THE
CURRENT APPLICATION
The
current application was first in the Chancery 2 list on 17 December 1998,
almost at the end of term. On that occasion the Plaintiff Company (Pasture
Properties Limited) was represented by Mr Martin Giblin SC and Mr Alan Toal,
instructed by Gerard Murphy and Company, and the Defendant (William Thomas
Evans) was represented by Mr John Gordon SC and Mr Justin Dillon, instructed by
Martin E Marren and Company.
On
that occasion the application, as I understood it, was for an interlocutory
injunction. The hearing started and Mr Giblin opened the case. I have checked
my notes from 17 December 1998 and my understanding is that what Mr Giblin was
seeking on that occasion was an interlocutory injunction, that is to say, an
injunction until the plenary hearing of the action, in the following terms:
(1)
A mandatory injunction directing the Defendant to remove a wall allegedly built
on the Plaintiff's property.
(2)
An injunction restraining the Defendant from trespassing on the Plaintiff's
property.
(3)
An injunction restraining the Defendant from preventing the Plaintiff having
the access which the Plaintiff says it heretofore enjoyed over the Defendant's
property to its own property.
Mr
Giblin commenced to open the affidavits which had been filed by the parties. In
the course of opening the affidavits photographs were produced by the Defendant
and put before the Court by consent of Counsel for the Plaintiff.
The
time available on the 17 ran out and on Friday the 18, the second last day of
term, the matter came on again. As I understand it, what transpired on that
occasion was that Mr Giblin had considered the photographs and the photographs
suggested that the position was not as had been represented to him. Mr Giblin
then indicated that he wanted an adjournment. A very reasonable attitude was
adopted on the part of the Defendant. The Defendant wanted the matter dealt
with but indicated through his Counsel Mr Gordon that he would consent to an
adjournment and suggested that the way to deal with the problem was for the
respective surveyors to meet on site and work out on the ground where the
boundary was. That seemed to me to be a very sensible suggestion and I voiced
that opinion. As the adjournment was being consented to, I acceded to the
application and put the matter back to 11 January 1999, the first day of this
term, at 2 pm for mention to see whether the matter had been resolved.
On
11 January 1999 it transpired that the matter had not been resolved so I put it
back for a week. On either 18 or 19 January 1999 the Defendant indicated that
he wanted a date fixed for the hearing of the application. On the previous
occasion, 18 December 1998, the Defendant had indicated to the Court that he
would not sell the units in his development pending the determination of the
matter. It was pointed out to me on either 18 or 19 January 1999 that the
Defendant was bound by this undertaking, was being prejudiced by it and wanted
the matter resolved. On considering my own commitments it appeared to me that
the first occasion on which I could deal with the case was Thursday 4 February.
On either 18 or 19 of January I therefore adjourned the matter until yesterday
on the basis that the application would go ahead. The Plaintiff's legal
advisers were aware of that and the matter appeared in the legal diary.
On
4 February there was a case at hearing from the previous day and it was
indicated to me that it would probably finish by lunchtime. I indicated that I
would take up this application when the other case finished and was told that
neither of the Plaintiff's Counsel were available. Mr Giblin was detained in a
criminal trial and, of course, those trials have priority, and Mr Toal was
indisposed. Mr Murphy, the Plaintiff's solicitor, sought an adjourn merit and
was opposed by the Defendant. It seemed to me that I had no option but to
refuse the application for an adjournment and I did so, indicating that the
matter would not be taken up before 2 pm. At 2 pm I was free to take the case
and at that time I was told by Mr Murphy that, if the matter was going on, the
Plaintiff was discharging him and that Mr Carlyle was going to do the case
himself. I gave Mr Murphy leave to come off record and gave Mr Carlyle a short
time to get his papers together. The matter went on on that basis.
In
opening the matter to me on behalf of the Plaintiff Company Mr Carlyle outlined
the history of the matter and opened the affidavits sworn by himself on 1
December and sworn by the Defendant on 9 December. Two further affidavits had
been filed by the Defendant, his own affidavit and the affidavit of Mr Linnane.
The affidavit of Mr Evans only exhibited the photographs handed in on 18
December 1998 and introduced nothing new. The affidavit of Mr Linnane, I was
told by Mr Dillon, had been sworn on 28 January 1999 and served on the same
day. It was admitted by Mr Carlyle that his solicitor got the affidavit on 29
January 1999.
I
am of the view that the Plaintiff had plenty of time to respond to the
affidavits of 28 January 1999 and I do not think that the Plaintiff is being
prejudiced by not being given an opportunity to respond to them.
THE
ORIGINAL APPLICATION
The
Plenary Summons in this matter was issued on 12 August 1997 and an ex parte
application was made on 13 August 1997 when an interim injunction was granted
by Flood J who ordered that "the Defendant be restrained until 22 August from
developing the property more particularly described as St Mary's Parochial
Hall, 28A Church Street, Howth, County Dublin, pursuant to
section 27 of the
Local Government (Planning and Development) Act 1976". That order put a stop to
the Defendant's development.
An
application for an interlocutory injunction was issued on 15 August 1997 and
eventually it came on before Budd J on 10 September 1997. On that occasion, by
consent, the order made on 13 August 1997 by Flood J was discharged. In other
words, the injunction was lifted. That was done on terms that the Defendant was
to be entitled to proceed with his development in a manner which would not
affect the Plaintiff's right-of-way. A further term was that the parties'
architects would meet to attempt to resolve the issue of whether the position
of the Defendant's parking spaces would affect the right-of-way.
The
application for the interlocutory injunction was adjourned from time to time,
according to Mr Carlyle's affidavit of 1 December 1998. The matter was listed
for hearing on 22 April 1998 before Costello J and on that occasion there was a
problem relating to proofs and it was adjourned. The application for an
interlocutory injunction was again listed for hearing on 22 July 1998 before
Kelly J. On that occasion it was adjourned generally with liberty I re-enter.
Meanwhile, the substantive action was there in limbo, II was not advanced one
whit. No Statement of Claim was delivered. Nothing has been done to advance the
substantive issue between the parties.
The
matter comes before me on foot of a notice which was issued on 2 December 1997,
but I think the date should be 1998. It is headed "Motion for Interlocutory
Injunction" and it seeks "an injunction in the terms of the previous injunction
granted by order of His Honour Judge Flood by order dated 13 August 1997".
Mr
Carlyle's affidavit sworn on 1 December 1998 was filed in support of this
application.
Earlier
I mentioned in some detail what transpired when the matter was opened by Mr
Giblin on 17 December 1998 for the purpose of making it clear that, although
the application of 2 December 1998 seeks an order in broad terms and in the
same terms as the injunction granted by Flood J on 13 August 1997, Mr Giblin
made it quite clear that he was seeking a mandatory injunction directing the
removal of the small wall or plinth, and was seeking restraining injunctions in
the terms already indicated. It is quite clear from the evidence before me that
the application of 2 December 1998 came out of the blue without any warning
letter.
This
is an application for an interlocutory injunction. It is an application for
certain orders which, if granted, would endure until the full action was
determined on oral evidence by the Court. The Court has to have regard to
certain criteria in determining whether to grant relief. The first question
which arises for determination is whether there is a fair issue to be tried
between the Plaintiff and the Defendant. There are two issues on this
application as it is now framed and as it has been delimited by Mr Giblin: (1)
whether the Defendant has encroached over the Plaintiff's boundary in
constructing the low wall or plinth; (2) whether the layout on the Defendant's
property for car parking spaces and the works on the open space obstruct the
Plaintiff's right-of-way.
The
Plaintiff has put in evidence its original title deed, a conveyance of 30 April
1991 between Meadowvale Developments Limited and the Plaintiff Company Pasture
Properties Limited. He has put in evidence a report of Mr Watson, Architect, of
25 November 1998 in relation to the correct location on the ground of his
boundary. The Plaintiff's case, as per Mr Watson's affidavit, is that the
boundary between the two properties is 1.2 metres out from the apartment
building on the Plaintiff's property.
The
Defendant has not put his title in evidence but has put in evidence, without
the Folio itself, the Land Registry map relating to Folio 46487F, County
Dublin, which I understand constitutes his title. The Defendant has also put in
evidence the affidavit of Mr Garret Linnane. On the basis of what seems to me
to be a very methodical survey in January of this year, the thrust of Mr
Linnane's affidavit is that the Defendant's works on the ground do not encroach
beyond the boundary as indicated on Map No 3 annexed to his affidavit.
Basically,
there is a conflict of evidence as to where the boundary is. All I am entitled
to consider on this application is whether there is a fair issue to be tried in
relation to the Plaintiff's assertion that the boundary is 1.2 metres out from
its building and whether the works on the Defendant's land will obstruct the
right-of-way which the Plaintiff undoubtedly has but the extent of which is not
at all clear.
On
the very low threshold to be surmounted on this type of application as laid
down by the House of Lords in the American Cyanimid case and by the Supreme
Court in the Campus Oil case, it seems to me that the Plaintiff has established
that there is a fair issue to be tried as to the location of the boundary and
as to whether there has been an infringement of his right-of-way. But that is
not the end of the matter by any means.
The
next issue which has to be decided is whether damages would be an adequate
remedy for the Plaintiff if the Court refused to grant an injunction and it
subsequently transpired at the hearing of the action that the Plaintiff was
entitled to an injunction. I think it is axiomatic in trespass cases that
damages are not an adequate remedy. Again, that is not the end of the matter.
The
Plaintiff cannot get an injunction unless it can give an undertaking as to
damages. If an injunction is wrongly granted at this stage and it so transpires
at the hearing of the action, the Plaintiff must undertake to adequately
indemnify the Defendant against any loss incurred by the Defendant by reason of
the injunction being wrongly granted.
I
am told by Mr Carlyle that the Plaintiff Company merely has the vacant land at
27 Main Street, Howth, which surrounds the apartments developed by the
Plaintiff on those lands, apartments which have been disposed of to third
parties. I am not told of any other assets. The Plaintiff Company has been
struck off the Register of Companies in the past for non-compliance with the
provisions of the Companies Acts but has been restored. Counsel for the
Defendant complains that an undertaking as to damages would not be adequate and
I am inclined to that view on the evidence before me.
A
further point is the question of the balance of convenience. Counsel for the
Defendant argues that the balance of convenience favours refusing the
injunctive relief sought. He says that the Defendant will demolish the little
wall and restore the position if the injunction is refused and if the Court
finds for the Plaintiff in the substantive action.
What
we are dealing with here is two properties in Main Street, Howth, one of which
has been developed by the Plaintiff for three or four years. The other one is a
property which has been developed on the Defendant's property, the Old
Parochial Hall, since September 1997 with the consent of the Plaintiff. On the
previous occasion I was told that the Defendant was in the course of disposing
of units in his development but stayed his hand to give an opportunity to the
parties to resolve this matter.
The
issues in the case relate to open land to the front of the Defendant's
development and to the side of the Plaintiff's property which comprises four
flats. On the evidence before me I think that the balance of convenience
favours refusing the application. Accordingly, I refuse the application on two
grounds: on the question of the adequacy of an undertaking as to damages by the
Defendant and on the question of the balance of convenience.
I
express no view as to where the boundary is or as to the extent of the
Plaintiff's right-of-way. Those are separate issues which could not be resolved
on this interlocutory application grounded on affidavits where there is a huge
conflict between the deponents on either side. The question of the location of
the boundary is for another day.
MR
DILLON:
I
would ask for my costs, my Lord.
JUDGE:
What
do you say about that, Mr Carlyle?
MR
CARLYLE:
I
oppose it. I'm in the right. I never got an opportunity to put my case
properly. I'm certain I would have won the case and it is their fault.
JUDGE:
I
am going to reserve the question of costs.
MR
DILLON:
I
would ask your Lordship for a direction that within six weeks from today the
Statement of Claim should be filed by the Plaintiff.
JUDGE:
I
am certainly willing if the Plaintiff wants to proceed with this matter.
MR
CARLYLE:
I
will be proceeding with this matter. I have not disposed of my firm of
solicitors. There was an option put to me yesterday. Mr Murphy said yesterday --
JUDGE:
I
do not want to hear what he said to you.
MR
CARLYLE:
Can
I ask you when this case will be heard.
JUDGE:
That
is up to you, Mr Carlyle.
MR
CARLYLE:
I
have put up with this for the last year and a half. I can't get in or out of my
premises. That's the reason I went ahead with the case yesterday. I'm just at
the end of my tether as regards this case.
JUDGE:
The
next step to get this matter moving is for you to deliver a Statement of Claim
or for your solicitor to deliver a Statement of claim to the Defendant's
solicitor. They will then put in a defence. After that there are other
procedural matters to be dealt with such as discovery. The matter can then be
set down.
MR
CARLYLE:
In
this case can I object to the whole development?
JUDGE:
What
you do is a matter for you, Mr Carlyle. I cannot give you any advice. In
relation to this particular action, record No 1997/9351P, I am directing that
you deliver a Statement of Claim to the Defendant within six weeks from today's
date. If you do not do that, it will be open to the Defendant to apply to the
Court to dismiss the proceedings for want of prosecution.
MR
DILLON:
Could
Mr Carlyle provide us with an address for service of notices.
JUDGE:
Well,
it is a company.
MR
DILLON:
A
courtesy copy will be served on Mr Carlyle.
JUDGE:
The
provisions of the Companies Act should apply.
MR
CARLYLE:
You
can send it to my home address. Mr Evans has it.
JUDGE:
I
am giving back the original conveyance of 30 April 1991 to Mr Carlyle. I am
also returning to him the original report of Watson Fitzpatrick and Associates
dated 4 January 1999 and what appears to be a taxed copy of the original
development dated 7 August 1998, which is an exhibit in the case.
