Distinction Between Public Nuisance and Private Nuisance

Public Nuisance

1. Explain how public nuisance is distinct from private nuisance.

(7 marks)

Public nuisance affects a substantial number of people, unlike private nuisance which is limited to private parties. In other words, the principle difference between public and private nuisance is that the former is an act that is affecting the public at large while the latter is an act affecting particular individual or individuals. Private nuisance is actionable only under the law of tort whereas public nuisance can lead to an action in tort as well as prosecution in criminal law.

2. With reference to case law explain what constitutes a ‘class of Her Majesty’s subjects’ (6 marks)

In Attorney-General v PYA Quarries Ltd [1958], the phrase ‘class of Her Majesty’s subjects’ was explained as that which is representative cross-section of the class, which may be a neighbourhood or local community. It was also noted that whether the affected people would comprise a sufficient number of persons to constitute a class of the public is a question of fact to be decided on a case to case basis. Thus, in R v Ruffell (1991), local residents of a locality were held to be a class of people affected by the nuisance caused by an "acid house" party. Thus, a group of people with a common interest can be said to form a class of Her Majesty’s subjects (R v Ong [2001]).

Private Nuisance

3. What must be proven to establish a successful claim in private nuisance? Include a case authority to support your answer. (7 marks)

A private nuisance is defined as an unjustified interference in a person’s enjoyment of their land. In order for the claimant to establish a successful claim in private nuisance, they have to establish the following. First, the claimant must have a possessory interest in the land and it has been established by Hunter v Canary Wharf that in the absence of such possessory interest, there is no claim of private nuisance. Second, the claimant must establish that the defendant interfered with the plaintiff's use and enjoyment of his property through his actions. Third, the claimant must establish that the use or enjoyment of land was substantial and unreasonable.

4. Nuisance involves balancing the rights of adjoining owners, when considering reasonable user explain the factors considered in Coventry v Lawrence [2014] SC and why the Supreme Court upheld the trial judge’s decision. (7marks)

Reasonable user (as opposed to non natural user) is one who uses the land to its natural and reasonable purposes. The factors that the court considered in upholding the trial judge’s decision included consideration of the activities of the defendant, the character of the locality, and relevance of the planning permission although the last was not an important consideration for all cases because planning permission by itself does not mean that relevant activity leading to nuisance becomes lawful. The Supreme Court also considered that public interest itself may be a relevant consideration, such as for example, the effect on the employees of the defendant.

5. Explain what is meant by reasonable user and why the Court ruled against the claimants in Hunter v Canary Wharf 19961 ALL ER 482. (7marks)

Reasonable user refers to the use of land for reasonable purposes based on the character of the land. In Hunter v Canary Wharf, the court held that the impairment of television signal cannot give a right to action in nuisance. The court also held that private nuisance action can only be claimed by someone with a proprietary or possessory interest in the land.

Nuisance Defences/Remedies

6. Outline the available defences in private nuisance and cite relevant case law to support your answer. (7 marks)

One defence to an action in private nuisance is that the defendant and could not reasonably have had control over the land leading to nuisance. Second defence that can be taken is if the defendant has carried on the nuisance for at least twenty years before the claimant makes a complaint (Sturges v Bridgman [1879]). This is available under the Prescription Act 1832. The third defence is that the claimant has given consent to a defendant’s activities. Fourth defence is if the activities are carried out under statutory authority so that the statute has authorised activities (Allen v Gulf Oil Refining Limited [1981]).

Defamation: Elements

7. What must a Claimant prove to establish a successful claim in defamation including supporting case law. (7marks)

Defamation is the publication of a statement which tends to lower a person in the estimation of right thinking members of society generally, or which tends to make them shun or avoid that person. Therefore, there must be a statement that is published or made public through speech or words or some other permanent communication ( Monsoon v Tussauds Ltd [1934]). Such a statement must lead to inferences that lead to the person being lowered in esteem (Parmiter v Coupland [1840]). Such a statement must be untrue in order to be defamatory. The statement must be such that the claimant is clearly identified (Morgan v Odhams Press).

8. In what circumstances can a company/ corporation sue in defamation and provide a supporting case to support your answer? (5 marks)

Companies can only sue for defamation in case of serious financial loss. Section 1(2) of Defamation Act 2013 provides that companies have to establish that the defamatory statement has caused or is likely to cause them serious financial loss.

9. With reference to the Defamation Act 2013 explain through reference to relevant sections how it has changed the substance of defamation law. (6 marks)

The changes introduced by Defamation Act 2013 brought changes in how libel law works. There is a test of serious harm in Section 1 to prevent trivial libel claims. Section 5 provides a new defence to the providers or operators of websites. There is now a defence of public interest so that if the defendant reasonably believed the statement was in the public interest, then he would have a defence against defamation. Section 3 repeals the common law defence of fair comment.

Defamation: Defences

10. Outline the new defence of publication in a matter of public interest and the circumstances in which it can relied upon citing at least one case example to support your answer. (7 marks)

There is now a public interest defence available under the Defamation Act 2013, Section 4, which provides that if the statement complained of was or formed part of a statement on a matter of public interest and if the defendant reasonably believed that publishing it served public interest, then the court may allow the defence. Recently, the Supreme Court had held that there is no need to show that the publisher acted responsibly in publishing but it has to be considered by the court whether a publisher invited comment from a claimant before publication and not inviting comment could even form the basis for deciding that publisher’s belief that publication was in the public interest was not reasonable (Serafin v Malkiewicz [2020]).

11. Outline the defences that may be raised to a claim in defamation citing relevant case law. (7 marks)

There are some general defences available for defamation claim. The first defence is truth where the defendant can establish that the statement was true (Alexander v North Eastern Railway). This is also available under Section 2 of the Deformation Act. The second defence is honest opinion which is also available under the Defamation Act Section 3. The third defence is that the publication is on a matter of public interest also available now under Defamation Act Section 4. The fourth defence is privilege as defined in Adam v Ward, where the court held that the communication between a person who has a duty to make it and a person who has a right or interest to receive it is not defamatory.

12. Explain the circumstances in which a defendant may make an ‘offer and amends’ and include case law in support (7 marks)

Under section 2 of the Defamation Act 1996 a person may make an offer of amends, which provides an opportunity to acknowledge they were wrong and prevent the claim from going any further. This can be done only before the service of a claim and must involve an acknowledgement of being wrong by the defendant, offer to make a suitable correction and apology and publication of the same in a reasonable and practical manner. The defendant also has to compensate the claimant (KC v MGN Ltd).

Misuse of Private Information

13. Explain with reference to relevant case law when a duty of confidentiality is established and what remedies may be sought by the claimant when it is breached. (7 marks)

The duty of confidentiality is a common law duty. It means that personal information shared in confidence must not be disclosed unless it is authorised under some legal authority or there is some justification for the same. It can arise under certain kind of relationships of confidence as well, for example a lawyer and client. The duty may also arise as between a company and an employee where the latter has information that must be kept confidential by the employee as per the common law (Horkulak v Cantor Fitzgerald).

14. Explain the ‘reasonable expectation of privacy test’ and support your explanation with two cases. (6 marks)

In Campbell v Mirror Group Newspapers Ltd, the reasonable expectation of privacy was explained as where there is a relationship between the claimant and the defendant where the former can expect reasonably that the private information will not be published. The reasonable expectation of privacy test can be used in relation to information shared between friends (McKennitt v Ash). However, expectation of privacy is lost when the information has already become public information.

15. Explain the facts in Von Hannover v Germany [2004] ECtHR and why the ECtHR upheld Princess Caroline’s claim and why this decision is influential. (7marks)

The case involved the publication of photographs of the royal family on holiday in German newspapers violated the right to privacy of the claimants because there was no matter of public interest involved in the news story with the photographs. As there was no public interest involved, the newspapers were not allowed to publish the private photographs of the royal family. This case is significant because it has wider repercussions involving the publications of photographs related to the private lives of public officials.

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