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PI and Civil Litigation

Law - practice - procedure

14 AUG 2014

Coventry & Others (respondents) v Lawrence and Another (appellants)  [2014] UKSC 46

Coventry & Others (respondents) v Lawrence and Another (appellants)  [2014] UKSC 46
Nuisance – Costs Order – Infringement of Art 6 of ECHR

 Supreme Court
 Lord Neuberger (President), Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
 23 July 2014


 The main issue which remained was whether the unsuccessful party who had been ordered to pay 60% of the successful party’s success fee and ATE had suffered an infringement of Art 6 ECHR. If so, it would not be correct for the court to make a declaration of incompatibility without the Government having the opportunity to address the court.


 The court held in Coventry v Lawrence [2014] UKSC 12, that the occupiers of a stadium and track (C & M) were liable in nuisance to the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The claimants (appellants) also brought proceedings against the landlords. The effect of the court’s decision was to the reverse the Court of Appeal’s judgment and to restore the trial judge’s order of 4 March 2011, which was based on his finding that the defendants were liable in nuisance but the landlord was not so liable. By the time of the trial, Fenland was unoccupied owing to a fire, and remains in its fire-damaged state to date. The remaining issues were: - (i) whether the injunction should be suspended until Fenland was rebuilt? (ii) when the parties should be able to apply to the judge (iii) whether the landlords are also liable to the appellants in nuisance (iv) whether the order for costs against the defendants s infringes article 6 of the European Convention on Human Rights (ECHR).

 It was held that the purpose of the injunction is to prevent activities at the stadium and track interfering with the ordinary residential use and enjoyment of Fenland. So long as such use and enjoyment was not possible, it was hard to see what justification there could be for maintaining the injunction. Therefore the injunction was to be suspended until Fenland was fit to be occupied residentially. The court held that there should not be a delay before the parties are able to apply to vary the injunction. The parties could apply to discharge the injunction on the ground that damages would be an adequate remedy and this now had a prospect of success. There was now a good reason, which did not exist when the judge’s order was being considered, to allow the parties to apply without delay.

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The court considered Southwark London Borough Council v Mills [2001] stating “where activities constitute a nuisance, the general principle is that “the persons directly responsible for the activities in question are liable, but so too is anyone who authorised them.”  In order to be liable for authorising a nuisance, the landlords “must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property.”  In the present case, there can be no question of the landlords being liable to the appellants for the nuisance on the grounds that they did not actively or directly participate in the respondent’s nuisance and neither was it an inevitable or nearly certain consequence of the letting to the respondent tenants.  

The defendants were ordered to pay 60% of the claimants’ costs consisting of base costs, success fee and ATE premium. The figures involved were very disturbing. The addition of a 100% success fee and a £350,000 ATE premium to the base costs of some £398,000 meant the defendants liability virtually trebled to over £1 million. The value of the property in question was less than £300,000 and the value of nuisance was at most £74,000. The defendants relying on MGN Limited v United Kingdom (2011) 53 EHRR 5 and Dombo Beheer BC v Netherlands (1994) 18 EHRR 213 contended that article 6 would be infringed if the court required them to pay 60% of the success fee and ATE premium. James v United Kingdom (1986) 8 EHRR 123 also relied upon.

It was held that if the defendants’ argument based on article 6 was correct, it may well be that the proper outcome would not be to disregard paras 11.7 – 11.10 of the CPR 44PD, but to grant a declaration of incompatibility. The present appeal should then be relisted for a hearing after appropriate notice has been given to the Attorney – General and the Secretary of State for Justice.


 If such a declaration was made by the court it would have enormous consequences on litigants whose claims are being funded by conditional fee agreements with an entitlement to a success fee and an ATE. They could potentially have claims against the Government for compensation for their loss of recovery of additional liabilities to which they were once legitimately entitled.