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NORA MCKENNA & ORS v BRITISH ALUMINIUM LTD (2002)
Ch D (Birmingham) (Neuberger J) 16/1/2002

Rosalind English

January 2002


QBD (Neuberger J) January 16 2002

ABSTRACT

Non-proprietors may claim under Article 8 in respect of pollution or other invasive activities of neighbouring landowners in a way that they cannot pursue an action in Rylands v Fletcher or nuisance.

SUMMARY

This was an application to strike out claims brough in nuisance and in strict liability by neighbouring residents of the defendant's factory. Not all of the claimants had a proprietary interest in the land, in that they were children, but they nevertheless sought to claim in nuisance against the defendant. The defendant sought to strike these out on the basis of Hunter v Canary Wharf Limited [1997] AC 655.There were also claims in negligence; however the defendant sought to strike these out because distress, annoyance and inconvenience and other symptoms short of personal injury do not confer a cause of action in negligence (Hicks v Chief Constable of Yorkshire [1992] 2 All ER 65 and Riley v Merseyside Regional Health Authority [1995] 6 Med LR 246.

The issues before the court were as follows:

  1. could the child claimants absent any application under the Human Rights Act bring any claim in nuisance?

  2. Could they nevertheless bring a claim based on strict liability, again in the absence of a Human Rights Act provision

  3. Would they have an arguable case in the light of the 1998 Human Rights Act?

 

Held:

All applications dismissed.

As to the first issue, the defendant's argument was upheld in the light of Hunter. Only those with an interest in land affected by the nuisance can sue in nuisance.

As to the second issue, in the light of the speeches by Lord Goff in Cambridge Water Co v Eastern Counties Leather Plc [1994] 2 AC 264, the judge felt that the proximity between a claim in Rylands v Fletcher and a claim in nuisance suggested that in order for a Rylands v Fletcher claim to succeed, the claimant must have an interest in the land. The words of Lord Goff indictated that when considering a claim in Rylands v Fletcher one should treat it effectively as an extension or branch of the law of nuisance. Were it not for the human rights aspect the judge would have struck the claims out insofar as they were brought in nuisance or based on strict liability.

As to the third issue, the judge referred to Keene LJ in Douglas v Hello! Magazine [2001] 2 WLR 992 in which he observed that the courts as public authorities were bound by the Human Rights Act to interpret the common law in a way that was compatible with the Convention "even where no public authority is a party to the litigation". This was echoed in the Aston Cantlow case  [2001] 3 WLR 1323 where the Court of Appeal observed that one of the reasons for allowing the appeal was the "the way in which the common law singles out the owners of such land from land owners [which was] unjustifiably discriminatory and so contrary to Article 14" (para 53)

The judge did not accept the defendant's arguments that the Human Rights Act claims should be struck out as attaching to matters which arose before the Act passed into force. The claimants still had a live claim for continuing for wrongs suffered after October 2000. Therefore to strike out their claims under the Human Rights Act would be premature and inappropriate, particularly in the light of the possible different ways in which the common law might develop under the 1998 Act.

COMMENT (April 2002)

The essence of the defendant's argument was that even if the court was minded to follow Douglas v Hello! and interpret the common law in sympathy with Convention rights, this did not permit it to extend the categories of the common law; that a claim in nuisance and a claim in Rylands v Fletcher, properly understood, are property claims, not claims for personal injury or personal damage. Even if the court has a duty in some way to accommodate the principles of Article 8 of the Convention it would be inappropriate to extend it by reference to a property-based claim in nuisance or strict liability. However the court was not satisfied at this early stage in the life of the Human Rights Act that the effect of the Convention should be so limited. Neuberger J observes at p.17 of the transcript that "There is obviously a case for saying that effect has not been properly given to Article 8(1) if a person with no interest in the home, but who has lived in the home for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only person who can bring proceedings".

The question that arises then is how established an interest must an individual have in the land in order to be able to lay claim to a home under Article 8. Obviously the standard is not the same, as the copious Strasbourg case law on gypsies and planning permission indicates.

So if the lower threshold for establishing an interest as required by Article 8 opens the field for non-proprietors to sue in nuisance and Rylands v Fletcher, that brings in its train wider remedies available to a wider class of suitors. As Neuberger J said in this judgment, in order to give Article 8 any teeth there must be a power to grant damages in respect of any breach of the right to respect for a person's private family life or home. "It would be rather a peculiar right if all one could claim was an injunction or declaration".

Rosalind English, 1 Crown Office Row

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