Brynley John Cocking (1) Diane Cocking (2) v Kim Eacott (1) and Angela Waring (2) [2016] EWCA Civ 140

The Cockings complained of a neighbouring dog’s incessant barking and won their claim and costs. The second defendant (Mrs. Waring) was held liable in nuisance even though the premises were occupied by the first defendant, her daughter. Mrs. Waring granted her daughter a bare licence to live at the property and Mrs. Waring paid all the bills and maintained it.

Mrs. Waring was found to be “in complete control” of the property although she did not reside there and was just the licensor.

Both defendants were ordered to pay approximately £30k in costs at the first hearing. Mrs. Waring appealed. Her argument was that her position was more akin to that of a landlord who would not normally be liable for a tenant’s actions in nuisance, unless they had clearly authorised or participated in the activities which caused the nuisance.

There were many arguments made in the appeal and one was whether Mrs. Waring as a licensor was in the position of an occupier even though she did not live in the property. It was found that she was in a position of control and could have abated the nuisance by enforcing possession but chose not to.

The judge, when dismissing the appeal, made it clear that this case was decided on its individual facts. A similar case, but with slightly different facts, may result in a licensor being held to be landlord which, on the other facts of this case, would not have resulted in her being liable.

As for costs, it was held that Mrs. Waring was the only party who could abate the nuisance (which was eventually done by removing her daughter from the property) and she was accordingly liable for costs.

Key points

  • This case is a useful reminder that liability for nuisance is dealt with differently depending on whether a property owner is a landlord or a licensor.
  • A landlord will only be liable for nuisance caused by its tenant in exceptional circumstances, namely where they have authorised or participated in the nuisance.
  • When granting a licence it is essential to establish which party has the ultimate control of the property and where liability lies.
  • It remains to be seen as to how far these principles will be used in a commercial context. Whilst the mother/daughter relationship was an important factor in this case, the use of licences for entertainment, retail concessions, utilities equipment and similar uses in close proximity to other property is widespread. It cannot be assumed that such arrangements will never result in liability for the property owner.
  • Remember, a landlord can sometimes be liable for derogation from grant to one of its tenants, as a result of action caused by another tenant. So if the parties suffering and causing the nuisance have the same landlord, the position could be similar to that in this case. This may have particular relevance on the residential elements of mixed use developments.