Court of Appeal criticises failure of disputing neighbours to mediate

Faidi v Elliott Corp [2012] EWCA Civ 287 concerned noise between neighbouring flats in London. The Court of Appeal found that such disputes are much better dealt with through mediation. This was because practical settlement as opposed to legal judgment is important. In the case, a compromise (putting rugs on the wooden floors to reduce noise) was conceded by the claimant/appellant to be a solution. Lord Justice Jackson observed that "this is precisely the sort of outcome which a skilled mediator could achieve, but which a court will not impose". On the facts, an offer of mediation had only been made before the Court of Appeal hearing, at which point the combined legal costs were £140,000 and the Court naturally took a dim view of this.

Facts

The leases of the flats were in substantially identical terms. F and EC both covenanted with the landlord "and for the benefit of the other tenants" not to do anything to cause a nuisance or annoyance to other tenants, specifically to cover the floors with underlay and carpet. In 2006 changes were made to the flat subsequently sold to EC, including the installation of wooden flooring (which was approved by the freeholder and head leaseholder of the flat).  F sought an injunction against EC requiring them to underlay and carpet the flat to prevent noise.

Decision

The claim was dismissed at first instance and affirmed on appeal because it was found that the freeholder and head leaseholder consented to the alterations, thereby displacing the requirement to underlay and carpet the floors.

This case demonstrates that:

• Communication between owners and tenant occupiers before the alterations were undertaken could have flushed out the issue
• Neighbour disputes are emotive and practical and therefore usually more suited to resolution through ADR than the courts
• The courts will take a dim view of parties who incur extensive costs and fail to mediate, particularly where a solution acceptable to both sides is within a mediator's gift but not that of the court.

Lord Justice Ward concluded: "…the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator. Give and take is often better than all or nothing."