Pincus v Johal and another

Right of way – Interference – Nuisance – Claimant alleging interference with right of way over defendants’ land – Claimant applying for order permitting it to enter defendants’ land to reinstate concrete platform – Whether claimant had standing to bring claim in nuisance – Whether claimant abandoning “all non-monetary aspects” of claim – Application dismissed The claimant owned commercial premises at 21, Millicent Road, Leyton, London which was let to a commercial tenant. The tenant unloaded goods on the unbuilt part of the claimant’s land and took them by forklift truck up a concrete ramp on that land. The claimant brought a claim against the defendants alleging nuisance and wrongful interference with a right of way which entitled him to use a concrete platform on the defendants’ land to access the entrance to his own next-door commercial premises. The interference alleged was that the defendants began to demolish the platform, making it impossible for the tenant to take goods into the building by fork-lift truck. In September 2022, the claimant obtained an interim injunction requiring the defendants to reinstate the damaged platform and not to interfere further with the claimant’s alleged right. The defendants carried out certain remedial works to the ramp which the claimant argued were defective. The defendants did not file a defence and the claimant applied for judgment in default which was accompanied by a letter which purported to “abandon all non-monetary aspects” of the claim. The master entered a default judgment on the papers. The defendants’ application to set aside that judgment was dismissed: [2023] EWHC 2997 (Ch). The claimant applied for an order permitting him to enter on the defendants’ land to reinstate the concrete platform and for damages and costs. Held: The application was dismissed. (1) The claimant had made allegations of interference with its right of way over the defendants’ land, by rendering the use of the platform over which the right of way subsisted both less safe and less convenient: that was a claim in nuisance only. A reversioner, as the claimant was, might sue in nuisance in respect of damage to the reversion. So, to be actionable, the damage had to be of a permanent nature, such as would continue indefinitely unless something was done to remove it. A reversioner could sue in relation to a nuisance where the nuisance would, or even might, continue to a time when the reversion fell into possession: Hunter v Canary Wharf Ltd [1997] AC 655; [1997] PLSCS 108 and Metropolitan Housing Trust Ltd v RMC FH Co Ltd [2017] EGLR 49 considered. Here the reversion was due to fall in very shortly after the hearing. Physically damaging the platform so that it was less convenient and less safe to use a right of way over it amounted to a permanent nuisance. It might continue until the reversion fell into possession, which therefore damaged the reversion. Accordingly, the claimant had standing to sue for the nuisance alleged, without joining his tenant. (2) There was evidence of interference with the right of way which was over the entire width of the platform. A substantial part of that width had been demolished, and in practice the right of way could not so conveniently and safely be exercised over the demolished part. Not every interference with an easement, such as a right of way, was actionable. There had to be a substantial interference with the enjoyment of it. There was no actionable interference with a right of way if it could be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction: B&Q plc v Liverpool & Lancashire Properties Ltd [2001] 1 EGLR 92 considered. In the present case, the claimant’s insistence on continuing to use the whole of what he contracted for was reasonable. Considering the situation and purpose of the ramp there was a sufficiently substantial interference with the claimant’s right to amount to a nuisance. (3) Under CPR rule 12.4(1) (subject to paragraph (3)), a claimant might obtain a default judgment by filing a request in the relevant practice form. The simple request route was appropriate only where the claim made was for money (whether in a specified sum or to be assessed) or the delivery up of goods where a money alternative was available. If any other remedy was claimed, and not abandoned, an application had to be made under CPR Part 23. That would involve notice being given to the defendant, and a hearing taking place which would take time and involve extra costs. In the present case, the relief sought included a mandatory order for the defendants to restore the raised platform and a prohibitory order restraining them from obstructing or interfering with the claimant’s right of way and access. Both were discretionary remedies. None of that relief had so far been granted. It was therefore capable of being abandoned in order to obtain a default judgment by request under rule 12.4(1). (4) The alleged act of abandonment was not simply applying for default judgments by request under rule 12.4(1). It was also the letter accompanying the request for default judgment of the same date which expressly abandoned “all non-monetary aspects” of the claim. The letter, read in context, effected that abandonment. The claimant had previously made three separate unsuccessful requests for a default judgment under rule 12.4(1). The rules made clear that a default judgment might be obtained by simple request under that rule only if the relief sought was restricted to money or delivery of goods with a money alternative. If any other relief was sought, it had to be by Part 23 application notice. The matter was referred to the master, who considered the relevant documents, and decided that judgment in default could be entered based on the request, without the need for an application notice. That could only be on the basis that the master understood that, by reason of the letter, all non-monetary relief was being abandoned: Robins v Kordowski [2011] EWHC 1912 (QB) distinguished. (5) CPR rule 3.10 empowered the court to make orders to remedy errors of procedure. However, the “internal” mistake of the claimant’s solicitor as to what he meant by “non-monetary aspects” could not justify that remedy here. Accordingly, the claimant must be taken to have abandoned the claim to the mandatory and prohibitory injunctions and was now restricted to his claim in damages, for which there would need to be an inquiry before the master. Christy Burzio (instructed by Edwards Duthie Shamash Solicitors, of Ilford) appeared for the claimant; Joseph Meethan (instructed by Rainer Hughes, of Shenfield) appeared for the defendants. Eileen O’Grady, barrister Click here to read a transcript of Pincus v Johal and another