money to counter effects - cost benefit calculation) and a qualified injunction (accommodate land uses, restrictions e.g. certain times)

• 2 Damages in lieu of an injunction e.g. live near newly estab industrial activity which serves public interest, clash, want it stopped but judges persuaded by D you must not be inattentive to public interest - judges may give payment which rec ongoing interference and allows it to continue - claimant would like a remedy but get damages in lieu of injunction
• 1 & 2 may be coupled with damages for past harm.

Question 2

Remedies - Injunctive Relief:

Answer 2

Where D breaches an injunction (by continuing a nuisance), C may recover damages for harm suffered after the injunction was granted. See Hole v Chard. - past harm

Question 3

Remedies - Injunctions: Five Propositions

Answer 3

• An equitable remedy (that operates in personam). - operates on parties for particular dispute, focus on their relationship
• Granted at the discretion of the court. - discretion is very strong
• May be granted subject to conditions.
• The sanction for breach of an injunction is contempt of court (D may be fined or imprisoned). (‘Rights and duties … may exist on paper, but those who are unimpressed by pieces of paper may still have a healthy respect for threats of imprisonment’ (Patrick Atiyah, Pragmatism and Theory in English Law (1987), 21.) - once injunction is granted there is a conditional threat
• C must monitor compliance. - C has eye on D and monitor if they are acting in compliance with injunction

Question 4

Remedies - Grounds for Granting an Injunction

Answer 4

• C must prove that his or her proprietary rights are being interfered with by D (who intends to continue to wrong C).
• C will be denied injunctive relief if damages are an adequate remedy.
• The court will not impose on D an obligation that is impossible, cannot be enforced, or is unlawful (Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd). This is the feasibility requirement.

Question 5

prohibitory injunction

Answer 5

prohibiting D from unreasonably interfering with C’s interests.
* Prohibitory injunctions focus on harm to C.
* D is left to decide how to act. - act in ways that bring interference to a hold - it must stop

Question 6

mandatory injunction

Answer 6

requires D to take positive action. - instruction which introduces of incursion into liberty of freedom of action - cautious

This remedy should be refused where cost to D is out of all proportion to advantage to C (Redland Bricks v Morris).

Redland Bricks v Morris: D’s clay-digging operations undermined C’s wall.
* Cost of restoring support to C’s wall: £35,000.
* Value of land affected by D’s clay-digging operations: £1,500.

• Mandatory injunction refused by House of Lords.
• Here we see the courts engaging in (crude) cost-benefit analysis.
• Per Lord Upjohn: it must be possible for D to know exactly what he or she has to do if remedy it to be used

Question 7

Qualified injunction

Answer 7

Kennaway v Thompson: C’s house lay next to a lake.
* Power-boat races took place on the lake. (Competing land uses.)
* The Court of Appeal granted C a qualified injunction.
* The injunction restricted the number of boat races, the duration of races, and specified noise levels. - court can specify duration, noise etc - aim is to estab a fair accom of competing land uses

invitation to parties to return to court if belief this relief can be modified

Question 8

The quia timet injunction

Answer 8

‘because he [or she] fears’. - fearful C and fears some kind of damaging unreasonable interference e.g. if C sees dangerous accumulation which if escape occurs could create damage

• An injunction to prevent an apprehended legal wrong.
• C must establish justifiable fear of irreparable harm to property or self (Redland Bricks v Morris).

Question 9

Remedies - The Suspension of Injunctions

Answer 9

Rationale: D is given time to adjust his or her behaviour so as to comply with the order.

• Stollmeyer v Trinidad Lake Petroleum Co Ltd (Privy Council): nuisance caused by pollution of water. Injunction suspended for two years.

D may be required to compensate C for unreasonable interferences during the period in which the injunction is suspended (Stollmeyer v Trinidad Lake Petroleum Co Ltd). - pay common law damages

Injunctions may be suspended in a range of circumstances.
* Public utilities: D may provide an essential service: e.g., a sewerage system, as in Pride of Derby Angling Association Ltd v British Celanese Ltd (where D was given two years to modify its activities).
* Privately owned oil depot: Halsey v Esso Petroleum. D was given six months to abate smells and night time noise.
* Injunctions may be suspended in a range of circumstances.
* Public utilities: D may provide an essential service: e.g., a sewerage system, as in Pride of Derby Angling Association Ltd v British Celanese Ltd (where D was given two years to modify its activities).
* Privately owned oil depot: Halsey v Esso Petroleum. D was given six months to abate smells and night time noise.

Question 10

Damages in Lieu of an Injunction: (damages instead of an injunction)

Answer 10

Power to award damages in lieu of an injunction: originally conferred on the courts by the Chancery Amendment Act 1858, section 2 (Lord Cairns’ Act).

The Principles in Shelfer v City of London Electric Co:
* Injury to C must be small; injury to C can be expressed in monetary terms; monetary compensation would be an adequate remedy.

• Coventry v Lawrence (Supreme Court): a more flexible approach to damages in lieu of an injunction.
• Procedural point: D must put forward the case for awarding damages in lieu of an injunction.
• Bracewell v Appleby – damages in lieu of an injunction should represent ‘a proper and fair price’ for the continuing interference.
• An imposed sale. Court effectively grants D permission to continue the interference.
• The spectre of expropriation.
• Coventry v Lawrence (Supreme Court): discussion of a reasonable price for the interference.
• Pennington v Brinksop Hall Coal Co: C sought an injunction (and secured); D argued that an injunction would close his business at a cost of £190,000; D also argued that 500 workers would lose their jobs.
• Injunction granted.
• Expected harm to C: £100. - view is that property rights should be vindicated
• Normative question (concerning the exclusionary force of property rights): when should the public interest override private rights?
• Watson v Croft Promo-Sport Ltd: D’s racing circuit was a source of noise.
• C (home-owner) sought damages and injunctive relief.
• High Court: damages awarded in lieu of an injunction.
• Court of Appeal: on appeal, C succeeded in securing a qualified injunction.
• D could only host noisier forms of racing on a limited number of days per year.