Andreas Pavledes and Another v Theodoros Hadjisavva and Another

JurisdictionEngland & Wales
JudgeR Justice David Richards,Mr Justice David Richards
Judgment Date31 January 2013
Neutral Citation[2013] EWHC 124 (Ch)
Docket NumberCase No: HC12FO1319
CourtChancery Division
Date31 January 2013
Between:
(1) Andreas Pavledes
(2) Argyroulla Pavledes
Claimants
and
(1) Theodoros Hadjisavva
(2) Revecca Hadjisavva
Defendants

[2013] EWHC 124 (Ch)

Before:

Mr Justice David Richards

Case No: HC12FO1319

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

The Rolls Building

7 Rolls Buildings

Fetter Lane

Alan Johns (instructed by SGH Martineau LLP) for the Claimants

Tom Weekes (instructed by DKLM LLP) for the Defendants

Hearing dates: 2 November 2012

R Justice David Richards Mr Justice David Richards
1

The only live issues in this action are, first, whether in the circumstances of the case, it is appropriate to make a declaration as to the claimants' admitted rights and, secondly, costs.

2

The claim relates to rights of light enjoyed by the building comprised in a property known as 15–21 Arcola Street, London E8 (the claimants' property), of which the claimants are the freehold proprietors. The defendants are the registered freehold proprietors of an adjoining property known as 27 Arcola Street, London E8 (the defendants' property).

3

In January 2005, the defendants obtained planning permission to build a two-storey addition at the rear of their property and a one-storey addition at the front of the property.

4

By a letter dated 29 April 2009, the claimants' surveyor, Mr George Palos, informed the defendants that he had undertaken a rights of lights assessment which showed that their proposed development would infringe rights of lights enjoyed by the claimants' property and invited the defendants to undertake not to carry out the proposed development.

5

The defendants instructed an architect, Mr Adrian Betham, to deal with this issue on their behalf. Between May 2009 and January 2012, there was extensive correspondence between Mr Betham and the claimants, their surveyor and their solicitors. Mr Betham contended that the claimants' property did not have the benefit of rights of light over the defendants' property, any such rights having been abandoned, and that, in any event, any loss of light would be negligible. In a letter dated 21 October 2010, he made clear that the development had started and that the remainder would follow in due course, albeit that 14 days' notice would be given in respect of works claimed to affect the rights of light alleged by the claimants.

6

By a letter dated 10 January 2012, Mr Betham gave 14 days' notice of the defendants' intention to carry out the proposed works, with a modification which Mr Betham contended would avoid infringement of any rights of light attached to claimants' property.

7

The claimants' solicitors responded with a letter dated 13 January 2012, informing Mr Betham that they were instructed to issue proceedings for an injunction. The defendants instructed solicitors who in a letter dated 20 January 2012 stated that they needed time to take their clients' full instructions before replying substantively. In the meantime, they confirmed the defendants' undertaking, given without admission and without prejudice to their clients rights, not to carry out works which could affect "the alleged rights to light claimed by your client" without 14 days' prior notice. In a further letter dated 30 January 2012, they provided the defendants' undertaking not to carry out works which would change the top floor and roofline without 14 days' prior notice. This was stated to be given without prejudice to " our clients' contention that if the development proceeds in accordance with our clients' planning permission, it will not affect your clients' rights to light".

8

There is no evidence of further communication until 13 March 2012 when the claimants' solicitors threatened to issue proceedings unless the defendants acknowledged their rights of light claim, undertook not to proceed with the development and agreed to pay their legal costs amounting to about £6,000 and their surveyors' costs.

9

The defendants' solicitors replied on 14 March 2012 that there was no justification for the issue of proceedings in the light of the undertaking given on 30 January 2012 and continued:

"Until we were instructed very recently, our clients' architect has tried to negotiate and agree a way forward with your client. Unfortunately, this has not been possible to date. Therefore, our clients are now in the process of instructing their own specialist Rights of Light Surveyor to prepare a Rights of Light Report.

This Report will establish whether Mr Palos' conclusions about the impact that our clients' proposed development would have on light in Units 15–21 are correct.

It will be necessary, amongst other things, to ascertain whether Mr Palos has:—

1. Adopted the correct measurements for, and the correct locations of, the apertures in the eastern elevation of number 15–21; and

2. Properly given credit for light obtained from other sources.

Our clients' specialist will report on the extent and nature of any "cut backs" which may be necessary should it be the case, which is not admitted, that the development as currently proposed would infringe or affect your client's rights of light."

10

On 19 March 2012, the claimants' solicitors stated that they would need to protect their clients' position by issuing proceedings. The defendants' solicitors replied on the same day:

"As we have previously stated, our client cannot, at least at present, acknowledge that the proposed development will breach your client's rights of light. Our client has yet to receive a report from a specialist rights of light surveyor, albeit that he is now in the process of obtaining such a report.

Our client is, however, prepared to provide a rather wider undertaking than he has previously provided. In our letter dated 30 January 2012, we stated that "our client will undertake not to carry out any works which will change the existing top floor and roof line of the current building without first providing to your client (through yourselves) with 14 days prior written notice." Our client now goes further. He agrees not to carry out any further works to implement the proposed development without first providing you with 14 days written notice.

Especially given that wide undertaking, it would, (in our view) obviously, be premature and inappropriate for your client to commence proceedings.

There is no call to litigate the issue of whether the development would interfere with your client's rights of light at a time when our client (and his lawyers): (i) are unable to form their own view on that issue without input from a rights of light surveyor; and (ii) are obtaining a report on that issue from such a surveyor. Also, if your client (quite unreasonably) did seek to litigate that issue, he would not, as things stand, be entitled to an injunction. A claimant is entitled to a quia timet injunction only if there is a "strong possibility" of unlawful conduct (see Lloyd v Symonds [1998] EWCA Civ 511 ); and, at least until such time as our client notifies you that he proposes to proceed with the development, there is no prospect that your client's rights of light will be interfered with.

More generally, litigation should be regarded as a last resort."

11

The claimants' solicitors replied, again on the same day:

"We refer to your earlier letter of today and whilst pleased to note the undertaking now being given you seem to have totally overlooked the fact that:

1. Our respective clients have been in correspondence for 2 years now as such our client has to date been most patient.

2. Throughout this time your client chose to be represented by Mr Betham despite our client repeatedly informing him that Mr Betham is not a right of light specialist.

3. Our client has had to incur substantial legal and professional fees in defending its position.

In the circumstances, we are of the view that our client as a condition of accepting the undertaking now being given can insist that your client must agree to pay his legal and professional fees. In the absence of this, we shall proceed to issue proceedings which in any event are now drafted."

12

A claim form was issued on 27 March 2012 and was served with particulars of claim shortly afterwards. At this stage, Andreas Pavledes was the sole claimant and Theodoros HadjiSavva was the sole defendant. Their respective wives, as joint registered proprietors, were later joined as parties. The particulars of claim succinctly asserted the rights of light and identified the respects in which it was alleged that the proposed development would interfere with them. The relief claimed was a declaration as to the existence of the rights of light and an injunction to restrain the defendants from interfering with them.

13

On 3 May 2012, the defendants served a defence. It annexed a surveyor's report dated 1 May 2012 and pleaded in paragraph 19:

"In light of the contents of that report (and in relation to paragraphs 4–7 of the Particulars of Claim), the Defendant: (i) admits that the Property enjoys prescriptive rights of light over 27 Arcola Street; (ii) (on the assumption that the technical analysis carried out by Mr Palos is accurate) accepts that the Development would (unlawfully) interfere with those rights of light; (iii) intends, at least for the foreseeable future, to proceed on the assumption that Mr Palos' technical analysis is correct; and (iv) confirms that he and his wife do not intend to carry out the Development or, indeed, any other development that would interfere with any of the Property's rights of light (indeed, the Defendant and his wife have decided, rather than carrying out any development at 27 Arcola Street, to let that property in its existing state)."

14

It was further pleaded in the defence that, having regard to the matters set out in paragraph 19 and the state of the correspondence before the issue of the proceedings, there was no basis on which the...

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2 firm's commentaries
  • Let There Be Light
    • Ireland
    • Mondaq Ireland
    • 16 d1 Março d1 2020
    ...did not subsequently arise and the matter was settled out of court. In Andreas Pavledes & Anor v Theodoros Hadjisavva & Anor [2013] EWHC 124 (ch) the court determined that it would be just in the circumstances to grant declaratory relief to the claimants despite the development not ......
  • Timing is Everything…
    • United Kingdom
    • Mondaq United Kingdom
    • 24 d3 Julho d3 2013
    ...as how specific circumstances can make a real difference when considering such complaints. Facts The case of Pavledes v Hadjisavva [2013] EWHC 124 (Ch) concerned a dispute between neighbouring freeholders after the defendants obtained planning permission to build an extension to their prope......

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