Steenberg and another v Enterprise Inns plc and another

Nuisance action – Abuse of process – First nuisance action compromised on terms of consent order – Judge declining to determine preliminary issue in second action as to whether second claim an abuse of process – Judge subsequently deciding to hear preliminary issue after part of appellants’ evidence given – Whether consent order precluding second action – Whether procedure followed by judge unfair to appellants – Appeal allowedThe appellants brought a claim against the respondents for nuisance in connection with noise and smells coming from the kitchen of a public house next door to their house. The respondents argued that the claim should be struck out under CPR 3.4(2)(b) as an abuse of process, in that it sought to relitigate matters that had been the subject of earlier proceedings between the same parties, also relating to nuisance by noise and smells, that had been compromised by a consent order. The trial judge had rejected the respondents’ invitation to determine the abuse of process question as a preliminary issue. He proceeded with the first day of the trial, which was taken up with opening submissions, a site visit, the evidence of the appellants’ witnesses of fact and part of the first appellant’s oral evidence.On the second day of the trial, the judge, who was concerned that the trial was likely to overrun its three-day time estimate, decided that he would rule on the preliminary issue. At that point, the first appellant’s evidence had concluded but the appellants’ expert witness had not been called and the second appellant had not yet given evidence. After hearing submissions on the preliminary issue, the judge dismissed the appellants’ claim on the ground that it was an abuse of process and gave judgment for the respondents.The appellants appealed on the ground that, inter alia, the judge had acted unfairly, contrary to Article 6 of the European Convention on Human Rights, in hearing the preliminary issue and dismissing the claim halfway through the trial when there was prima facie evidence before him of an actionable nuisance. They also contended that he had wrongly construed the consent order, which, properly construed, did not preclude the bringing of the second nuisance action.Held: The appeal was allowed. The judge had erred in his construction of the consent order. The terms of that order, properly construed, did not preclude a future claim of which the party bringing it had been unaware when the consent order was made. At the relevant time, the appellants could not have been aware of the claims that they would subsequently make in the second action, which arose from the use of the kitchen at the public house subsequent to the consent order. Remedial works carried out by the first respondent’s predecessor in title had been intended to solve the problem and, at the time of the consent order, it appeared that this objective had been achieved to the satisfaction of all concerned. The consent order was intended to wipe the slate clean but to leave open the possibility of fresh nuisance proceedings if, in the future, noise or smells reached actionable levels.The procedure followed by the judge had been flawed and should not be repeated. He had struck out the appellants’ case on the footing that it was bound to fail, not only because of his erroneous construction of the consent order but based on findings of fact as to the lack of intensification of the operations in the kitchen since the consent order, the existence of the causes of the smells and noise at that date and that the appellants had been aware at that date of all the matters relied on in the second action. The potential unfairness of making findings of that nature at such an early stage of the trial was manifest. Although a judge might form a preliminary view on disputed issues of fact as a trial progressed, he could not properly form or express a concluded view until he had heard all the relevant evidence and considered the parties’ submissions. That stage had not been reached.It would have been acceptable for the judge to rule on the abuse of process plea as a true preliminary issue at or before the start of the hearing, assuming that the evidence on which the appellants relied was true, unless it was inherently or demonstrably incredible. On that basis, he could not possibly have made the findings of fact that he had purported to make in his judgment. Another possibility, had the respondents chosen to do so, would have been to rule on a submission of no case to answer at the conclusion of the appellants’ case, having heard all their evidence. In that case, the respondents would have been put to their election and would have decided to call no evidence. Instead, the judge had adopted a hybrid procedure of his own devising, in the face of the appellants’ justified opposition, that was flawed and unfair to the appellants. The only appropriate course was to order a retrial before a different judge.Jeremy Hyam (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; Aaron Walder (instructed by Flint Bishop Solicitors, of Derby) appeared for the respondents.Sally Dobson, barrister