Easement – Right of way – Interference – Claimants alleging interference with easements/rights of way by presence of containers on land at rear of defendant’s property – Claimants seeking mandatory interim injunction requiring defendant to remove containers – Whether claimants satisfying requirements for injunction – Whether matter to be transferred to county court – Application dismissed
The first and second claimants owned/operated a supermarket at 354-356 Bath Road. The third claimant owned but lets out 362 Bath Road. The defendant was the freehold owner of 364-366 Bath Road which included land at the rear. On the land there were four storage, freezer and food containers.
The claimants alleged that the containers interfered with various rights of way and/or easements and applied for a mandatory interim injunction requiring the defendant to remove the containers from the land. There was some argument about the precise scope of the rights involved and the extent of any interference, but the defendant agreed for the purposes of the application that the hearing should proceed on the basis that the claimants had the benefit of rights over the defendant’s property.
However, the defendant argued that the matter was more appropriate for the county court as it was in effect a neighbours’ dispute about conduct which had persisted for 12-18 months and there was no reason why the claim could not have been commenced in the county court or should not be transferred there particularly having regard to the very limited damages sought by the claimants.
Held: The application was dismissed
(1) The burden of proving the facts relied on to satisfy the requirements for an application for interim application for a mandatory injunction lay with the claimants. It was for the court to satisfy itself that the considerations established in American Cyanamid v Ethicon [1975] AC 396 and subsequent cases had been properly considered and that the claimants had provided sufficient evidence to enable the court to exercise its discretion in line with the overriding objective. It was not for the court dealing with the interlocutory application to seek to resolve critical disputed points of fact or law. The courts might sometimes appear to be more reluctant to grant mandatory injunctions than prohibitory injunctions on an interlocutory basis because a mandatory injunction was more likely to cause irremediable prejudice to the defendant, or to disrupt the status quo, than a prohibitory injunction.
(2) Transfer to the county court was in the discretion of the court, having regard to the matters set out in CPR 30.3(2): the value of the claim, the complexity of the facts and issues, the importance of the case, whether it would be more convenient to try the case elsewhere and the facilities of the proposed court. Under Practice Direction 29, para 2.2 a claim with a value of less than £100,000 would generally be transferred to the county court unless it was required to be tried in the High Court, it fell within a specialist list or it fell within one of the categories specified in the list at PD 29, para 2.6: Chancery Guide, para 14.19 (c). Where an application was made under Part 25 (interim remedies) in the High Court, that application would usually be dealt with before a decision to transfer was taken.
(3) The court had to satisfy itself that there was a serious question to be tried. Applications had to be decided primarily on the balance of convenience. An interim injunction should be refused if damages would adequately compensate the claimant and the defendant could pay. An interim injunction should be granted if the claimant’s cross-undertaking in damages would adequately compensate the defendant and the claimant could pay). If damages would not fully compensate either party, the balance of convenience decided the issue. If the balance of convenience favoured neither party, the relative strengths of their respective cases on the merits might be taken into account, if one case was disproportionately stronger. If other factors were finely balanced, the court should maintain the status quo.
(4) In the present case, to establish a cause of action, the claimants needed to: show that they had title to the easements, establish the scope of the easements and establish that there had been substantial interference with that right. The test of an actionable interference was whether the grantee’s insistence upon being able to continue to use the whole of what he contracted for was reasonable. It was not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee’s preference was unreasonable or perverse. If the grantee had contracted for the relative luxury of an ample right, he was not to be deprived of that right, in the absence of an express reservation of a right to build upon it merely because it was a relative luxury and the reduced, non-ample right would be all that was reasonably required. The test was one of convenience; providing that what the grantee was insisting upon was not unreasonable, the question was whether the right of way could substantially and practically be exercised as conveniently as before: B&Q plc v Liverpool and Lancashire Properties Ltd [2001] 1 EGLR 92 and Emmet v Sisson [2014] EWCA Civ 64; [2014] PLSCS 41 followed.
(5) The parties here agreed that the claimants had established a serious issue. Given the guidance in American Cyanamid that a claimant seeking interim injunctive relief need establish only a serious question to be tried, which was a lower threshold than the previous practice of requiring a strong case on its face, the requirement was fulfilled. The court then had to consider whether the lower risk of injustice would arise from granting or refusing interim relief. All the circumstances of the case were relevant and the courts had hesitated to produce a definitive list of factors to be taken into account. On the evidence, the adequacy of damages did not fall clearly in favour of either party. Overall, the balance of convenience lay in not granting the injunction and dismissing the application. It was also appropriate to transfer the claim to the county court.
Evan Price (instructed by Bhogal Partners) appeared for the claimants; Michael Buckpitt (instructed by Lincoln & Rowe) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript of Singhson Ltd and others v Kanendran
