Law Report: 19 May 1998: Council is not liable for harassment by its tenants

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Hussain and anor v Lancaster City Council; Court of Appeal (Lord Justice Hirst, Lord Justice Hutchison and Lord Justice Thorpe) 14 May 1998

A LOCAL authority could not be held liable in nuisance or negligence because it failed to prevent secured tenants or members of their households from committing criminal acts of harassment against nearby property owners.

The Court of Appeal allowed the appeal of Lancaster City Council against an order dismissing its application to strike out the plaintiff's claim as disclosing no reasonable cause of action.

The plaintiffs were joint owners of a shop and residential property situated on a housing estate owned by the council. They commenced proceedings against the council, alleging that it had acted negligently, and had caused or permitted nuisance to the plaintiffs, in that it had failed to take possession proceedings or other appropriate action against tenants of the council, or people living with them, who were responsible for severe racial harassment of the plaintiffs, including damage to their property.

The plaintiffs relied on a clause in the council's standard form of tenancy agreement which provided that the tenant was:

. . . to make sure that you, the people who live with you and your visitors: show proper consideration towards other residents in the area; do not do anything which may cause discomfort, annoyance, or nuisance from noise, unreasonable or anti- social behaviour; do not discriminate against or harass any residents or visitors.

They also relied on the council's equal opportunities policy which stated: ". . . [the council] views any form of racial harassment as a serious offence and we will take action against anyone who harasses others", and on the power to order possession under the Housing Act 1985.

Daniel Brennan QC and David Watkinson (Bhailok Fielding, Preston) for the plaintiffs; Rupert Jackson QC and Natasha Joffe (Reynolds Porter Chamberlain) for the council.

Lord Justice Hirst said that the essence of the scope of the tort of nuisance was that a defendant's use of his land interfered with the plaintiff's use of his land. The person to be sued was the occupier of the property from which the nuisance emanated. In general, a landlord was not liable for nuisance committed by his tenant, with the exception that he would be so liable if he had authorised the tenant to commit the nuisance. The council could not, accordingly, be held liable to the plaintiffs in nuisance.

The scope for claims in negligence in relation to the exercise of statutory powers was very narrow and restricted, and, in order to succeed in such a claim a plaintiff would have to establish either that the defendant had been irrational in not exercising its statutory powers, or alternatively that there were exceptional grounds for holding that the policy of the statute in question required compensation to be paid to persons who suffered loss because the power had not been exercised.

In the present case, the plaintiffs quite clearly did not come within either of those special categories. Moreover, it would not be fair, just and reasonable to impose such liability on the council, since the courts should proceed with great care before holding liable those who have been charged by Parliament with the task of protecting society from the wrongdoings of others. It followed that the plaintiffs did not have a viable cause of action in negligence.

The appeal would, therefore, be allowed unless the plaintiffs could show that it would be inappropriate in principle to strike out their claim, and, since the law was plainly established, they could not do so. The court could well understand that the plaintiffs would feel aggrieved if they could not continue their action.

However, all that would be achieved would be a long and expensive trial doomed to certain failure.

Kate O'Hanlon, Barrister