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Defending nuisance claims

Stuart Whitehead reports on how a social landlord successfully defended a case brought by a tenant involving an alleged infestation of a property.

The claim was brought under S82 of the Environmental Protection Act 1990 on the basis that there was a statutory nuisance at the property – mice infestation. The initial letter was sent to the wrong address and gave the landlord 21 days to abate the nuisance, part of which fell over the Christmas / new year period.

The landlord immediately attended the property with a property officer and a pest control officer. The tenant explained that she had not seen any mice inside the property for over two years however had heard them scurrying around in the loft space at night.

No obvious entry points were found, but a long dead mouse was found in a trap under the kitchen units, so bait was placed in a number of areas and arrangements were made to attend again in a week's time.

Repairs were also ordered to block the possible access points to the property where mice could have been entering the property. However, some of these works involved obtaining materials from an external source and the delay would place this outside the 21 days period. The tenant and the solicitors were both informed about this.

When the pest control contractor next attended, no further issues were found at the property and the tenant confirmed this with the pest control officer. However, arrangements were made for the contractor to attend again and complete a final check.

The works were carried out at the property, but the solicitors then claimed to have received evidence from the tenant that there was an ongoing infestation.

The pest control officer arranged to attend two days later but the appointment was cancelled by the tenant who claimed to have COVID symptoms.

Numerous further attempts were made to gain access and in mid-January 2021. The contractor was told the tenant was not well and didn’t want anybody at the property.

Despite numerous e-mails to the claimant’s solicitor, no response was received until 17 February 2021 when a summons was received. The solicitors had sent a surveyor to the property who suggested there was still an ongoing nuisance. This was despite the tenant telling the landlords representative they couldn’t attend because they were ill!

The pest control officer attended again on 18 February 2021 but was unable to find any ongoing rodent activity. The officer contacted the tenant on 8 March 2021 and was told the property was rodent free, and there were no noises or any signs of rodent activity. On 17 March 2021, the pest control officer and the surveyor were again not allowed access despite a previously arranged appointment allegedly due to the tenant’s son isolating as a result of COVID.

The matter was listed for a hearing in the magistrates’ court on 22 March 2021 and the claimant’s solicitor offered to settle the matter in advance of the hearing in the sum of £1,000 damages and £6,000 costs.

Witness evidence was submitted to the court on behalf of the landlord and the landlord pleaded not guilty at the hearing. The matter was listed for a full trial on 27 May 2021.

Further attempts were made to gain access between March and May, but each was refused by the tenant with a different reason.

Shortly before the trial, the claimant’s solicitor provided a bill for its legal of costs in the sum of £16,800; this included very high charging rates and excessive time spent on different items. They also threatened to have the landlord’s evidence dismissed because it wasn’t in the trial bundle they had produced. This was despite the landlord not actually having to submit a written witness statement because this was a criminal matter.

At the trial, the court heard evidence from both sides, but eventually found in the landlord’s favour, commenting that they had attempted to abate the nuisance, making numerous visits and efforts to do so. The tenant had attempted to frustrate this by not allowing access and the landlord could not have been expected to make further efforts than it had.

The landlord was found not guilty (as the matter was heard in the magistrates’ court) and no order was made in respect of the claimant's costs.

What lessons can be learned from this?

  • Landlords should consider cases brought against them carefully. If there are sufficient grounds for defending the matter, they shouldn’t just agree to settle the matter and pay damages and costs.
  • Any nuisance that is brought to the attention of the landlord should be reviewed at the earliest opportunity and attempts should be made to abate the nuisance within the initial 21-day period. However, even if the nuisance can’t be abated within the 21 days, continuing attempts / action should be taken. The court will take the actions of the landlord into account when assessing liability and ultimately any award of damages.
  • Employees / agents of the landlord should ensure there is accurate record keeping throughout the process, particularly in respect of visits, appointments and action taken. Any issues with no access should be reported back to the legal representative, who will ensure the landlords actions to abate the nuisance are brought to the court’s attention.
  • Criminal cases are different from civil cases in a number of ways; defendants don’t need to submit evidence (although it is advisable so the representative knows what the witness is going to say) and the court directions, forms and procedure are different.
  • Finally, don’t always assume that the claimant solicitors know what they are doing! A lot of these cases are often settled prior to the trial because it is easier than defending the matter, landlords don’t understand the process and/or because they don’t want adverse publicity in the courts. As was seen in this case, the claimant’s solicitor was expecting the case to settle prior to the hearing and made a catalogue of errors – which ultimately cost them at the final trial.

Stuart Whitehead is an Associate at Clarke Willmott.

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