Where counsel who, on the instructions of his client took no part in the discussion on the form of an order, thought that there were or might be problems with the wording of the order, then it had to be his duty to assist the judge. Otherwise it was hardly apt to complain on appeal that the form of the order was too vague. The same point applied when a judgment was delivered, and it appeared to counsel that the judge had failed to make a finding or give adequate reasons.Appeal by the defendants ('P') from two judgments on liability and quantum by HH Judge Moir sitting at Newcastle County Court. P owned a public house ('the Talbot'). The claimants ('F') were the family who owned the neighbouring premises ('No.34'). F alleged that for many years, and for at least six years prior to the start of proceedings in October 2000, P caused or permitted foul and surface water to escape from the rain and foul water drains of the Talbot, which penetrated the party wall and accumulated in the cellar of No.34, constituting a nuisance. The judge found that P had committed a nuisance. Counsel for P was not instructed as to the form of the injunction and took no part in the discussion in court. The judge granted an injunction and awarded damages as follows: (i) ?2953 for repairs already carried out by F; (ii) £7799 for the estimated cost of future repairs; (iii) £20,180 for the loss of rent from 1 March 1998 to the date of the hearing; and (iv) £4,500 for the future loss of rent. P criticised the judge's conclusion on liability for a lack of findings of fact and/or reasons, argued that the injunction was too vague and wide to be capable of being precisely obeyed by P, and said that the judge failed to justify the award of damages in respect of damage to No.34 and loss of rent.HELD: (1) Applying the approach in English v Emery Reimbold and Strick Ltd (2002) EWCA Civ 605, where a judge failed to give adequate reasons for his or her judgment, the court examined the judge's findings of fact and reasoning in detail. (2) None of the criticisms of the judge's findings on liability were justified. (3) The criticisms of the form of the injunction were unfair, particularly given the fact that counsel for P took no part in the discussion. In that situation, if counsel thought that there were or might be problems with the wording of the order, then it had to be his duty to assist the judge, even if his client had stated that it had no specific instructions for him. Otherwise it was hardly apt to complain on appeal that the form of the order was too vague. The same point applied when a judgment was delivered, and it appeared to counsel that the judge had failed to make a finding or give adequate reasons. (4) The criticisms were unfounded in any event. The expert's report identified precisely the sources of the nuisance, which would be the site for the investigations required by the injunction. (5) When considering damages, the judge had well in mind the need for causation between the nuisance and the damage done and hence the damages awarded. That link was maintained.Appeal dismissed.

[2003] EWCA Civ 128

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