PRIVATE NUISANCE AND ‘INTANGIBLE’ INTERFERENCES – NUISANCE LAW AFTER FEARN – DUST NUISANCE – ASSESSING FUTURE RISKS FROM CLIENTS AND THE JUDGE – THE UTILITY OF EXPERT EVIDENCE
Andrews v. Kronospan Ltd finally came to trial in summer 2025 and merits consideration as to the practical risks inherent in nuisance litigation. These come from the individual claimants themselves (which we can identify since the judgment shows us the effects of cross-examination), but also from modern judges (as well as lawyers) caught in a procedural world which can encourage increasing amounts of data and expert analysis. In addition, it is a paradox that the more expert evidence which is available, the more it can prove to be unhelpful, and this too is worth examination. The action failed.
This article considers the sort of warning-signs which claimant representatives, in particular, should look out for when embarking on the long and expensive road to a final determination in a case like this, a nuisance case concerning ‘sensible’ interferences, in particular one concerning the investigation of dust. It examines whether extensive expert evidence is always of use, and raises the question as to the position of a trial judge who has not conducted the procedural hearings.
Back in 2022, the claim caught a great deal of attention when Master Fontaine (the managing judge) revoked permission for the claimants to rely on their sole expert when it transpired that he had been in contact with the claimants’ solicitors during the expert joint-discussion process [2022] EWHC 479 (QB). The expert had already been paid some £255,000 in fees since the issue of the claim form in 2017 and it must have been a severe blow to the 159 claimants to have had him removed.
It is also one of the few claims which have been reported since the contentious judgment of the Supreme Court in Fearn v. Tate Gallery [2024] AC 1 with its strong dissenting judgment from two members of the Court, as well as being a rare judgment in which the judge has had to divine the meaning of the different members of the Supreme Court in Lawrence v. Fen Tigers [2014] AC 822 when it comes to determining the base-line from which an actionable nuisance should be assessed in the locality (the latter of which will be dealt with below).
The Litigation
What was the subject matter of Andrews? The claimants lived in a large village in rural North Wales, Chirk, where Kronospan, a major wood recyclist, first established itself in the 1970s. Kronospan started producing MDF in about 1992. By 2000 it had become much larger than before when it attracted some modest attention from the regulator in respect of odour, noise and dust.
The claim itself was limited to unplanned (abnormal) emissions of dust from the plant when processes had gone wrong and also exposed source emissions, largely as a result of dust which became airborne from a log yard in which stockpiles of raw materials such as sawdust and wood chips were stored (“open” emissions). It did not include ‘normal’ processes, apparently because these only made a limited contribution to the overall emissions. Neither did it include dust which had been carried towards the site by HGVs and fallen on the highway only to be entrained in the air from time to time.
Is a nuisance likely to be considered ‘substantial’ or ‘trivial?
As to the nuisance effects, these were said to be deposits of dust significant enough for there to be obvious signs of recent dust on cars, garden furniture or on window or door sills. The judge was prepared to accept that where substantial amounts of dust caused owners to want to clean the areas in question appreciably sooner than they otherwise might, then this could amount to an actionable nuisance.
Without any reliable evidence of dust entering homes, it might be thought that the judge’s position was generous to the claimants, especially since he accepted the defendant’s position that normal householders would wash off modest emissions from cars or garden furniture regularly in any event. (See paras.1051-1055.)
Indeed, this is a risk factor which solicitors representing claimants need to address at an early stage: is the target standard of actionability so low and so limited in its scope, that, should the claimants themselves not come up to proof, there will be no alternative case to fall back on? It is a brave strategy to carry on in such circumstances. It is also a key issue on which defendants need to take an early position: is it worth going on to trial because the claimants will not prove that there has been a “substantial” interference with the utility of land?
Expense
The trial of 16 lead claimants’ cases for the period July 2011-July 2017 took place over 16 days (a separate trial was planned for ongoing effects). The “voluminous documentary evidence” was made available digitally, including electronic presentation, and the parties apparently agreed to provide the judge with a simultaneous live transcript.
Despite going on to dismiss the action (on the basis that he did not accept the claimants’ accounts), the judge went on, oddly, to decide that he was nevertheless able to assess appropriate levels of quantum, declaring that he would have awarded £850 damages per annum to the claimant most affected by dust emissions (other awards were at £600, £400 and £300 pa).
The costs overall for what amounted to 16 modest nuisance claimants must have been huge, caused mainly by the expert evidence.
The ‘locality’ principle
The judge’s overall approach to the issue of locality and the base-line is of interest. Given the presence of Kronospan in the village since the 1970s, to what extent had its emissions become part of the established uses in the locality?
The judge adopted the approach of Lord Mance in Lawrence, who had decided that gradual or modest changes at a defendant site over time would change the nature and character of the relevant area, even though, collectively, they may have resulted in a radical change when the latest point in time was compared with the original development (para. 89 of Andrews). This is a pragmatic and sensible solution to the various judicial comments made on the issue in Lawrence, and a position to be applied in subsequent nuisance cases.
Applying this test, the judge took 2000 as his appropriate baseline. Emissions as of 2000 would constitute part of the established pattern of uses in the locality. Residents should be expected to tolerate them. A questionable element attaching to this, however, is whether a baseline should have applied to all emissions as of 2000. Why should residents have to accept any levels of abnormal emissions (which would have been in breach of permit and/or the result of poor maintenance)?
A realistic approach to claimants’ evidence
Returning to claimant risks, the judgment throws a light on what an early assessment of the performance of witnesses might demonstrate, given that we have sight of the results after cross-examination at trial (compare Anslow v. Norton Aluminium Ltd at [2012] EWHC 2610 (QB)).
It is an anxious decision whether or how to cross-examine witnesses in such cases, since claimants often bite back with indignation or emphasise the experiences they have had. At this trial, however, the bases for the cross-examination must have been anticipated from the disclosed documents. Whilst it is easy to write with the benefit of hindsight, the witnesses were fully probed and lessons can be learnt by practitioners from the judgment.
The judge’s overall determination was that “most of the witnesses, sometimes consciously, but more often unconsciously, exaggerated their evidence to support the Claimants’ case or Kronospan’s case respectively” (see paras. 370 and 1056).
As to the claimants, the judge decided that the lead claimants who gave evidence had exaggerated their claims for various reasons including: (i) dissatisfaction with, or dislike of, Kronospan, (ii) confusion about the source of emissions (several possibilities having been raised such as vegetation in gardens, demolition works, airborne dust from the road), (iii) the perceived impact on the health of the claimant and of family members, (iv) sensitisation leading to unreliable evidence as to the frequency or intensity of nuisance (which was not an effect laid by the claimants at the feet of the defendant), (v) ‘activism’ against the defendant (even where the evidence of the same was very low key, such as wanting to get others to complain), (vi) inconsistency connected with placing a house on the market (such as saying that it was to escape, but in fact remaining put, or moving to another address in the same location), (vii) the installation of additional garden furniture, (viii) extravagant and unjustified claims as to remediation, (vii) extravagant and unjustified claims as to special damages, (viii) the use of standard form questionnaires which led claimants to make such exaggerated claims, (ix) social media posts showing time spent, and satisfaction with, their properties, (x) the failure to provide corroboration from witnesses living at the same address, (xi) belief in the connection between emissions and cancer, (xii) a straightforward disposition towards conspiracy theories, (xiii) a lack of corroborating complaints or evidence (such as photographs) and (xiv) indifference as to the effects of dust. Additionally, the judge did not appear to like the fact that some five claimants did not attend to give evidence, he did not like the way in which evidence was prepared for one man who had difficulty in reading and writing, and he was prepared to conclude that one claimant “saw a risk free way of securing a handsome payment”.
The consequences of a finding of exaggeration
The all-important question arises as to what conclusions the judge was to make as a result of the claimants’ exaggeration.
In the case of the most affected lead claimant, Mrs Green, for instance, the judge decided that “in fact … [she] experienced significant dust emission events on average every two weeks, of which on average once a month was principally due to Kronospan” (para.421). The judge’s factual assessments as to the lead claimants’ true nature, extent, frequency and impact of dust deposits, then led him to conclude that overall there was not a “sufficiently substantial interference such as to amount to a legal nuisance” (para.427).
The judge had a great deal of expert evidence before him. These included experts as to dust monitoring, dust characterisation and dust modelling. When reaching his conclusions as to truth of the claimants’ evidence, he acknowledged that he needed to factor in the expert evidence at some point (para. 417). However, the judge did not make a clear correlation between the expert assessment and the claimants’ evidence as to the degree to which claimants were affected. His conclusions (for instance that Mrs Green experienced dust emissions from Kronospan about once a month) can be interpreted as arbitrary conclusions as to the number of days when claimants were affected. He preferred the same approach in other cases, for instance that John Jones “experienced a significant dust emission event … on average once every two months” (para. 517) and that Sarah William “experienced a significant dust emission event … on average once every two months” (para. 548) and so on. None of these conclusions as to the experience of emissions from Kronospan were linked to any specific findings from the expert evidence.
The expert evidence as presented to the judge and its utility
For the benefit of anyone intending to run or defend a nuisance case of this type, i.e. one of interference with amenity value caused by dust emissions, more should be said in this section about the expert evidence.
Overall, the judge found dust monitoring data more useful than any of the other expert material. This included “frisbee” data, “dustdisc” data gathered and analysed according to the Dustscan proprietary system and data from Osiris monitors. The judge was prepared to adopt a depositional threshold above which complaints might be considered likely in the area, albeit as a “very approximate indicator”. He also took account of complaints data and wind data.
From all of that material, the judge preferred the Dustscan approach advanced by Kronospan, deciding overall that the dust monitoring material showed only that it was only on a handful of occasions that the depositional threshold was crossed.
As to dust characterisation, a third-party laboratory had undertaken scanning electron microscopy images and electron dispersive X-ray images of samples, which were provided to both sets of experts for them to reach their own opinions as to size, shape and chemical composition. The parties’ experts were not agreed as to the efficacy of the sampling and they applied different analytical methods. In his conclusions, the judge did not think much of either parties’ expert evidence, although he preferred that of Kronospan.
As to dust modelling, both parties retained experts who inputted the results of various data sources into a computer model. The judge’s conclusions are as follows: “As is often the case, if Master Fontaine [the procedural judge] had known what I now know about the limitations and uncertainties associated with this exercise I doubt whether she would have given permission to the parties to rely upon expert dust dispersion modelling evidence.”
In summary, the judge found that, at best, the conclusions he was able to draw from dust characterisation and dust modelling, only succeeded in proving negatives, namely that there was “no hard scientific evidence” or “no clear evidence” showing that dust from Kronospan caused substantial dust emissions at the claimants’ properties (paras. 983 and 1039). “Insofar as it is capable of supporting either party’s case it supports that of Kronospan” (para.1064).
To the extent that judge was able to make use of the expert evidence before him at all, then, it broadly supported his conclusion that the level of interference did not meet the necessary threshold “where substantial [interference] means that it exceeds a minimum level of seriousness” (para.1047).
Conclusions to be drawn as to the expert evidence
When it comes to the expert evidence, a number of observations of wider interest can be drawn.
First, the judge did not like the fact that the experts who were called at trial by the claimants wanted to change their approach from the evidence of the previous expert (whose permission to give evidence had been revoked). This caused him to approach their evidence “particularly critically” and “with some caution” (paras.752 and 753). Parties who might think of changing their expert evidence during proceedings might reflect on the warnings to be drawn from the judgment.
Secondly, the wealth and divergence of the detailed expert evidence resulted in the judge being generally dissatisfied with considerable parts of the experts’ evidence throughout. There is insufficient space here to provide a suitable range of illustrations, but in respect of the cross-examination of one expert, the judge said: “there was considerable room for debate and reasonable disagreement either way” (para.962). The range of opinions were far too many for the judge reasonably to be able to reconcile them.
Thirdly, however, there were a number of occasions when the judge was not hesitant to make comments about what he thought the expert evidence should contain. For instance, he was critical of what he described as the lack of a “reliable dust monitoring campaign” and a “reliable complaints gathering exercise being undertaken at the same time”, which would have allowed him to correlate observed dustfall rate with complaints data” (para.817). He was also critical of the lack of “a proper statistical analysis” of complaints made on specific days and by which households (para.878). As to the latter, he went on to identify six specific categories of analysis which would have assisted him (para.884).
When the reader reads the judge’s final conclusions (para.1046ff.), most of the judge’s reasoning addresses factors which did not need expert evidence at all, such as the question whether the impact on garden furniture was only aesthetic or whether wood dust ruined garden furniture.
It can be compellingly argued that a great deal of the expert evidence was unnecessary, and the judgment raises the separate question whether, just because expert scientific evidence can be obtained, it really should be obtained. CPR r.35.1 requires expert evidence to be restricted to that which is “reasonably required to resolve the proceedings”. The judge’s detailed comments about what would have assisted him do not immediately provide encouragement that a different form of case management would have produced a very different result in terms of expense.
The danger is that litigation becomes a mini-inquiry, especially where, as in the TCC, there is the facility to dig deep with the expert evidence. Lawyers and judges need to guard themselves against the siren call for further data. In this case, not only was it merely of little help, but on occasions it became positively unhelpful for the judge, who had a litany of loose ends which it was impossible reasonably to resolve.
Final Conclusion
As discussed above, this nuisance case was decided ultimately by the judge on the basis of the factual evidence of the witnesses. Neither the expert evidence not anything else supports the judge’s conclusions as to the arbitrary figures as to the frequency of emissions (“about one month” in the case of Mrs Green). The conclusions from the muddled and inconclusive expert material show that the degree of interference was not that which was claimed, but at the same time they did not support the specific findings reached as a result of cross-examination.
In his final discussion, the judge stated that he had given “anxious consideration” to his dismissal of the action, given that he was “prepared to accept that it is close to the borderline of what is and what is not a substantial interference. If I had found … that the frequency was more regular … I would have been willing to make a finding in Mrs Green’s favour. … If Mrs Green’s claim cannot succeed then none of the other lead Claimants can hope to succeed”. (See paras.1079-1081.)
If you happened to be Mrs Green, then you might just be a little aggrieved at the outcome, even though you should also appreciate that you would be very unlikely to get a second bite of the cherry.
GORDON WIGNALL
9 December 2025