(D) PRIVATE NUISANCE

Whether restitutionary remedies are available where the defendant commits the tort of private nuisance is a particularly controversial matter. In Carr-Saunders v Dick McNeil Associates Ltd¹¹⁰ the defendant committed a nuisance by erecting extra storeys to its property which reduced the amount of natural light to the claimant’s property. The claimant was awarded damages in lieu of an injunction and these damages appear to have been assessed by reference to the amount necessary to compensate the claimant for loss of use and amenity. Millett J did, however, say that, if there had been evidence of the profit which the defendant had gained by committing the tort, this would have been taken into account in assessing the award of damages. This suggests that a remedy assessed by reference to the defendant’s benefit arising from the tort may be available where a nuisance is committed, at least where the tort involves interference with the claimant’s property rights.

The decision of the Court of Appeal in Stoke-on-Trent City Council v W and J Wass Ltd¹¹¹ suggests, however, that gain-based remedies are not available where the defendant ^{[1] [2] [3] [4] [5] [6] [7]}

has committed a nuisance. In that case the defendant had deliberately committed a nuisance by operating a market in close proximity to the claimant’s market which infringed the claimant’s right to hold a market in a particular area. The claimant was granted an injunction to restrain further infringement of this proprietary right. Although the claimant had not been shown to have suffered any loss of custom by virtue of the tort, the trial judge awarded the claimant damages which were assessed by reference to a licence fee which the claimant would have charged the defendant to operate its market. This remedy could be characterized as either compensatory, by virtue of the licence fee which the claimant had not been able to charge, or restitutionary, by reference to the amount saved by the defendant in not having to pay a licence fee to the claimant. But the Court of Appeal overruled the trial judge’s decision and awarded nominal damages, on the basis that generally damages for tort could only compensate the claimant for actual loss suffered. Similarly, in Forsyth-Grant v Allen^[8] the remedy of an account of profits was held not to be available for the tort of nuisance arising from interference with the claimant’s right to light because this was not considered to involve any misappropriation of the claimant’s rights but only infringement of the reasonable enjoyment of property.^[9] Negotiation damages were recognized as being available in principle, although not on the facts because the claimant had been unwilling to negotiate with the defendant. That is incorrect, however, since negotiation damages are to be assessed on the basis that the parties would have willingly negotiated with each other.^[10]

In the light of the general principles which have been identified in this chapter, nuisance should be considered to be a proprietary tort for which gain-based relief is available, even though it does not involve misappropriation of property but only interference with enjoyment. But, similarly, conversion need not involve misappropriation of a chattel but just interference with its use, and so too the tort of trespass of land. The Supreme Court in Coventry v Lawrence,^[11] whilst not formally recognizing that gain-based remedies are available for the tort of nuisance, did at least leave open the possibility of such remedies being awarded.^[12] Some of the Justices also recognized that negotiation damages could be awarded in lieu of an injunction and that it was appropriate in assessing these damages to take into account the benefit to the defendant in not suffering from an injunction being awarded.¹¹⁷ Whether an account of profits or negotiation damages is appropriate should depend on the circumstances in which the tort was committed, as has been recognized for the tort of trespass to land, with account of profits confined to the more serious cases, such as where the tort was committed deliberately and in order to make a profit, since it is appropriate to use the remedy of an account of profits to deter the commission of the tort in such circumstances.¹¹⁸

• [1] Twentieth Century Fox Film Corporation v Harris [2013] EWHC 159 (Ch).
• [2] Copyright, Designs and Patents Act 1988, s 97(1). Similar provision is made for innocent infringementof a design rights: ibid, s 233(1).
• [3] Redwood Music Ltd v Chappell and Co Ltd [1982] RPC 109. 105 Patents Act 1977, s 61(1).
• [4] 106 Ibid, s 62(1). 107 My Kinda Town Ltd v Soll [1982] FSR 147.
• [5] 108 Edelsten v Edelsten (1863) 1 De GJ and S 185, 46 ER 72.
• [6] 109 Gillette UK Ltd v Edenwest Ltd [1994] RPC 279. 110 [1986] 2 All ER 888.
• [7] 111 [1988] 1 WLR 1466.
• [8] [2008] EWCA Civ 505. 2 Ibid, [32] (Patten J). 3 See p 430, above.
• [9] 115 [2014] UKSC 13, [2014] AC 822.
• [10] 116 Ibid. [131] (Lord Neuberger), [173] (Lord Clarke), [239] (Lord Carnwath).
• [11] 117 Ibid, [131] (Lord Neuberger), [173] (Lord Clarke). 118 See p 459, above.
• [12] 119 (1810) 3 Taunt 274, 128 ER 109.