The Gist of Private Nuisance
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192 Law Quarterly Review
to avoid circumvention of that process through dealings immediately before
bankruptcy begins. Finally, common law and equitable claims brought after s.284
has avoided a disposition are subject to other provisions of the Act. Although s.284
does not limit the types of claim that can arise following an avoidance of a
disposition by s.284, the provisions expressly do not give a remedy against any
person who, in short, purchased in good faith for value without notice or derived
an interest in property from such a person: s.284(4).
Had the claim in Ahmed v Ingram been framed and decided on a proper
understanding of how s.284 interacts with common law and equity, the points
hatched by the Court of Appeal could have been abandoned. Damages for
conversion of the shares might have been recoverable, if the shares were
certificated: BBMB Finance (Hong Kong) Ltdv Eda Holdings Ltd [ 1990] 1 W.L.R.
409 at 413; [1991]2 All E.R. 129 PC at 132.-'
PG. Turner
St Catharine s College, University of Cambridge
THE GIST OF PRIVATE NUISANCE
In Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514; [2018] 3
W.L.R. 1105, the roots or rhizomes (underground stems which produce fine, white
roots) of Japanese knotweed-a pernicious weed (see at [55])-had spread from
Network Rail's embankment on to Williams' residential land. The knotweed had
been growing on the embankment for at least 50 years. It was not established that
the rhizomes had caused any physical damage to the land, but such is the weed's
perniciousness that its mere presence creates a risk of physical damage to nearby
structures on land, and its removal requires costly procedures to be undertaken.
These effects had reduced the market value of Williams' property.
At first instance, the recorder had rejected the claimant's argument that there
was an actionable private nuisance by encroachment, since no physical damage
was established, but upheld the claim on the basis that the knotweed on the
defendant's land had interfered with the amenity value of the claimant's land in
virtue of reducing the claimant's ability to sell it at its proper market value. The
defendant ought reasonably to have known of the danger to the claimant's land
posed by the knotweed by 2012, and had failed to take reasonable steps to prevent
the spread of the weed. This breach was held to be causative of the interference
with the amenity value of the claimant's land.
The Court of Appeal dismissed Network Rail's appeal, but gave different reasons
for upholding the claim to those given by the recorder. There were two main
differences. First, the ratio of the decision is that an encroachment need not cause
physical damage to the land in order to constitute an actionable private nuisance.
It suffices if the encroachment interferes with the amenity value of the land.
Secondly, while the Court of Appeal agreed with the recorder that the amenity
value of the claimant's land had been interfered with by the knotweed, this was
not because it had reduced the market value of the land. In reaching these
Bankruptcy; Compensation; Diminution in value; Disposition of property; Equitable remedies; Share transfers;
Share valuation; Trusts; Void transactions
(2019) 135 L.Q.R. April 0 2019 Thomson Reuters and Contributors
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