The importance of timing in an interim injunction when dealing with notifiable works being carried out without a party wall award

Insights - 09/05/2018

In this blog, Tim Kirkconel, a solicitor in our Woking dispute resolution team, looks at a recent judgement regarding the timing of interim injunction applications and its relevance to disputes with neighbours about notifiable works being carried out without a party wall award.

In my last post, the final point I made was about the perils of burying your head in the sand if you find yourself the respondent to an application for an injunction. The recent case of Blade Motor Group Limited v Reynolds & Reynolds serves as a reminder that penalties for inaction are a two-way street.

The Facts:

The claimant operated 20 motor dealerships and the defendant supplied the claimant with a dealer management software system. They enjoyed a good business relationship for nearly 2 decades until a dispute arose over subsequent amendments to a series of agreements between them.

As part of the wider dispute, the defendant remotely blocked the claimant from having access to the software, preventing them from accessing all the data it had accumulated and stored using the software, in any meaningful form.

An application for an interim injunction was made by the claimant for the court to order the defendant to grant access to the software until the conclusion of the litigation, on the basis that being locked out was causing their business irreparable harm.

The injunction was refused on a number of grounds; one of which was the 6 month delay in bringing the application. The commentary here highlights an often prevalent issue in party wall injunctions; namely, time is of the essence.

The judge, Mr David Stone, did not consider the delay acceptable but implied it might have been if the defendants had not changed their position since the initial cause of action arose.

This raises an important point when considering an interim injunction against a neighbour intent on carrying out notifiable works without a party wall award, or in breach of one: if you delay in applying for an injunction and your neighbour carries out substantial works in the meantime, the court may consider that granting an interim injunction requiring that the works cease mid-project would cause too great a risk of injustice should it later be found to be improperly granted at a final hearing. If the delay is so long that the neighbours complete the works, then the likelihood of obtaining an injunction falls further still, as this would require that the neighbour positive steps to return the works to their previous state.

This should not be seen as an endorsement of a ‘shoot from the hip’ approach when applying for injunctions; a judge will normally factor in a cynical defendant who rushes to complete works knowing that they are in breach of the Party Wall etc. Act 1996 and an open dialogue should always be the first port of call. However, it does emphasise the need to act decisively and early if you want to stop unlawful works and it has become clear your neighbour is uncompromising.

At Morrisons, we specialise in obtaining and defending this type of application. If you have any questions about the issues raised in this blog, please feel free to contact Matthew Hearsum, Kate Cooper or Tim Kirkconel at our Woking office.

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.