Hunter V Canary Wharf Analysis

The refusal of the court in Hunter v Canary Wharf, to extend the categories of those who could benefit from the law of nuisance has meant that the claim of nuisance remains only with those who have a right to the property. This essay critically analyses the decision in Hunter v Canary Wharf, in the light of previous decisions as well as the European Convention of Human Rights, particularly Article 8(1), which protects the private rights of home life, which the judgment in Hunter v Canary Wharf restricts by not allowing individuals to take action in nuisance unless they can show proprietary interest in the property. This essay argues that the decision in the case is not in keeping with the positive changes that had already taken place in the law prior to this decision, nor is it in accordance with the human rights of the individuals in occupation of property. In seeking law dissertation help, it becomes evident that this case highlights a significant divergence between established legal principles and contemporary human rights considerations.

In Hunter v Canary Wharf, the claimants claimed that the construction of One Canada Square by Canary Wharf Ltd. was a cause of nuisance as it led to the interference with the signal of their television. The House of Lords was unanimous in its decision that impairment of television signal did not amount to a right to action in nuisance. Moreover, as per the judgment in Hunter, actions in private nuisance could only be claimed by those who had a right to a property. The statement that the House of Lords refused to extend the categories of those who could benefit from the law of nuisance reflects on the specific part of the judgment in Hunter, wherein the House of Lords refused to allow private nuisance action to those who did not have proprietary or possessory interest in the land. In doing so, the House of Lords rejected the position taken by the Court of Appeal in Khorasandjian v Bush, as well as in Hunter itself before the case came in appeal to the House of Lords. Instead, the court chose to maintain the position taken by the Court of Appeal in Malone v Laskey. In Malone, it was held that actions in private nuisance could only be taken by those with proprietary or possessory interest in land. Khorasandjian saw the Court of Appeal widen the category of claimants by holding that a person in domestic occupation of her parents’ house would have action in private nuisance. However, Hunter saw the House of Lords reject the position in Khorasandjian, thus bringing back the applicability of the law of nuisance to a more limited category of claimants as decided in the more convention position in Malone.

One of the key arguments in this essay is that the position in Khorasandjian was more in line with the human rights law, which has been incorporated in the Human Rights Act 1998, particularly Article 8(1) of the European Convention of Human Rights (ECHR) and the jurisprudence developed by the European Court of Human Rights (ECtHR). Therefore, one of the grounds on which the position of the House of Lords in Hunter v Canary Wharf can be criticised is that it does not align with the Human Rights Act 1998 because it restricts the rights of individuals to claim nuisance even when they are hindered in the enjoyment of their family life. Second argument taken in this essay is that Hunter took a ‘straightjacket’ approach to torts, allowing only ties to land as giving relief for those who faced nuisance. This can be seen in the explanation given by Lord Goff of Chieveley: “[t]he term ‘nuisance’ is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.” It can also be seen in the explanation offered by Lord Hoffmann that the principle of nuisance limits the extent to which a nuisance claim can be based on activities offending the senses of occupiers and not to physical damage to the property. This is problematic because it is restrictive and does not take into consideration the full range of rights that a property occupier has regardless of his proprietary right or lack thereof.

In Malone, the Court of Appeal noted that there can be no formulation of principle of which would allow an action in nuisance to a person without an interest in property and without a right to occupation of the property. This cannot be said to be the correct approach because the notion of proprietary interest and right to occupation cannot be considered to be the only sufficient grounds for expanding the categories of those who could benefit from the law of nuisance so as to include individuals without proprietary interest in the property but in occupation of the property. However, the notion of proprietary interest and right to occupation cannot be considered to be the only sufficient grounds for expanding the categories of those who could benefit from the law of nuisance so as to include individuals without proprietary interest in the property but in occupation of the property. In Hunter, the House of Lords refused to allow action to occupants unless they could show that they had some proprietary interest in the property. This went against the reasoning taken by the Court of Appeal in Khorasandjian and approved by the same court in Hunter, with Pill LJ noting that there is a significant or “ substantial link between the person enjoying the use and the land on which he or she is enjoying and even occupation of property as a home can confer upon the occupant a capacity to sue in private nuisance”. He further noted that given the increasing trend in the law to give additional protection to occupiers it was no “longer tenable to limit the sufficiency of that link by reference to proprietary or possessory interests in land.” This view appears to be more in line with the human rights approach which would protect a person’s right to family and home by allowing action for nuisance even if a person does not have a proprietary interest in the home he occupies.

Therefore, one of the grounds on which the position in Hunter can be criticised is that it does not align with the Human Rights Act 1998. The House of Lords did consider the position taken by the Court of Appeal in Khorasandjian but it refused to apply it. With respect to this, the Lord Goff’s observation on both the decision of the Court of Appeal in Khorasandjian as well as on academic writing post that decision, showed that he did not agree with either the decision or the writings supporting the decision, as the following excerpt from the judgment indicates:

“Some writers have uncritically commended the decision of the Court of Appeal in Khorasandjian v Bush [1993] QB 727, without reference to the misunderstanding in Motherwell v Motherwell 73 DLR (3d) 62, on which the Court of Appeal relied, or consideration of the undesirability of making a fundamental change to the tort of private nuisance to provide a partial remedy in cases of individual harassment. For these and other reasons, I did not, with all respect, find the stream of academic authority referred to by my noble and learned friend to be of assistance in the present case.”

Lord Goff’s viewpoint does not seem to be in line with the decision in the case of Motherwell v Motherwell, which Lord Goff referred to in the above noted observation. Motherwell is a Canadian case which supported the proposition that occupancy could establish standing to sue in nuisance of the occupancy was of a substantial nature. In Hunter, the majority of the court did not support the decision in Khorasandjian on the ground that it was wrongly based on the decision in Motherwell; instead they held that Khorasandjian had laid ground work for opening up a new tort of harassment limited to the harassment that takes place in the home of the claimant. The court in Hunter was of the opinion that as the tort of harassment had received statutory recognition, it was no longer necessary to develop common law to provide a remedy in law of nuisance. However, the court did not take into consideration non-harassing interferences that can be equivalent to nuisance to the occupants of the property. Such non-harassing interferences were exactly the kind of interferences that the claimants suffered and brought in action in Hunter. In such cases, unless the law of nuisance is allowed to be used for bringing in action, there is little that the claimants can get remedy from as the case does not fit into the negligence category or the harassment category. Thus, the only reasonable action that remains is to bring action for nuisance as in the cases of Motherwell and Khorasandjian.

In Hunter, the position taken in Motherwell and Khorasandjian was critiqued by Lord Goff, who posed the rhetorical question as to where will the tort of nuisance end if anyone and everyone would be allowed a remedy in nuisance if occupants of the property would be allowed such action. Lord Goff referred to the Court of Appeal’s adoption of the “not easily identifiable category of those who have a substantial link with the land, regarding a person who occupied the premises as a home as having a sufficient link for this purpose”, saying that it was difficult to say as to who could be included in this category of people with substantial link. He noted that the law of nuisance in this context of substantial link could include a number of relations, such as, spouses, or partners, children, and relatives living with them; but that there was lack of clarity on lodgers or other inmates of the premises. Based on this lack of clarity, Lord Goff observed that it was not appropriate to expand the category of persons who could benefit from the law of nuisance.

Lord Goff’s argument seems to be based on the possible lack of certainty as to the class of persons who could be allowed actions under law of nuisance if such actions are to be based on a “sufficient link” to the property. However, it has been argued that this basis for refusing to expand the law of nuisance to allow residents of a property in general a right of action, is not justified because it is clear that such class of persons would include all persons who live in the property, such as family members or even lodgers or resident workers and not temporary visitors. There seems to be some support for the substantial link basis in academic literature as seen in Wightman’s article, in which he argues that the rights of action under the law of nuisance should also be extended to those categories of persons who have an important "activity connection" with the land even though they may not have any rights over the land; in which case people engaged in recreational activities or those enjoying a right of way over the land would also be able to take actions in law of nuisance. This may be a more liberal outlook on nuisance actions and one that may not find much support in authorities; however, the expansion of the categories of persons who had action in law of nuisance to include occupants of a property may be reasonable and justified on the basis of the family home rights of the occupants as protected under the human rights jurisprudence. This view was also emphasised on by Lord Cooke in his dissenting opinion in Hunter, where he observed that protection of occupation of home was an “an acceptable criterion, consistent with the traditional concern for family life and the Englishman’s home.” How Hunter impacts human rights is a matter of importance because it has been argued that human rights may be the key to challenging the decision in Hunter as the UK failed to protect the interest of the victims in that case to their right to family life and interest in family home as protected by Article 8 of the ECHR. It has been noted that with respect to the interests in family rights and the family home, the decision in Hunter is problematic because it does not take into consideration the rights of people to the enjoyment of their family home in the event that they lack proprietary interest in the property of occupation.

Interests in family rights are protected in Article 8 of the ECHR. This interest would cover the interest that people may have in their right to enjoyment of their family home as well. The ECtHR jurisprudence shows as much as will be discussed below. The rights protected in Article 8(1) are that “everyone has the right to respect for his private and family life, his home and his correspondence.” These are not to be seen merely in the traditional contexts of home, or private life. For example, in Buckley v. United Kingdom, the court recognised the right to home in the caravan that was being occupied by the claimants although it could not be extended to the wider field in which the caravan was parked. Human rights approach would necessarily differ from a purely proprietary approach to home or property. In human rights context, it would seem to be perverse and “inconsistent with the common sense meaning of a human right to home life to say that a place is only a person's home if he or she has legal rights over it.”

Proceeding from the argument that people can have family rights attached to their home even if they do not have proprietary interest in the property they call home, it would become illogical to hold that a person may have such human rights in family life and family home but no legal method of enforcing these rights where the interference in such rights proceeds from nuisance and not mere harassment, unless the victims can prove that they have proprietary interest in the ‘home’. However, in Hunter, the court refused to recognise the right of mere occupants to bring a claim in nuisance even if the defendant’s actions had interfered with the right of family life or the right to enjoy the family home. In this context, there is a difference drawn between the proprietary rights in property and private rights in the ‘home’ as noted in the ECtHR jurisprudence on Article 8 of the ECHR as well as the Article I to Protocol I of the ECHR which protects the peaceful enjoyment of possessions.

In Buckley v UK, the European Commission had specifically noted that the concept of home within the meaning of Article 8, is not limited to those in lawful possession. This is the view that was also taken by the Court of Appeal in Khorasandjian, where it held that anyone in occupation of a property as a home had an action in nuisance for their loss of enjoyment in such property. In this context, Dillon LJ made an observation to the effect that it was ridiculous if people getting harassing and pestering telephone calls would only be able to take action in the civil courts if they could prove that they had “freehold or leasehold proprietary interest in the premises in which he or she has received the calls.” The argument put forth by Dillon LJ seems to be more aligned to reconciling the law of nuisance to the more contemporary notion of human rights in family life and family home. In the aftermath of the Hunter decision, the question as to whether the decision is compatible with Human Rights Act 1998 and the ECHR has come up in the case of Nora McKenna and Others v. British Aluminium Limited, in which case the defendant had relied on Hunter to argue that the claims of those claimants who had no rights over the land should be struck out, whereupon Neuberger J. had refused to strike out the claims because of the question of compatibility between the Hunter approach with Article 8 of the ECHR. The court held in the case that while on the interlocutory basis it was probable that the law of nuisance did require the claimant to have an interest in land, however, due extension of Human Rights law to common law, it could not be said that the claimants had no prospect of success in action under nuisance simply because they did not have an interest on the land.

As the approach taken by Neuberger J. above indicates, there is reason to consider the relationship between tort and property law in the light of impact of Human Rights Act 1998. In the period since the enactment of the Human Rights Act 1998, there have been cases where the claimants have sought to use the Human Rights Act 1998 in order to claim actions in nuisance based on grounds that may not have been allowed in the period before the passage of this law. Nora McKenna, exemplifies this; in this case, 30 children from different households brought action for private nuisance against the emissions and noise from the defendant’s factory. While the court did find in favour of the defendants on the basis that the children did not have locus standi as they did not have proprietary interest in the property, it was held by the court that in light of the dicta of the Court of Appeal in Douglas and Others v Hello Ltd!, that common law needs to be developed in line with the human rights protected by the ECHR. It can also be said that the approach taken by the House of Lords in Hunter is a straitjacket approach to nuisance by allowing only ties to land as ground for giving relief for those who faced nuisance. This approach does lead to some harsh repercussions due to the need to preserve the historical link between tort law and rights in land.

Conclusion

The expansion of categories of those who can benefit from the law of nuisance was not allowed in Hunter, however in the light of the changes brought in by the Human Rights Act 1998, it is necessary to review the principle in the case in the light of human rights jurisprudence. This would allow the courts to develop the law of nuisance to allow actions to those with substantial link to the property instead of only allowing people with proprietary interest. Occupants of the property, even when they do not have proprietary interest will have to be provided remedies in law of nuisance as per the human rights approach.

Table of Cases

• Buckley v UK (1995) 19 EHRR CD 20.
• Douglas and Others v Hello Ltd! [2001] QB 967.
• Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655.
• Khorasandjian v Bush [1993] QB 727.
• Malone v Laskey [1907] 2 KB 141.
• Motherwell v Motherwell 73 DLR (3d) 62.
• Nora McKenna and Others v. British Aluminium Limited (2002) Ch D (Birmingham ).

Books

Allen T, ‘The Human Rights Act (UK) and the Property Law’ in Janet McLean (ed.), Property and the Constitution (Hart Publishing 1999).

Giliker P, ‘The relationship between property law and tort law’ in Alistair Hudson (ed.), New Perspectives on Property Law: Obligations and Restitution (Routledge 2013).

Journals

Garwood-Gowers A, ‘Improving Protection against Indirect Interference with the Use and Enjoyment of Home: Challenging the Legacy of Hunter v. Canary Wharf Using the European Convention on Human Rights and Human Rights Act 1998’ (2002) 11 Nottingham LJ 1.

Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.

Wightman J, ‘Nuisance-The Environmental Tort-Hunter v Canary Wharf in the House of Lords’ (1998) 61 Mod. L. Rev. 870.

Wilde M, ‘Locus Standi in Environmental Torts and the Potential Influence of Human Rights Jurisprudence’ (2003) 12 Rev. Eur. Comp. & Int'l Envtl. L. 284.