Miller v Jackson - Case Note

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With news that a housing developer has taken an action in nuisance against a local cricket club on account of the noise of leather on willow, it is worth bearing in mind that the common law principle that “coming to the nuisance is no defence” (Sturges v Bridgman (1879) LR 11 Ch D 852) arguably does not apply to cricket as it is legally incapable of being a nuisance, because it is so super. (Lord Denning in Miller v Jackson [1977] QB 966.

Relevant part of Lord Denning’s (alas, dissenting) Court of Appeal judgment:

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighboring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

Lord Denning went on to rail against the principle, established in Sturges v Bridgman that if something is a nuisance, the fact that it has been a nuisance for a long time without anyone complaining about it doesn’t stop it being a nuisance. In Sturges v Bridgman it was an apothecary’s noisy mortar and pestle, and the complainant was a newly arrived physician, who found the constant grinding and battering of herbs, oils, spices and unguents to be unsettling to his patients.

One could read Lord Denning’s judgment a couple of ways: either that the general principle doesn’t apply to cricket or that cricket is, at law, not capable of being a nuisance, on account of its incalculable excellence and that its benefit to the general public outweighs any detriment to some curmudgeonly idiot who hates the game but still buys a house next to a cricket ground).

It should be noted that Lord Denning’s view was articulated in the course of a dissenting judgment (the remainder of the Court of Appeal was sympathetic to his excellent argument but felt itself bound by the judgment in Sturges v Bridgman and, for whatever reason, the Lintz Cricket Club did not appeal) so, in the eyes of the common law, cricket remains susceptible to nuisance actions until the Supreme Court can definitively rule on the matter.

Perhaps now it will get its chance.

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