Trespass–Bank, owners of a building which had become dangerous, sought permission of neighbouring owners to go on their land in order to carry out remedial works–Permission refused–Bank and bank’s building contractors eventually went ahead and trespassed on neighbouring property–Works partially carried out–‘Flagrant invasion of another’s rights of property’–Although damage likely to be slight it was a fit case for a prohibitory injunction–No ground for suspending injunction–Interlocutory orders made for prohibitory injunctions and also for mandatory injunctions to remove scaffolding and rubble and debris from plaintiffs’ land
In these
proceedings the plaintiffs, John Trenberth Ltd, moved for interlocutory
injunctions, both prohibitory and mandatory, until the trial of the action for
trespass, against National Westminster Bank Ltd, the first defendants, and E
Turner & Sons Ltd, the second defendants, who were the bank’s building
contractors. The trespass alleged concerned the plaintiffs’ property at 117
Bute Street, Cardiff. In earlier ex parte proceedings the judge had granted the
plaintiffs ex parte relief in the form of negative injunctions.
James Munby
(instructed by Gilbert Robertson & Co, of Cardiff) appeared on behalf of
the plaintiffs; R J Powell-Jones (instructed by Cartwrights, of Cardiff)
represented both the first and second defendants.
Giving
judgment, WALTON J said: In this case the plaintiffs and the defendants own
adjoining property in Bute Street, Cardiff, the plaintiffs’ property being 117
Bute Street. Next door to them, the premises to the south are owned by the
first defendant, the National Westminster Bank Ltd. The National Westminster
Bank has found itself in a very unfortunate situation because the building
which it occupies is apparently in a dangerous condition; or the bulk of it was
in a dangerous condition, so far as the frontage of it was concerned at any
rate, because that consisted of stone slabs with metalwork behind. Water had
penetrated between the metalwork and the stone slabs, forming an accumulation
of rust, which occupies a greater volume than the metal itself, and the stones
have been therefore pushed forward and are to some extent dangerous. Therefore,
the building had become in a dangerous condition.
Mr Powell-Jones,
who has said everything that can possibly be said on behalf of the defendants,
has submitted to me that it was the defendants’ duty to remedy the defective
state of their building, and that I readily accept. At common law there is a
duty to maintain premises adjacent to the highway, and these premises were
adjacent to Bute Street, in an unsafe condition; and he also called my
attention to section 58(1) of the Public Health Act 1936, whereby if one does
not comply with the notice to make a defective building safe certain penalties
follow. Therefore, he said, the defendants found themselves in this dilemma,
that their building is so constructed that it cannot be effectively repaired
without to some extent trespassing upon the plaintiffs’ land. And so, not
wishing to commit a trespass, but realising that they might, in order to repair
the premises cheaply and efficiently, have to do so, they in fact entered into
a correspondence with the plaintiffs, starting by a letter of May 30 1978, and
pursued thereafter down to December 8 1978, after which the plaintiffs did not
answer any more letters.
Mr
Powell-Jones has submitted that the defendants, that is to say the National
Westminster Bank Ltd, the owner of the property, and their contractors for
putting the building right, E Turner & Sons Ltd, behaved throughout
perfectly properly, not in flagrant disregard of the plaintiffs’ rights but
offering full indemnities against any accidents that might happen, full
assurances that nothing would happen, and so on and so forth. And ultimately,
whatever they asked for and however they put it, the reply of the plaintiffs to
the request for permission was a flat ‘No.’
It may be or
it may not be, and I do not think I am really concerned with that, that the
refusal of the plaintiffs to grant permission was irrational. But it certainly
was made in good faith and it certainly was not made, as the evidence makes
perfectly clear, as a bargaining counter in order to extract concessions from
the defendants. It was a genuine belief and desire on the part of the
plaintiffs–they did not want their property to be trespassed upon by the
defendants.
The situation
at the end of that correspondence was that the defendants, according to Mr
Powell-Jones, and I accept his formulation as being absolutely accurate, felt
they were never going to get the plaintiffs’ permission to carry out their
works–that is to say, the plaintiffs’ permission to trespass on the plaintiffs’
land in order to carry out their works. Therefore, Mr Powell-Jones says, the
defendants (particularly the first defendants) were in an impossible position.
There was on the one hand the Scylla of the dangerous building and there was on
the other hand the Charybdis of trespassing upon the plaintiffs’ land, and they
chose, says Mr Powell-Jones, to go ahead and trespass. And he says that the
defendants were not thereby acting unreasonably in pressing ahead and
completing works, in so far as they have been completed, to make the building
safe.
I can see
fully and I can sympathise with the dilemma in which the defendants
(particularly the first defendant) found themselves, but on Mr Powell-Jones’
own summary of the evidence, and what happened, it is clear beyond peradventure
that the defendants, knowing that they had not and were not likely to get
permission to trespass upon the land of the plaintiffs, nevertheless went ahead
and trespassed. And if flagrant invasion of another’s rights of property of
that nature is not sufficient to call forth the interposition of a court of
equity, I do not know what invasion ever could be said so to do.
Mr
Powell-Jones has said that the invasion was not for the commercial benefit of
the bank, but was merely to ensure that the property was made safe so as not to
be dangerous to third parties, including the plaintiffs themselves. I do not
accept that for one moment. The defendants wished to use their building as a
building, possibly for aught I know
to pull it down and start all over again. But, of course, that course would be
one which cost them a great deal of money, and so they deliberately chose the
less expensive course of trespassing upon the plaintiffs’ land.
Therefore, it
seems to me that this is a case, there being nothing else in the facts which
raise the faintest shadow of a cloud upon the plaintiffs’ title to relief, on
which the injunction must at any rate in a normal case go. So far from acceding
to Mr Powell-Jones’ first real submission, that this was not a clear case for
an injunction and it is inconceivable it would be granted, it appears to me the
clearest possible case for an injunction and inconceivable that it would not be
granted.
He then says,
well, supposing his submission is not accepted, his second submission is that
the plaintiffs can be compensated in damages; that to obtain an injunction
would be obtaining an injunction for an injunction’s sake, and that it would be
a great hardship to the first defendant if the injunction were to go. I do not
accept that either. Indeed, it may be that there are special circumstances here
which will ultimately result in the plaintiffs obtaining aggravated damages. I
must not be taken to express any opinion upon that at all. But it is perfectly
clear that the actual damage, apart from any question of aggravation, caused by
the mere trespass, both by oversailing the front of the plaintiffs’ property
and by actually resting upon the rear of the plaintiffs’ property, is
comparatively slight; so slight that if an action were brought for it, it would
hardly command the smallest coin in the realm. But so far from that being a
reason why an injunction should not be granted, it has been said in many of the
cases to which Mr Munby drew my attention that the fact that any damage would
be trifling is the very reason why an injunction should be granted. People are
not to infringe the property rights of others and then say ‘And I am entitled
to go on doing it because I am really doing you no tangible harm, and
five-pence will amply compensate you for that harm.’
Mr
Powell-Jones’ third point was on the question of suspension. He had, and he
rightly says, that in a proper case the court can always suspend the operation
of an injunction. He referred me in this connection to the case of Stollmeyer
v Petroleum Development Co Ltd [1918] AC 498, a case in the Privy
Council. Now, I would remark that that case in fact does not do very much for
his proposition because that was a case of nuisance and not a case of trespass;
and as has been well pointed out so far as nuisance is concerned, damage being
the gist of the action it is possible, normally, to compensate the plaintiff–at
any rate for a short suspension–in damages. Moreover, one has to look at the
nature of the works required in that case, which were obviously going to be
very very considerable indeed, dealing with property which had been put up to
exploit Trinidad’s then burgeoning petroleum industry. That is a totally
different sort of case from the present, where half a day’s work, if that, is
all that will be required to remove the trespass to the plaintiffs’ property.
I think I must
refer in this connection to the case of Woollerton & Wilson Ltd v Richard
Costain Ltd [1970] 1 WLR 411 where, on facts which in some ways bear a
great resemblance to the present case, Stamp J (as Stamp LJ then was) granted
an injunction, but then suspended it for a couple of years. I find that that
case is not one which, on the question of suspension, has received universal
approbation; and, indeed, in Charrington v Simons & Co Ltd
[1971] 1 WLR 598, there occurs in the judgment of Russell LJ (as the third Lord
Russell of Killowen then was) these words:
Further, we
wish to reserve our opinion whether the decision in Woollerton & Wilson
Ltd v Richard Costain Ltd [1970] 1 WLR 411 was correct. Neither
counsel seemed to think that it was.
I therefore
think that this must be a case where Homer nodded, and that that case cannot be
relied upon so far as suspension is concerned. And I think the reason it cannot
be relied upon was well illustrated by Mr Munby in his submissions to me when
he said that in a sense, when one is dealing with the direct physical invasion
of a right of property by a trespass one is very close to the line of cases
stemming from Doherty v Allman (1878) 3 App Cas 709, which decide
that an injunction to enforce a negative stipulation in a contract goes almost
as of course. The parties, having agreed that something shall not be done, the
court simply says that what the parties have agreed shall not be done.
The matter can
be tested, I think, very simply in this way. Supposing that instead of putting
up that scaffolding, as the second defendants doubtless did, taking their time
about it in the normal way, supposing they had signalled notice of their intention
well in advance so that it was quite clear what was going to happen if it was
not restrained, and the plaintiffs had applied to the court for an injunction quia
timet; what conceivable ground could have been put forward by the
defendants in answer to the claim for such an injunction? There is not the faintest shadow of reason
they could have advanced why they should not be restrained from committing the
trespass. Can it then be any better that they have actually committed it? Does the fact of their having committed it
and it being, I doubt not from a structural point of view and commercially,
highly advantageous to them that they should be able to go on and complete
their building, make the matter better from their point of view Does that give
them any right at all to have a suspension of the injunction which, if the
plaintiffs had been able to come realising what was going to happen earlier,
they would have got without the faintest difficulty at all? The answer must clearly be ‘No,’ there can be
no conceivable reason for any such postponement at all.
Therefore, for
those reasons it appears to me that the negative injunctions which are sought,
and which I gave to the plaintiffs by way of ex parte relief on March 29 1979,
must be continued until judgment in the action or further order.
There are also
two mandatory orders sought, namely, an order that the defendants and each of
them do forthwith remove or cause or procure to be removed from the plaintiffs’
land all scaffolding or staging erected thereon by the defendants or either of
them, or by their respective directors or servants or agents; and, in similar
terms, that they remove or cause or procure to be removed from the plaintiffs’
said land all rubble and debris deposited thereon by the defendants or either
of them, or by their respective directors or servants or agents. Mr
Powell-Jones for the defendants said quite frankly that if the negative
injunctions asked for were granted, then of course the relevant bits of
scaffolding on and over the plaintiffs’ land were of no further use to the
defendants and he could not then seriously object to the mandatory orders. But
whether he objects or not, this is a case where there is no dispute as to any
of the relevant facts; there is no dispute as to the law; no conceivable reason
or justification in law for the defendants’ acts have been forthcoming.
Therefore, this is one of the admittedly very rare class of cases where, even
on an interlocutory motion, a mandatory order must go.
Therefore, for
those reasons I propose to make the orders sought by the notice of motion
herein under the first three heads.
