Complaints Process – Part III

From employing legal help to issuing the Notice of Intention to Proceed

Many Councils across the UK issue “advice leaflets” detailing how to bring a private prosecution under Sect 82 of the Environmental Protection Act 1990 (EPA 1990). They are well meant and factually accurate, but written by people who have no practical experience of doing it.

Misconception 1: Once you instructed a lawyer, it’ll definitely go to court. No: the purpose of instructing a lawyer is to avoid going to court.

Misconception 2: Most leaflets say you do not need a lawyer to commence proceedings. In theory, that is true. In practice it is not:

1. You are not taking on a neighbour over his barking dog. You are taking on a business fighting for their income stream, supported by a powerful union. Unlike private individuals, businesses have the “best practicable means” defence and the farmer will say that his gasgun is just that: the best practicable means to chase away birds. Unless you are an expert in the matter, it will be difficult for you to argue against that.

2. EHA 1990 Sect 82 is an obscure area of the law which leaves much to interpretation. What is “reasonable enjoyment”? What is “prejudicial to health”? You need expert advice on the merits of your specific case, and what evidence you need to be successful (noise monitoring, medical evidence etc).

3. Courts are NOT used to hearing cases like this without the support of the Environmental Health Department (who act as the de-facto expert witness to the court saying “yes, this is noise nuisance”, which the Judge can simply accept). It will be up to you to persuade the magistrate to issue the summons to the defendant. You are unlikely to succeed unless you are represented AND your lawyer can make a very, very good case for it.

How to find a lawyer

Traditional approach is to instruct a solicitor first… however: A local solicitor may well turn you down on grounds of “conflict of interest” – they already represent the farmers and landowners in your area. If you find one prepared to listen, he might claim you don’t have a case because gasguns are an essential part of running the business. Once you find one prepared to act for you, you might discover that by now, you understand issues better than they do. And if it does go all the way to court, you will need to instruct a barrister as well, so you’re paying twice.

After four years, hundreds of hours, thousands of £££ and tens of thousands of gunshots driving me insane, I fired everyone and went to the top: Francis Taylor Building, the firm of barristers involved in the landmark case of statutory noise nuisance (Coventry vs Lawrence) and whose Robert McCracken QC wrote the definite legal guide on Statutory Nuisance.  Direct access instruction. Not looked back since.

What is likely to happen next?

Mediation:

Your lawyer may well advise you to offer the other side to go to mediation (if they don’t, they should). It’s cheaper, and has the potential of finding an agreement that is specifically tailored to the needs of both sides, rather than a court-imposed order. If the other side agrees, do it. Courts do not like these cases proceeding to trial, they expect combatants to behave like adults and sort themselves out. Offering mediation shows you’re the one who is being reasonable.

 

If that doesn’t work, next is the:

“Notice of Intention to Proceed”

Probably the single most important document you will write: it is the official document that lays out your case and specifies what exactly you expect the defendant to do. It gives the defendants a 72 hr (statutory) grace period to put their house in order, after which you are entitled to approach the court to ask for a summons.

 

A well written Notice of Intention to Proceed, sent with the letterhead of a solicitor or barrister, may well be enough to frighten your opponent into compliance. You might wish to spell out the risk: proceedings under EPA 1990 Sect 82 are civil law proceedings, but conviction is a criminal offence. A business dependant on credit, grants and reputation, will think twice whether it’s worth it.  

 

Once they receive the notice, any defendant who is serious about fighting you all the way, will almost certainly instruct his own lawyers. Assuming it’s not an urgent case (where the noise is so horrific, you want it stopped within days), there’ll be letters flying back and forth. A lot can happen. From here on, listen to legal council.