Limitation May Prove a Nuisance in Japanese Knotweed Claims

30 Nov 2020

Limitation may provide a nuisance in Japanese Knotweed claims (in which litigation over oil spills off the coast of Nigeria prompts a consideration of quantum in cases involving weeds in English gardens).

We are frequently reminded that life imitates art. No-one has ever suggested (not to me at least) that the law imitates, rather than, regulates life.  However, the regularity and persistence with which Japanese knotweed can sprout up in the practice of a property lawyer makes me wonder whether it is so.  Japanese knotweed continues to makes its presence known in a variety of property litigation scenarios: the law of negligence (when a surveyor, reporting to a potential purchaser of land, fails to notice it or its significance); the law of contract or misrepresentation (when a vendor fails to mention it to a potential purchaser); and the law of nuisance (when it encroaches across a boundary from one person’s land to another).

This article considers the issue of limitation in relation to the latter and in particular in relation to the so-called enduring stigma which attaches to land even after encroaching Japanese knotweed stigma has been treated.  It is intended as something of a warning to anyone who considers that limitation may be something of an irrelevance in a claim for nuisance comprising the encroachment of Japanese knotweed on the basis that it is a continuing nuisance.

To begin with it is necessary to look briefly at the issues of liability and quantum which arose in the Japanese knotweed claims brought by Messrs Waistell and Williams against Network Rail Infrastructure Limited (‘NRIL’) (‘Waistell’).

Dealing first with liability, this litigation settled (at least at the level of the Court of Appeal) that the encroachment of Japanese knotweed from Whiteacre to Blackacre may constitute an actionable nuisance for which the owner of Whiteacre may be liable.  Mr Recorder Grubb sitting in the Cardiff County Court so held in his first instance decision (B20YX969) on the basis that the amenity value in the claimants’ land had been adversely affected by reason of the claimants’ inability to sell it at ‘a proper price’, it not being in dispute that the value of the land had been diminished by reason of the encroachment of Japanese knotweed.  The Court of Appeal, [2018] EWCA Civ 1514, agreed that it constituted a nuisance, but for different reasons: Sir Terence Etherton M.R. (with whom Sharp and Legatt LL.J. agreed) held that the Recorder’s decision wrongly extended the tort of nuisance to pure economic loss.  In its judgment, the amenity value of land did not include its investment value or pure financial value but, rather, only the right to use and enjoy the land as such.  However, the net result was the same because the presence of Japanese knotweed did adversely affect a landowner’s use and enjoyment of land in that it imposed a burden on the landowner insofar as it made the land more difficult and, thus, more expensive to develop.

Turning to quantum, at first instance in Waistell the Recorder awarded damages both for (1) the cost of treating the Japanese knotweed and (2) the residual diminution in value of the land notwithstanding treatment.  That the latter was a proper head of damage was agreed between the parties; the issue between them was as the level at which it should be quantified.  The Recorder preferred NRIL’s lower figure.  It might therefore be thought to be odd that that it was NRIL which raised quantum as a ground of appeal.  The Court of Appeal certainly sought so, and expressed itself as less than impressed with a challenge founded on an argument that NRIL’s own valuer’s expert report did not deal with the historic prevalence of Japanese knotweed in the ‘general area’.  The Court of Appeal did not therefore need to express any view on the principle of recovery of that second head of damage, which was described by the Master of the Rolls as ‘a kind of enduring stigma’.  That said, they certainly did not express any disapproval of it and it continues to be seen as a pleaded head of damage.  Indeed, given that in many cases the claim for remediation is limited to modest costs of chemical treatment rather than expensive ‘dig and dump’ licensed removal of contaminated soil, it will frequently feature as the backbone of the claim, assessed at up to 10% of the pre-infestation value.

So, how does the question of limitation come to play a part in such cases?  Limitation was not, it should be stressed, an issue in Waistell.  As has just been mentioned, NRIL did attempt to bring into the appeal the question of the impact on values of the long-term presence of Japanese knotweed in the general area but not, it would appear, for limitation purposes.  That is to say, in Waistell, the longstanding presence of Japanese knotweed went (or could have gone) to valuation only rather than being in anyway relevant to liability.

But what if issues of limitation do arise in such a case?  How might they play out?  What happens if Japanese knotweed encroaches from Whiteacre onto Blackacre but there is a delay in issuing proceedings?

Let us suppose that Japanese knotweed is present on Whiteacre and that the owner of Whiteacre knows that its presence poses the risk of a damaging encroachment onto Blackacre.  Let us also suppose that early in 2015 the Japanese knotweed first encroaches from Whiteacre onto Blackacre and that the owner of Blackacre knows this such that a prima facie actionable nuisance has by then arisen.  What is the position at the end of 2020?

The primary limitation period period for torts is provided by s. 2 of the Limitation Act 1980 and is, subject to any extension for disability under s. 28 or for fraud, concealment or mistake under s. 32 6 years ‘from the date on which the cause of action accrued’.

Consequently, as 2020 fades away, the issue of limitation ought to be ringing at least a quiet alarm bell in the mind of the reasonably competent litigator hopefully representing the owner of Blackacre.  Should that reasonable competence necessarily lead (in the absence of any settlement) to either the issue of proceedings or a standstill agreement for fear that an action commenced in 2021 would be statute-barred by reason of the cause of action having accrued more than six years previously?  Or is that ringing alarm bell adequately to be dampened by reason of the possibility of encroachment by Japanese knotweed being a continuing nuisance?

A continuing nuisance is explained in Clerk & Lindsell on Torts (22nd Ed., §31-08) thus:

‘Where there is a continuing wrong, such as a continuing nuisance, or a continuing trespass, every fresh continuance is a fresh cause of action, and therefore a claimant who sues after the cessation of the wrong may recover for such portions of it as lie within the period limited.’

The difference between a nuisance and a continuing nuisance was recently considered by Stuart-Smith J. in Jalla v Royal Dutch Shell Plc [2020] EWHC 459 (TCC), one of the recent decisions in the continuing llitigation over pollution from the spill of oil off the coast of Nigeria in December 2011.  An issue of limitation was raised and the claimants sought to defeat the plea of limitation by, in part,  alleging a continuing nuisance by reason of the failure of the defendants to clean up or remediate the consequences of that spill.  The claimants sought to rely on Delaware Mansions Limited v. Westminster City Council [2002] 1 AC 321 as authority for the proposition that failure to remediate a single event can amount to a continuing nuisance, arguing that a continuing nuisance in that case arose from the local authority’s ongoing failure to authorise the removal of the tree whose roots were dehydrating the claimant’s land.

However, Stuart-Smith J. rejected the submission.  He was of the opinion that the very presence of the desiccating tree roots on the claimants’ land in Delaware constituted the continuing nuisance and that the case was therefore analogous with the classic example of a continuing nuisance which he held was provided by

Battishill v Reed (1856) 18 CB 696 where the defendant built (and subsequently kept in place) an erection higher than the Plaintiff’s and, having removed tiles from the Plaintiff’s eaves, had placed his own eaves so as to overhang the Plaintiff’s premises.  The nuisance was held to continue from day to day.’

He concluded:

‘Nuisance by polluting oil is no different in principle from nuisance by escape of water, gas smells or other polluting agents.  It is in that respect a “normal” case and there is no basis, either in authority or principle based on concepts of reasonableness or control to describe the nuisance as “continuing” in the sense contended for by the Claimants or as considered in Delaware Mansions.’

The encroachment of Japanese knotweed is similarly analogous to tree roots and projecting eaves and, thus, a continuing nuisance.  However, the fact that a new cause of action may arise each new day does not mean that a plea of continuing nuisance will wholly override a defendant’s plea of limitation.  This is because while a continuous tort may mean a claim is not statute barred in its entirety, the claim will survive only in respect of that part of the claim not barred by limitation.  That is to say, damages will be recoverable only in respect of the 6 years prior to the claim being issued.

This is not a feature limited to nuisance claims.  In Hardy v. Ryle (1829) 9 Barnewall and Cresswel 603 the plaintiff was imprisoned by a magistrate for a month and released on 14th December.  His  claim, issued on 14th June, that imprisonment was unlawful was met by a plea relying on a statutory limitation period of 6 months.  However, Bayley J. held:

‘Now, in this case the action is brought for false imprisonment, and every continuance of the imprisonment is in point of law a new imprisonment, and therefore the plaintiff may be considered to have been imprisoned by the defendant on the 14th day of December, in respect of which day, the claim was in time.”

Consequently, his claim was for 1 day’s rather than 1 month’s unlawful imprisonment.

Similarly, in Berry v Stone Manganese & Marine Limited [1972] 1 Lloyds Rep 182 Ashworth J. held the defendant employers liable in relation to loss of hearing suffered by their employee plaintiff.  The claim was issued on 2nd April 1970 and any claim in relation to negligence prior to 2nd April1970 was thus statute barred.  The claimant’s employment in an enormously noisy environment had commenced in 1957 and he was found to have first noticed a loss of hearing in 1960 or 1961.  The judge felt that a full award of damages for the deafness since 1961 would have been £2,500 and that, by reason of claim in negligence being substantially barred, the damages should be reduced to £1,250.

The application of these principles to a claim in respect of encroaching Japanese knotweed has two effects.

In relation to the first head referred to above (the remediation damages), the quantum is likely to be reduced.  If, continuing the example above, a claim is not commenced until, say, late 2021 then the owner of Whiteacre will argue that he or she is only liable for such of the remediation costs which are attributable to the increased infestation from late 2015.  That will lead to a minimal reduction.  However, in the event of increased delay, the proportionate impact of the reduction attributable to the effect of limitation will increase.  In those cases where ‘dig and dump’ represents the appropriate remediation method this will be of greater importance.  In those cases where cheaper chemical treatment is appropriate, the difference may make very little difference at all.

It is in relation to the second head referred to above (the stigma diminution damages) that the effect of delay will be most keenly felt.  Notwithstanding a plea of continuing nuisance, a defence of limitation is likely to prove a complete bar to this head of claim.  In understanding why this should be, it is necessary only to consider the purpose of an award of damages in tort: namely, to put the claimant in the position he or she would have been in had the tortious event not occurred.

In a case where limitation does not feature, the diminution will be assessed by reference to the difference between (1) the claimant’s land as it is in 2020 (i.e. post-infestation but on the assumption of remediation having taken place) and (2) the claimant’s land as it was in 2014 (pre-infestation).

However, in a case where limitation is in play, the diminution well be assessed by reference to the difference between (1) the claimant’s land as it is in 2021 (i.e. post-infestation but on the assumption of remediation having taken place) and (2) the claimant’s land as it was in 2015 (i.e. post-infestation but with no remediation having taken place).

A consideration of the latter assessment shows that the owner will have suffered no loss: his claim will not be in relation land now tainted which was ‘clean’ when the claim accrued (as is a claim unaffected by limitation), but in relation to tainted land which was already tainted when the claim accrued.

The lesson, therefore, is that while the ability to plead a continuing tort may well serve to keep alive some part of a claim in nuisance otherwise barred by limitation, it is likely to prove quite unhelpful in propping up the most valuable part of a claim in respect of encroaching Japanese knotweed.

This article was written by John Clargo.


John Clargo

Call: 1994


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