Lynn McCaw v. Middlesex sarl

Transcript date:

Monday, September 29, 2008



Magistrates' Court

Judgement type:



Snow DJ

Transcript file:


Statutory nuisance found when complaint made but not continuing at date of trial, abuse of process claim by defendant developer rejected, no abatement order but costs awarded to claimant.

The main decision about nuisance is attached as a .pdf file. (It is dated 24.9.8, when the decision was given, but was actually handed down on 29.9.8)

The judgment on the defendant's application for costs from central funds follows.

[Unofficial transcript]

I have before me an application under section 16 for an award from central funds to the defence for their costs which arose in conjunction to contesting part of the prosecution's case. It has been recognised by Mr Harrison on behalf of the defendant that I have a discretion as to whether or not to award costs. That discretion must be exercised judicially. Mr Harrison has made a number of points most persuasively.

I start out by asking myself whether it is right to exercise that discretion by giving any costs in this case. I have already made a finding that there was a statutory nuisance as of 28th September 2007. If a prosecution had taken place, soon after that date, I have no doubt at all that I would have made an abatement notice or order under section 82(2). Even after that date, the state of affairs did continue.

I have recognised that at that time ISG were struggling to change the culture of the site, and it would take time to change the culture. As a consequence, the nuisance that was suffered did not end on 28th September 2007. By my judgment, I found that the defendants were responsible for and clearly aware of the nuisance that these residents were suffering.

I think it is always easy to lose sight of, when one is represented by reasonable advocates, that behind the scenes, the defendants were prepared to allow this state of affairs to exist, which significantly impoverished the lives of these residents for a continuing period. Clearly, therefore, the defendants brought these proceedings upon themselves because of their behaviour, and at no point prior to my ruling was any concession made by the defendants that what occurred up to 28th September 2007 amounted to a nuisance, a statutory nuisance.

The consequence was that the prosecution had to prove all of that as part of their case. Given that background, given that the defendants brought the case upon themselves, it was clearly always reasonable to bring this application - as the authorities make clear, I have to bear in mind past conduct.

In taking all of that into account, it seems to me that it would be wrong to award the defendants any costs at all in this case and so my decision I am afraid, Mr Harrison, is that I will not do so