Gallery Owner's Distress

SKELETON ARGUMENT

1. Introduction

1.1 This is an application by the Claimant (C) for the interim injunction which is prohibitory in nature of an issue claimed for an act of private nuisance by the Defendant ( D ).

1.2 The documents relied upon his application are:

2. Draft Order

2.1 C’s witness statement.

2.2 Exhibit AK/1 copy of Mr Kamara’s latest savings account statement;

2.3 Exhibit AK/2 a copy of a photograph of the crack in Mr Kamara’s wall

2.4 Exhibit AK/3 a copy of an email sent by Mr Kamara to Ms Dawson dated

2. BACKGROUND AND ISSUES

2.1 C is a sole legal owner, and registered proprietor of a property, known as ‘the Cliveley Gallery and the leasehold was purchased on a 199-year old lease to use it as a art gallery for the use of local people and to motivate and give opportunities to young artists to display their work.

2.2 The Councillor, Henry Olinsky had informed C of a food place by the name of ‘Bar One’ owned and run by the second Defendant (D) to sell hot food.

2.3 C’s business was running well and had be become one of the ‘best Upcoming Attraction and the word spread far. The interruption of Covid made it mandatory to maintain distance therefore, most visitors were meant sit on the outside. These visitors would often have to face drunken behaviour from those sitting on the terrace, including terribly foul language along with litters that blows over to C’s property making it extremely unattractive.

2.4 Not only that, post the lockdown D started to diversify its company and started streaming live music which was extremely loud and disrupted C’s business, his art gallery so much so that there was no scope of having conversation as the noise would drown the entire room.

2.5 C had also constructed his home on the second floor but he had not anticipated that the noise would go to such extreme that it would interfere not only with his professional life but his personal life as well and he was unable to sleep. He had to go to the extent of requesting D to conduct acoustic sessions so that he could sleep.

2.5 These issues were communicated to D on many occasions. Initially, D was receptive and polite in engaging with his issues but practically implemented nothing that would better the situation.

2.6 C had requested D on many occasion to implement sound proof system but she ensured to look into developing on the proposal but later ignored C’s request multiple times.

2.7 The matters were worse when C found a crack in his living room noise that was not previously there and he believes it is due to a concert held by D as he felt it reverberating through his property as well.

2.8 Even though C is willing to move out but his financial position will not allow him to do so. He initiated the interim injunction so that by the time D’s bar opens after the second lockdown and his case will be looked into.

2.9 C’s entire personal as well as professional life is deeply affected, his inability to sleep has caused him nervous breakdowns and the atmosphere has affected his gallery and established artists have denied him which is a huge downfall for his business.

3. ISSUES

The claim proceeds raise a few issues for determination:

3.1 Whether the defendant is causing substantial and unreasonable interference in the Claimant’s property?

3.2 Whether the defendant is interfering with the use or enjoyment of his land?

3.3 Is the interference caused by the Defendant causing injury to his comfort or health?

3.4 Does the interference caused by the Defendant causing damage to the Claimant?

4. RELEVANT TESTS AND LAW

4.1 The Shelter test created the Principal remedy that in any claim of nuisance, an injunction to restrain such a nuisance, a claimant would only be awarded damages in lieu of an injunction in the very limited circumstances established in the 1895 case of Shelfer v City of London Electric Lighting [1895] 1 Ch 287. The Shelfer test states that damages should be awarded in lieu of an injunction if:

(i) the injury to the claimant’s legal rights is small;

(ii) the injury is capable of being estimated in money;

(iii) the injury can be adequately compensated by a small money payment; and

(iv) it would be oppressive to the defendant to grant an injunction.

4.2 The ‘Reasonable test in the case of Barr v. Bifaa, as been considered by the Court of Appeal in Weir’s An Introduction to Tort Law ‘Reasonableness is a relevant consideration… but the question is neither what is reasonable in the eyes of the defendant or even the claimant (for one cannot by being unduly sensitive constrain one’s neighbour’s freedoms), but what objectively a normal person would find it reasonable to have to put up with.’

4.3 The question of interference must be dealt with “… not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people” (Walter v Selfe (1851), at page 322).

4.4 The ‘real interference with the comfort or convenience of living’ rule is intended to eliminate trifling claims. Carnwath LJ relied on the judgment in St Helens Smelting Co v Tipping (1865):

“… you must not stand on extreme rights… Business could not go on if that were so. Everything must be looked at from a reasonable point of view; therefore the law does not regard trifling and small inconveniences, but only regards sensible, inconveniences, injuries which sensibly diminish the comfort, enjoyment or value of the property which is affected”

5. PRIVATE NUISANCE AND IT’S LEGAL FRAMEWORK

5.1 The statutory nuisance regime is mainly laid down in the Environment Protection Act 1990 among which a few nuisances are listed under Section 79(1)(a)(h) of the Environment Protection Act, 1990. The nuisances to be considered as per the given case are:

5.1.1 The physical state of any premises “Premise” in Section 79(1) includes land and most vessels.

5.1.2 Smoke from premises

5.1.3 Noise from Premises (including vibration)

5.1.4 Noise from vehicle, machinery or equipment

5.2 A private nuisance usually is caused by a person doing something on his own land, which he is lawfully entitled to do but which becomes a nuisance when the consequences of his act extend to the land of his neighbour by, for example, causing physical damage

5.3 A private nuisance is actionable in tort

6. SUBMISSIONS

6.1 Whether the defendant is interfering with the use or enjoyment of his land?

It is pertinent that the Claimant is able to show there has been interference with his property which can be a physical invasion as in the case of Davie v. Harrow Corporation [1958] 1 QB 60 or with noise as in the case of Christie v. Davie even in situations of emotional distress like in the case of Thompson-Schwab v Costaki 1956] 1 All ER 652. The court has considered all three scenarios as a private nuisance and held as interference to the property of the claimant. In this case, the Defendant’s actions can be well put into this category as the constant noises produced by the Defendant’s business has significantly interfered with Claimant’s business so much so that his daily dealings with the artists in his gallery was shifted. The meetings held with established artists were often rescheduled as per the schedule of live music conducted by the Defendant and the claimant has also asserted in his witness statement that the noise would often drown down the conversations held in his gallery. These impediments were of faced by the claimant and can be held as significant interferences in his enjoyment or usage of his property, that affected the professional space of the claimant considerably.

6.2 Whether the defendant is causing substantial and unreasonable interference in the Claimant’s property?

The question of a substantial interference has been considered to be an interference that is ‘Offensive, Inconvenient or annoying”. The Defendant’s bar had created an atmosphere that not only had drunkards using foul languages at each other as well as visitors that came by to visit the Claimant’s gallery. The Claimant had faced major inconvenience due to the constant loud music used by the Defendant, along with the constant littering of street with sandwich wrappers, plastic coffee cups, receipts, paper napkins and such like from the floor of the gallery’s reception which the claimant himself had to clear up on many occasions. In cases like Estancias Dallas Corporation v. Schultz, 500 S.W.2d 217 (Tex. Civ. App. 1973), a large air conditioning unit was held to be causing nuisance as well. Therefore, substantial interference has been exhibited by the Defendant’s behaviour. The court has also interpreted the ‘unreasonable interference’ not only by the standard of the community and neighborhood but also the purpose served by the activity and the usefulness of such activity. In this case, the activity carried on by the Defendant is no doubt opening a space for young musicians and looking after the growth of the cultural hub but such an activity that causes the unreasonable interference is not concentrating on a social growth. The defendant must be aware of the amount of inconvenience it causes to all the visitors that come around that area along with the Claimant who is not only a professional but also has a residential place above the property affecting his personal life as well. The Claimant does not discourage the defendant to completely close down her business but he demands the defendant to incorporate a sound proof system that allows both of them to continue their business peacefully.

6.3 Is the interference caused by the Defendant causing injury to his comfort or health?

The claimant has asserted that the actions of the Defendant had been so burdensome and unreasonably interfered with his professional life, it also started affecting his personal life which he did not anticipate earlier. He built his home on the second floor of his gallery and the noise would equally reach the second floor affecting his sleep drastically. The claimant had reached a point where he had to personally request the Defendant to conduct an acoustic session just so he could sleep. The claimant’s lack of sleep had led him to function differently and coupled with the affect on his business and reduced number of visitors and established artists, it took a toll on his mental health leading him to face nervous breakdown as well. This is extreme deprivation of his peaceful enjoyment of property as well as life. Every individual must be given these basic rights and any such action that detrimentally affects this situation must be stopped from doing so, hence the injunction order claimed by the Claimant.

6.4 Does the interference caused by the Defendant caused damage to the Claimant?

The actions undertaken by the defendant, the lack of attention and refusal to act on the constant requests made by the claimant had caused severe damage to the Claimant. The claimant had requested the defendant to build a soundproof system as provided in Exhibit AK/3 the defendant had assured him that she will look into it but after sufficient time, no such initiative was taken by her. Thus, the music concert held by the defendant had affected his building leading to the formation of a crack in the claimant’s living room which was not present earlier. Therefore, it was believed to be due to the defendant’s action as given in Exhibit AK/2.

CONCLUSION

It is, therefore, respectfully submitted that the application be allowed and the interim injunction order be granted as set out in the draft order. The Defendant has caused sufficient injury and damages to the claimant thereby calling for immediate application of injunction to protect the business of the Claimant and ensure peaceful enjoyment of their property as well as conducting business peacefully. The practical reality of granting that injunction will not cause any irremediable harm to D.