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Fouladi v St. Mary Abbots Court Limited and others [2018] EWHC 3501 (Ch)

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30th April 2019

Summary

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.

Facts

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”.

Issues

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.

First instance

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 [100]. 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 [128]

Decision [on appeal]

Mr Justice Morgan found that HHJ Parfitt had “fully explained and justified” his decision [25] 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 [58].

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 [76].

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 [98].

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 [110].

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 [1916] 2 KB 308, which was still good law [132].

Comment

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 well explained”.

 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’ [110].

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