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 COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Richard Seymour QC (sitting as a Judge of the High Court)
[2009] EWHC 3163 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/10/2009

Lord Justice Rimer :

Introduction

1. This is a claimant's appeal against an order dated 19 December 2008 made by His Honour Judge Richard Seymour QC. The title page of his judgment and order describe him as sitting as a Judge of the High Court in the Queen's Bench Division. The proceedings were commenced in the Central London County Court and counsel before us were unclear that they had in fact been transferred to the High Court. Nothing, however, turns on that. By his order the judge dismissed the claim with costs, ordered the claimant to pay £20,000 to the defendants on account of costs and refused permission to appeal.
2. The claimant is Trustees Limited ('Trustees'). It owns land adjoining land owned by the defendants/respondents, Kyriacos and Dina Papakyriacou. Trustees' land includes a small area over which the respondents and their tenants have an easement entitling them to use it as a loading bay for the purposes of their businesses. By its claim Trustees asserted that the respondents and their tenants had flouted certain time restrictions relating to the enjoyment of that easement, had trespassed on the servient land and had committed a nuisance. It claimed injunctions restraining any continued infringements. The judge found that neither the respondents nor their tenants had flouted the restrictions and held that in consequence the claim failed.
3. By this appeal Trustees assert that the judge was wrong to make the findings he did as to the respondents' and their tenants' non-use of the loading bay outside the permitted hours; that, in any event, in the light of the respondents' position as reflected in the written material preceding the trial, he ought anyway to have granted an injunction; and that, given the success on a central point of principle that Trustees achieved, he ought not to have ordered Trustees to pay the respondents' costs but ought instead to have ordered the respondents to pay all or a substantial part of Trustees' costs. Permission to appeal was given by Toulson LJ.

The parties' titles

4. The loading area forms a tiny part of a large rectangular area of land in Edmonton, in the London Borough of Enfield. That large area is bounded on the north by Bridport Road, on the east by Commercial Road, on the south by Shaftesbury Road and on the west by Bull Lane. The bulk of this land (an L-shaped parcel, excluding a rectangular section fronting Bridport Road to the north and Commercial Road to the east) was once owned by A.J. Balcombe Limited ('Balcombe').
5. By two leases dated 5 June and 29 September 1980, Balcombe leased parts of this L-shaped parcel, together comprising a rectangular area fronting Bridport Road to the north and Bull Lane to the west, to Fred Perry Sportswear Limited ('Perry') for terms of 30 years from 24 March 1980 expiring in March 2010. I will call this area 'the blue land'. The building on it, used for commercial purposes, is about 300 feet long (facing Bridport Road), about 80 feet wide (facing Bull Lane) and has the address 186 Bridport Road.
6. By a transfer dated 19 July 1982 Balcombe transferred its freehold reversion in the blue land to Perry, its lessee. The transfer granted Perry an easement appurtenant to the blue land over a small part (the loading bay) of the adjoining land to the south comprising the remainder of the L-shaped parcel that Balcombe retained. The grant was in these terms:

'TOGETHER ALSO WITH the right for the Purchaser [Perry] and the Tenants and occupiers of the property [ie the blue land] (such right to determine at the expiration or earlier determination of a Lease dated [5 June 1980] and made between the Vendor [Balcombe] of the one part and the Purchaser of the other part) in common with the Vendor and all others authorised by the Vendor to use the loading bay shown for the purpose of identification coloured green on the said plan annexed hereto and the access thereto from Bull Lane subject to the following conditions:

(a) such right to be exercised only at such times and on such days as shall previously have been approved by the Vendor the Vendor to be entitled from time to time at its discretion to alter such times and days PROVIDED ALWAYS that the person exercising such right shall be entitled to use the loading bay for a minimum of [50%] of the normal working week and the normal working week shall be defined as between the hours of [9] in the forenoon and [5] in the afternoon Monday to Friday inclusive

(b) in exercising such right not to cause any obstruction or damage to the Vendor's adjoining premises or to the said loading bay and shall forthwith repair and make good to the reasonable satisfaction of the Vendor any damage caused; and

(c) in exercising such right not to cause any nuisance or annoyance to the Vendor or to leave any rubbish materials or other things in or on the said loading bay ….'

7. In 1995 the respondents, Mr and Mrs Papakyriacou, bought both the freehold of the blue land and the residue of the terms created by the two unmerged leases. Their titles to all three estates were registered at HM Land Registry in November 1995.
8. In about 1982 Balcombe transferred the freehold interest in its retained land ('the red land') to Rayner & Co Limited. Rayner owned it for a number of years and then sold it to Terrace Hill (Edmonton) Limited. In April 2007 the claimant, Trustees, acquired the red land from Terrace Hill, its title being registered at HM Land Registry on 1 June 2007, with entry No. 7 in the Charges Register noting the easement over the loading bay granted by the 1982 transfer. The postal address of the red land is 4-8 Bull Lane. It was thus that Trustees and the respondents became neighbours. The bulk of the red land and the buildings on it (100,000 square feet or so) is occupied by Dominion Mosaic & Tile Co Limited (Trustees' parent company) for the purpose of its business (the sale of kitchen equipment, ceramic tiles and similar items); smaller parts (12,000 to 14,000 square feet) are let to tenants (Just Brothers, which imports and distributes boxes to the jewellery trade; and Bougyes Limited, a building company).

The loading bay

9. The building on the blue land is divided into 15 units. The respondents and their company (Papas Investments Limited) occupy Unit 1. They are blouse makers. The other units are let to and occupied by the respondents' tenants, who each hold under a standard form of lease. The tenants carry on light industrial work, nearly all being engaged in the manufacture of clothing.
10. Access to the building is served by lifts and stairs at its eastern end (via Bridport Road) and at its western end (via Bull Lane). The source of the dispute is the use of an opening at the Bull Lane end of the southern wall of the building that is used for the purpose of trade deliveries to and from the building. The opening is seven feet square and has roller shutters. Either side of it are two doors and a double door. Those doors give access to Units 8 and 8A and to corridors leading to Unit 7 and to a staircase to the units on the first and second floors.
11. An area of land immediately adjacent to that opening and those doors forms the loading bay. It forms part of the western section of a passage running west/east that is bounded on the northern side by the respondents' building on the blue land and on the southern side by Trustees' building on the red land. That passage opens onto Bull Lane; and it is via the loading bay that vehicles from Bull Lane access the opening in order to deliver and collect. The loading bay is just over 14 feet wide, representing approximately half the width of the passage. It continues for only a relatively short distance along the passage. No part of the loading bay or the rest of the passage is within the blue land; it is all within the red land, the Trustees' title. The loading bay is the area over which the respondents enjoy their easement.
12. The section of passage contiguous to the loading bay enables access to what was referred to in the evidence as a yard. The yard forms roughly the northern half of that section of the passage extending eastwards from the loading bay. Three fire exit doors in the southern wall of the blue land's building open onto the yard. The yard is used for parking by Dominion's tenants. Until about the end of 2007, Dominion also used it for parking, but its evidence was that the regularity of the obstructions to the access to it (allegedly caused by the respondents, their tenants or licensees) was such that it felt compelled to start using an alternative and (for various reasons) less convenient or suitable parking area at the south-western corner of the red land. (The evidence is not clear as to whether Trustees rather than Dominion has been directly affected by the obstruction problems, but no point was taken at the trial as to Trustees' right to bring the claim).
13. The physical limits of the loading bay are clearly identified. Rayner fenced it off in about 1996 and so made a clear demarcation between it and the remainder of the passage and yard and (as Philip Poulton, a Rayner employee, said in a statutory declaration of 14 May 2004) as a means of preventing employees of the owner of the blue land from parking vehicles in the yard. The fencing commences at a point in the passage about 15 to 20 feet in from Bull Lane, it continues along the length of the loading bay and then turns north where it meets the respondents' building. Access to the yard is via what the judge called 'the entrance', which (viewing the scene from Bull Lane) is that part of the passage to the right of the fencing. Access through it is controlled by a barrier, whose operation is by use of a card or from within the red land. The purpose of the barrier is to prevent unauthorised vehicles (including those associated with the blue land) from accessing the yard. The position, therefore, is that vehicles delivering to or collecting from the blue land can gain access to and egress from the loading bay but cannot access the yard.
14. There is no dispute as to the respondents' right to an easement over the loading bay. There is perhaps an argument that the express reference in the transfer to the benefit of the easement being conferred also on the 'Tenants and occupiers' of the blue land gave such tenants and occupiers a direct right of enjoyment of it by virtue of the provisions of section 56 of the Law of Property Act 1925. The point formed no part of the argument before the judge; and although in this court there was a brief discussion about it, neither counsel advanced any submission in relation to it. I propose, therefore, to say nothing more about it and to proceed, as did the judge and the parties, on the basis that any right on the part of the respondents' tenants to use the loading bay depended on their being permitted to do so by the respondents. It was not suggested that the respondents were not entitled to give such permission, although the judge held that (save in one exceptional respect, to which I shall come) they had not done so.
15. In that connection, the judge pointed out that the standard form lease under which each tenant holds his unit expressly excludes the operation of section 62 of the Law of Property Act 1925 and provides that the only rights granted to the tenant were those expressly provided by its lease. The Second Schedule to the leases granted various rights, including by paragraph 9:

'The right for the Tenant and all persons expressly or by implication authorised by him (in common with the Landlord and all other persons [having] a like right) to use the Common Parts for all proper purposes in connection with the use and enjoyment of the Premises.

The leases defines 'the Premises' as those the subject of the particular lease; and the 'Common Parts' as:

'pedestrian ways forecourts landscaped areas car parks entrance halls landings lifts lift shafts staircases passages lavatories and other areas which are from time to time during the Term provided by the Landlord for common use and enjoyment by the Tenants and the occupiers of the Building and all persons expressly or by implication authorised by them'.

I should also refer to paragraph 34 of the Fifth Schedule, which sets out the 'user covenants'. Paragraph 34 requires the tenant:

'To comply with all regulations made by the Landlord from time to time for the management of the Building PROVIDED that nothing [in] the Regulations shall purport to amend the Terms of the Lease and in the event of any inconsistency between the Terms of this Lease and the Regulations the Terms of this Lease shall prevail'.

The judge's view was that as those provisions contained no grant to the tenants of a right to use the loading bay, none was granted.

The issues in the proceedings

16. Prior to Trustees' purchase in 2007, the red land had been unoccupied for two or three years. During that period, third parties had become accustomed to park vehicles in or across the Bull Lane access leading to the loading bay and yard, so obstructing the entrance leading to the yard. Trustees' claim arose out of their complaint that obstructions of that nature continued after their purchase. Their complaint was that vehicles making deliveries to or collections from the respondents' building sometimes so parked on the Bull Lane access that it became congested, so causing an obstruction of the access to the entrance and thus to the yard.
17. There was correspondence about the problem in 2007. The first letter is one of 24 April 2007 from Mr Peretz (Dominion's property manager) to Mrs Papakyriacou complaining that cars parked at the Bull Lane access were obstructing the entrance. That was followed by several like complaints, all advanced in courteous and moderate terms. The correspondence was mainly one way (Mrs Papakyriacou admitted in her evidence that she was not in the habit of writing letters), although the letter of 30 April 2007 from Greenwood & Co (Trustees' solicitors) reflects that she had agreed to 'speak to the persons who are causing the difficulties'. Her response to that letter (the only one she appears to have written) was that 'the space behind the "Fred Perry Building" [her building] adjoining the ex-"Rayners" site, has been used by "right of way" by the occupiers of the "Fred Perry Building" for many many years'. Greenwoods' rejoinder was that the rights to which she was referring had expired, a mistaken point in which neither they nor Trustees persisted. On 31 October 2007 a complaint was made of an obstruction caused by a lorry parked across the Bull Lane access at 8.30 am that morning, followed by a complaint on 27 November 2007 from David Halpern, a Trustees director, who wrote to Mrs Papakyriacou saying:

'It is now over two months since you advised me that the tenant is on holiday and you would speak to him on his return.

Whenever I telephone to bring the above matters to your attention you get upset but these matters have to be attended to.

You have said [on] four occasions over the last couple of weeks that you would come to my offices to discuss matters in general and to see how to take the matter further. I would therefore appreciate it if you would telephone me'.

18. By 14 December 2007 Mr Halpern had had various conversations about the problem with Mrs Papakyriacou and by now Trustees recognised that the respondents were entitled to an easement over the loading bay. Mr Halpern's letter of that day reminded Mrs Papakyriacou of the temporal restriction imposed by condition (a) of the grant and invited her to call him to arrange the hours when the easement could be used. He said 'I would like you to confirm to me that you are going to implement the terms without fail and make sure that your tenants do the same'. On 20 December 2007 he wrote complaining of an obstruction the day before between 4.55 pm and 6.30 pm caused by a Mercedes car.
19. Mr Halpern made further complaints by letters of 8 and 9 January 2008. On 23 January 2008 Greenwoods wrote to the respondents' solicitors, Barnes & Partners, asserting that the respondents had been unwilling to co-operate regarding day to day matters and saying that Trustees therefore 'had no alternative but to specify the exact hours when [the respondents] may use [the loading bay] pending the matter being determined by the Court'. They added that if such time restrictions were not observed, Trustees would apply to the court for an injunction. On 29 January 2008 Mr Halpern wrote to the respondents in these terms:

'Further to my solicitors letter, I am sure you are aware that we have let the offices adjacent to the car park [the latter being a reference to the yard] and there will be constant traffic using the car park. As you find it difficult to control the entrance from obstructions, notwithstanding our legal rights until the matter is resolved; Please use the loading bay between 10.00 am to 12 noon and 2.30 pm to 4.30 pm only'.

20. Trustees complained on 14 February 2008 that those time restrictions were not being observed; and Mr Halpern's letter of 9 April 2008 reflects that his patience was exhausted. Proceedings followed in April 2008 in the Central London County Court. Trustees asserted in them that its letter of 29 January 2008 constituted its determination for the purposes of condition (a) of the 1982 grant of the particular hours during which the easement could be exercised. Mr Halpern's explanation in his witness statement for the chosen times was that:

'We imposed those restrictions in order to prevent the [Respondents] (and their licensees and tenants) from using the Loading Bay first thing in the morning, during the early evening and at lunch time. We did that because those were the times of day when it was important to us, and our tenants, that the access to our car park should be unimpeded'.

21. Trustees' case was that, despite the letter of 29 January 2008, the respondents, their employees, licensees and tenants had continued to use the loading bay outside the prescribed hours. Trustees' assertion in the proceedings as regards the allegedly infringing use by the licensees and tenants was that they had done so 'pursuant to a (purported) authorisation or authorisations granted by the [Respondents] … and/or having been encouraged by the [Respondents] to do so'. The complaint was that in consequence the Respondents, their licensees and tenants had breached each of conditions (a), (b) and (c) of the grant, had trespassed on the loading bay, caused a nuisance to Trustees and unlawfully interfered with Trustees' use of the loading bay. This was the relief sought in the claim:

'(1) An injunction restraining the [Respondents] (and/or their servants and/or agents and/or employees) from:

(i) Driving on or keeping or maintaining any vehicle upon, or otherwise using, the Loading Bay other than from 10 am to 12 noon and from 2.30 pm to 4.30 pm between Monday and Friday in any week.

(ii) Blocking the access to, or otherwise causing an obstruction to, the [red land] when using the Loading Bay.

(iii) Encouraging or "permitting" (whether by purporting to grant an entitlement to the same or otherwise) their licensees and tenants from:

(a) Using the Loading Bay save during the hours set out in (i) above (or such other times as may lawfully be prescribed by the Claimant under the terms of the Transfer).

(b) Blocking access to, or otherwise causing an obstruction to, the [red land] when using the Loading Bay.

(2) An injunction requiring the [Respondents] (in so far as they are entitled to do so) to revoke any authorisation or permission to their licensees and/or tenants to use the Loading Bay to the extent that the same (purportedly) entitles such licensees and/or tenants to: (a) use the Loading Bay outside of the hours set out in (i) above (or such other times as may lawfully be prescribed by the Claimant under the terms of the Transfer); or (b) block the access to, or otherwise cause an obstruction to, the [red land] when using the Loading Bay'.

Trustees were therefore seeking two heads of injunctive relief: (i) restriction of the use of the loading bay to the prescribed hours; and (ii) prevention of obstruction of their access to the red land during the use of the loading bay.

22. The trial took place over three days in December 2008. The claim was of course brought only against the respondents, not the tenants. Various issues were canvassed upon which the judge gave his decision. They included the following. First, it was argued on behalf of the respondents that upon the true construction of the 1982 grant, only Balcombe, but not its successors, could make a determination of times and days under condition (a), so that the purported determination made by Trustees' letter of 29 January 2008 was a nullity. The judge ruled against the respondents on that and held that the letter of 29 January 2008 was a valid determination for the purposes of condition (a). Second, the respondents argued that, if they were wrong on that, Trustees had (by reason of the unrestricted enjoyment of the loading bay that the respondents and other occupiers of the blue land had enjoyed over the years) become estopped from seeking to limit the extent of such enjoyment. The judge rejected that too. Third, the judge rejected the claim for an injunction preventing the respondents from blocking the access to, or otherwise causing an obstruction to, the entrance to the yard when using the loading bay (paragraph 1(ii) of the prayer for relief); and also the claim for an injunction directed at requiring the respondents to prevent their tenants from doing those things (paragraph 1(iii)(b)). His reason for doing so was that there was no evidence that any of vehicles claimed to have caused such obstructions were anything to do with the respondents or their tenants. There is no appeal against his decisions in these respects.
23. The appeal is advanced on three grounds. First, it is said that the judge was wrong to find that neither the respondents nor their tenants had since 29 January 2008 used the loading bay outside the prescribed hours. It is said that he ought to have found that both the respondents and their tenants had used the loading bay outside those hours, and that he ought in consequence to have granted an injunction restraining any continued flouting of the prescribed time limits. Secondly, that even if he was right to find that neither the respondents themselves nor their tenants had, since 29 January 2008, used the loading bay outside hours, he had failed to take into account that the respondents' stance in the proceedings was that they and their tenants were entitled to use the loading bay at any time; and it is said that, as the respondents lost on that issue, an injunction would have been appropriate. Thirdly, it is said that even if no injunction was appropriate, a central question in issue at the trial was Trustees' claim to be entitled to restrict the hours during which the loading bay could be used; and that as Trustees won on that question, they should have recovered either all or at least a substantial part of their costs.
24. The judge had of course refused injunctions directed at restraining any obstruction of the entrance, and there is no appeal against that. The commercial purpose of the first two bases of the appeal is, however, to achieve at least a reduction of the risk of any such obstruction. Trustees' concern is that if there is a tailback of vehicles waiting their turn to access the loading bay, they will be likely to cause an obstruction to the entrance. An injunction restricting the use of the loading bay to the prescribed hours will, it is hoped, limit the potential for any such obstructions to those hours.
25. Those being the issues on the appeal, they can be dealt with under four heads, as follows: (i) was the judge right to find that the respondents had not used the loading bay out of hours; (ii) was he right to find that their tenants had not used it out of hours either; (iii) whether he was right or wrong on those issues, was he wrong to refuse an injunction; (iv) if Trustees fail on all of (i) to (iii), ought we to re-visit the judge's costs decision?

(i) Have the respondents since 29 January 2008 used the loading bay outside the prescribed hours?

26. It is instructive, before coming to the oral evidence, to look at certain written material that came into existence before the trial. It is relevant both to the consideration of this first issue and also to the second, that concerning whether the tenants have since 29 January 2008 used the loading bay out of hours.
27. The proceedings were started in April 2008 and were followed by Particulars of Claim and a Defence. There is no need to look at these in their original form, although it is necessary to look at their amended form, the amendments being made in November 2008, shortly before the trial. Before doing so, I should refer to two earlier documents upon which reliance was placed.
28. The first is the respondents' response to a request for further information provoked by the original Defence. One request was for the respondents to 'state which tenants, occupiers or licensees in fact use the Loading Bay and provide particulars of the rights granted'. The response, on 2 July 2008, was:

'The tenants of all of the units within [the blue land] are able to access and use the Loading Bay. There are three units, namely unit numbers 7, 8 and 8A, for which access to and use of the Loading Bay is essential. [Trustees] is referred to item 40 in the [Respondents'] List of Documents, namely the Template Lease of Part. That is the form of lease used for all the tenants'.

29. That says nothing about the times when the tenants had used the loading bay, but reliance was placed on its reference to such use being 'essential' to the tenants of three units. I next refer to a letter of 1 August 2008 from Barnes & Partners ('Barnes'), the respondents' solicitors, to Greenwoods, Trustees' solicitors. In identifying the issues in the proceedings, they wrote:

'The location and extent of the Loading Bay, the fact that our clients have a right to use the Loading Bay, and the fact that our clients' tenants have continued to use the Loading Bay it [sic] outside the times and days dictated by your client, are not in issue'. (Emphasis in the original)

Towards the end of the letter, they also wrote this:

'… our clients (and their tenants) continue to use the Loading Bay in the same manner as used since they acquired their land in 1995, that is to say at all times and on all days they reasonably require. Plainly this extends to times outside those to which your client has purported to restrict such use'.

The former extract therefore singled out the tenants as having continued to use the Loading Bay outside the prescribed times, but did not suggest that the respondents had done so. The latter extract, however, appeared to be asserting that they had. I turn now to the amended pleadings.

30. Paragraph 6 of the amended Defence denied Trustees' right to prescribe the times and days when the loading bay easement could be exercised. Paragraph 9.1 asserted that at no time before Trustees acquired the red land (in June 2007) were any time restrictions on the use of the loading bay imposed on the respondents or other occupiers of the blue land. Paragraph 9.2 asserted that:

'At all material times before [Trustees] was registered as proprietor of [the red land], the [Respondents] (and other occupiers of the [blue land]) and their predecessors in title used the Loading Bay at all times and on all days they reasonably required, without protest or restriction;' (emphasis supplied)

31. That, therefore, pleaded the position prevailing before Trustees acquired the red land. Paragraph 7 of the amended Particulars of Claim alleged that since the letter of 29 January 2008:

'… on numerous occasions, the [Respondents] (and/or their servants and/or agents and/or employees and/or licensees and/or tenants) have used the Loading Bay outside of the hours specified [in that letter]. To the extent that the [Respondents'] licensees and/or tenants have made such use of the Loading Bay, the [Respondents'] licensees and/or tenants have done so pursuant to a (purported) authorisation or authorisations granted by the [Respondents] (whether under the terms of licences or leases or otherwise) and/or having been encouraged by the [Respondents] to do so'.

The Respondents pleaded to that in their amended Defence as follows:

'10.1 It is averred that the [Respondents'] tenants (and/or other occupiers of the [blue land]) continue properly and lawfully to use the Loading Bay in accordance with the right expressly granted, and in the same manner (as to times and days) as used since the [Respondents] acquired [the blue land] in 1995, and as used by the [Respondents'] predecessor in title since the original grant.

10.2 No admissions are made as to the allegation that the [Respondents'] tenants have made use of the Loading Bay outside of the hours specified in the letter dated 29.01.08.

10.3 No admissions are made as to the allegation that any use as referred to at paragraph 10.1 above was with the authorisation of the [Respondents].

10.4 In the event that the [Respondents'] tenants made use of the Loading Bay outside the hours specified in the letter dated 29.01.08, it is denied that they were encouraged to do so by the [Respondents].

10.5 Subject to the foregoing, paragraph 7 of the Amended Particulars of Claim is denied.'

32. Paragraph 10 does not hang together with consistency. Paragraph 10.1, which must be read with paragraph 9.2, advanced an assertion that the respondents' tenants had continued since 29 January 2008 to use the loading bay as before: that is, without observing any time restrictions or, therefore, the new time restrictions. It did not, however, assert the same with regard to the respondents' own use of the loading bay (I do not regard the reference to 'other occupiers' as naturally referring to or including the respondents, nor did Mr Arkush submit otherwise: he appeared before us for Trustees, but did not represent them at the trial). Inconsistently with paragraph 10.1, paragraph 10.2 then declined to admit that which had been asserted in paragraph 10.1. Paragraphs 10.3 and 10.4 sought to shift away from the respondents any blame for any omission there may have been by the tenants to respect the new time restrictions. Paragraph 10.5 contained a general denial of paragraph 7, which I regard as including a denial that the respondents themselves had, since 29 January 2009, used the loading bay outside the prescribed hours.
33. Mrs Papakyriacou made a witness statement on 18 July 2008 on behalf of the respondents. After describing the loading bay, she referred to all the exits in the building giving onto the passage as 'vital'. She explained that, once Rayner had erected the fence around two sides of the loading bay in 1996, the bay 'was only usable by us, and our tenants of course'. She referred to the creation of the barrier at the entrance to the yard and continued:

'9. … Our use of the Loading Bay, at any time of the day or night, could not and did not interfere with [Trustees'] use of their car park, and their use of their car park could not and did not interfere with our use of the Loading Bay.

10. This had always been the case, though. Rayners & Co had always permitted us to use the Loading Bay as and when we required. The use of the Loading Bay was exercised by us (and our tenants) as and when desirable and necessary, without any restrictions, whatsoever, as to time or day. This arrangement worked very well. There had never been any record of any difficulties before the fence was erected, and there were none – by Rayners & Co – afterwards. Once the fence had been erected there was an increased assurance of our continued, unrestricted use of the Loading Bay. …

11. … Shortly after [Trustees] acquired the neighbouring land, however, we began receiving phone calls and letters from [Trustees], alleging obstruction to his entrance to the car park. We denied these allegations because our vehicles have never been in [Trustees'] car park, nor in the entrance to the car park. [Trustees] also alleged obstruction of the Loading Bay. However, given the nature of the Loading Bay – in that it only serves the Building, it is impossible for us (or anyone else for that matter) to "obstruct" the Loading Bay in any way that would affect [Trustees]. Any use of the Loading Bay cannot at the same time be an obstruction of the car park, since they are on opposite sides of the dividing fence. When the allegations were made on the telephone, we responded with goodwill to investigate on site. When we investigated we discovered no obstruction of the car park by vehicles under our control, or authorised by us (or, indeed, any of the tenants). Indeed, we never discovered an obstruction of the Loading Bay either.

12. In our efforts to eliminate any possibility of obstruction, we spoke to our tenants about the matter. They responded that any vehicles dealing with deliveries, loading or unloading, can only operate properly and effectively if they are within the Loading Bay. Ultimately, if any vehicles have stopped or been parked in such a way that part of the passage, beside the Loading Bay, has been obstructed, it was nothing to do with us or our tenants, or anyone under our control or authority.

13. The imposition of limitations as to the times or days which the Loading Bay can be used will produce no obvious benefit to [Trustees], but would in all likelihood cripple the business operations of the tenants who use it. This would in turn severely damage our business as landlord of the Building'.

34. Mrs Papakyriacou gave oral evidence. It is apparent from the transcript that English is not her first language and her answers are not all unambiguously clear. She said in chief that she never parked her car in front of the loading bay and had never recognised any of the cars that parked and obstructed there. In cross-examination, having explained the nature of the respondents' business in Unit 1 as blouse makers, she said 'I never used the loading bay. I never parked my car there. I always load and unload from the front of the building.' The second extract (quoted above) from Barnes' letter of 1 August 2008 was then put to her, and she replied:

'I must admit I have never used the loading bay for my business. Yes, he has written that there were no restrictions or limitations applied to use the loading bay, meaning the actual tenant using it, I don't know, in case we had to use it'.

Counsel twice asked her whether it was her evidence that her business did not use the loading bay even before Trustees acquired the red land. Her first answer was to the effect that the loading bay was not used in connection with the respondents' business but that:

'… from time to time if there are any repairs or, I do visit and we do carry any rubbish that, you know, come across and whatever and because the building is mine and my husband's we do attend, you know, the loading bay. We go there and we inspect and any confrontations with Mr Halpern I am there all the time when he calls me …'.

Her second answer was:

'Not my business. The tenants use the loading bay … regarding their business'.

She was referred to paragraph 10 of her witness statement, which appeared to acknowledge that the respondents had also used it. She explained that by saying:

'As I said, the business is carried, half is carried out from the front of the building; the transportation of rails and regarding any other materials from the front of the building. But, if we were to repair the building and deliver bricks or once we had to deliver, with the tenant we had to deliver a very big machine and we helped to deliver this big machine, but never we had any problems with Rayners. Never. They were very friendly and co-operative. Regarding my business never I used their loading bay to transport clothes and whatever and anything else'.

In answer to further questions, Mrs Papakyriacou again asserted that 'We have never parked there [the Bull Lane access] our cars or our vans'; and that

'… we do not use the loading bay for our business. We use the front part of the building. … We use the loading bay in case there is a need of repair but not really the business. … We do not use the loading bay for the actual loading of the garments because simply we use the front of the building. Because we are on the first floor really it is not, we do not use it'.

To the question whether, to the extent that she admitted use of the loading bay, she used it outside the time restrictions imposed by Trustees, she replied:

'The loading bay we use it for repairs. We use it at any time to unblock the drains as a right of way. We use it, we come down from the first floor down and we help the tenants sometimes but we do not use the loading bay ourselves for the actual rag trade purposes'.

35. Mrs Papakyriacou was referred to the further information provided by the respondents on 2 July 2008 (quoted above), which reflected that the tenants of Units 7 and 8A (Mr Elias) and of Unit 8 (Mr Sevim) used the loading bay. She was asked whether the other tenants did so as well and replied:

'Yes, Mr Elias and Mr Sevim, their doors are directly onto the loading bay and they enter from there. They leave the premises, they load and unload. But, at any time the other tenants, the rest of the building have the right to load and unload if there is a problem at the front in Bridport Road … How often they use it I don't stand at the window to check who was using it and who is not. But, we do not use it because there is no direct exit from our floor, Unit 1, direct through the staircase down to the loading bay. We have to come round the building but the rest of the tenants they have the right to use the loading bay as they need it'.

36. In answer to further questions about the post-April 2007 complaints from Trustees about obstruction by vehicles on the Bull Lane access, she said she had put up a large board there saying 'Please do not obstruct here. Do not park here. Tina'. She did not recognise the obstructing cars about which Mr Halpern had complained. She said:

'Certainly they are not my cars and I used to run down and I used to say whoever, if anybody was there, "why are you obstructing?" Once I caught somebody. They run and they never said anything. … I did not know who was causing the problems. As I said, a lot of people park their cars because of the building [on the red land] being empty and up to now I don't know who has obstructed if they have obstructed or, there is a mechanic opposite Bull Lane and people stop there. There are people from the hospital that come and they park but I don't stand at the window checking who is parked and who has not parked. Why should I be prosecuted, you know, for this?'.

37. Mr Halpern's pre-action letters complaining of particular obstructions were put to her and she said that she told him that she did not know whose cars these were. She said:

'It is not as if I did not take care and I did not tell the tenants. I told all the tenants and in fact I specifically said do not park here in the car park in front because we have a problem according to the neighbours'.

38. I come now to the judge's findings in relation to the case against the respondents that they had used the loading bay outside the prescribed hours. He summarised Mrs Papakyriacou's evidence as being that the respondents made no use of the loading bay in connection with their own business, but did occasionally use it for the delivery of materials for repairs and sometimes helped the tenants with their use of it. He said the only evidence that the respondents had ever used the loading bay outside the prescribed hours lay in the admission by Barnes at the end of their letter of 1 August 2008. The judge said that Mrs Papakyriacou had said that what was there written with regard to the respondents was incorrect and he found that it was not based on any instructions given by them. He said in paragraph 90:

'In the result I find that neither Mr Papakyriacou nor Mrs Papkyriacou has in fact used the Loading Bay outside the hours fixed by the letter dated 29 January 2008. I am also entirely confident, having seen Mrs Papkyriacou give evidence, that, once she knows that I have found that Trustees were entitled in law to impose the limitations contained in the letter dated 29 January 2008, she and her husband will observe them in the future in any use which they may have occasion to make of the Loading Bay'.

39. In advancing Trustees' appeal, Mr Arkush challenged this conclusion but did not press the argument, recognising that it was a difficult one. In my judgment he was right to adopt that position because I consider that there is no sound basis upon which this court could substitute a different factual finding on this aspect of the case for that arrived at by the judge.
40. The amended Defence, insofar as it advanced a positive position, focused on the fact that the respondents' tenants had continued to use the loading bay out of hours. So did the first quoted extract from Barnes' letter although they did of course then extend that admission to include the respondents themselves in the second quoted extract. Mrs Papakyriacou's witness statement can also be read as asserting that the respondents themselves had also used the loading bay at all times for their business (paragraphs 9 and 10), although I am not sure there is any admission in it that after 29 January 2008 they continued so to use it outside the prescribed hours; and paragraph 13 focused on the fact that it is primarily the tenants who use it. When, however, Mrs Papakyriacou came to give her oral evidence, she was positive that the respondents do not use and never have used the loading bay in connection with their own business, although she admitted that they occasionally helped the tenants in their use of it and occasionally used it in connection with repair works to the building (and one of her above quoted answers was that they so use it 'at any time' which might perhaps be said to cover the post-29 January 2008 period).
41. The judge had the advantage that we do not of seeing and hearing Mrs Papkyriacou give evidence. He was obviously impressed by her and accepted her evidence that the respondents did not use the loading bay for the purposes of their business and had not, therefore, so used it outside the prescribed hours. I consider that he was entitled to do so. To the extent that she may have admitted that they did use it at any time in connection with repair works, that was only occasional use; it is not apparent that any separate point was taken before the judge that use of that nature (unrelated to their business of blouse makers) merited an injunction against the respondents; and that point did not form part of Mr Arkush's submissions. In my judgment the judge was also entitled to find that Mrs Papakyriacou's oral explanation as to the respondents' non-use of the loading bay was to be preferred to Barnes' assertion at the end of their letter. He was therefore entitled to conclude that it was not proved that the respondents had used the loading bay since 29 January 2008 outside the prescribed hours; and also to find that, as regards any future use, the respondents would respect the temporal limitations imposed by Trustees. In so far as Trustees' grounds of appeal challenge the judge's finding as to the respondents' own use of the loading bay, I consider that there is no substance in it. I would dismiss this part of this first ground of appeal.

(ii) Have the respondents' tenants since 29 January 2008 used the loading bay outside the prescribed hours?

42. Trustees' case below was that, even if the respondents themselves had not used the loading bay outside the prescribed hours, their tenants had continued to do so since 29 January 2008; and it was said that the respondents should be compelled by injunction to procure a cessation of such use by the tenants. The injunction asked for at the trial, as the judge explained in paragraph 91 of his judgment, was one requiring the respondents to use their 'best endeavours' to procure that the tenants abided by the prescribed hours. The judge dealt with, and rejected, this case in paragraphs 92 to 95, which I quote in full:

'92. There are a number of objections to those submissions.

93. The most fundamental is that, in my judgment, there was no evidence that Mr or Mrs Papakyriacou had taken any step which could properly be construed as amounting to causing or permitting or encouraging the tenants, or any of them, to disregard the requirements contained in the letter dated 29 January 2008. Mr Weekes [counsel for Trustees] submitted that it should be inferred that they had authorised the tenants to use the Loading Bay other than in accordance with the requirements of Trustees because they must have authorised the tenants to use the Loading Bay, as otherwise the tenants would have no lawful right to use the Loading Bay. That submission elides two issues, namely whether Mr and Mrs Papakyriacou authorised the tenants, or any of them, to use the Loading Bay at all, and whether they authorised them, or any of them, to use the Loading Bay not in accordance with the requirements of Trustees as to the hours of use. So far as the latter was concerned, there was just no evidence at all in support of the contention. The former issue was really concluded against Mr Weekes's submission by the terms of the Standard Form, and in particular the provision excluding the operation of Law of Property Act 1925 s. 62. Under the Standard Form Mr and Mrs Papakyriacou simply gave no right to a tenant to use the Loading Bay at all. That technically had the consequence that none of the tenants had any lawful right to use the Loading Bay. However, that is not a matter about which either the tenants or Trustees could complain as against Mr and Mrs Papkyriacou. Plainly it could properly be said that Mr and Mrs Papakyriacou encouraged or permitted tenants to use the Loading Bay on occasions upon which they actually helped them do so, but there was no evidence that that had ever occurred since 29 January 2008 other than during the permitted hours.

94. Had I been persuaded that it should be inferred that Mr and/or Mrs Papakyriacou had authorised a tenant or tenants to use the Loading Bay outside the hours imposed by the letter dated 29 January 2008, or otherwise than in accordance with the terms of the grant of the Easement, there was still no evidence that any tenant had done so. As I have remarked, it was not possible to tell, insofar as the evidence went, whether any use other than in accordance with the terms of the Easement had been by a tenant or by a licensee of a tenant. If and insofar as the use had been by a licensee of a tenant, neither Mr Papakyriacou nor Mrs Papakyriacou had any power to control the licensee. They did not grant any licence to the licensee, their tenant did. That is a material distinction, as it seems to me, between the circumstances of this case and the circumstances in Jalnarne Ltd v. Ridewood.

95. The grant of an injunction by which a party is required to use his or her best endeavours to require a third party to do something is not, I think, a step lightly to be taken by the Court. The assessment of what endeavours are best endeavours in those circumstances is not necessarily straightforward. At one end of the spectrum the steps available to be taken, for example if there is no sanction available to the party the subject of the injunction to impose his will on the third party, may be very limited, and thus the whole adventure may be in the nature of an exercise in futility. Another important aspect of the matter, in my judgment, is that an injunction in the terms which I was urged to consider is likely to be productive of further litigation, on the very question whether the party the subject of the injunction had used his or her best endeavours, because the party having the benefit of the injunction might well be inclined to assess best endeavours on the basis of whether the endeavours have been successful'.

43. Mr Arkush submitted that whilst Trustees may not have adduced evidence of any occasions since 29 January 2008 when the loading bay was used by the tenants outside the prescribed hours, that did not entitle the respondents to carry the day. The respondents had positively admitted and asserted such use and had advanced no case in denial of it. Mr Arkush referred to paragraph 10.1 of the amended Defence and to Barnes' letter of 1 August 2008. The further information provided on 2 July 2008 was to the effect that the use of the loading bay was 'essential' to certain of the tenants. Mrs Papakyriacou had said in paragraph 8 of her witness statement that all the exits from the building to the passage were 'vital'; in paragraphs 10 and 11 she had explained that before the arrival on the scene of Trustees the loading bay had been used without any temporal restrictions; in paragraph 9 she had referred to the use of the loading bay 'at any time of the day or night' as something which 'could not and did not' interfere with Trustees' use of their yard (which, given the judge's findings as to the respondents' use can only have been a reference to the tenants' use); in paragraph 13 she said that the imposition of time restrictions on the use of the loading bay 'would in all likelihood cripple the business of the operations of the tenants who use it'; and in her oral evidence she made it plain that the tenants continued to use the loading bay and made no suggestion that, since 29 January 2008, they had limited such operations to the prescribed hours - a suggestion which would hardly be consistent with her point in paragraph 13 of her witness statement.
44. Mr Skelly, for the respondents (who represented them below), submitted that there was no basis for questioning the judge's finding of fact on this issue. The judge had considered the photographic evidence showing vehicles in the vicinity of the entrance and had declined to find that Trustees had proved that any of them had anything to do with the tenants or that they proved any use of the loading bay outside the prescribed hours. The further information of 2 July 2008 did not prove such a use either: it merely asserted that the use of the loading bay was essential for certain tenants. Paragraph 10.1 of the amended Defence could not, he said, fairly be read as admitting any continued out of hours use after 29 January 2008; and as paragraph 10.2 made an express non-admission of any such use, paragraph 10.1 should anyway not be given the weight that Mr Arkush attached to it. Nor, he said, did Mrs Papakyriacou's witness statement prove the point.
45. Coming to my conclusion on this, the factual question before the judge was whether, on the balance of probabilities, the tenants had since 29 January 2008 continued to use the loading bay outside the prescribed hours. The judge may have been right to conclude that the evidence the Trustees adduced in relation to the congregation of vehicles in the vicinity of the Bull Lane access did not prove that the tenants had so continued, although that evidence was (I infer) adduced primarily in support of Trustees' more general (and unsuccessful) claim for an injunction restraining any obstruction at the Bull Lane access. As regards the more particular factual issue now in question, there was however, as Mr Arkush submitted, a good deal more material before the judge, to which his judgment made no reference.
46. First, there was an unequivocal assertion by Barnes' letter of 1 August 2008 that there was 'not an issue' (their emphasis) that 'the tenants have continued to use the Loading Bay it [sic] outside the times and days dictated by your client ….' That must have derived from the respondents' instructions, who would have known what was going on in their building. The further information earlier served had also said that the tenants' use of the loading bay was 'essential'. Paragraph 10.1 (read together with paragraph 9.2) of the amended Defence made the same point as that made in Barnes' letter. Whilst paragraph 10.2 then made no admission of the very point that paragraph 10.1 had just asserted, I fail to see why the judge should have regarded that non-admission as taking precedence over the unambiguous assertions in Barnes' letter and paragraph 10.1: and Mr Skelly did not suggest that it was agreed at the trial that paragraph 10.2 was to be read as cancelling out the prior assertions and putting the nature of the tenants' continued use in issue.
47. Further considerations were that paragraphs 6 and 7 of the original Particulars of Claim asserted that the respondents and/or their tenants had continued to use the loading bay outside the prescribed hours and Mrs Papakyriacou's witness statement (made in the light of that assertion) asserted (i) that the various exits to the passage (including that to the loading bay) were 'vital' (paragraph 8); (ii) that the tenants had always used the loading bay without any restrictions as to time or day, which had become an established practice by June 2007 (paragraphs 10 and 11); (iii) that such use could not 'and did not' (my emphasis) interfere with Trustees' use of the yard (paragraph 9); and (iv) that the imposition of any temporal restrictions of the use of the loading bay 'would in all likelihood cripple the business operations of the tenants who use [the loading bay]'. Nowhere did she suggest that since 29 January 2008, and despite the potentially crippling consequences, the tenants had stopped their previous practice and had decided instead to observe the new restrictions. Nor did she suggest that she had even informed the tenants of the restrictions. Nor did she make any such suggestions in her oral evidence. What she did say was that the tenants continued to use the loading bay.
48. Taking all of that together, I consider that it amounted to a clear admission, indeed assertion, by the respondents that the tenants had continued to use the loading bay outside the prescribed hours. The judge appears to have paid no regard to any of it. In my judgment, he should have done so. Had he done so, he could only have concluded that Trustees had established the case that the tenants had continued to use the loading bay outside the prescribed hours. In finding otherwise, I consider that he fell into error.

(iii) Was the judge wrong to refuse an injunction?

49. In the light of my conclusion on issue (i) above, I consider that the judge was right to refuse to enjoin the respondents themselves from using the loading bay out of hours. His finding was that they had not so used it; and further that, now that (contrary to their case) Trustees' right to prescribe the time limits they did had also been established, they would respect those limits in the future. His refusal to grant an injunction against the respondents in respect of their own use was properly within his discretion.
50. Mr Arkush submitted that as the respondents had put in issue Trustees' claim to prescribe time limits under condition (a) of the 1982 grant, it was properly open to the judge, once he had decided that point against the respondents, to grant an injunction against them restraining any future infringement of the time limits. The basis for that was, I understood, that it was implicit in their challenge to Trustees' claim that they might not respect the restrictions in the future. In my judgment, there is no substance in that. The respondents did put the imposition of the restrictions in issue and, had they remained defiant about that to the end, there might have been a case for an injunction. But, as I have said, the judge found that they did not remain defiant. His refusal to grant an injunction against them cannot be faulted.
51. Indeed, their respect for the court's decision with regard to the prescribing of time limits is reflected in their post-trial actions. We were told that they had since written to the tenants (or at least to those who use the loading bay) informing them of the judge's decision as to the lawfulness of the restrictions imposed by Trustees, advising them of the time limits and asking them to ensure that they and their visitors respect them. We asked counsel to provide us with a sample of the letters so written and were provided with a copy of one written on 13 January 2009 to Mr Christophorou of Unit 8A, who acknowledged its receipt the following day. The letter explained the position correctly and required the tenant to confine his and his visitors' use of the loading bay to the prescribed hours.
52. Starting, however, from the premise that the judge should have found that the tenants had continued to use the loading bay outside the prescribed hours, the next question is whether the judge ought to have granted an injunction against the respondents requiring them to procure their tenants to cease any such excessive use of the loading bay. The judge held that the standard form lease did not grant the tenants any right to use the loading bay at all, a finding from which it might be said that the logical consequence was that they could not be required to prevent a use they had never authorised. The judge's position was that the only occasions on which they could be said to have authorised any use by the tenants of the loading bay was on those few occasions when they actually helped the tenants to use it, but there was no evidence that they had done so after 29 January 2008 outside the prescribed hours. Nor, he held, was there any evidence that any tenant had ever used the loading bay outside those hours. Nor should the court readily grant a 'best endeavours' injunction, which would be likely to be productive of dispute and further litigation.
53. For reasons given, I consider that the judge ought to have accepted that the tenants had continued to use the loading bay out of hours. His decision that (save in the exceptional cases just mentioned) the respondents had not authorised the tenants to use the loading bay at all derived from his consideration of the standard form lease. Neither counsel advanced any argument to us on the terms of such lease nor as to whether the judge was right in his conclusion that it did not grant the tenants the right to use the loading bay. Trustees' case was that it does not make any difference whether it did or did not. What is plain, Mr Arkush submitted, is that the respondents knew perfectly well that the tenants were using the loading bay (in particular the tenants of units 7, 8 and 8A) and that it was plain that such use was with the respondents' permission. In the latter connection, the respondents recognised that the use of the loading bay was 'essential' to certain of the tenants; and that such use, if restricted as prescribed by the letter of 29 January 2008 would '… cripple the business operations of the tenants who use it', which would in turn 'severely damage our business as landlord of the Building' (paragraph 13 of Mrs Papkyriacou's witness statement). None of that was consistent with anything other than a use of the loading bay with the respondents' permission.
54. Mr Skelly accepted that, if it could be said that the respondents had permitted the tenants to use the loading bay excessively, they could be required by injunction to terminate such permission. His main point, however, was that they could not be said to have permitted any such excessive use because the judge found that there had been no such use. I have given my reasons why, with respect, I regard the judge as having fallen into error in that respect.
55. In my judgment, and with respect to the judge's different view, it is unrealistic to regard the tenants as having used the loading bay otherwise than with the respondents' permission; and – at least until the writing to the tenants of the letters following the trial – that permission was one that contained no temporal restrictions. It can, in my view, fairly be said that, following 29 January 2008, the tenants' permission from the respondents continued to be of an unrestricted nature, although it should not have been. The respondents should, following the receipt of the letter of 29 January 2008, have taken steps to limit their permission to a use within the prescribed hours, but they did not. Whether, if they had, the tenants would have accepted that they were entitled to do so is another matter. They would have been changing a longstanding practice and the tenants might well have had something to say about it.
56. In these circumstances, Mr Arkush submitted that the judge both could and should have granted an injunction against the respondents directed at procuring a cessation by the tenants of their excessive use of the loading bay; and that this court should now grant such an injunction. To the court's question as to the form of injunction that it might grant, Mr Arkush proposed that it should be in this form:

'An injunction requiring the Respondents to lock and keep locked the doorways opening onto the Loading Bay save between the hours from 10 am to 12 noon and from 2.30 pm to 4.30 pm between Monday and Friday in any week'

57. The grant of any injunction is a discretionary matter and I have serious doubts as to whether it would be appropriate for this court to grant such an injunction. The first point to notice is that it bears no relation to the form sought in the amended Particulars of Claim. All that was there sought was (in effect) an injunction restraining the respondents from permitting the tenants to use the loading bay out of hours and to withdraw any permission to that effect already given. That would probably require the respondents to do no more than write the sort of letters that, following the trial, they did write to the tenants.
58. At the trial, however, Trustees apparently decided that an injunction in that limited form was inadequate; and its counsel made what was apparently an unheralded application for an injunction which imposed an obligation upon the respondents 'to use their best endeavours to procure that their tenants abide by the permitted hours of use of the Loading Bay'. The judge gave his reasons as to why a 'best endeavours' injunction was anyway one that he would have been reluctant to grant and I consider his reluctance in that respect was probably justified. A 'best endeavours' obligation is a high one. In Sheffield District Railway Company v. Great Central Railway Company (1911) 27 TLR 451, at 452, A.T. Lawrence J, in delivering the judgment of the court, expressed the court's thought that ' "best endeavours" means what the words say; they do not mean second-best endeavours'; and, a little later, that they mean, 'broadly speaking, [leaving] no stone unturned …'. An injunctive obligation expressed in such terms is potentially productive of dispute as to whether the person enjoined has or has not done all that is required of him.
59. In this court Mr Arkush now asks for a third form of injunction. Mr Skelly's immediate objection to its form was that it would prevent the doors being used as fire exits during the prescribed hours. Mr Arkush's response was that that concern could be met by the provision of keys in glass boxes that could be broken open in case of an emergency. My own thoughts on the proposed injunction are these. First, the installation of such boxes would cause expense to the respondents, which, if not enormous, would be likely to be material. Why should the respondents be put to that expense? Why should they be expected to do more than to confine the tenants' permission to a use of the loading bay within the prescribed hours? Mr Arkush's position was that any use by the tenants out of hours would be an unanswerable trespass. If so, Trustees can sue the tenants. Why should the respondents rather than Trustees be expected to incur the expense of taking steps to prevent such trespass?
60. Secondly, whilst the 'locking' injunction was advanced as having the merit of simplicity, it would impose a considerable burden on the respondents. Unless an expensive system were to be installed that automatically locks and unlocks at the appropriate times each working day, the respondents will have personally to ensure each such day that the doors (four of them) are locked and unlocked at the relevant times. That would be burdensome and would carry the risk that an oversight will put them at risk of being said to be in contempt.
61. Thirdly, there is the position of the tenants to consider. There is no evidence that they were ever informed of the proceedings or that they were given a forewarning of the injunction now sought. That form of injunction is directed at physically barring them from any access to the loading bay during a material part of the working day. How are they to deal with delivery vehicles that turn up out of hours and whose drivers bang on the doors for attention? What will or may be the effect on their businesses? The court does not know the answer to such questions because the tenants have been given no opportunity to explain the consequences upon them of such an injunction. The court should in my view ordinarily be wary of granting final injunctions that affect third parties in such a way as is here proposed in circumstances when they have had no opportunity to make representations on the order sought. For these reasons I would not grant the injunction sought.
62. I am also not satisfied that any form of injunction is now appropriate. The matter has moved on since the matter was before the judge. We know that the respondents have notified at least certain of the tenants of the validity of Trustees' prescribing of the times within which the loading bay may be used and have made plain that those times must be respected. Before we (and I suspect Mr Skelly) learned of the writing of those letters, Mr Skelly informed the court that, if contrary to his submissions, the respondents were to be held to have permitted the tenants to use the loading bay outside the prescribed hours, his clients would undertake to the court to notify the tenants of the judge's decision as to the prescribing of the times of use of the loading bay and describing the hours to which such use was restricted. As, in my judgment, Mr Skelly's submissions in this respect have failed, I would accept Mr Skelly's offered undertaking although I would limit it to one merely so to notify those tenants (if any) who have not already been notified in such terms.
63. Finally, I add this. Had the judge, as I consider he ought to have done, (a) accepted that the tenants had continued to use the loading bay out of hours, and (b) recognised that they had done so with the respondents' permission, I consider that he could and should (absent any offered undertaking of the kind just mentioned) have granted an injunction against the respondents requiring them to notify the tenants of the time limits prescribed by the letter of 29 January 2008 and to limit the tenants' permission to use the loading bay to within those limits. I recognise that Trustees were, by the time of the trial, asking for a more draconian form of injunction. But if, as he did, the judge considered it to be unsatisfactory, he could and should have granted an injunction in the lesser form just suggested. That would have been the just order to make: a claim for the greater does not ordinarily preclude a judge from granting the less.

(iv) Was the judge's costs order correct?

64. Mr Arkush's final submission was that even if Trustees were to lose on all other points, the judge's decision on costs, namely that Trustees should pay all the respondents' costs, was unfair and wrong. His point was that a central issue at the trial was Trustees' claim to be entitled to prescribe the hours of use of the loading bay, on which Trustees won. We now know that the practical consequence of that success was that the respondents respected that decision and informed their tenants accordingly (or at least certain of them). Mr Arkush submitted that Trustees' success on that issue entitled them to either all or a substantial part of their costs. He also invoked the fact that the respondents' position changed materially at the trial. Whereas a fair inference from Mrs Papakyriacou's July 2008 witness statement and the second extract from Barnes' letter of 1 August 2008 was that the respondents had themselves used the loading out of hours (including after 29 January 2008), Mrs Papakyriacou denied that at trial when she gave evidence.
65. Mr Skelly's submission in his skeleton argument (he did not develop it orally) was that a winning party may often lose on one or more issues, but it does not follow that he must be required to pay the costs of the issues or any of them on which he loses; and it cannot be said that the judge's order that Trustees should pay all the respondents' costs was outside his discretion.
66. I do not propose to deal with this submission on the artificial basis that the judge is to be assumed to have been right on all issues apart perhaps from that relating to costs. My view is that he was wrong (i) to decline to accept Trustees' case that the tenants had continued to use the loading bay out of hours, (ii) to find that they had done so otherwise than with the respondents' permission, and (iii) to decline to grant an injunction against the respondents in the lesser form I have indicated. All these considerations should have had an impact on his decision as to costs, in addition to the other points that Trustees made. Although, for reasons given, I would not grant an injunction, I would have done had Mr Skelly not offered his undertaking and so I regard this appeal as having been successful in substance. That will enable the court to re-consider the appropriate order as to the costs of the proceedings below, upon which, if my Lords agree, I would invite the parties' submissions in writing before the formal handing down of this judgment, together with their submissions on the costs of this appeal.

Lord Justice Moses:

67. I agree.

Lord Justice Longmore :

68. I also agree.