Conveyance of property and the requisite methods of notice when accepting an offer are clearly defined under s.196 of the Law of Property Act 1925, so when a buyer elected to take advantage of an option to purchase, they did so in a way that flirted with the prescribed method yet failed to secure the bargain despite arguments to the contrary.
Having decided to sell his home the respondent wrote to the appellants setting out an option to purchase which expired within a six-month period, while the specific terms of the offer outlined in clause 2 stated clearly that:
“The said option shall be exercisable by notice in writing to the intending vendor at any time within six months from the date hereof…”
Contrastingly s.196(4) of the Law of Property Act 1925 also explains that:
“Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned through the post-office undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.”
And so on this occasion the appellants solicitors drafted a written acceptance of the offer before hand delivering it to the respondent’s solicitors while noting within the correspondence that a copy of the written notice of acceptance and a deposit cheque had also been posted to the respondent’s home.
After receiving the letter the solicitors telephoned the respondent to advise him they had received the notice, and that a copy of it was on its way to him, whereupon he explained that he had already made travel plans, and so having been instructed by his solicitors to leave despite the expected letter, he vacated his home for a number of days.
After being franked and handed to the post-office, the letter ultimately failed to arrive at the respondent’s home, thus the appellants sought legal action to secure the purchase on grounds that a contract for both sale and purchase had been executed irrespective of whether the posted letter had arrived, while it was also argued that the oral communication between the solicitors and the respondent further confirmed acceptance of the offer when factoring in the solicitors possession of the letter.
In the first instance the appellants relied upon Henthorn v Fraser, in which the Court of Appeal had held that:
“Where the circumstances are such that it must have been within the contemplation of the parties that, according to the ordinary usages of mankind, the post might be used as a means of communicating the acceptance of an offer, the acceptance is complete as soon as it is posted.”
However the court ruled against them, before the Court of Appeal overruled and distinguished Henthorn in light of an absence of expressed postal methods expressed within the purchase option, and so dismissed the appeal on grounds that failure of the respondent to physically take receipt and read the notice became fatal to any claim of right to buy, while clarifying that:
“If a notice is to be of any value it must be an intimation to someone. A notice which cannot impinge on anyone’s mind is not functioning as such.”
English history suggests that when faced with litigation, each party must rely upon, and thus retain, the services of a qualified legal advocate, whether by way of barrister, or as is now more common, a practising solicitor equipped with a modicum of experience in the legal field at hand; however in the tail end of the 1960s, the playing field was somewhat levelled by a case involving two former immigrants, both left fighting to dissolve what was clearly a dysfunctional and abusive marriage.
Having arrived in Great Britain from Jamaica in 1956, the now appellant husband had at the point of the original hearing, fathered six children with his respondent wife, who herself had settled with him there in 1957. In 1965, the respondent initiated divorce proceedings on grounds that the appellant had subjected her and their five remaining children to repeated molestation and inhumane treatment throughout the course of their relationship, while the appellant cited his own cruel treatment at the hands of the respondent.
In the first instance, the Lambeth magistrate’s court held that the appellant was to cease his molestation and depart the family home, to which the appellant acquiesced, only for the respondent to later cite further cruelty and adultery, while the appellant also claimed adultery on the part of the respondent, an action which had left her pregnant and requesting a psychiatric referral for a hysterectomy on grounds that she was now depressed and suffering prolonged emotional stress.
While the matter itself became increasingly complex, the appellant was unexpectedly denied his previously administered legal aid, and so when the trial began in 1969, he was found without legal representation. To remedy this obvious dilemma, the previous solicitors assigned a young Australian barrister to escort and attend the numerous court sessions, while occasionally offering notes and verbal guidance as the appellant attempted to argue his position in a matter that the judge himself had later expressed was:
“[Q]uite a difficult case, quite apart from the difficulties of communication which are inevitable because of the rapidity and the sometimes inaudible way in which the evidence was given on both sides….”
However, for reasons best known to himself, the judge soon ordered the young barrister to remove himself from the appellant’s side, on grounds that unless the man’s name appeared on the court records, he was to remain unable to participate in the proceedings in any way, a decision which left the appellant alone and thus unable to fully comprehend what was being said, and how best to assert his own opinions before the court.
Having lost the case, the appellant then challenged the judgement before the Court of Appeal on grounds that the removal of the barrister was in many respects an obstruction of justice, and that by doing so, the judge had erred in his decision, while the appellant also argued that he had been denied his right to present his own claim of adultery against the respondent.
Here, the court turned to Collier v Hicks, in which Tenterden CJ had concisely explained that:
“Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice…”
Thus the court unanimously upheld the appeal and ordered a new trial, while also holding that:
“[L]itigants should be seen to have all available aid in conducting cases in court surroundings, which must of their nature to them seem both difficult and strange.”
A decision that has since altered the landscape of countless court hearings, while granting those daunted at the prospect of judicial scrutiny, and unable to retain a legal representative, the perfect opportunity to bolster their argument and thereby presence by the hand and words of a learned supporter, should they see fit.
Within law, 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 contract law there are mandatory (or negative) and prohibitory injunctions, while in civil litigation there are interim (also found in criminal law), anti-suit and freezing injunctions. Within family law there are non-molestation and occupation injunctions (or orders), whereas under tort a claimant can apply for either partial or temporary injunctive relief, as well as interim and super-injunctions (depending on the circumstances). In 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.
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 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; a decision that caused further angst toward the appellant, and that was overturned to ironically set the injunction back into its proper effect. This was explained by Russell LJ, who explained:
“…the 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.”
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, in which 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.”
Found in at least three areas of law, these are often used to deny certain actions for a specific period, 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.”
It is also not uncommon for the High Courts to issue interim injunctions when criminal matters call, and 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…”
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; as has been 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.”
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:
“… the 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.”
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 whereupon 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.”
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:
“…it 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.”
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:
“…the 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.”
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.”
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.”
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, and it is only through the investigative efforts of the judges that the attributable criteria can emerge.
The notorious ambiguity of estoppel is explored here through the unexpected end of a lifelong working relationship built upon trust, duty and a faith of spirit, and as is so often found in matters such as these, a man’s word is not always his bond.
After investing the best part of forty years into a farming alliance that created an almost familial structure, the arrival of a divisive party witnessed the destructive end of a mutually prosperous and seemingly concrete friendship. When a younger man forged a meaningful relationship with an older farmer, the two men became almost father and son, with the former relying upon, and often following the wisdom of the latter, in accordance with domestic arrangements, career aspirations and even parenting decisions; all while sustaining and enriching the estate’s financial footing through the course of his duties.
This interdependence became the foundation of a commercial enterprise that by definition became more complex, and so required increased investment from both the employer’s paid advisers and the younger man’s wife as a co-contributor. During the many years spent together, there had been a significant number of verbal declarations as to the intentions of the elder man when it came time to choose a successor to his sprawling estates, and it was these quasi-promises, along with multiple wills, that coloured the appellant’s choice-making and calculated reluctance to set aside the type of financial provisions one might ordinarily expect.
The mechanics of the business and associated friendship continued to flourish, until the arrival of a trained solicitor, who for one reason of another, began making spurious claims that the appellant and his wife were defrauding the business, and that legal intervention was ultimately necessary. This course of action and influential advice also led to the couple’s removal from the existing will, whereupon sole beneficial rights instead passed to the now co-defendant.
After an exhaustive cross-examination in the original hearing, the deciding judge awarded against the appellant, despite his claim of proprietary estoppel following the removal of his presence in the will, and inherent reliance upon the goodwill of the defendant during the passage of time.
At appeal, the fluid and therefore often misinterpreted principle of estoppel, was held to close scrutiny, along with the previous findings of the judge; whereupon it became clear that while a degree of effort had been put into the relevance of estoppel, the obvious right to claim had been lost to principles attributable to succession law. Through the delicate use of equity, the Court then agreed that (i) there was ample evidence to show a detriment under continued reliance, and (ii) that in order for a clean break to exist, there needed to be a reversal of fortune on the part of the co-defendant, and a ‘coming good’ on the word of the older man.