Fouladi v St. Mary Abbots Court Limited and others  EWHC 3501 (Ch)
30th April 2019
The Claimant was the leaseholder of a flat complaining of noise nuisance from her upstairs neighbours. The trial judge concluded that the floor laid as part of upstairs works was of a lower standard than the previous floor, and that those works had been carrying out in breach of the lease and had led to an actionable nuisance. On appeal these and other consequential findings were upheld.
The Claimant is the lessee and
occupier of downstairs flat 62. The First Defendant is the lessee of Flat 66,
the Second and Third Defendants the occupiers of this flat. The Fourth
Defendant is the landlord.
In 2010 the First Defendant had carried out works to Flat 66 without seeking the Fourth Defendant’s permission, in breach of the lease. At first instance HHJ Parfitt found that had permission been sought, the First Defendant would have had to devise an ‘acoustic strategy’ to comply with building regulations and adequately sound-proof the floors. The failure to do so had led to “day to day living noise from Flat 66” having a “detrimental impact on the Claimant’s occupation of Flat 62”.
The First, Second and Third
Defendants appealed the order on 11 grounds, including appealing findings of
fact and findings as to liability, quantum and costs.
The Claimant cross-appealed the conclusion that the Fourth Defendant was not liable in nuisance for failing to prevent the works.
Following an 8-day trial and a site visit, His Honour Judge Parfitt
found that noise from Flat 66 was “a real and constant presence” for the
occupiers of Flat 62 . The First Defendant had breached a clause of its
lease requiring it to obtain consent for works from the landlord, and those
works had given rise to an actionable nuisance on the part of the First, Second
and Third Defendants. Damages were awarded for breach of contract and nuisance
against the relevant parties, and the judge made a mandatory injunction
obliging the First and Third Defendants to carry out remedial works.
The landlord was not liable in nuisance for failing to prevent his tenants from carrying out the works to the floor even though it was aware that they were doing so without the consent required of them under the lease 
Decision [on appeal]
Mr Justice Morgan found that HHJ Parfitt had “fully explained and
justified” his decision  and did not accept that the Judge had made certain
conclusions without evidence: the appellate court had not been provided with
transcripts of cross-examination and so would not be “able to interfere” with
the judge’s conclusions .
The Judge had correctly awarded damages on the basis that they should
reflect loss of amenity as a result of noise passing from Flat 66 to Flat 62 to
the extent they would not have done if building regulations and the relevant
lease clause had been performed .
On appeal it was further found that the question of whether the
occupying defendants were liable under the terms of the lease would not make a
difference to whether or not their conduct amounted to an actionable nuisance
The court had jurisdiction to award damages
continuing at a daily rate until remedial works should be completed and in
addition to injuncting the First and Third Defendants to carry out remedial
works [103-4]. Moreover the mandatory injunction did not need to track the
wording of the lease .
Finally on the cross-appeal, Morgan J summarised the key authorities considering when a landlord should be held liable for nuisance caused by their tenant [120-126]. HHJ Parfitt had correctly applied the principle set out in Malzy v Eichholz  2 KB 308, which was still good law .
The present case highlights the risks inherent in seeking to appeal
findings of fact – on appeal it was found that the appeal of findings of fact
was “completely unsustainable” given that the judgment was so “thorough and
It was noted that a transcript of
expert evidence given in cross-examination should have been provided to support
a proposition that expert evidence was not adequately considered by the judge,
and not merely the expert’s report.
As to the making of an injunction to carry out remedial works, Morgan J
stated that: “speaking generally, it is highly desirable at a mandatory
injunction of that kind spells out the detail of the work which is to be done
so that there is clarity and certainty as to what is required by the order”,
including specifying what is required as a ‘suitable material’ rather than
using the general phrasing ‘suitable material’ .