REMEDIES

Summary of this section

Injunctive relief (a) prior to the issue of proceedings (on the threat of a nuisance), (b) prior to trial (after a nuisance has commenced), (c) after trial in order to prevent the continuation or recurrence of a nuisance – compensatory damages in place of injunctive relief (damages ‘in lieu’) – declaratory relief – damages as compensation for damage to land – the question of ‘betterment’ when property has had to be rebuilt – the date on which damages should be assessed – damages as compensation for the abatement of a nuisance – non-pecuniary loss (general damages for inconvenience / loss of amenity).

Introduction

Claimants in private nuisance generally seek one of two types of remedies, an injunction and/or damages, both of which are considered further below.  In some circumstances the court may consider making a declaration as to the existence of a nuisance in the past, allowing the claim to be re-opened should there be a further nuisance.

The issue of remedies can be particularly complex and needs careful consideration.

Injunctions

The classification of injunctions (and the principles which apply) is dependent on the stage at which an injunction sought.

An application is likely to be made at one of three stages, either before any nuisance at all has taken effect (quia timet), at an early stage before trial but after the alleged nuisance has commenced (an interim injunction), or at the end of proceedings (a final, ‘perpetual’ injunction). There are differences between injunctive relief before trial and then at trial (a ‘final’ order).

Injunctive relief is additionally classified according to whether or not it is intended to require a defendant either to abate a nuisance (a prohibitory injunction) or to undertake specific works or to take steps to ensure that the nuisance comes to an end (a mandatory injunction).

In some circumstances, which may involve the wider public benefit by a defendant’s activities, it may be possible to persuade a court that damages should be awarded to a defendant in place of an injunction (damages in lieu of an injunction).

Injunctive relief ‘quia timet’

In some rare circumstances an injunction may be granted even before any damage has occurred, and even requiring that specific steps are taken to avert the impending nuisance. In Hooper (1974) the defendant started excavating a way for a track. There was no immediate risk of collapse of the neighbouring property, but this would have been the probable result if no steps were taken to avert the risk. Moreover, it might not have been possible to prevent damage to the claimant’s property at all if more of the land between the existing works and the property were to have been excavated. The defendant was entitled to a mandatory injunction on a quia timet basis.

Interim relief before trial

An injunction may also be available to restrain the commission of an alleged nuisance at an interim stage, i.e. pending trial. Even where some damage has already occurred the principles in American Cyanamid (1975) may apply:

• assuming that there is evidence of a nuisance, the question is whether or not damages are likely to be an adequate remedy and whether the defendant would be able to pay them. If the answer is that damages would be adequate, then no interim injunction should be awarded.
• If damages would not be an adequate remedy (for instance because damage would be long-lasting or there would be more extensive property damage), then the next question is whether or not the defendant, assuming that the injunction is granted, would be compensated by the cross-undertaking in damages which would be inevitably required from the claimant as the price of the grant of the injunction. If there would be adequate compensation to the defendant on the back of the cross-undertaking, then the injunction should be granted.
• If there is any doubt about the adequacy of the payment of compensation, then the court will go on to consider the balance of convenience, with a preference for the status quo.
• The court will avoid a mini trial of the available evidence if it can.

Two well known cases in which injunctions have been awarded at an interim stage are Thompson-Schwab (1956) and Laws (1981), both involving the sex trade.

A mandatory (rather than a prohibitory) injunction is also available at an interim stage (i.e. before trial). However, it has been said that “the case has to be unusually strong and clear before a mandatory injunction will be granted”, i.e. that there is “a high degree of assurance that at the trial it would appear that the injunction had been rightly granted” (Shepherd Homes, 1970). Where there is delay in making the application for the injunction, then this is a factor for resisting the application.

A final injunction

At trial, the traditional starting-point for the Court (in priority over an order for compensation) has been the making of a perpetual injunction restraining the defendant from acting in such a way so as to cause a nuisance. Such an injunction is negative in character and may be suspended for a period (perhaps of up to two years) to allow the defendant time to get its operations in order. Declaratory relief may be an alternative to this, and indeed this was an order which used to be reasonably common.

A prohibitory order (restraining the commission or the continuation of a nuisance) was formerly granted almost as a matter of course.  The fact, for instance, that the defendant undertaking was in liquidation, or that the defendant’s works had burned down was not the foremost consideration.  So too the form of the order was regularly one which required the defendant to operate and manage its undertaking in such a manner so as not to cause a nuisance.

There is some reason to suppose that today’s judges are instinctively more comfortable making an order requiring that specific works be carried out.  This, however, would constitute a mandatory order.  In a claim for a mandatory order, it has been said that the “Court will not interfere by way of mandatory injunction, except in cases in which extreme, or at all events very serious, damage will ensue from [the Court’s] interference being withheld” (1865).

Damages in place of an injunction

Where a claimant seeks an injunction, the question arises whether or not a court will refuse the application for an injunction, awarding damages instead (damages in lieu of an injunction). For many years the courts have regulated this issue by reference to the following considerations set out in Shelfer (1895), recognising that damages may be awarded by a court in substitution for the making of an injunction if the court is satisfied that:

(1) the injury to the plaintiff’s legal rights is small,

(2) the injury is one which is capable of being estimated in money,

(3) the injury is one which can be adequately compensated by a small money payment,

(4) the case is one in which it would be oppressive to the defendant to grant an injunction,

The court in Shelfer itself was wary that a defendant might able to buy off its wrongdoing. The example was given of someone living in a small house who might be deprived of light by a developer who could simply be able to buy off the nuisance. This case has been followed in many circumstances.

The Shelfer criteria have been further reassessed, however, in Coventry (2014). Some members of the Supreme Court were concerned that an overly-mechanistic application of the criteria would be unjust, for instance where damages in lieu are only awarded in “exceptional” circumstances (as suggested by some courts cases which applied Shelfer).

Moreover, private nuisance has generally been reluctant to acknowledge the wider public benefits from the defendant’s activity, such as noise nuisance from motoring, (as in Watson (2009)), and the Supreme Court’s judgment in Shelfer may indeed make an award of damages in lieu of an injunction more likely than before. Other members of the same court expressed their reservations, so that the influence of the case going forward is uncertain.

Declaratory relief

Sometimes a declaration as to the existence of a nuisance can serve a useful and specific purpose. The making of a declaration that there has been nuisance, with liberty to restore the claim should the nuisance recommence, is a way of giving the defendant an opportunity to cure the problem, whilst giving a claimant considerable comfort.

Where a claimant is on a conditional fee agreement with the client, then a compromise between claimant and defendant which includes a declaration may mean that the claimant can resurrect the claim without having to satisfy the lawyer that there are good prospects of success with a new claim.

Damages

Damages may consist of compensation for pecuniary loss and/or for non-pecuniary loss (the difference being one of compensation for physical damage to land or other such quantifiable losses, and for damages for interference with amenity value).

The former is normally measured by the diminution in value of the land, assessed according to the cost of repair or reinstatement value.  See further in the section which follows immediately below.

Compensation for non-pecuniary loss will compensate claimants for the inconvenience and discomfort. The measure of these latter (non-pecuniary) damages will be very modest, and the means of their assessment is uncertain.  There are insufficient cases to provide a basis for comparison.  The measure of loss in cases of dilapidations offers a good arguable way forward.  See the final section below (“Damages for non-pecuniary loss”).

Pecuniary damages in the case of physical damage to land

Where there has been physical damage to land (including any structures on the land), the basic purpose of compensation is to put the successful claimant into the position in which it would have been if the nuisance had not happened at all.   The measure of damages should always be what is “reasonable” (CR Taylor, 1977), although what is “reasonable” is always “highly fact-sensitive” (Lea Valley Developments, 2017).

The real problem, generally, is in working out whether the just result is to be achieved by means either of compensation which reflects diminution in value, on the one hand, or the cost of reinstatement, on the other (Dominian Mosaics, 1990).  The cost of remediation is either the reinstatement value or the cost of abatement (the cost of cure). See Delaware Mansions (2001). Combinations of awards under these heads of compensation are possible.

The modern (or relatively modern) presumption is that diminution in value is the starting-point for the assessment of damages, ordinarily meaning the difference in value between the land before the nuisance and after (Munnelly, 1978). A claim for stigma loss (damage to the reputation of premises) can also be classed as a form of diminution in value (Bunclark, 1977).

A significant question for the court is likely to be an assessment of what is to happen to the building, and the consequence may even be that the claimant does not recover the full diminution in value. The court may decide, on the other hand, that the just result is the cost of reinstatement.

CR Taylor (1978) concerned a billiard hall in a run-down area which was destroyed by fire, the building having been maintained in a run-down state only to preserve its redevelopment potential. The cost of reinstatement was £28,000 and the diminution in value was £2,500. The claimant recovered an amount which was sufficient to clear the site of remains of the building.

Hole (1973) concerned three cottages which the claimant had intended to demolish once the sitting tenant had moved out. It ordered the cost of temporary repairs and loss of rent.

Hollebone (1968) concerned a house unique to its area. The defendant was ordered to pay the cost of reinstatement (£19,000) rather than the sum representing diminution in value (£15,000).

Where a claimant is put to the trouble of rebuilding its business premises, the question may arise whether or not it has taken the opportunity to improve on what it previously owned.

Betterment

Should the defendant pay for any ‘betterment’ of the property? In many cases the answer will be that the defendant has been put to the trouble and necessity of urgently rebuilding in order to keep its business going. This has the consequence that the defendant cannot complain that the claimant has replaced new with old. On the other hand, the claimant would have to give credit for any additional accommodation or improvements. (See Harbutts Plasticine.)  Courts tend to steer away from depriving claimants of part of their damages on the basis that there has been some betterment to a property.

The date of assessment

A further question arises as to the date on which the assessment of quantum arises. Ordinarily this will be the date on which the damage occurred (Philips, 1956). Whilst it has been said that “there is nothing inherently wrong in principle in valuing a diminution in value loss at a later date than the date of breach” (Charlton, 2008), in a diminution in value case (rather than a reinstatement case), “normal circumstances” mean that the date of the actual damage should be the appropriate date for the assessment of damages (Dodd Properties, 1979).

Dodd Properties (1979) concerned a commercial garage damaged by vibrations. The defendants disputed liability for some ten years after the damage occurred. The claimant companies which owned and occupied the property could have afforded to undertake repairs when the damage occurred, but at the same time this would not have made commercial good sense prior to the admission of liability because they would not have been sure of recovering their outlay from the defendants. The Court of Appeal decided that compensation should be assessed as of the later date, being the date on which it was reasonable first to carry out repairs, notwithstanding that the effect of inflation was a considerably increased sum to be paid by way of damages.

Alco Minerals (2002) concerned physical damage caused by nuisance. The Privy Council approved Dodd Properties, deciding that the claimant’s impecuniosity could be taken into account during a period of inflation. The claimant had awaited a decision on liability before carrying out works and this was considered reasonable. Damages for reinstatement were to be assessed as of the date of judgment.

The cost of abatement

Where a claimant has had to expend money in order to avoid physical damage caused by a nuisance, then this is recoverable as the cost of abatement, for instance the laying of new pipes, or the cost of piling or underpinning in a tree root case (Delaware Mansions, 2002). In Tate & Lyle (1984), the claimant recovered £540,000 in dredging costs caused by siltation around its jetties.

There is no reason in principle why the cost of abatement cannot be recovered in addition to other awards of compensation. In Bunclark (1977), for instance, the claimants recovered both the cost of reinstatement and the costs of abatement as well as compensation for diminution in value (stigma loss) and non-pecuniary damages for inconvenience. In this case too, it was reasonable for the claimants to have waited for a time when it was reasonable for them to carry out the abatement works because some of them could not have afforded the works at an earlier stage.

Damages for non-pecuniary loss

In all forms of the tort of nuisance non-pecuniary damages are recoverable, but this is especially pertinent in the case of ‘intangible’ interferences.

The practical means for assessing the quantum of damages in ‘intangible’ interference cases is uncertain. In Dobson (2009 and 2011) it was decided that since these cases are in principle cases about damage to land, damages should be assessed by reference to the letting value of the properties affected (assuming that the nuisance would come to an end). This entails the use of experts.

Accordingly, a monthly letting figure should be worked out and used to operate as a multiplicand to which the relevant multiplier is to be applied. The amount of the diminution in value is a matter for the court.

Where the nuisance is likely to continue and not be abated, or where damages in lieu of an injunction are to be assessed, then expert evidence will be needed as to the sale value of the land. In a case where the use of experts is a practical impossibility, then the judge will have to make an assessment as best he or she can as to the general damages which should be awarded (as in personal injury cases).

In fact general damages are regularly awarded in the courts without resort to expert evidence. Awards are modest, of up to about £2,000 maximum per annum.

In dilapidation cases, damages are assessed by the judge by way of a combination of the two means of assessment currently used in private nuisance cases, the diminution in value approach (based on expert evidence) being used as the basis for a cross-check against the judge’s own assessment. This may be a useful way forward in cases of private nuisance.

In his final review of costs Sir Rupert Jackson recommended a 10% increase in general damages awards in nuisance cases. In Simmons (2012) an identical recommendation in the case of personal injury awards was accepted by the Court of Appeal (the ability to recover success fees being abolished). The recommendation, to date, has not yet been approved by the courts in private nuisance proceedings.