The costs of proving a nuisance – EPA prosecutions in the Magistrates Court

May 28, 2021

What costs can be obtained in a successful prosecution? In Taylor & Longfield Real Estate Ltd v Burton [2021] EWHC 1454 (Admin) the High Court has summarised the principles that magistrates should adopt when considering what compensation to award the tenant who has successfully established a statutory nuisance for bringing the case. The court also re-emphasised the importance of tribunals properly following the rules when preparing a case stated.

The original decision

The tenant Defendant brought an action in the Magistrates Court against her landlord and the landlord’s agent under s.79 Environmental Protection Act 1990. She alleged that the dampness in the rented property was prejudicial to her health. Not guilty pleas were entered. The parties eventually agreed (in the long gap between the first and second days of the hearing) that the nuisance had abated.

The tenant applied for compensation under s.82(12) for her expenses of bringing the case and claimed £34,412.60. That subsection requires the court to order the defendant (or defendants in such proportions as appears fair and reasonable) to pay a sum that is “reasonably sufficient to compensate him for any expenses properly incurred by him in the proceedings” where a nuisance is proved as existing at the date of the complaint.

After refusing to adjourn for more time for the point to be considered, and sitting late instead, the magistrates ordered the Defendants to pay £14,539.90 each (rather than jointly and severally), reducing the amount claimed.

The bench found that each was a “person responsible for the nuisance” and rejected the defendants’ contention that she was responsible for the nuisance by her absences from the property, denials of access and failure to heat the property properly. They had relied on Jones v Walsall MBC [2003] Env LR 5 (QB) – it is a complete defence to an application for compensation that at the time the proceedings were commenced and in the period since notice was given under s.82(6) the landlord has done all that was reasonable to gain entry.

The Defendants appealed by way of case stated.

The appeal

The High Court, hearing the appeal, first expressed the difficulty caused by the magistrates failing to include either a “succinct summary of the court’s relevant findings of fact” or “a summary of the evidence”.

The judge simply dealt with the first issue which centred on whether the magistrates were jurisdictionally entitled to find the Defendants rather than the prosecutrix was responsible. This in effect was a factual challenge and the magistrates were clearly acting within their jurisdiction in finding for the tenant. Such a finding would only be set aside where no reasonable Bench could have reached the same conclusion.

In relation to the amount of costs, the judge referred to the fact that the exercise was a broad brush one requiring only the crudest form of taxation. The court should consider the value of the non-monetary relief sought and the litigation behaviour of the parties.

The judge found it was not easy to be satisfied that important issues were not missed, given the relatively shorthand way in which costs submissions were dealt with. There was no reference to the issues of proportionality or the Defendants’ means; “I cannot tell whether the Magistrates did a proper job in assessing quantum or not”. The judge therefore found that they erred at least to the extent of giving insufficient reasons for their decision.

The judge also found that using the Civil and Criminal procedural rules as analogies could only take the court so far – the court must not lose sight of the words of the statute (reasonably sufficient compensation).

The decision

The appeal was therefore allowed in part and the matter was to be remitted back to the Magistrates Court for a new and properly articulated decision.

If you would like any advice on these or related matters, including EPA prosecutions in general, our property and housing barristers can help. Please contact our clerks for details.