Right to light — Injunctions sought by plaintiffs to protect access of light to windows — Motion by defendants, building developers, under RSC Ord 18, r 19 or inherent jurisdiction, to strike out the paragraphs in the plaintiffs’ pleadings claiming injunctions — Plaintiffs’ chances of obtaining injunctions at trial minimal but Vice-Chancellor not prepared to strike out claims as unarguable — Plaintiffs in effect offered choice of having claims struck out or applying for an interim injunction with undertaking to pay damages if such injunction found to have been wrongly granted — As plaintiffs elected not to apply for interim relief, their claims for injunctions in the pleadings were struck out
plaintiffs’ case was that the construction by the defendants of a block of
flats adjoining the plaintiffs’ property in Finchley Road, London NW8, would
obstruct the right to light enjoyed by certain of the plaintiffs’ windows — The
permanent injunctions sought were to pull down so much of the block of flats as
caused the obstruction and to restrain the defendants from erecting any
building likely to cause an obstruction — The plaintiffs’ apprehensions were
genuine but the defendants were in a very difficult position — They had already
invested some £7m or more in the site and they were faced with the dilemma of
either halting the development, with an annual cost of about £1m in financing
it, or going ahead and facing the possible cost of complying with the
injunctions — It was noted that at one point the parties’ professional advisers
had agreed to recommend to their respective clients the comparatively small sum
of £7,500 as the correct compensation payable for disturbance of the right to
light — This agreement did not, however, lead to any binding agreement between
the parties
Vice-Chancellor came to the conclusion that the plaintiffs’ chances of
obtaining an injunction at the trial were minimal — He noted that at one time
the plaintiffs were prepared to instruct their advisers to deal with compensation
for rights of light rather than pursue proceedings to stop the projected
development next door — The plaintiffs had, however, delayed and stood by for a
long period, conveying the impression that they acquiesced in the development —
Nevertheless, although the Vice-Chancellor could not visualise a change leading
to the grant of injunctions at the trial, he was not prepared to strike out the
plaintiffs’ claim for an injunction as entirely unarguable — In effect he
offered the plaintiffs a choice — He would strike out the plaintiffs’ claims
unless they were prepared to apply for an interim injunction restraining
further development likely to disturb the right to light; this would
necessarily be accompanied by an undertaking by the plaintiffs to pay for any
damage caused to the defendants if the injunction were found to be wrongly
granted — It was made clear on behalf of the plaintiffs that they did not
propose to apply for an interim injunction — Accordingly the claims in their
pleadings to injunctions were struck out
The following
cases are referred to in this report.
Clearbrook
Property Holdings Ltd v Verrier [1974] 1 WLR
243; [1973] 3 All ER 614; (1973) 27 P&CR 430
Tiverton
Estates v Wearwell Ltd [1975] Ch 146; [1974]
2 WLR 176; [1974] 1 All ER 209; [1973] EGD 1018; (1973) 228 EG 2123, CA
This was a
motion by the defendants, Higgs & Hill plc, in an action by the plaintiffs,
Blue Town Investments Ltd, seeking permanent injunctions to protect their
rights to light in respect of windows at their property at 12 and 12a Finchley
Road, London NW8. The defendants sought to have the plaintiffs’ claims struck
out under RSC Ord 18, r19 or under the inherent jurisdiction of the court.
Stephen W
Bickford-Smith (instructed by Alsop Wilkinson) appeared on behalf of the plaintiffs;
Andrew J Lydiard (instructed by Hughes Watton) represented the defendants.
Giving
judgment, SIR NICOLAS BROWNE-WILKINSON V-C said: This is a motion
brought by the defendant company, Higgs & Hill plc, to strike out paras 1
and 2 of the prayer to the statement of claim in an action brought by Blue Town
Investments Ltd as plaintiffs.
Those two
prayers claim injunctive relief relating to the construction of a block of
flats at 10 Finchley Road, London NW8, adjacent to the property of the
plaintiff company at 12 and 12a Finchley Road, which, it is said, will obstruct
the right of light to nos 12 and 12a.
The ground for
the striking-out claim is either under Ord 18, r19 of the Rules of the Supreme
Court or under the inherent jurisdiction of the court.
The factual
background is this. The two properties adjoin each other. There had been
discussions for a considerable time between the successive owners of no 10 on
the one hand and the plaintiffs on the other as to the joint development of a
number of properties in Finchley Road. The defendants became engaged in a joint
venture with others in August 1988 when discussions were still continuing for a
proposed redevelopment of no 10 in conjunction with nos 12 and 12a. On December
20 1988, the defendants acquired the sole interest in no 10 and met and
considered with the plaintiffs the possibility of a joint development on the
two sites.
On March 2
certain work was done on no 10 which gave rise to a letter from Mr Jay, who is
a solicitor. Mr Jay and his family are personally interested in the plaintiff
company. On March 2 he wrote protesting about the noise and the work done. He
said:
Although it
is hoped that possibly we may be able to reach an agreement with regard to
either the whole or part of the site here in St John’s Wood, we cannot allow
the works to continue on the site of number 10 without having reached an
agreement regarding our claim in respect of rights of light.
He then says
at the end:
I trust the
matter will be satisfactorily resolved, but in view of this bombardment of
noise we will not allow the matter to continue and we will instruct our
solicitors forthwith unless we can reach an amicable settlement.
The reply to
that was a letter from the defendant company of March 3 1989, which is of great
importance. After explaining that building work had not commenced but merely
trial boring, the letter goes on to consider certain options discussed at a
meeting which had
that the defendants had eliminated the option to purchase the whole of the
site, being nos 12 to 22 Finchley Road; they were still willing to consider a
joint disposal of no 10 with nos 12, 12a and 14 but would need a quick
decision. The letter continues as follows:
The most
likely option seems to us that of proceeding separately with our respective
sites. We are ready and willing to negotiate through advisers and without delay
the alleged loss of rights of light and your request for rights of access. As
was mentioned at our meeting in our offices, a limited modification can be made
to the design of the scheme for number 10 to avoid the right of light’s
infringement. We would clearly prefer to proceed with the scheme as currently
designed. Would you kindly let me know as soon as possible your preference
between these last two options, and, if the latter, whether you will agree to
instruct outside experts to deal with ours.
The reply to
that was a letter from Mr Jay of March 8. After dealing with certain other
matters he said:
I shall
therefore confine the letter in the main to dealing with the loss of the right
of light and the request of rights of access. These matters should be dealt
with to avoid further delay, and I completely understand that it would
obviously be preferable for you to proceed with your present scheme without
having to modify the same which would only involve extra time, which we both
know in this day and age means money. Accordingly, we are quite prepared for
our respective advisers to deal with the rights of light and the rights of
access, and we are therefore instructing our advisers to proceed accordingly.
Perhaps you would likewise instruct your adviser.
The rights of
access referred to in those two letters related to the desire for the plaintiff
company to have a right of access over part of no 10 which might be helpful in
a future development of nos 12 and 12a.
The defendant
company replied on March 15 and the letter contains this passage:
As you say,
it is important that we should resolve the outstanding difficulties between us,
and to this end our party wall surveyor, Mr Roe, has been asked to contact your
party wall surveyor, Mr Anstey, to agree valuation in respect of your right of
light, and your request for vehicular access to your property . . . For the
sake of simplicity and tidiness we are keen to resolve all outstanding matters
relating to the development of our sites and to this end I look forward to your
co-operation in resolving potential problems. You will, of course, appreciate
that a substantial amount of work can be done on our site before there is any
risk of us infringing your rights of light.
Thereafter,
the evidence before me is comparatively silent as to what happened. On June 7
1989 the plaintiff company were given notice that work was to start on June 12.
Work did start on June 12 and continued, so far as the defendants were
concerned, without protest down to September 14 1989.
The
plaintiffs’ evidence is that on June 30 they instructed solicitors who
instructed Mr Anstey to consider the whole of the planning position and Mr
Anstey made a report to them in August which led to a conference with counsel
on September 14 1989, at which counsel advised that there was a claim for
infringement of light which might be restrained by an injunction. However, as
the plaintiffs’ evidence discloses, they decided not to proceed for any interim
relief since the granting of any interim injunction would have required the
plaintiffs to give a cross-undertaking in damages in very large figures indeed.
Instead, what was done was to send a letter from the plaintiffs’ solicitors to
the defendants in which they say:
We have
sought counsel’s advice and have been advised that as matters stand at present
there is a good prospect of the court granting an injunction to prevent you
interfering with our client’s right to light. We are instructed that unless we
receive a reply within 7 days containing assurances that our client’s right to
light will not be affected by your building, we are to issue a writ against you
in the Chancery Division seeking an injunction.
No
satisfaction having been achieved, the writ was issued on October 13 1989 and
paras (1) and (2) claim:
(1) an injunction ordering the defendant to pull
down and remove so much of its block of flats at 10 Finchley Road as obstructs
the access of light so as to cause a nuisance to the plaintiff’s windows at 12
Finchley Road; and
(2) an injunction to restrain the defendant from
erecting any building so as to cause a nuisance or illegal obstruction to the
plaintiff’s windows at 12 Finchley Road.
The matter
proceeded speedily and in due course an application was made to me to expedite
the hearing, the evidence put in by the defendants showing that they were left
in an extremely difficult position. They had already invested in the site, and
in the work on it, some £7m-£7.3m; they either had to stop the development, in
which case the annual cost of financing would be something over £1m per annum,
or they had to go ahead and risk an injunction requiring part of the building
to be pulled down; the cost of complying with such an injunction if the
plaintiffs are successful at trial is difficult to fix precisely but is put at
somewhere between £500,000 and £1m.
I must now go
back to a factor which lies behind the claim to strike out. In fact, the
parties’ surveyors had, at an earlier stage, been instructed to try to agree
the value of the loss of the right of light inherent in the scheme for the development
of no 10. The evidence shows that on February 22 1988 the parties’ advisers had
agreed to recommend to their respective clients the sum of £7,500 as being the
correct amount of the compensation for the loss to right of light. It is in no
way suggested that they had any authority to bind their clients to that figure,
nor did the plaintiffs ever accept that figure. Its importance is that both
parties’ surveyors at that stage considered that to be the value of the rights
lost.
The question
is whether the claim for injunction, in those circumstances, can succeed at
trial or is manifestly bad so as to justify being struck out. Alternatively, it
is said that, even if the case is not so manifestly bad that the claim to an
injunction should be struck out, in the circumstances of this case it is
vexatious for the plaintiffs to pursue the claim for an injunction of the writ
without being required to give some kind of undertaking to pay any loss
incurred by suspension of work pending the determination of the case by the
court. As I have said, the plaintiffs have adopted the deliberate policy not to
pursue a claim for interim relief in order to avoid the giving of a
cross-undertaking in damages.
First, in my
judgment, it is almost inconceivable that the claim for an injunction will
succeed at trial. In the letter of March 3, the relevant passages of which I
have read, the defendants offered two possibilities: (1) that they should
modify the scheme for the development of no 10 to avoid an infringement of the
plaintiffs’ rights of light, or (2) that they would proceed with the scheme as
currently designed but agree to compensation payable for the loss of the right
to light. The letter from Mr Jay of March 8 shows that Mr Jay fully understood
that it would be preferable for the defendants to proceed with the present
scheme without modification, and accordingly the plaintiffs were prepared to
instruct their advisers to deal with the compensation for rights of light. In
my judgment, that is quite clearly an election not to require an alteration of
the projected development on no 10, but instead to seek to agree the
compensation payable. I find it very difficult to accept that in the light of
that conduct and in the light of the plaintiffs’ standing by from that moment onwards
right through until September 14 1989, without protest, at the trial they will
be able to establish that they have not acquiesced in the development in the
form which it has taken, and that accordingly at best they will be entitled to
damages for breach of their right and not to an injunction.
Added to that
is the substantial delay in seeking to enforce the plaintiffs’ rights. Mr
Bickford-Smith, in his persuasive submissions, says that nothing short of a
fraudulent inducement to the defendants to proceed could constitute a bar to
the plaintiffs’ right to claim a mandatory or other injunction at trial. I do
not accept that. Standing by and watching a man proceeding on the basis that
rights will not be enforced and then seeking to turn around and claim equitable
relief based on such rights is conduct which par excellence disentitles
the plaintiffs from claiming equitable relief.
I therefore
reach the view that the chances of the plaintiffs’ obtaining an injunction at
trial are minimal. However, I do appreciate that the burden lying on a person
seeking to strike out the claim is a heavy one; only in the clearest and most
obvious cases should an order be made. Here there is, of course, a range of
factual evidence which would have to be heard at trial which conceivably might
alter the position. In particular, Mr Bickford-Smith has pointed out that the
negotiations which were to take place were to relate not only to the
compensation for the right to light but also to the grant of a right of way
over no 10. Although at the moment I cannot see how, it is possible that at
trial facts may emerge which alter the position sufficiently to justify the
grant of an injunction.
In those
circumstances I am not prepared to strike out the claim for an injunction as
being wholly unarguable.
However, in a
case as thin as this one, where a plaintiff has stood by in asserting his right
to an injunction and has apparently allowed the defendant to go ahead with the
development on the basis that he is prepared to accept money compensation, in
my judgment it is vexatious for the plaintiff to seek relief at trial by way of
injunction without being prepared to compensate the defendant for the loss he
will suffer if the plaintiff’s claim for an injunction fails at trial. As
things stand at the moment, the defendants are faced with the threat
of an injunction the validity of which cannot be determined until trial. They
must either discontinue the work, thereby incurring a great loss, or must
proceed at the risk of having to incur costs of between half a million and £1m
to comply with an injunction if granted at trial. That injunction is being
sought by a plaintiff who will not be liable, as things stand, to pay in any
way for that loss even if the plaintiffs’ claim proves at trial to be as thin
as I currently believe it to be.
In my
judgment, in those circumstances, it is legitimate for the court to say that it
is vexatious for a plaintiff to put forward a claim for an injunction at trial
which is as tenuous as this one is without being prepared to give a
cross-undertaking in damages.
The case is
very similar to the line adopted by this court in relation to cases where a
plaintiff has registered an estate contract over the land. The registration
sterilises the land in the hands of the owner, and the owner, so long as such
estate contract remains registered, is unable to sell to any third party. The
land is, in fact, rendered valueless until trial. In a clear case the
registration can be vacated summarily. But there are cases where the validity or
invalidity of the alleged estate contract cannot be determined until trial. In
such case, following the decision of Templeman J in Clearbrook Property
Holdings Ltd v Verrier [1974] 1 WLR 243, the court takes the course
of saying that, even though there is an arguable case, the registration of the
estate contract is to be vacated unless the plaintiff applies for an interim
injunction to restrain the owner from disposing of the land, such interim
injunction being supported, of course, by the usual cross-undertaking in
damages. Mr Bickford-Smith has sought to persuade me that the position in a
case such as the present is different. In my judgment, it is not. In both cases
what the court is seeking to do is to ensure that, pending trial, the defendant
is not exposed to loss which is uncompensatable and which flows from a claim of
the plaintiff which may be unjustified.
The decision
of Templeman J in the Clearbrook case was approved by the Court of
Appeal in Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146, per
Lord Denning MR at p 161 and Stamp LJ at p 172.
I therefore
think that the appropriate course in this case is that I should strike out the
claims in paras 1 and 2 of the relief of the writ unless the plaintiffs are
prepared to apply for an interim injunction restraining any further development
of the site so as to obstruct the plaintiffs’ light, accompanied necessarily
with a cross-undertaking in damages by the plaintiffs to pay any damage thereby
caused to the defendants if that injunction is wrongly granted. I propose to
take that course.
After a short
adjournment Mr Bickford-Smith indicated that the plaintiffs did not propose to
apply for an interim injunction. The Vice-Chancellor then ordered the
plaintiffs’ claims in the pleadings to be struck out. He ordered that the costs
of the application for an expedited trial be costs in the cause and that the
costs of the application to strike out be the defendants’ costs in any event.
