Nuisance – Costs Order –
Infringement of Art 6 of ECHR
Lord Neuberger (President), Lord
Mance, Lord Clarke, Lord Sumption, Lord Carnwath
23 July 2014
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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
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
The court held in
Coventry v Lawrence  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.