IS IT INJUNCTIBLE? 1. The aim of property law is to protect. expectations. And for this there must be. certainty. The whole development of

Transcription

1 IS IT INJUNCTIBLE? 1. The aim of property law is to protect expectations. And for this there must be certainty. The whole development of European civilization would be checked if rights to own and use land were precarious, liable to be taken away at the whim of the ruler or by force of some powerful and envious neighbour. Indeed, this insistence on the sanctity of property has been said to be a major factor in the rise of Europe. The traditional view of English law is that an Englishman s home is his castle. In practical terms, this supposes that the Law will protect him fully from any invasion of his rights of 1

2 possession of property whether by outright dispossession (i.e. the tort of Trespass) or by activities carried on elsewhere which interfere with his reasonable use and enjoyment (i.e. the tort of Nuisance). Members of the P & T hardly need reminding that the Englishman s castle tends nowadays to have windows rather than arrow slits, and that after 20 years these acquire rights of light. The right to light so acquired is an easement, a right attached to the possession of land, and exercised over other land. Easements are of many kinds, including the right of support. I cannot take down my house so as to result in the collapse of my neighbour s, if it has been supported by mine for 20 years. See Dalton v. Angus LR 6 2

3 App Cas 740 This case is of interminable length, because of abstruse arguments about the nature of prescription. The basic question was Could one be deemed to acquiesce for 20 years in having one s land used as support when one had no way of perceiving this was happening? 2. Happily, the answer at least was clear (yes). More recently the question arose whether the right to TV reception is an easement. The House of Lords agreeing with a unanimous Court of Appeal said No (Hunter v Canary Wharf [1997] 2 All ER 426). Judges clearly had not achieved their eminence on a diet of Coronation Street. 3

4 3. Easements then are a motley category of rights, but they are all recognised as capable of being legal interests in land (Law of Property Act 1925 s. 1(2)). So they should be entitled to the same protection as possession itself. 4. Work to party walls separating buildings without the agreement of the adjoining owner may at common law and apart from the 1996 Act, involve both trespass and nuisance. Unless and until the Act is invoked the building owner has only his common law rights. See Louis v Sadiq [1997] 1 EGLR 137. Usually under s38 of the Law of Property Act 1925 party walls are deemed to be divided 4

5 vertically, with each owner having a right of support from the other half. Work to the wall will therefore almost always be tortious unless the 1996 Act is correctly operated See Gyle- Thompson v Wall Street(Properties) Ltd [1974] 1 All ER 295. But compliance with the Act gives protection against claims in nuisance and trespass. 5. Once an invasion of the landowner s rights is established, he should be entitled to prompt and effective protection from the courts. This should include, on principle: Damages for the loss he has suffered An order by way of prohibitory injunction preventing the wrongdoer from persisting in his illegal activities. 5

6 An order by way of mandatory injunction requiring the wrongdoer to undo the consequences of his actions, where the victim cannot do so himself because the illegal activities did not take place on land within his control. For example, removal of a building obstructing a right to light, or reinstatement of support. It is obvious that unless injunctive relief is granted the owner has little effective remedy. Hence the issue of injunctions really lies at the heart of the security of property. 6. How far in fact do the Courts actually deliver on this? Review of the recent cases shows I believe a growing and arguably unfortunate 6

7 tendency for the courts to backtrack on the strict protection of property rights, when it comes to the crucial issue of the grant of injunctions, i.e. the last 2 of the remedies identified above. On the other hand, there are still occasional cases where strictness has prevailed, usually where the court felt either sympathy for or antipathy to one of the parties. 7. Practical protection of property rights requires the court to be prepared to grant injunctions in aid of them. But here, in order to understand the present law we have to go back in time. Injunctions could historically only be granted by the Court of Chancery. This Court operated a system of Justice, 7

8 known as Equity, concerned mainly with wills and trusts totally separate from the other Courts, It would however also in some circumstances grant injunctions to protect legal rights, meaning thereby rights administered by the Courts of Common Law, which were separate from the Court of Chancery. These decided cases via jury trial, and had no power to grant any remedy but an award of damages. There were as can be imagined massive turf wars, and litigants often found at the end of several years that they should have run their case in another court. In Chancery, there was no automatic right to an injunction in aid of legal rights. 8

9 8. Three limitations in particular applied to the remedy by way of injunction. (The right to grant injunctions has of course now been extended to all civil courts, but the principles remain the same.) 9. Firstly, in Chancery the Plaintiff had to show that damages would not be an adequate remedy. He had to show that he would suffer irreparable injury if the Lord Chancellor did not stop the Defendant s mischief. 10. Secondly, a further ground for refusing an injunction was (and is) is delay by the Plaintiff in asserting his rights, where this would make the grant of an injunction 9

10 unjust. The relevant points are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice on taking the one course or the other-see Sir Barnes Peacock in Lindsay Petroleum Co. v Hurd (1874) LR 5PC A third restriction on injunctions was that even where a court would normally grant an injunction it has power not to do so but award damages instead. I mentioned earlier that the Common Law Courts of ages past could not grant injunctions. Neither could the Court of Chancery award damages. But in 1858 came the Chancery Amendment Act, sometimes called Lord Cairns Act 10

11 which reversed that position. It allowed damages to be granted in addition to or in substitution for an injunction. The Act has been repealed but its principles have been preserved by other legislation. The Act itself does not say when damages may be awarded and how they should be calculated. But debate around these issues has been prolonged and vigorous, as we shall see in a moment. It is however now clear that where the court refuses an injunction and gives damages instead, the effect is to extinguish the Plaintiff s rights. He cannot bring a fresh action for the same wrong. And damages under the Act are therefore to be assessed on that basis. I do not propose to cover that topic today, but there is a useful summary in 11

12 the recent case of Amec Developments Ltd v Jury s Hotel Management (UK) Ltd [2001] 1 EGLR Hence we have a paradox: The law claims to protect property but except where the Plaintiff simply seeks an award of damages to compensate him, he finds himself grappling with arcane concepts whose application is often a matter of debate and uncertainty. 13. So in typical situations how does the court actually operate? Dealing first with the most blatant interference with the peaceful possession of property, trespass to land; the rule to which I referred that an injunction will only be granted if the Plaintiff will suffer 12

13 injury, which cannot be compensated in damages, would suggest that an injunction would be refused if the Plaintiff will suffer little or no injury. This indeed is the approach, which was adopted, in earlier cases. In Llandudno U D C v Woods [1899] 2 Ch 705 an injunction to prevent a clergyman preaching on the foreshore was refused. He delivered sermons as part of what he described as an anti-ritualistic propaganda in North Wales. He seems not to have made much impact. Cozens-Hardy J did not see why those who wanted to listen to the Defendant should be deprived of this innocent pleasure. He said of the suggestion that an injunction should be granted : 13

14 This is a formidable legal weapon and ought to be reserved for less trivial occasions 14. The absence of any significant injury has also been held to be a ground for denying an injunction in many recent cases. In Gooden v Ketley [1996] EGCS 47 the Court of Appeal held it had been wrong to grant a mandatory injunction to remove a manhole, drains and a wall which were part of the wrongdoer s development of 3 blocks of flats. In reaching its decision the court applied the tests for refusing an injunction laid down in Shelfer v City of London Electric Light Co [1895] 1 Ch

15 15. Shelfer was a case involving nuisance by extreme noise and vibration. The court in fact granted an injunction, but took the opportunity to state when it might decide to grant damages in place of an injunction under Lord Cairns Act. Four tests were set out: It was held that under Lord Cairns Act an injunction might be refused if: The injury to the Plaintiff s rights was small The injury was capable of being estimated in money It could be compensated by a small money payment It would be oppressive to grant an injunction. 15

16 16. The Court of Appeal in Shelfer was at pains to point out that these were the minimum conditions before damages would be awarded in place of an injunction. The Defendant might still be faced with an injunction even if the four tests were satisfied, if he had hurried up his work or acted with reckless disregard of the Plaintiff s rights. Lord Cairns Act, said Lindley LJ, had not turned the court into a tribunal for legalizing wrongful acts. The jurisdiction should only be exercised in very exceptional circumstances. Lindley L J gave as examples of these: trivial and occasional nuisances; cases in which the Plaintiff has shown he only wants money; vexatious and oppressive cases; and cases where the Plaintiff has so 16

17 conducted himself as to render it unjust to give him more than pecuniary relief. The exceptional nature of the jurisdiction to award damages under the Act underlies Pugh v Howells (1984) 48 P & CR 298. This case emphasised that compliance with the requirements was necessary but not always sufficient to justify damages in lieu of an injunction. 17. The principles are clearly not limited to cases of nuisance. They have been applied to trespass, and breaches of restrictive covenants, and are evidently relevant in most cases where a claim for injunctive relief is sought to be countered by an argument that damages should be awarded instead. 17

18 They were given a further extensive airing in Jaggard v Sawyer [1995] 2 All ER 189. In that case the court of appeal upheld a decision to grant damages in lieu of an injunction for breach of a restrictive covenant by building a house, applying the principles. The building of the house had no real impact on the Plaintiffs land. On oppression, the members of the court stressed the delay by the Plaintiffs in starting proceedings, and the fact that the Defendants had not acted in blatant and calculated disregard of the Plaintiffs rights. 18. More recently, the same principles have been applied again in Daniells v Mendonca 78 P&CR 401, to a trespass claim arising from the 18

19 construction of a rear extension which encroached on the Plaintiff s dividing wall slightly, by 1.5 inches over 12 feet and which was badly constructed. It lacked a fire check and the Plaintiff s wall was not strong enough to support the weight. The roof was badly detailed. The Defendant had sneaked on with the work while the Plaintiff was on holiday. The Court of Appeal upheld the award of a mandatory injunction, and also prohibited the Defendant from carrying out work except in accordance with the London Building Act (Amendment) Act There is however a second line of cases which holds that at least where there is no dispute about the Plaintiff s title an 19

20 injunction will be issued even in the proved absence of injury. This is the line now followed by the courts, at least up to a point. In Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853 Balcombe L J said: It seems to me that prima facie a landowner whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him. 20. Thus oversailing by tower cranes was prohibited even where there is evidently no injury to the Plaintiff. -Anchor Brewhouse v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173. Both these decisions were 20

21 referred to in Jaggard v Sawyer [1995] 2 All ER 189, by Lord Bingham. He pointed out that in Patel it was recognised that an injunction might be refused in exceptional circumstances. He criticised some of the reasoning in Anchor Brewhouse. Millett LJ went further, and expressly disapproved that decision as fallacious. The judge (ScottJ) had reasoned that the court had no power to award damages for future trespasses. Millett LJ, whilst not disagreeing with the theory, said that the practical result of refusing an injunction was indistinguishable. 21. It seems clear that Patel and Anchor Brewhouse are not reliable as authorities following Jaggard v Sawyer. The same seems 21

22 to be true of Harrow London Borough Council v Donohue [1995] 1 EGLR 256 in which the Court of Appeal had allowed an appeal against a refusal to grant an injunction requiring removal of a building constructed partly on the Plaintiff s land, applying the Shelfer principles. This case predates Jaggard v Sawyer but was not cited in it. 22. However, in the case of a clear trespass, and certainly one which substantially damages the Plaintiff the court will almost certainly grant an injunction provided the Plaintiff does not stand by whilst the Defendant incurrs substantial expenditure on the Plaintiff s land. This seems to be the consequence of Gafford v Graham 22

23 considered below.the problems facing landowners should not be exaggerated. The court is extremely unlikely to let the Defendant get away with any substantial permanent encroachment, or even a temporary one which is more than minimal. Das v Linden Mews Ltd [2002] 2 EGLR 76 suggests that the nature of the claim may be relevant on deciding whether to grant an injunction. But it is incumbent on the landowner to act promptly, if he is to avoid the risk of his case being weakened by an argument to the effect that the Defendant has incurred expense or otherwise acted in a way which would not have occurred had the Plaintiff acted more promptly. Failure by the Plaintiff to apply for an interim injunction 23

24 will not result in his case being struck out (Oxy Electric v Zainuddin [1991] 1 WLR 115), but it can be highly relevant on oppression- See Snell and Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR The story is essentially the same with easements. An injunction will be granted to protect an established right unless the case can be brought within Shelfer principles and provided the Defendant has not behaved in a way justifying the court in not exercising its discretion in his favour. Pugh v Howells shows that judges do not like people who spend their bank holidays building extensions, which block out their neighbours light. Deakins v Hookings [1994] 24

25 1 EGLR 190 gives guidance on what is an injury to light small enough to justify witholding an injunction. A small living room was reduced from 51% to 41% well lit, but the loss was to a strip to the rear of the room leaving the front part where the principal seating was unaffected. The court nevertheless held the injury was substantial, having regard to the Plaintiff s evidence of loss of amenity and the judge s view of the site. The case was not however typical of the large office blocks where the trouble usually arises. Here there is no real guidance. Does one look at impact on capital value (usually minimal) or percentage of floor area affected, or effect on particular areas? How 25

26 far does one take account of the use of the areas on question? 24. One can say 2 things with confidence. Firstly, the greater the area affected, the more likely an injunction. Secondly, if the Plaintiff does not seek an interim injunction so that the building is up before trial his chances of getting an injunction are minimal. It also seems reasonably clear that attempts to argue for smallness of loss by reference to effect on capital value are unlikely to be accepted. Regard must be had to the effect on amenity and working environment. 25. There is now however a strong signal that the courts are shifting away from a 26

27 strict application of the Shelfer principles and may be more ready to refuse an injunction. In Gafford v Graham 77 P & CR 73 the Defendant constructed a riding school in flagrant breach of a restrictive covenant. The Plaintiff offered to settle the whole dispute for a sum of money, and when that was refused started proceedings but did not seek an interim injunction. The damage to the Plaintiff was substantial, so that the first and third Shelfer principles did not apply. The court nevertheless refused an injunction. Nourse L J said: As a general rule, someone who, with the knowledge that he has clearly enforceable rights and the ability to 27

28 enforce them stands by whilst a permanent and substantial structure is unlawfully erected, ought not to be granted an injunction to have it pulled down. 26. Therefore Plaintiffs who delay and do not seek interim injunctions whilst buildings go up will be left with claims to damages only. The goalposts have shifted in favour of Defendants. This certainly applies to restrictive covenants, and must also apply to nuisance. There is no reason why it should not also apply to trespass cases, although I suspect that the court might be more cautious in the case of a blatant and selfinterested act of this kind. 28

29 27. Party wall works carried out unlawfully, without compliance with the 1996 Act are likely to be injunctible at least where there is substantial injury, as in Daniells v Mendonca. Again, however, delay may prevent an injunction being granted on the same principles. There is therefore some temptation for the bold and rich to ignore the Act. The adjoining owner may have to seek an interim injunction to be sure of keeping his rights, but, at the same time, this requires expense, and the risk inherent in the undertaking in damages. Restrictive covenants, which seem to figure in many of the leading cases, require no separate comment. 29

30 28. So, to return to the starting point. There is no bright line. The paradox of rights which demand certainty being protected by remedies which are very much discretionary remains and if anything is increasing, Size of the injury, oppression, conduct of the parties, and delay can all be relevant. The growing trend is to deny injunctions where the Plaintiff has not sought immediate enforcement of his rights whilst permanent works have been built. Stephen Bickford Smith Landmark Chambers 4 Breams Buildings London EC4A 1 AQ sbsmith@landmarkchambers.co.uk 20 March

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