Hunter and others v Canary Wharf Ltd [1997] House of Lords 426 All ER Hunter and others v London

Docklands Development Corp [1997] 426 All ER Facts In the first appeal, several hundred claimants alleged that Canary Wharf Ltd, in constructing Canary Wharf Tower, had caused nuisance to them by impairing their television signal. They claimed that the interference began in 1989 during the construction of the tower. A relay tower came into operation in April 1991 to overcome the problem. However, aerials at the plaintiffs homes had to be adjusted or replaced between July 1991 and April 1992 in order to receive a satisfactory reception. The plaintiffs advanced a claim in negligence and nuisance. On the trial of preliminary issues, it was held that interference with television reception constituted an actionable nuisance. On appeal, the Court of Appeals reversed this decision. The plaintiffs appeal to the House of Lords. In the second action, the plaintiffs are claiming damages caused by excessive amounts of dust created by the construction of a road between November 1989 and May 1993. The plaintiff residents, not all of whom were householders, advanced a claim in negligence and nuisance. It was held that a right to exclusive possession of land was necessary to sue in private nuisance. On appeal, the Court of Appeals reversed this decision and the plaintiffs appeal reaches the House of Lords. Issues In the television action, the question arises if the amenity of the plaintiffs houses has been diminished by the interference created by the construction of Canary Wharf Tower. Can the interference with television reception give rise to an action in private nuisance? In both actions, the question is raised about who may sue in private nuisance. Not all the plaintiff residents had proprietary interest in the land. What interest, if any, do they have need to have in the property in order to sue? Holding (1) Interference to television signal caused by the mere presence of a structure could not amount to an actionable nuisance. Per Lord Cooke: The malicious erection of a structure for the purpose of interfering with television reception should be actionable in nuisance. (2) A person with no right to the land affected by a nuisance has no right to sue in private nuisance.

Reasons (1) Per Lord Hoffman: Anyone may build whatever he likes upon his land subject to the prescription of easements. Per Lord Lloyd: The law does not always afford a remedy for every annoyance. There is no legal right to a view and the analogy between this and the legal right to television reception is very close. (2) Per Lord Goff: Nuisance is a tort against land. Damages in nuisance are assessed by the impact on the value of the land or by the loss of amenity value. The plaintiff must therefore have an interest in the land affected by the nuisance. Any action in nuisance must be for diminishing the utility of the land and not merely causing discomfort to the person. Per Lord Hoffman: When a nuisance creates sensible personal discomfort, it is a separate tort, one of causing material discomfort to the person Critical analysis In dissent, Lord Cooke recognized that private nuisance is commonly said to be actionable by an occupier and proposed that the definition of occupier be broadened to include anyone who has been exercising a continuing right to enjoyment of amenity of a home. Not broadening the definition could also have implications on human rights. Would interpreting the common law in sympathy with Convention rights allow the court to extend the categories of the common law such that a claim in nuisance could be stretched in to a claim for personal injury? Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms protects the right to respect for private and family life, home and correspondence. Might there be a claim under this article? Question left open in McKenna v British Aluminium [2002] Why not sue in public nuisance? Some breach of regulation required? Not broadening the definition also seems to treat the role of spouses very lightly. However, any attempt to broaden the category of persons entitled to sue would lead to the problem of definition. Broadening the definition to all people with a substantial link to the land would transform it from a tort to land into a tort to the person Khorasandijian v Bush attracted much attention as an anomaly. Lord Hoffman pointed out that the perceived gap in that case was the absence of a tort of harassment. Notably, he feels that the case was not wrongly decided, merely that it should be seen as a case on intentional harassment, not nuisance. 2. Explain the procedural route by which this dispute came to the House of Lords.

The television action was initially heard by Judge Richard Havery QC. He determined that interference with television reception was actionable. The defendents appealed this decision and it was overturned by the Court of Appeal. In the dust action, Judge Richard Havery QC ruled that plaintiffs who did not have a right of exclusive possession of land were not entitled to sue in private nuisance. This decision was overturned by the Court of Appeal. 3. Where in the judicial route do the judges deciding this case stand? The judges deciding this case sit in the House of Lord. They are thus the highest appellate court in the judicial route. 4. What are the names of the respondents leading counsel and soliciters? Lord Irvine of Lairg QC and Ashhurst Morris Crisp. 5. Who is Celia Fox Barrister? She is the law reporter who wrote the case report. 6. Which decision was overruled? Which was reversed? difference between overruling and reversing? What is the

Overruling occurs when a higher court in a different, later case overturns a principle laid down by a lower court. Reversing occurs when a high court overturns the decision of a lower court on appeal. 7. Briefly explain the material facts of this case. 8. What issues were raised at trial? Which issues came to the House of Lords? The first issue was whether plaintiff residents who were not householders could advance a claim in nuisance. The second issue was whether interfering with television reception was an actionable nuisance while the final issue concerned the ability of the plaintiffs to advance a claim in negligence. Only the first two issues reached the House of Lords. 9. What is the ratio decideni of this case? 1) Anyone may build whatever he likes upon his land subject to the prescription of easements. 2) Nuisance is a tort against land. The plaintiff must therefore have an interest in the land affected by the nuisance. 10.Describe the approach that each judge has to the precedents and other authorities before the court. What are the pros and cons for each type of handling of authority?

Lord Cooke demonstrates that he is amenable to revising definitions used in previous cases that have since become less accurate due to the developments of society, which, in this case, involve the conceptions concerning the home and family. He also takes into account the stream of academic authority available before him. This approach allows for flexibility and the influence of academia in the development of the law. Lord Goff chooses to disregard the precedent established in Khorasandjian v Bush and explains that its authority has been undermined by a central misunderstanding of an earlier case, Foster v Warblington. He further chooses to dismiss the academic writings cited by Lord Cooke and complains that they lack analysis and uncritically commend the outcome of the Khorasandjian case. Lord Hoffmans treatment of Khoasandjian v Bush is somewhat sympathetic than Lord Goffs. He feels that the case was not wrongly decided, merely that it should be seen as a case on intentional harassment, not nuisance. 11. Which judgement do you like best and why? I like Lord Cookes judgment best because of his attempt to interpret common law in accordance with the European Convention on Human Rights. His citation of academic writing also demonstrates a broad marshalling of opinions, a quality that I feel is very important in a progressive judiciary.