Timing is Everything

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...