HUNTER v CANARY WHARF LTD

The tortious claim for nuisance, and the rights of those in occupation of land have for many years, been exclusively limited in the preservation of common law sensibility.

On this occasion, a collective suit for both nuisance and negligence by local residents against that of corporate rights, produced an unexpected outcome.

After the demise of dockland trading in London, the areas once frequented by countless importers and exporters, fell foul of disuse and neglect.

After lengthy consideration, both immediate and future plans for the site were subject to the Secretary of State who, recognising the need for both housing and commercial exploitation, took advantage of sections 134(1) and 135(1) of the Local Government, Planning and Land Act 1980, in order to commission urban regeneration of the London docklands area under the formation of the London Docklands Development Corporation (LDDC).

In line with the need for such redevelopment, the 1980 Act allowed the Minister to override typical planning permission requirements, as laid down in the Town and Country Planning Act 1971.

This resulted in the construction of the 800ft tall Canary Wharf Tower by nominated contractors Olympia and York Canary Wharf Ltd, along with interlinking roads to the surrounding city over a four-year period.

This ambitious project resulted in two tortious claims by 500-700 local residents; the first of which, centred around the interruption and in some cases, total disruption of television broadcast signals after the completion of the tower, and excessive amounts of materials dust invading the homes of the claimants throughout the construction period.

The case itself drew mixed, and yet keen attention of the the courts, primarily because the history of nuisance and negligence were to some extents, intertwined, and thus dependant on the principles found within property law.

In the first matter, the rights of those wishing to build upon their land stem from the long-standing principle that in the exception of easements or restrictive covenants, every man has the freedom to build as he pleases, as was stressed by Hardwicke LC in Attorney-General v Doughty, when he said:

“I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .”

Attorney-General v Doughty

Furthermore, in a recent German case G v City of Hamburg, the Supreme Court had ruled unequivocally that where a resident had suffered diminished television broadcast signals following the construction of a nine-storey hospital, such effects were not subject to the powers of their Civil Code; and so, no claim for nuisance could stand.

This reflected the stance of the English courts; therefore, support for such a claim would not be found, despite the large numbers of complaints.

Turning to the issue of dust, the principles of property law were again invoked, inasmuch as established academic precedent argued that:

“In true cases of nuisance the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

However, this definite founding for claim had seen its critics, when in Foster v Warblington Urban District Council, the Court of Appeal had ruled that a person in exclusive possession of land could sue, despite no evidence of title.

This principle was further promoted in Khorasandjian v Bush; in which, a young girl had been subjected to continuous phone calls from a spurned former partner while living with her parents; and where, Dillon LJ had also remarked that it was:

“[R]idiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or a leasehold proprietary interest in the premises in which he or she has received the calls.”

Khorasandijian v Bush

Here, the court followed Canadian case Motherwell v Motherwell, where it was held by the Appellate Court, that not only was the legal owner entitled to remedy for nuisance, but the wife too, despite her having nothing more than occupational rights.

Unfortunately, the problems facing the claimants was that a large majority of them were spouses, children and in some instances, extended family.

This placed the courts in a difficult position when recognising the need to consider expanding upon private claimant rights in nuisance cases beyond that of land owners, especially with similar changes to spousal rights in both the Matrimonial Homes Act 1983 and the Family Law Act 1996.

When first heard, the court held that television signal interference was a claimable right under nuisance, and that exclusive possession of land was the qualifying criteria for claim in both instances.

However, the Court of Appeal reversed the decision; and so, the original defendants appealed to the House of Lords, while the claimants cross-appealed.

With forbearance of the seemingly inextricable limitations of both tort and property laws, it was (after lengthy discussion) unanimously held that the despite the changes in modern society and the family units, the strict rule of exclusive possession remained steadfast; not on grounds of unreasonableness, but in the prevention of arbitrary awards for complainants having little to no proprietary rights.

Hence the House reversed the Court of Appeal’s findings, while reminding the parties that:

“Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance.”

STACK v DOWDEN

When a long-term relationship founded upon fierce independence to the exclusion of marriage reaches breaking point, the effects of separation are altered through the sale of the family home.

Where domestic legislation lends assistance to the courts under the Married Women’s Property Act 1882 and Matrimonial Causes Act 1973, there was, at the point of this hearing, no legal framework within which the division of proprietary rights could be easily established where no declaration of trust had been officiated.

Having met as a young couple before sharing a home together, the title of the first property was held for the respondent, after a sole purchase made with a considerable cash investment and the remainder by way of mortgage.

During the next decade, the two parties created a family and began raising four children out of wedlock, while maintaining to all effects, separate financial accounts.

Through the course of their time in residence, there were a number of improvements made to the property, and while the appellant laid claim to the majority of the work, it was proven undeterminable, and thus assumed as equally contributed to. 

When the time came to sell the home, there had been a significant profit made in favour of the respondent, which was immediately reinvested in their second home; whereupon the couple entered into a joint purchase under secured borrowing for the remaining balance, before registering the new house under equal ownership.

In the absence of any declaration of trust, the couple opted to include a survivorship declaration that provided for absolute ownership under the death of either party.

During this period, the financial contributions were again favourable by some margin, to the respondent, although there was increased investment on the part of the appellant.

Less than ten years later, the couple decided to separate, and it was agreed that the appellant would leave the home and seek residence elsewhere, for the sake of the children and domestic stability.

As part of this agreement, the two parties underwent civil proceedings, where it was settled that in consideration for his leaving, the respondent would make specified monthly payments to help subsidise the appellant’s living costs under the terms of the Trusts of Land and Appointment of Trustees Act 1996, until such time as the sale of the house was complete.

It was after the failed renewal of the monthly payments, that the appellant sought claim for equal division of the sale proceeds, upon grounds that they had entered into the purchase of the second home as joint owners, and so under the principle of common intention and the legality of the conveyance, he was entitled to half the value of the sale, despite any claim to the contrary.

In the original hearing, the judge assessed the arguments through the essence of a working partnership, and chose to place greater weight upon the perceived intentions displayed when raising a family and managing their financial obligations; thereby ignoring the division of equitable wealth and awarding a fifty-fifty distribution of the sale funds to both parties.

Upon appeal, the Court took a wholly different view, and took pains to calculate the proportion of investment shown by the couple during their time in the home; ultimately arriving at a sixty-five to thirty-five percent division, along with the cessation of compensatory payments, in lieu of his premature departure and relocation of residence.

When bought before the House of Lords, the discussion revolved around the complexities of unmarried couples, and the often misleading nature of common intention when needing further detailed evidence as to the minds of those in contention.

It was also agreed that while the appellant had enjoyed the security of monthly payments, his removal from the home was agreed under the terms of the Family Law Act 1996; and so, any claim brought against his non-payment was fatal to observance of the applied statute.

With regard to the readjusted percentages, the House held that at best, the figure might be recalculated within a minor percentage; however, the strength of the respondent’s evidence as to her financial investment, remained as convincing as it was in the appeal.

And so, aside from any idea that a resulting trust could have been argued for in respect of beneficial interest, the outcome required no further interference, while

“[I]n a case of sole legal ownership the onus is on the party who wishes to show that he has any beneficial interest at all, and if so what that interest is. In a case of joint legal ownership it is on the party who wishes to show that the beneficial interests are divided other than equally.”

INJUNCTIONS

There are many types of legal injunctions across a number of different fields, and their purpose is one of prevention or denial of an action, or that of proximity to a party or place.

In English contract law, there are mandatory (or negative) and prohibitory injunctions.

In English civil litigation, there are interim (also found in criminal law), anti-suit and freezing injunctions.

Within English family law, there are non-molestation and occupation injunctions (or orders),

Under English tort law, a claimant can apply for either partial or temporary injunctive relief, as well as interim and super-injunctions (depending on the circumstances).

In English equity and trust law, there are also perpetual (or final) injunctions, along with quia timet injunctions.

The aim of this article will be to look at all of the above, while supporting each one with illustrative citations to help underpin their use, starting first with negative injunctions.

Mandatory injunctions

Often sought after the fact, the purpose of this injunction is to force by application, the party that has undertaken an act causing sufferance to the clamant, a liability to reverse the damage caused through new action.

There are however, degrees of limitation to its use, as under certain conditions, the extent of work required to restore the balance may outweigh the priority of the claimant seeking redress.

An example of this is Charrington v Simons & Co Ltd, where after selling a portion of his land, the buyer breached the restrictive covenant by resurfacing an adjoining road, despite inherited limitations as to its operational height.

When the applying the mandatory injunction, the previous judge set conditions upon its use that allowed the respondent to effectively trespass on his land when restoring the road to its intended level, which was a decision causing further angst toward the appellant and was overturned to ironically set the injunction back into its proper effect.

This was clarified by Russell LJ, who explained:

“…[T]he judge, in adopting the course which he did, travelled beyond the bounds within which discretion may be judicially exercised; for in effect he sought to force upon a reluctant plaintiff something very like a settlement involving operations by the defendant on the plaintiff’s land which must lead to greatly increased harm to his business as a condition or term of his obtaining a mandatory injunction should the works not prove a satisfactory solution.”

Charrington v Simons & Co Ltd

Prohibitory injunctions

While compelling in their purpose, prohibitory injunctions serve to prevent through inaction, and are often used to control the events that either surround a contractual relationship, or follow when the arrangement is dissolved.

Typical scenarios range from former employees prevented from occupying similar positions within a particular radius, or from using their skills to benefit another in a competing field, through to sportsmen unable to play for specific rival teams for a determined period.

The caveat within these restrictions is one of a right to live; and so any prohibitory injunction granted must not deny those relevant, the opportunity to work and live, inclusive to the terms afforded others in a similar position.

An example of this is Jaggard v Sawyer, where damages in lieu were awarded to avoid the imposition of an injunction after completion of a second property upon land that contained restrictive covenants designed to deny such acts.

While the defendants argued that attempts were made to explain their intentions, and that due care was shown during the building process, the appellants refused to accept damages and moved instead to enforce an injunction that by now, was pointless and highly oppressive to the owners and potential tenants of the new house.

This point was made clear by Sir Thomas Bingham MR, who noted:

“It was suggested that an injunction restraining trespass on the plaintiffs roadway would not be oppressive since the occupiers of No. 5A could use the other half of the roadway outside the plaintiffs house, but this would seem to me unworkable in practice, a recipe for endless dispute and a remedy which would yield nothing of value to the plaintiff.”

Jaggard v Sawyer

Interim injunctions

Found in at least three areas of law, these are often used to deny certain actions for a specific period and most often issued pre-trial in order to preserve order while the parties prepare themselves for the hearing without interruption.

That said, it is important that those seeking one are able to rely upon a substantive cause of action, as was explained by Lord Diplock in The Siskina, when he said:

“A right to obtain an [interim] injunction is not a case of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the [claimant] for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an [interim] injunction is merely ancillary and incidental to the pre-existing cause of action.”

The Siskina

It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call, while this position was made clear when in Attorney-General v Chaudry, Lord Denning MR expounded:

“There are many statutes which provide penalties for breach of them; penalties which are enforceable by means of a fine or even imprisonment but this has never stood in the way of the High Court gaining an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction…”

Attorney-General v Chaudry

Within tort there is legislative security offered through the Protection from Harassment Act 1997 which explains within s.3, that those seeking relief can apply for injunctions carrying criminal sanctions for non-compliance.

This is seen in celebrity and media related cases, including AM v News Group Newspapers Ltd, where an emergency interim injunction was ordered against a number of leading newspapers, after their photographers descended upon the home of a landlord that inadvertently let one of his properties out to a suspected terrorist; an act which then attracted unwanted and stressful press attention around the claimant’s private residence.

The grounds for this restriction were outlined by Tugendhat J, who commented:

“Measures to ensure that respect is given to person’s home and family and family are required by ECHR Art 8 and Human Rights Act 1998 s.6. In so far as the order that I make prohibits disclosure of information, it is with a view to preventing interference with that right by intrusion or harassment, not preventing disclosure of information which is sensitive for any other reason.”

AM v News Group Newspapers Ltd

Freezing injunctions

Also known as a Mareva Injunction, this order is issued in relation to assets involved in a civil claim.

The injunction will typically apply only to the value argued, and it prevents access by one party that might otherwise seek to remove or sell them for profit.

While used to secure their presence during pre-trial and proceedings, the order cannot override the effects of liquidation, and those seeking claim may find themselves denied of success when judgment is made.

An example of the strict criteria surrounding freezing injunctions (particularly without notice) was expressed by Neuberger J in Thane Investments Ltd v Tomlinson (No1), where he remarked:

“…[T]he duty of a person seeking an order, and in particular an order which can have as substantial an effect as a freezing order, in the absence of the Defendant against whom it is sought, is strict and important. An order against a person in his absence, particularly when it is a freezing order, which is a very serious infringement of his rights and liberties, can only be justified on appropriately clear and strong facts and risks. It should only be granted in circumstances which provide maximum protection for the person against whom the order is to be made. The courts have frequently emphasised the importance of compliance with the various requirements of the Rules relating to the obtaining of without notice orders.”

Thane Investments Ltd v Tomlinson (No1)

Non-Molestation injunctions

Designed to provide victim protection within intimate or blood-related relationships, this injunction can be sought by the party involved, or under s.60 of the Family Law Act 1996 where a third party can seek the court’s issue if those suffering are too afraid to request it.

The purpose of this order is in the name, inasmuch as denial of physical access when used to molest, harass or threaten the claimant to the point of legal intervention through verbal abuse and unwarranted use of that person’s private property.

The importance of this order was outlined by Wall J in G v F (Non-Molestation Order: Jurisdiction), where after the original court failed to grant protection to a single mother, it was overturned and expeditiously supported through the words:

“Part IV of the Family Law Act 1996 is designed to provide swift and accessible protective remedies to persons of both sexes who are the victims of domestic violence, provided they fall within the criteria laid down by section 62. It would, I think, be most unfortunate if section 62(3) was narrowly construed so as to exclude borderline cases where swift and effective protection for the victims of domestic violence is required.”

G v F (Non-Molestation Order: Jurisdiction)

Occupation injunctions

Sometimes issued in conjunction with a non-molestation injunction, the occupation injunction confers power upon the court to prevent those in question from occupying a property.

This can be used in both domestic abuse cases and also civil disputes surrounding property ownership or residency.

As this injunction runs risk of serious restriction to individual rights, the circumstances surrounding its use must be fully evaluated to avoid counter claims by the affected party.

This strict yet delicate approach was underlined by Lady Justice Black in Dolan v Corby, where she stressed:

“…[I]t must be recognised that an order requiring a respondent to vacate the family home and overriding his property rights is a grave or draconian order and one which would only be justified in exceptional circumstances, but exceptional circumstances can take many forms and are not confined to violent behaviour on the part of the respondent or the threat of violence and the important thing is for the judge to identify and weigh up all the relevant features of the case whatever their nature.”

Dolan v Corby

Super injunctions

Falling under the umbrella of interim injunctions, a super injunction reveals greater, yet highly focussed powers when preventing actions of third parties.

Typically used to deny publication of potentially damaging material, this order can be issued without notice, and not only denies public access, but anonymises the applicants identities, making it an effective tool for public figures and corporate entities alike.

The validity of this injunction was well explained by The Master of the Rolls in JIH v News Group Newspapers Ltd, where it was outlined:

“…[T]he claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (i.e. what would normally be information of absolutely central significance in any story about the case who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.”

JIH v News Group Newspapers Ltd

Perpetual (or final) injunctions

Unlike interim injunctions, these orders are issued at point of judgment, and therefore remain in effect for an unlimited period.

An example of this is Law Society v Kordowski, in which a website designed to allow members of the public free expression of their disdain following direct experience with named solicitors, was challenged upon numerous litigious grounds.

This case was one of a number of individual matters, and when moving to award final and indefinite removal of the site and future publications, Tugendhat J iterated that such injunctions were imperative when:

“The procedural remedy of representative proceedings, coupled with an injunction, may be the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts.”

Law Society v Kordowski

Quia Timet injunctions

In much the same as mandatory injunctions serve to ‘undo’ the damage done, quia timet injunctions are anticipatory, in that their purpose is the prevention of potential future harm, that while proactive in design, relies upon compelling evidence to provoke court dispensation.

The importance of overwhelming argument was made clear by Lord Dunedin in Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd, when he outlined:

“Any restraint upon that at the instance of the other party must consist of an injunction of the quia timet order. But no one can obtain a quia timet order by merely saying ” Timeo ” ; he must aver and prove that what is going on is calculated to infringe his rights.”

Attorney-General for Canada v Ritchie Contracting & Supply Co Ltd,

In closing, it must be noted that this is by no means an exhaustive list of injunctions; however it is hopefully detailed enough to provide a sound knowledge base when an understanding of their differences and relevance within case law is a priority.

It may also pay to consider that in many instances there will always be degrees of overlap, as nothing in life is ever straightforward, while it is only through the investigative efforts of the judges that the attributable criteria can emerge.