Sarvenaz Fouladi (Claimant/Respondent) v (1) Darout Ltd (2) Ahmed El Kerrami (3) Sarah El Kerrami (Defendants/Appellants) & St Mary Abbots Court Ltd (Defendant) : Sarvenaz Fouladi v St Mary Abbots Cou
A lessee and occupiers of a flat were liable in nuisance for noise caused to the occupiers of the flat below where the flooring of the upper flat was inadequate to prevent significant noise transmission. The lessee was also in breach of covenant under the lease for failing to obtain the landlord's consent to renovation works resulting in the inadequate flooring. Although the landlord was aware of the works, it had no knowledge of the nuisance and was therefore not liable by participation.
The first three defendants (D1 to D3) appealed against orders finding them guilty of nuisance and finding D1 in breach of covenant. The claimant appealed against the dismissal of her claims against the fourth defendant (D4) for breach of covenant and in nuisance.
The claimant was the lessee of Flat 62 in a block development. D1 was the lessee of Flat 66, which was directly above Flat 62 and was occupied by D2 and D3. D4 was the landlord. The flats were held on long leases on the same terms. Clause 3(f) prevented the tenant from carrying out any alteration to the premises without D4's consent. It was accepted that D1 was in breach of reg.14 of the lease, which required the tenant to cover the floors with material suitable to avoid the transmission of noise. The claimant brought proceedings based on noise disturbance, claiming that D4's conduct in giving D1 a licence to carry out renovation works in 2010 had rendered it directly responsible for the nuisance and/or meant that the continuing nuisance was a breach of the covenant for quiet enjoyment within the lease. The judge held that the work to the floor of Flat 66 was an alteration requiring permission within cl.3(f) but that the licence did not include permission for such work. He therefore held that D1 had acted in breach of the lease of Flat 66 when carrying out the works, and that those works had given rise to an actionable nuisance on the part of D1 to D3. He ordered D1 to carry out remedial works to the floor and awarded damages against D1 to D3 in a daily sum up to the completion of the works. The claim against D4 was dismissed. D1 to D3 challenged the judge's findings and sought to raise a new argument that the terms of the lease were irrelevant to D2 and D3 as regards liability, as they were not parties to it.
Assessment of evidence - The judge had made a detailed assessment of the evidence given on the disputed matters of fact. He had summarised the evidence of both parties' acoustic experts and explained the assistance he had derived from their reports. He had been entitled to accept evidence from local authority officers who had been called to Flat 66 that noise could be heard from Flat 62 to a disturbing level. There was evidence to support all the judge's findings and his decision was fully explained and justified (see paras 20-32 of judgment).
2010 works - The judge had been entitled to find that, but for changes made to the floor of Flat 66 in 2010, the noise disturbance would not have occurred. Although there was no evidence as to the physical nature of the floor before the 2010 works, the judge was able to reach his conclusion based on findings that there was no problem of noise transmission through the floor before 2010 (paras 36-39).
Breach of contract - In assessing damages for breach of contract, the actual situation produced by the breach had to be compared with what it would have been if the contract had been performed. In relation to the breach of reg.14, therefore, the judge had been entitled to award damages reflecting the effect of the use and amenity of Flat 62 resulting from the floors in Flat 66 falling below the contractual standard, allowing a significant amount of noise to pass. Since D1 had not obtained consent for the works to the floor, it was also in breach of cl.3(f). It followed that D1 was liable for damages for breach of contract which should reflect the loss of amenity to Flat 62 (paras 68-69, 76).
Liability of D2 and D3 - Although D1 was responsible for those works as lessee, D2 and D3 had chosen what works were to be done and they were therefore liable in nuisance on that basis. The fact that the lease laid down a contractual standard for conduct did not assist when considering the application of the law of nuisance, the requirements of which should apply equally as regards D1, who was bound by the contractual provision, and D2 and D3, who were not so bound (paras 97-98).
Damages - The judge had had jurisdiction to award continuing damages in addition to the mandatory injunction requiring D1 to D3 to carry out remedial works, and also in substitution for an injunction restraining D2 and D3 from living in Flat 66. D2 and D3 were precluded from raising for the first time on appeal an argument that the judge should have deducted from the compensation period a number of days when they were away from the flat (paras 104-105).
Order to undertake remedial works - The judge was entitled to make an order requiring D1, and possibly also D2 and D3, to remedy the nuisance. Although it was open to him to specify precisely what work should be done to abate the nuisance, he had not defined those works but his order had laid down a procedure whereby the claimant's acoustic expert and D4 would approve the proposed works before they were carried out (paras 110-111).
Claimant's appeal - A landlord was not liable for a nuisance caused by his tenant merely because he did not take steps to prevent what was being done, Malzy v Eicholz  2 K.B. 308 followed. However, a landlord could be liable for the nuisance of its tenant if it participated in or authorised that nuisance. Any participation had to be "active" or "direct", Coventry v Lawrence  UKSC 46 followed. D4 could have taken steps to prevent D1 from carrying out the works, as it knew that the works were being carried out even though it had not given its consent. However, there was no finding that D4 knew that the works involved a nuisance and it followed that it was not liable for that nuisance by participation. Accordingly, there had been no breach of the covenant for quiet enjoyment (paras 121, 123-124, 129, 132-133).