Charlie Properties Ltd v Risetall Ltd (a company incorporated in the Turks And Caicos Islands) and another

Land – Trespass – Damages – Claimant seeking damages and injunction in respect of admitted trespass to land – Defendants accepting liability but resisting claim for injunction – Claimant applying for summary judgment – Whether claimant entitled to injunction – Whether damages being adequate remedy – Application granted The claimants owned two pieces of land in London, NW3. The first site was leased to a restaurant. The second site was a derelict sausage factory that the claimant bought for £1m and intended to redevelop. The defendants owned neighbouring properties to the second site, part of which was in the course of redevelopment as residential flats. The claimant and the first defendant had rights of way over parts of each other’s property and the first defendant also claimed prescriptive rights to park, load and unload vehicles and store materials in a yard that was part of the second site. The defendants attempted to buy parts of the second site but negotiations came to nothing. The defendants then proceeded to appropriate the claimant’s land, incorporating it into their construction site. When the claimant discovered this, it brought proceedings for trespass to land. To a large extent, the claimant’s allegations were admitted and no justification or reasonable explanation was advanced for the defendants’ conduct. In those circumstances, the claimant applied for summary judgment for damages for trespass and nuisance to be assessed and injunctions relating to certain acts of trespass. The defendants accepted that the claimant was entitled to summary judgment for most of the acts complained of and accepted liability to pay damages but resisted the application for an injunction. Held: The application was granted. While prima facie the remedies in a nuisance case included an injunction to restrain the commission of nuisance in future as well as damages for past nuisance, the court now had an unfettered discretion to award damages in lieu of an injunction, having regard in particular to the public interest and the effect that an injunction would have on third parties: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 and Lawrence v Coventry (t/a RDC Promotions) and others [2014] UKSC 13; [2014] 1 EGLR 147 considered. However, justification for refusing an injunction in cases of trespass was inherently less likely than in a nuisance case, since the defendant was seeking by the payment of damages to buy the right to interfere, not merely with the claimant’s enjoyment of the property, but with the property itself. In the present case, the defendants had not suggested that an injunction would affect the public interest or adversely affect third parties. Accordingly, what the court had to decide where the defendant resisted summary judgment for an injunction was whether there was a realistic prospect that they would nevertheless be able, at trial, to persuade the court that no injunction should be granted. The fact that the trespass was committed deliberately and flagrantly, and in no way inadvertently or in ignorance of the claimant’s rights, did not provide a promising foundation for its case: Colls v Home and Colonial Stores Ltd [1904] AC 179 considered. In some cases, an injunction would be necessary if the defendant had acted in a high-handed manner endeavouring to steal a march upon the claimant. On the evidence, this was clearly such a case and the defendants had no realistic prospect of persuading the court at trial that the only remedy that should be awarded was damages. There was no justification for allowing the defendants to perpetuate their trespass by the payment of money. Joanne Wicks QC (instructed by Blake Morgan LLP) appeared for the claimant; Steven Woolf (instructed by Gunnercooke LLP) appeared for the defendants.   Eileen O’Grady, barrister     Click here to read transcript: Charlie Properties Ltd v Risetall Ltd (a company incorporated in the Turks And Caicos Islands) and another