Plaintiff claiming defendant granted right to use site for parking on Sundays – Defendant claiming no exclusive right granted – Plaintiff seeking injunction restraining defendant from interfering with access to site or disposing of site otherwise than subject to terms of plaintiff’s tenancy – Whether injunction appropriate – Application dismissed
The plaintiff, trading as BS Fenland Promotions, rented a site at £30,000 pa upon which he ran an indoor Sunday market. The plaintiff claimed to have entered into an oral agreement with the first defendant whereby the defendant was to let to the plaintiff at £80 per month land which formed part of an adjacent site formerly known as the Dalgety Site, Benwick Road, Whittlelsey, Cambridgeshire. The plaintiff claimed to have agreed with the first defendant to use the rented land on the Dalgety Site as a car park for members of the public visiting his Sunday market. The plaintiff claimed that, for both planning and commercial reasons, there was a need for an overspill car park connected with the market. The first defendant denied having made an agreement with the plaintiff and disputed that there had been a form of grant intending to convey the exclusive possession of any part of the Dalgety Site. The plaintiff issued proceedings and sought an injunction to restrain both the first defendant, and the second defendant who was a potential lessee of part of the site, from interfering with access to the Dalgety Site or disposing it otherwise than subject to the terms of the plaintiff’s tenancy. The plaintiff contended, inter alia, that if an injunction were not granted (1) the viability of the Sunday market would be in jeopardy since visitors who could not park their cars would not use the market, and (2) he might suffer a loss of up to £45,56 pa, being the profits of the Sunday market which he claimed were likely to rise and thereby render his losses unquantifiable.
Held The plaintiff’s application was dismissed.
1. There was a serious issue to be tried as to whether there had been any form of grant which intended to convey exclusive possession to any part of the site. However it was unlikely that a lease had been granted of the whole site.
2. Even if the plaintiff was not able to use the site for overflow parking, it did not follow that all the Sunday market trading would cease and therefore there was no reason why the plaintiff should lose all the profits of the market. The trading of the market had been continuous and there was no reason why there should be any unusual acceleration in its profits. The plaintiff would still be able to rent out the building on the market site and the first defendant would be able to afford to pay any damages should the plaintiff’s claim be upheld at the final hearing.
3. However if an injunction were granted, the first defendant’s losses would be substantial and the plaintiff would not be able to afford to pay the damages if his claim was dismissed at the final hearing. Therefore, in all the circumstances, it was appropriate to dismiss the plaintiff’s application: see American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Edward Cousins (instructed by Hunt & Coombs, of Peterborough) appeared for the plaintiff; Rupert Warren (instructed by Adrian Christmas, of Peterborough) appeared for the first defendant; the second defendant did not appear and was not represented.
