The High Court 

Pasture Properties Limited v Evans

1997/9351 P 

5 February 1999 

LAFFOY J: 

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.