Andrews v Reading Borough Council

The claimant, then acting in person, issued these proceedings in the Reading County Court on 22 October 2001. His claim was for £4,206.53, the cost of noise insulation carried out to his house at 50A London Road, Reading, in order to mitigate the excessive traffic noise which had been created by a traffic regulation order made by the defendants in 2000. The order was made under powers conferred by Section 1 of the Road Traffic Regulation Act 1984 and was entitled the Borough of Reading (A319 Kings Road Area)(Bus Lanes, Waiting Restrictions and Movement Control) Order 2000.

The claimant served Particulars of Claim on 5 November 2001 which described how the increase in traffic had seriously interfered with his and his family’s sleep. In the course of the particulars, the claimant stated:-

“I believe that to impose this increased level of road traffic noise and disturbance on my house, myself and my family without any assistance or attempt at mitigation contravenes our rights under the Human Rights Act 1998 and E.C.H.R.”

On 21 November 2001, the defendants served a defence together with an application to strike out the claim on the ground that it disclosed no cause of action. It was alleged in the alternative that the claim was premature because no proper application had been made by the claimant under the Noise Insulation Regulations, 1975. This allegation was surprising since, as the defendants certainly ought to have known, those regulations could not apply in the circumstances. That is because there was no alteration to the location, width or level of the highway: see Paragraphs 2(1) and 4(1) and (2) of those regulations. If the Regulations had applied, there would have been a discretion to make a grant for noise insulation provided that the increase caused by the relevant highway alteration made an effective contribution to the existing noise level of at least 1dB(A) and that that level was at least 68dB(A) averaged over a period between 6am and midnight on a normal working day taken at a spot one metre from the most exposed of any window or door of the property affected. The claimant, who is a retired engineer, has carried out, he says, the necessary measurements and these show an average increase of 3.17dB(A) over the 6am to midnight period and that the relevant level was 71.78dB(A), thus well over the 68dB(A) level specified in the Regulations. The claimant’s figures show that even at night between 9pm and 10pm the levels reached 69dB(A).

The claimant was ordered to amend his Particulars of Claim and this he did on 4 February 2002. In them he referred specifically to Article 8 of the European Convention on Human Rights and it was thus clear that the claim was being made pursuant to Section 7 of the Human Rights Act 1998. On 13 March 2002, the application to strike out was dismissed and directions were given. These included that the claim be “allocated to the multi-track (in the light of matters of public importance involved”), that there should be an agreed expert to report on noise levels at the claimant’s property and that, at the adjourned pre-trial review, questions of possible transfer to the High Court should be reconsidered. Although the claimant was interested only in obtaining the £4,200 odd he has had to pay for noise insulation, for the defendants there was the prospect that, if this claim succeeded, the cost of traffic regulation orders would escalate. Thus for them the claim had to be regarded as of considerable importance and, as will become apparent, they have incurred very substantial costs in preparing to defend it.

Perhaps realising that he had stirred up a potential hornets’ nest and that there would be procedural problems, the claimant made an application for judicial review. That was rejected by Silber J on 2 August 2002 on the ground of delay but also because ‘the claimant has an alternative remedy in private law proceedings’. On 23 August 2002, it was ordered by consent that the action be stayed until 14 days after judgment was given on the Government’s appeal to the Grand Chamber in Hatton v United Kingdom (the Heathrow aircraft noise claim before the ECtHR). That judgment was given on 8 July 2003. The defendants then on 18 August 2003 issued an application for summary judgment pursuant to CPR Part 24 on the ground that the claim had no real prospect of success. There was also an application in the alternative for security for coasts. Following a number of adjournments, the application eventually came before H.H. Judge Bishop sitting at Guildford County Court on 30 January 2004. He ordered that the application be adjourned to a date to be fixed allowing 1 ½ days for the hearing and that the proceedings be “transferred to the High Court (Administrative Court)”.

The Administrative Court office was, not surprisingly, somewhat puzzled as to how the proceedings should be treated by the Court and it was listed before me as an application. The reason why Judge Bishop was persuaded to make the order he did was because of some observations of Lord Woolf, CJ in Anufrijeva v LB Southwark [2004] 1 All E.R. 833. However, for reasons which I shall explain, I am satisfied that the transfer should not have been made to the Administrative Court, which is not the appropriate forum, and that Lord Woolf’s words did not require such a transfer. In the circumstances, I decided that the application should continue in the Queen’s Bench Division. Since I did not want the parties to incur further costs, it seemed to me that it would not be appropriate to send the proceedings back to the County Court and so I agreed to hear the application in my capacity as a judge of the Queen’s Bench Division.

Anufrijeva and the two other cases heard with it were appeals in claims for judicial review and damages based on alleged maladministration by the defendants which had resulted in breaches of the claimants’ human rights. The Court of Appeal was most concerned that the costs incurred in pursuing the claims far exceeded any amount of damages which might have been awarded. In Paragraph 79 on page 860j; Lord Woolf said this:-

“What is important is that in each case the combined costs of both sides were many times greater than damages that could reasonably have been anticipated. The costs at first instance of each party were totally disproportionate to the amount involved. When the total costs of both sides are looked at including the appeal, the figures are truly horrendous …”

In Paragraph 80 on p.861b he continued thus:-

“The reality is that a claim for damages under the 1998 Act in respect of maladministration, whether brought as a free-standing claim or ancillary to a claim for other substantive relief, if pursued in court by adversarial proceedings, is likely to cost substantially more to try then the amount of any damages that are likely to be awarded. Furthermore, as we have made plain, there will often be no certainty that an entitlement to damages will be established at all”.

In the following paragraph, Lord Woolf set out a number of suggestions which might avoid a repetition of the situation in future. I should set it out in full;

“What can be done to avoid a repetition of this situation in future proceedings? Based on the experience available at present we suggest as follows in relation to proceedings which include a claim for damages for maladministration under the 1998 Act. (i) The courts should look critically at any attempt to recover damages under the 1998 Act for maladministration by any procedure other than judicial review in the Administrative Court. (ii) A claim for damages alone cannot be brought by judicial review (CPR 54.3(2) but in this case the proceedings should still be brought in the Administrative Court by an ordinary claim. (iii) before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the Police Complaints Authority (PCA) or LGO at least in the first instance. The complaint procedures at the PCA and the LGO are designed to deal economically (the claimant pays no costs and does not require a lawyer) and expeditiously with claims for compensation for maladministration. (From inquiries the court has made it is apparent that the time scale for resolving complaints compares favourably with that of litigation). (iv) If there is a legitimate claim for other relief, permission should if appropriate be limited to that relief and consideration iven to deferring permission for the damages claim, adjourning or staying that claim until use has been made of ADR, whether by a reference to a mediator or an ombudsman or otherwise, or remitting that claim to a district judge or master if it cannot be dismissed summarily on grounds that in any event an award of damages is not required to achieve just satisfaction. (v) It is hoped that with the assistance of this judgment, in future claims that have to be determined by the courts can be determined by the appropriate level of judge in a summary manner by the judge reading the relevant evidence. The citing of more than three authorities should be justified an the hearing should be limited to half a day except in exceptional circumstances. (vi) There are no doubt other ways in which the proportionate resolution of this type of claim for damages can be achieved. We encourage their use and do not intend to be prescriptive. What we want to avoid is any repetition of what has happened in the court below in relation to each of these appeals and before us, when we have been deluged with extensive written and oral arguments and citation from numerous lever arch files crammed to overflowing with authorities. The exercise that has taken place may be justifiable on one occasion but it will be difficult to justify again.”

As can be seen, Lord Woolf was limiting his suggested steps to claims in which maladministration had to be established and was concerned that the relevant ombudsman or other body which could rule on complaints should be approached instead of the court in the first instance. This claim does not need to establish maladministration. It is said that the Order has interfered with the claimant’s rights under Article 8(1) and that the absence of any possibility of compensation makes that interference disproportionate and so the defendants cannot rely on Article 8(2). Furthermore, a small claim in the county court has resulted in a wholly disproportionate amount of costs on both sides. The claimant has incurred some £10,000 and the defendants some £60,000 already and the transfer to the High Court has obviously increased the level of cost. An application for judicial review requires permission and so, if there is no arguable case that there has been any maladministration, a claim will be swiftly and inexpensively disposed of. The judge can refuse or defer permission on the basis of an alternative remedy and can leave the issue of damages, if maladministration is established, to be dealt with perhaps by a master or even by a county court. I only add that the existence and practicality of pursuing any alternative remedy will have to be established and in due course amendments to the Practice Direction or Protocol may be needed.

Difficulties may have arisen because of what Lord Woolf said at (i) and (ii). In (iii), Lord Woolf states that, while a claim for damages alone cannot be brought by judicial review, ‘in this case the proceedings should still be brought in the Administrative Court by an ordinary claim’. ‘This case’ must refer back to (i) and so to an attempt to recover damages for maladministration. However, as CPR 54.3(2) makes clear, a claim which does not seek to establish a breach of a public law obligation or is limited to damages cannot be brought by judicial review and CPR 54.4 establishes that permission to proceed is required whether a claim is commenced in or transferred to the Administrative Court. If maladministration has already been established, whether by admission or otherwise, or the claim for damages does not require that maladministration be established, it is clear that the Administrative Court is not the correct forum. Furthermore, Articles 4A and 5 of the High Court and County Courts Jurisdiction Order 1991 (SI 1991 No.724) prohibit the bringing of a claim for damages the financial value of which is under £15,000 (or, if a claim in respect of personal injuries is included, £50,000) in the High Court if otherwise the County Court has jurisdiction. Thus this claim could not have been brought in the High Court.

In these circumstances, Lord Woolf must, when referring in (ii) to an ordinary claim, have meant an ordinary claim before the Administrative Court, that is to say, a claim asserting a breach of a public law duty (i.e. maladministration) which requires permission to enable it to proceed. The permission requirement is crucial because it enables the court to take the steps which may be needed to avoid unnecessary costs and which are identified in (iii) to (vi).

A small claim against a public body based on alleged negligence may raise issues which are of great importance to such a body. In particular, whether or not a duty of care exists in a given set of circumstances may concern a public body because of the possibility that, if it does, many other claims may materialise. It is therefore possible that a small claim may give rise to important issues which will inevitably mean that the costs of litigation exceed the value of the claim. Sometimes that can be dealt with by an order that the public body, which has the real interest is establishing a point of importance to it, should pay costs above an amount appropriate to a small claim in the County Court in any event. Equally, a litigant must realise that, if he chooses to bring a claim which is not clear cut, he may find himself liable to pay for it. And it must always be borne in mind that Article 6(1) of the E.C.H.R. requires that everyone is entitled to a fair and public hearing by an independent tribunal, which will often be a court. He should be warned of the dangers and the potential expense and, if it is disproportionate to pursue a claim, he will not be granted public funding. But he cannot be prevented from pursuing a claim simply because it seems that to do so would not be cost effective.

I understand the concerns of the defendants that this claim may, if it succeeds, produce an increase in the cost of a Traffic Regulation Order. So far as this Order is concerned, no other claims are likely under s.7 of the 1998 Act since any such claim would have to be brought within one year of the act complained of (s.7(5)(a)). I find it difficult to envisage any circumstances which would persuade a judge to allow any further claim to be made if this one succeeds in the exercise of his discretion under s.7(5)(b).

I turn now to consider the application for summary judgment. Miss Carrington accepted that I would not determine any factual issue and so should make my decision on the assumption that the claimant was able to substantiate his assertions. There is in the bundle much evidence from the defendants which establishes that there was extensive consultation about the proposed order. It is said that it has resulted in considerable advantages to Reading in speeding up traffic flows and in particular in improving bus journey times. There is an issue about that. Environmental matters such as air quality were considered, but it does not seem that possible increases in noise levels for those living in London Road were explicitly taken into account.

There is no doubt that noise resulting from schemes implemented by public authorities is capable of interfering with the right to private life within the meaning of Article 8(1). In Hatton v United Kingdom (2003) 37 E.H.R.R. 611 at paragraph 96 on p.633 the Court said this:-

“Article 8 protects the individual’s right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clear and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8”.

Aircraft noise is undoubtedly often more intensive than traffic noise, but I have no doubt that an increase in traffic noise which seriously affects an individual may engage Article 8. Whether the increased level of noise in this case does cross the threshold is a matter of fact which will depend on the assessment of the claimant’s and his family’s evidence coupled with the objective evidence of the actual levels. Miss Carrington has submitted that an increase of 1dB(A) is minimal, but that seems somewhat inconsistent with the test applicable under the 1975 Regulations. The claimant says that the increase in noise did make life intolerable and required insulation measures. If that evidence is accepted, Article 8(1) may be breached. It cannot be said at this stage that there is no real prospect that such a breach will be established.

That will not get the claimant home. The defendants rely on Article 8(2) and say that it is clear beyond argument that the Order was justified and that its benefits outweigh the adverse impact on the claimant. A fair balance has to be struck between the competing interests of the individual and of the community as a whole. The defendants must be afforded a generous measure of discretionary judgment provided, of course, that all relevant matters are taken into account. And any measures approved by Parliament must also be given their proper weight. But, as Hatton v United Kingdom makes clear, a relevant factor in assessing whether the right balance has been struck is the availability of measures to mitigate the effects of noise: see paragraph 127 on p.643. In that case, the measures in question related to reduction of aircraft noise generally, but they included noise insulation grant schemes and compensation for noise nuisance under the Land Compensation Act 1973.

Miss Carrington submits that the 1975 Regulations show that Parliament has considered the scope of grant schemes in relation to road traffic noise and has not extended it to the sort of Order with which this claim is concerned. It is unlikely that Parliament in 1973 and 1975 considered proportionality within the meaning of Article 8(2) and in any event it is by no means certain that the defendants would be unable to make grants if to fail to do so would result in a breach of an individual’s human rights. I have been pressed with Marcic v Thames Water Utilities Ltd [2003] 3 W.L.R. 1603. In that case, there was an elaborate scheme of regulation under an Act of Parliament which was intended to deal with the problems which would undoubtedly occur due to the state of the sewage system in London and the need to spend considerable sums of money to upgrade it. It was recognised that individuals would from time to time suffer from overflows or back up of sewage, but the scheme was intended to place obligations on the sewage undertaker which were considered overall to be fair and which would inter alia avoid incurring expenses to the detriment of subscribers as a whole. The Regulator established by the Water Industry Act 1991 was given powers to make an enforcement order if he considered that the sewage undertaker was not complying with its duty under the Act. That scheme precluded a claim for damages and did not in the circumstances breach Article 8. At paragraph 71 on p.1622, Lord Hoffmann said:-

“[Hatton]makes it clear that the Convention does not accord absolute protection to property or even to residential premises. It requires a fair balance to be struck between the interests of persons whose houses and property are affected and the interests of other people, such as customers and the general public. National institutions and particularly the national legislature, are accorded a broad discretion in choosing the solution appropriate to their own society or creating the machinery for doing so. There is no reason why Parliament should not entrust such decisions to an independent regulator such as the director. He is a public authority within the meaning of the 1998 Act and has a duty to act in accordance with Convention rights. If (which there is no reason to suppose) he has exceeded the broad margin of discretion allowed by the Convention, Mr Marcic will have a remedy under section 6 of the 1998 Act. But that question is not before your Lordships. His case is that he has a Convention right to have that decision as to whether new sewers should be constructed made by a court in a private director in the exercise of his powers under the 1991 Act. In my opinion there is no such right”.

It seems to me that Marcic can be distinguished and that the absence of any possibility of grant or it may be of any consideration whether such a possibility should exist is capable of negativing justification.

Since I am persuaded that the defendants have not shown that there is no real prospect of success, the application for summary judgment must fail. I do not propose to elaborate my reasons for reaching that conclusion since I should not say anything which might be regarded as a prejudgment of any issue. But the claimant must not regard this as an encouragement. He has hurdles to surmount and he may in the end not succeed. All I am saying is that summary judgment is not appropriate.

There is also an application for security for costs. CPR 25.13 does not apply and so reliance is placed on Olatawura v Abiloye [2003] 1 W.L.R. 275. It is said that the claim is so weak that such an order is justified. I do not agree. It is clear that such an order will only be made in exceptional cases and that the apparent weakness of a claim (if established) will rarely of itself suffice. There is no suggestion that the claimant could not pay costs if orders are made against him and he has conducted this litigation in a wholly proper fashion.

I will hear counsel on any appropriate directions which should be made following this decision. My inclination is to send the claim back to the County Court to be dealt with there in accordance with the directions which have already been given.