Analysis of the Cunliffe Report and Remedies in Private Nuisance

This week, the 6PC Water Industry Group release their Summary and Analysis of the Cunliffe Report. Gordon Wignall discusses remedies in private nuisance prompted by the Irish High Court decision in Byrne v. ABO Energy [2025] IEHCC 330. Róisín Finnegan covers developments in using private law to address climate change in Lliuya v RWE.

Summary and Analysis of the Cunliffe Report

Members of the Six Pump Court Water Industry Group (Douglas Scott, Dr Michael Bowes, Nicholas Ostrowski, Jemima Lovatt, Róisín Finnegan, and Mark Davies) provide an in-depth analysis of the Interim Report of the Independent Water Commission, chaired by Sir Jon Cunliffe. The report sets out bold proposals for the future structure and regulation of the water industry in what may become the most far-reaching reforms since privatisation. Click here to read it.

Remedies in private nuisance cases (interference with amenity)

This summary is concerned with remedies for private nuisance: in particular the measure of damages and, to a lesser extent, injunctions. The prompt is an Irish High Court case, Byrne v. ABO Energy [2025] IEHCC 330, a case which makes very extensive reference to recent Supreme Court cases in the UK, in particular Fearn v. Tate Gallery Trustees.

The case is about noise from the Gibbet Hill wind farm.  The claimant was a former Law Commissioner.  The expert he relied on is well-known in litigation in England & Wales. The case is worth reading for those involved in such cases if only for the specification of seven forms of wind turbine noise. It was a bad and protracted case in which the defendant operator buried its head in the sand.

As to damages for amenity interference, the Courts in England & Wales have long been troubled by the appropriate method of assessment. In legal terms, it is not that long ago that the Court of Appeal held that damages should be assessed by analogy with awards in person injury cases (Bone v. Seal [1975] 1 WLR 797).  A line of cases from Hunter v. Canary Wharf [1997] AC 655 has held that since these are property cases there is one cause of action, in which damages, even for a transitory nuisance, should be assessed by reference to the value of the property and divided between the occupants.

The Irish Courts do not agree.  In particular, as the judge said in Byrne (para.312), “It places too much weight on the capital value … The approach could lead to drastically different awards of general damages in cases where neighbours might have experienced very similar interferences”.  More interestingly, perhaps, the trial judge noted that an assessment of damages “must take account of the principles of equality”.  In Fearn, Lord Leggatt JSC made frequent reference to the principle of “equal justice” (without further elaboration).

If a reader goes back to the key speech of Lord Hoffmann in Hunter, the conclusion can be drawn that he was not intending to set up quite such a rigid principle as that which is now applied (see p.706). If the Courts are to be interested in “equal justice”, then why should adherence to capital value hold such a primary place in awards of damages?

As to injunctive relief, relevant principles (or damages in lieu, as per Shelfer v. City of London [1895] 1 Ch 287) have been much discussed recently in the Supreme Court. In Byrne, the judge granted an injunction prohibiting the use of three (of six) turbines, setting out detailed reasons why the conduct of defendants generally may be such as to require the award of an injunction (para.326ff.), a section which is also well worth considering as much else.

A fuller note of this case will be found on the author’s site wiglaw.

 Another string to climate litigators’ bows – Luciano Lliuya v RWE

In the highly anticipated decision in Luciano Lliuya v. RWE (Case number 5 U 15/17 OLG Hamm,[1] the German constitutional court confirmed that companies can, in principle, be held legally responsible for harm caused by their contributions to climate change. This judgment represents a significant step forward for those seeking to address climate change through private law – a topic I explored in a previous blog.

Here Mr Lliuya argued that his house in Peru was at risk of being flooded as a result of melting glaciers, and that RWE, Germany’s largest electricity producer, had knowingly contributed to climate change by the release of greenhouse gases and therefore bore some responsibility for the risks he faced. Several causes of action were invoked, including nuisance.

The appeal was dismissed as the Court found that there was no concrete danger to Mr Lliuya’s home. However, the Court established some important legal principles:

First, and most importantly, it confirmed the possibility of relying on climate attribution science to establish causation. There are many uses of climate attribution science which could be deployed to fill evidentiary gaps in climate litigation as illuminated by Stuart Smith et al in their article. For example, existing science can attribute quantities of GHG emissions to extreme weather events; long-term trends in glacier lengths or sea levels; and persistent changes, including temperature increases. Future litigants could use a “market share” approach, akin to that used in the tobacco litigation, to apportion damages among defendants according to the share of emissions for which they are responsible.

Second, the distance between Mr Lliuya’s home in Peru and RWE in Germany, was not a bar to establishing liability.

Third, as regards causation, it was held that regardless of the complex causal chain, “even if there was only an indirect connection between the defendant’s actions and the impending impairment … the attribution criteria required by case law would be fulfilled”. Furthermore, the fact that RWE is the parent company of several subsidiary power-plant companies would not shield them from liability in circumstances where it controls its subsidiaries and derives economic benefit from their actions. This is significant as it signals that claims can be brought against carbon-emitting defendants for the indirect effects of their actions.

Finally, as regards foreseeability of harm, the Court agreed with Mr Lliuya that the Defendant could be assumed to have been aware that their actions would contribute to climate change from 1965 as a result of the “Keeling Curve” study linking CO2 emissions to global warming. It considered that: “A manufacturing company is required to continuously monitor the progress of scientific and technological developments in the relevant field.”

This therefore marks an important moment in climate litigation: courts now recognise the use of climate attribution science; companies may be held liable for their indirect emissions; and companies can be taken to have had foreseeability of climate change impacts as far back as 1965.

[1] Translation of judgment here.