UK: Timing is Everything…

Last Updated: 24 July 2013
Article by Emma Humphreys and Richard Flenley

A recent High Court decision has illustrated the differing tests which apply when courts are assessing how to exercise their discretion as to whether or not to grant an injunctive or declaratory remedy sought by a claimant in advance of a wrong being committed, as well as how specific circumstances can make a real difference when considering such complaints.

Facts

The case of Pavledes v Hadjisavva [2013] EWHC 124 (Ch) concerned a dispute between neighbouring freeholders after the defendants obtained planning permission to build an extension to their property. In April 2009, the claimant neighbours informed the defendants that the proposed extension would infringe rights of light enjoyed by the claimants' property. There were extensive discussions between the parties between May 2009 and January 2012, during which the defendants' architect contended that the claimants' property did not have the benefit of rights of light over the defendants' property and that, in any event, any loss of light would be negligible. During the course of the parties' negotiations, the defendants promised that 14 days' notice would be given before undertaking any works claimed to affect the rights of light alleged by the claimants.

In January 2012, the defendants gave 14 days' notice of their intention to carry out such works - with a modification which their architect contended would avoid infringing any rights of light enjoyed by the claimants' property. A letter in response from the claimants' solicitors informed the defendants that they were instructed to issue proceedings for an injunction. The defendants then instructed solicitors, who provided an undertaking that the defendants would not carry out works to the top floor and roof line without 14 days' prior notice. The undertaking was stated to be given without prejudice to the defendants' contention that the development as planned would not affect the claimants' rights to light.

In March 2012, the claimants' solicitors again threatened to issue proceedings unless the defendants acknowledged their clients' rights of light claim, undertook not to proceed with the development and agreed to pay the legal costs and surveyors' costs incurred by the claimants to that point. The defendants' solicitors responded to this correspondence by stating that there was no justification for the issue of proceedings in light of the undertaking which remained in place. They also confirmed that their clients were obtaining a specialist rights of light report.

Following further correspondence from the claimants' solicitors reasserting the intention to issue proceedings in order to protect their clients' position, the defendants' solicitors confirmed the defendants' willingness to provide a wider undertaking, namely not to carry out any further works to implement the proposed development without first providing 14 days' written notice. The claimants were only prepared to accept an undertaking in these terms if accompanied by an agreement to pay their legal and professional fees incurred in connection with the dispute. The defendants rejected this proposed condition and the claimants therefore issued proceedings towards the end of March 2012, seeking a declaration as to the existence of the rights of light enjoyed by their property and an injunction to restrain the defendants from interfering with those rights.

Following receipt of their own expert surveyor's report, the defendants admitted in their defence that the claimants' property enjoyed prescriptive rights of light over the defendants' property and that the proposed development would unlawfully interfere with those rights of light. The defence also confirmed that the defendants intended "at least for the foreseeable future" to proceed on the basis that the claimants' surveyor's technical analysis of the rights of light position was correct. In addition, the defence stated that the defendants did not intend to undertake the extension or any other works which would interfere with the claimants' rights of light since the defendants had decided to let the property in its current state rather than carry out any development.

The parties' submissions

Despite the admission made by the defendants, the claimants sought to argue that it was appropriate for the court in the circumstances of their case to make a declaration as to the rights of light enjoyed by their property. In particular, the claimants highlighted the fact that they had been subject to a long-running dispute and that the defendants' admission had come very late in the day, after a great deal of intransigence on their part and an initial refusal to obtain appropriate expert advice. The claimants also noted that the admission contained in the defence was expressly put forward on the basis that the technical analysis carried out by the claimants' surveyor was accurate; the claimants pointed out that the defence therefore did not unequivocally admit the claimants' case.

The claimants contended that the dispute had reached a point where they were entitled to greater protection than would be given by the admission in the defence, since the nature of this admission did not prevent the defendants from subsequently raising a contrary case. In the claimants' view, in the absence of a deed executed by the defendants to confirm the rights of light position between the parties' properties, it would be unjust for the court not to resolve the dispute with a conclusive declaration as to the claimants' rights.

In response, the defendants contended that the court should only grant an injunction or make a declaration in a quia timet action where the defendant is threatening or intending to act unlawfully, so as to create an imminent or immediate threat that the claimant's rights will be infringed. (A "quia timet" action being one where no infringement of the claimant's rights has yet occurred, and the claim is therefore based upon a defendant's threat to act contrary to the claimant's rights.) In the defendants' view, the claimants could not establish that there was any imminent threat to their rights of light in view of the defendants' retreat through the admission contained in their defence. The defendants also submitted that no practical purpose would be served by the court making a declaration about the nature or extent of the rights enjoyed by the claimants' property and that the real purpose of the claim was to recover the claimants' pre-action costs.

Relevant case-law

The judge analysed the development of case-law in this area and noted that the circumstances in which the court will be prepared to make a declaration have broadened since it was stated by Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 501 that "...for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event...the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else."

The judge examined the current principles relevant to declaratory relief as set out in Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387, which are as follows:

  1. The power of the court to grant declaratory relief is discretionary.
  2. There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant.
  3. Each party must, in general, be affected by the court's determination of the issues concerning the legal right in question."

It was noted that paragraph (2) was subsequently qualified in Milebush Properties Limited v Tameside Metropolitan Borough Council [2011] EWCA Civ 270 to clarify that the dispute could relate to legal rights which might come into existence in the future. However, the judge also commented that none of these general statements require an actual or imminent infringement of a legal right before a declaration will be made by the court.

In examining the authorities relied upon by the defendants, it was noted that Cowley v Byas 1877 5 Ch D 944 concerned a claim for an injunction rather than a declaration and that in that case, where the injunction was refused, there had not been the remotest possibility of the defendant doing the act to interfere with the claimant's rights. Turning to Draper v British Optical Association [1938] 1 All ER 115, the judge felt that the refusal to grant the declaration sought by the claimant simply demonstrated the general practice of the court in relation to meetings which have been convened but not held - namely to await the outcome of the meeting and, only if the challenged resolution is passed and proper grounds exist, to grant declaratory and/or injunctive relief in respect of the resolution. The judge therefore did not consider Draper to be sufficient authority for the proposition that a declaration will only be granted if a threatened wrong is imminent.

The judge then reviewed the more recent decision of Sir Andrew Morritt C in CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch). In that case, the Chancellor refused the claim for an injunction largely on the basis that there was not - and could not be for at least 5 years - an immediate threat to infringe the rights to light claimed. The defendant in that case had also made it clear on several occasions that it would not proceed with the proposed development without regard to the rights of third parties

The judge noted that the Chancellor in CIP had applied the test of "imminent threat" to the claim for an injunction, but not to the claim for a declaration. For the latter, only the tests of prematurity and utility had been applied. The judge agreed that this was entirely the proper approach; whilst the principles regarding both remedies were considered broadly similar and, as regards prematurity, "much the same", he noted that the case-law only established the requirement of an imminent or immediate threat for the grant of a quia timet injunction and did not justify applying this test to a claim for a quia timet declaration. Accordingly, the judge rejected the defendants' submission that there should be an actual infringement or a threat of an imminent infringement in order to persuade the court to grant a declaration and he noted that it was "entirely understandable" that this requirement should only be imposed for the very different remedy of an injunction.

Nonetheless, the judge noted that the CIP decision illustrates the court's ability to refuse a declaration on grounds of prematurity or because it would not serve a useful purpose. In examining whether the circumstances of the case justified the grant of a declaration, he noted that:

  • there was clearly a very real dispute between the parties in January 2012 and the period leading up to it;
  • the defendants had vigorously asserted for some time that the claimants' property enjoyed no relevant rights of light and that the proposed development would not in any event interfere with them;
  • even when the defendants later changed position during correspondence, there was no acknowledgement of the claimants' rights or that the proposed development would interfere with those rights; and
  • the admission contained in the defence did not constitute an unconditional acceptance of the claimants' position and it could not "be said to have laid to rest the very sharp dispute which had previously existed. At best, the defendants put the dispute into abeyance, but reserved the right to revive it at their discretion."

In conclusion, the judge held that it would be just and would serve a useful purpose to grant the declaratory relief sought by the claimants because it would bring "resolution and finality" to the issue between the parties. In view of the history of the dispute, the judge did not consider it would be just to deny such resolution and finality to the claimants. He pointed out that the alternative was for the claimants to be left in a position of uncertainty, with the defendants reserving the right to re-assert their position on 14 days' notice at any time of their choosing.

The judge accepted that there was no present likelihood of infringement because of the defendants' plan to let their property, but he could see no reason why resolution of the rights of light issue should await the end of that lease and pointed out that the defendants could decide to accept an early surrender from their tenants. He commented that he could "see every reason for dealing with [the position] now, rather than waiting until either the claimants wish to sell or the defendants re-assert their position, and then having to deal with it, perhaps at very short notice."

Comment

Whilst CIP provided a reminder that enforcement action should not be commenced prematurely and that it can be sufficient for rights to be protected through correspondence pending any actual or imminent infringement, the decision in Pavledes demonstrates the possibility of obtaining a declaration from the court even where there is no immediate prospect of a wrong being committed. Taken together, the judgments in CIP and Pavledes are a useful clarification of the slightly different tests which the court will apply when considering a claim for a quia timet injunction and a claim for quia timet declaration – in particular the absence of any requirement for an "imminent threat" when considering whether to grant this type of declaration.

Looking at the position of the parties in Pavledes, there may be some sympathy for both sides: the defendants may well have felt that they should not be subject to a claim (and the costs liability which will presumably result from the judgment) in circumstances where they had "retreated", whereas the claimants apparently felt that they could not continue to endure the prospect of indeterminate years when works which would infringe their light might be started by their neighbours on only 14 days' notice. It is certainly unfortunate that – despite the lengthy negotiations which seem likely to have taken place over the years prior to the proceedings, if not during them - the parties were unable to agree a deed to confirm the rights of light enjoyed by the claimants' property, which would undoubtedly have been a great deal more cost-effective than the litigation. In fact, this is now effectively the exercise which both parties have had to undertake, since the judge invited counsel to seek to agree the terms of the declaration in order to avoid the need for there to be further submissions to the court in this regard.

Certainly, a lesson which should be learned from Pavledes by anyone contemplating a development project which might affect the light enjoyed by a neighbouring property – at least until such time as there are any changes to the law in this area following the Law Commission's consultation - is to consult a rights of light specialist at an early stage in order to understand the rights which may need to be accommodated in planning the design. The defendants in Pavledes might well have found themselves in a different position had they followed the claimants' suggestion that they should obtain specialist advice and thus not been so firm in rejecting the claimants' concerns about the development's impact on their light.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Emma Humphreys
Richard Flenley
 
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