I own a fabric shop. An Indian restaurant has opened next door and the smell is damaging my goods. I’ve tried to talk to the owner of the restaurant business but he says that he has done everything he can to limit the passage of smells.
I’ve now had an expert in and he suggests damp-proofing which is expensive. Can I get the restaurant owner to pay all or part?
The law of nuisance, which concerns cases of unduly interfering with the comfortable and convenient enjoyment of land, taking account of the character of the neighbourhood and duration of the interference.
Also there is the tort of negligence, which says that where a person keeps anything likely to do mischief, if it escapes, he is liable for all the damage which is the natural consequence of its escape.
Whether your case is strong enough to succeed in court depends on a number of factors to consider for each. For example, if you are surrounded by restaurants in a busy town, you may have difficulty in proving nuisance, and one condition you need to prove for negligence is that the owner’s activities would naturally do mischief and are extraordinary or unusual.
If the restaurant is leasehold, you should try notifying the landlord who may want to enforce any covenants in the lease requiring the tenant not to cause a nuisance, particularly if he has other affected tenants.
Consider an application for an injunction requiring that they limit or stop the activities causing the nuisance; and/or issuing a claim for damages for your losses caused by their negligence or nuisance.
An injunction is a discretionary remedy. That means that unlike say getting damages for a broken leg in a car accident, it is in the judge’s discretion whether to grant one or not. Speed is important. At Hylton-Potts our reputation for speed is second to none, and Rodney has a letter from the Judge in Charge of the List in London congratulating him on his speed of conducting litigation.