BEL –v- NWHUKL, (Ch) July 2017, unreported.

October 2, 2017

John McLinden QC led Toby Bishop in successfully opposing the continuation and restoration of an interim injunction that had been obtained without notice. BEL complained that in the course of a substantial renovation of its premises, NWHUKL, a hotelier was unlawfully preventing it from using its easement through NWHUKL’s property to access its customer toilets .

Two aspects of the judgment are of note:

  1. The professional obligations engaged in making urgent applications for interim relief; and
  2. The Court’s approach to interim injunctions sought in respect of temporary interference with commercial premises.

Conduct of the application

  • The parties’ solicitors negotiated for a week before BEL applied for an interim mandatory injunction to restore its access. Despite having signed the application notice, prepared the draft order and settled contentious evidence on the Friday BEL waited until the proceedings had been issued before emailing the evidence and application etc to NWHUKL’s solicitors at 13:30 on the Monday, the email was read at 14:37 and the injunction ordered minutes later. Roth J regarded that approach to notice as: ‘beyond regrettable, wholly inappropriate conduct in the circumstances.’.
  • BEL also failed to bring relevant documents to the attention of the judge hearing the applications list, Roth J criticised this saying: ‘It is quite insufficient on a without notice application to leave the material simply buried in an exhibit.

The approach

  • The hearing of the interim application would dispose of the claim for an injunction, therefore the court considered the likelihood of BEL succeeding at trial, applying the approach in Lansing Linde Ltd –v– Kerr [1991] 1 WLR 251, CA, replacing the balance of convenience element of the American Cyanamid Co v Ethicon Ltd [1975] AC 396 test.
  • Roth J applied the line of authorities running from Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, CA to Lawrence v Fen Tigers Ltd [2014] AC 822 in considering whether it would be just and equitable to grant injunctive relief. BEL’s complaint that NWHUKL had not given notice of the works and had behaved in a high-handed manner was balanced against:
    • BEL’s breach of duty to the court (above);
    • expert evidence of a viable alternative means of temporary access that could be effected with little disruption to BEL’s business;
    • BEL’s refusal to use the alternative access;
    • BEL’s loss would not be difficult to quantify (it was a matter of contrasting previous years trading profits);
    • old buildings will undergo building works and those might require temporary interference with rights of way.
  • Roth J concluded that to restore the injunction would be inappropriate and oppressive. BEL’s application was dismissed with costs.