ON APPEAL FROM THE CLERKENWELL AND SHOREDITCH COUNTY COURT
HIS HONOUR JUDGE MITCHELL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PATTEN
LADY JUSTICE RAFFERTY
| LONDON BOROUGH OF ISLINGTON
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Mr R. Duddridge (instructed by Bishop & Sewell LLP) for the Respondents
Hearing date : 5th December 2011
Crown Copyright ©
Lord Justice Patten :
"so it can conclusively be determined that the trees are in fact the cause of any damage ….. As your clients are making these claims then the onus is on them to provide any report".
"While the Ash saplings in the garden bordering onto yours have not yet caused any damage to your property, they need to be dealt with as a matter of urgency so as to prevent them from causing inevitable damage in the short to medium term."
"… I note you have also provided a copy of a letter from a 'George Mathieson Associates' offering some opinions on trees in the area. This letter does clearly state that there is no damage to no. 49 at this time.
No tree removal will be undertaken in relation to Alleged Tree Root Damage (ATRD) claims unless and until detailed and extensive evidence that directly implicates a tree as a major causal factor in significant damage to a building, and where no other alternative remains.
Trees will certainly not be removed on the grounds that they may hypothetically cause damage at some point in the future. Any necessary tree work can only be determined through a tree inspection, which you can request as mentioned above."
"In a final attempt to avoid the issue of court proceedings, our client requires that the trees in the front and rear gardens are properly lopped in accordance with our client's expert's report by close of business on Thursday 10 July 2008. If this is not done by this date, then our client will have no alternative but to make an application to the court to compel you to abate this nuisance".
"43. I conclude from this evidence that there are a number of areas of uncertainty in this case; uncertainty about the nature of the soil (Is it gravel? Is it clay?); about the depth of the foundations; whether or not there are drains present in the backgarden under the patio and uncertainty about the rate of growth of the trees.
44. The evidence shows that the work could be carried out in early 2010 without great expense or effort. The evidence I have had from Mr. Chambers is that it would have cost £500 to cut down the 8 saplings and to treat them with poison. It would require much greater work and expense the larger the trees.
45. I am also satisfied that both experts were satisfied that there was a risk that trees 1 and 10 would penetrate drains and affect the foundations, but the effects could not be seen possibly because damage would not occur after some years - possibly three or five years or more. I would add this to the experts' conclusions. The uncertainties that I have listed could not be resolved without expense which was out of all proportion to the cost of the works (for example the drains under the patio, taking soil samples and so forth). I note that Mr. Chambers did not consider that it was necessary to take root samples before he cut down the Ash-saplings.
46. I also conclude that, unless cracking was caused in the patio, it was unlikely that more evidence of the risk increasing or becoming more imminent could be obtained before serious damage was done to the property."
Quia timet relief
"… it is not correct to say, as a strict proposition of law, that, if the plaintiff has not sustained, or cannot prove that he has sustained, substantial damage, this Court will give no relief; because, of course, if it could be proved that the plaintiff was certainly about to sustain very substantial damage by what the defendant was doing, and there was no doubt about it, this Court would at once stop the defendant, and would not wait until the substantial damage had been sustained. But in nuisance of this particular kind, it is known by experience that unless substantial damage has actually been sustained, it is impossible to be certain that substantial damage ever will be sustained, and, therefore, with reference to this particular description of nuisance, it becomes practically correct to lay down the principle, that, unless substantial damage is proved to have been sustained, this Court will not interfere. I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet action."
"On the basis of the judge's finding that the previous nuisance had ceased at the end of May 1996 the injunction which he granted on 7th January 1997 was quia timet. It was an injunction granted, not to restrain anything that the defendants were doing (then or at the commencement of the proceedings on 20th June 1996), but to restrain something which (as the plaintiff alleged) they were threatening or intending to do. Such an injunction should not, ordinarily, be granted unless the plaintiff can show a strong probability that, unless restrained, the defendant will do something which will cause the plaintiff irreparable harm -- that is to say, harm which, if it occurs, cannot be reversed or restrained by an immediate interlocutory injunction and cannot be adequately compensated by an award for damages. There will be cases in which the court can be satisfied that, if the defendant does what he is threatening to do, there is so strong a probability of an actionable nuisance that it is proper to restrain the act in advance rather than leave the plaintiff to seek an immediate injunction once the nuisance has commenced. "Preventing justice excelleth punishing justice" -- see Graigola Merthyr Co Ltd v Swansea Corporation  Ch 235 at page 242. But, short of that, the court ought not to interfere to restrain a threatened action in circumstances in which it is satisfied that it can do complete justice by appropriate orders made if and when the threat of nuisance materialises into actual nuisance (see Attorney-General v Nottingham Corporation  1 Ch 673 at page 677).
In the present case, therefore, I am persuaded that the judge approached the question whether or not to grant a permanent injunction on the wrong basis. He should have asked himself whether there was a strong probability that, unless restrained by injunction, the defendants would act in breach of the Abatement Notice served on 22nd April 1996. That notice itself prohibited the causing of a nuisance. Further he should have asked himself whether, if the defendants did act in contravention of that notice, the damage suffered by the plaintiff would be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at that stage) to restrain further occurrence of the acts complained of, a remedy in damages would be inadequate. Had the judge approached the question on that basis, I am satisfied that he could not have reached the conclusion that the grant of a permanent injunction quia timet was appropriate in the circumstances of this case."
"Again it seems to me that "imminent" is used in the sense that the circumstances must be such that the remedy sought is not premature; and again I stress that there is no suggestion that in the present case any other step than reconstituting the track will be available to save the farmhouse from the probable damage.
In different cases differing phrases have been used in describing circumstances in which mandatory injunctions and quia timet injunctions will be granted. In truth it seems to me that the degree of probability of future injury is not an absolute standard: what is to be aimed at is justice between the parties, having regard to all the relevant circumstances. I am not prepared to hold that on the evidence in this unusual case the judge was wrong in considering that he could have ordered the defendant to fill in and consolidate the road at the suit of the plaintiff as owner of the farm-house, or that he was wrong in ordering damages in lieu of such an order."
"49. Examining the matter in relation to the quia timet injunction, I am satisfied that there was a real likelihood of harm at some stage - that is a harm which could not sensibly be ignored. The likely extent of the harm would be damage to the drains resulting in seepage, possibly of sewage or other waste water, and/or the foundations including cracking of walls and settlement. Harm of either kind would raise concern about the other kind of harm. There would be the risk of increased insurance cover and difficulties, possibly, in selling the property. The costs or effort required by the defendant to remove the harm was minimal. There was no likelihood, in my judgment, of other methods of reducing the harm becoming available before the damage occurred. The same steps would be needed; the trees would have had to have been cut down. But I have to ask myself, however, would there be a need for an order? While there was no imminent harm in the sense of something happening within a three to five year period, there was a likelihood that in some years the work would needed to have been done to avoid damage. There was no reason for delaying the work. Delay would only increase costs.
50. Given the Local Authority's history of dealing with the claimants' reasonable complaints, I am not satisfied that they would have done the work without an order. It was reasonable, in my judgment, for the claimants to commence the action when they did rather than wait. As has been pointed out, it has taken two years for this case to come onto trial even after the claim was issued. I am satisfied therefore that, if the work had not been carried out, the claimants would have been successful in obtaining their injunction. Therefore, the general rule should apply in relation to costs."
The costs order
"51. I also have regard to the defendants' litigation conduct. There has been a failure by the defendants over five years until November 2009, to do anything at all. Opportunities were missed when the property was vacant in 2006 and 2008. Assurances that the works would be done in 2006 were not met. Misleading or false information was provided in April 2008. In June 2008, even if the claimants are not entitled under the general rule to costs, in my judgment, the defendants' conduct was such as to lead to only one conclusion, namely that the claimants were acting reasonably in commencing their action. The defendant's did not act reasonably and they should pay the claimants' costs.
52. But that is subject to one proviso. Letters before action were written on 1st May 2008, 2nd June 2008 and 26th June 2008. Nothing was thereafter written until March 2009 - a considerable gap. Despite the lamentable history, in my judgment, it would have been reasonable to expect the claimants to send one further letter. That might have resulted in their being told the work was in hand and, therefore, the claim did not need to be issued. But, given the history, they might not have been told that. They must therefore bear some responsibility, but the greater responsibility by far is that of the defendants.
53. Therefore, I shall make an order that the defendants are to pay the costs up to and including 2nd March 2009 - that is 14 days before the claim commenced - but, thereafter, only one half of the costs between 2nd March 2009 and up to and including the issue of the claim. The half costs cover the 14 day period, when a letter before action should have been written and considered and is calculated to take into account the real possibility that the defendants would not have notified the claimants that there was no need to commence the action."
Lady Justice Rafferty:
Lord Justice Longmore: