England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH WALSALL COUNTY COURT
(HIS HONOUR JUDGE WAINE)

		Royal Courts of Justice The Strand London Thursday 24 October 2002

Thursday 24 October 2002

LORD JUSTICE TUCKEY:

1. This case is listed before us today as a renewed application for permission appeal by Mr Omar Narayan, the second defendant in these proceedings, from a judgment of His Honour Judge Waine given in the Walsall County Court.
2. This is a boundary dispute between the owners of No 149 Prince of Wales Road, who were the claimants in the proceedings, and the owner of No 147, who is Mr Omar Narayan and his mother, who is the first defendant in the proceedings and who formerly owned that house and has continued to live there at all times relevant to these proceedings.
3. It is not necessary to go in any way into the background of the dispute or the detail of the argument about the boundary because we are only concerned with an order which the judge made against Mr Omar Narayan in which he was restrained from entering on the claimants' property and from doing certain other things.
4. Essentially, the applicant says that there was no basis for making the injunction against him because he was not involved in the matters of which the claimants complained. At the relevant time he was studying to be a dentist and living away from home. The judge accepted in the course of his judgment that the applicant's role was "relatively minimal".
5. Be that as it may, at the end of his submissions to us this afternoon the applicant said that he is now qualified as a dentist and living at home with his mother. He accepted that in the past she had done things when he was not there and he had failed to control her. He says that he now intends to ensure that his mother's actions do not cause trouble again, and that he wants to get on with his own life. With those aims in mind he says he is perfectly prepared to give an undertaking to the court in the same terms as the injunction which the judge made against him.
6. We think that it would be right for the court to accept such an undertaking in all the circumstances. We have had to think how best to achieve this without further cost or procedural difficulty. We propose to adjourn the application for permission to appeal on terms that the injunction granted by the judge against the applicant -- not, I emphasise, against his mother -- is dismissed and he gives an undertaking to the court in the same terms. His undertaking to the court is (and we have been through it with him) that he will not enter on the claimants' property, as identified in the order of 1 October 2001 made by the judge, whether by himself, his servants or agents, or otherwise howsoever; and secondly, that he will not undermine, cut away or otherwise damage the structures to be erected by the claimants in accordance with paragraph 5 of that order, or any structures on the claimants' property, whether by himself, his servants or agents, or otherwise howsoever.
7. We have explained to the applicant, and he understands, that the effect of this undertaking is that if he breaks his promise to the court contained in the undertaking he will be in contempt of court and liable to be dealt with accordingly.
8. As we make this order as a term for adjourning the permission to appeal application, we think it is right that the claimants should have the opportunity to apply to this court to set it aside. However, we make it clear that in giving them that opportunity, we do not encourage such an application. Undertakings are a matter between the court and the person giving the undertaking and not for any other party. This means that any application by the claimants is most unlikely to succeed. If no such application is made, then the order which we have made will stand and will have the effect that the undertaking has replaced the injunction made against the applicant in the County Court order, and that the appeal need not be proceeded with further. Is that clear, Mr Narayan?
9. THE APPLICANT: It is quite clear. I think it is very kind of you, generous and fair.
10. LORD JUSTICE TUCKEY: I hope there is no further trouble.
11. THE APPLICANT:So do I.