Linemile Properties Ltd v George Anthony Plater
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sweeting |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] EWHC 810 (Ch) |
| Docket Number | Claim No: G00BW214 |
| Court | Chancery Division |
[2023] EWHC 810 (Ch)
Mr Justice Sweeting (sitting at Liverpool)
Claim No: G00BW214
IN THE HIGH COURT OF JUSTICE
MANCHESTER APPEAL CENTRE
BUSINESS AND PROPERTY COURTS (Chd)
ON APPEAL FROM THE BARROW-IN-FURNESS COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Matthew Collings KC and Gareth Darbyshire (instructed by Howarth Holt Bell) for the Appellants
Alex Taylor (instructed by Hart Jackson and Sons) for the Respondents
Hearing dates: 12 May 2022
Judgment Approved
This judgment was handed down remotely at 10.30am on 5 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is an appeal from the order of HHJ Dodd made on 13 October 2021 granting injunctive relief to the respondents who are the claimants in the underlying litigation.
An appeal in these circumstances is limited to a review of the decision of the lower court: see rule 52.21(1). An appeal will be allowed where the decision of the lower court was:- (a) wrong; or (b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
Background
The appellants (defendants) are the owners or occupiers of a property known as “Eden”. There is a road associated with that property; Piggy Lane. The respondents (claimants) own and occupy a property known as “Moorefield” and have a right of way over Piggy Lane in two directions to two entrances. In very broad terms the litigation concerns the exercise and condition of the right of way including a dispute about contribution to the upkeep of the road over which the right of way is exercisable.
On the 16th of September 2021 Mr Tennyson, the solicitor representing the respondents and a partner in the firm of Hart Jackson, sought to visit their home. He came across Mr Ellison, the second defendant to the claim, close to the entrance to Piggy Lane. There was a verbal exchange which, according to his evidence, left Mr Tennyson intimidated and scared. He left without being able to see his client.
HHJ Dodd had granted earlier interim injunctions against the appellants on the 3rd of December 2020 and the 2nd of June 2021. These related principally to access to Piggy Lane, the removal of concrete hard standing and the provision of a walkway. The amended particulars of claim include a claim under the Protection from Harassment Act 1997 involving allegations of assault, threats and other reprehensible conduct on the part of Mr Ellison. These allegations are all denied. There is a counterclaim. As the appellants' skeleton argument put it “the parties regrettably dispute almost everything.”
The Judgment of HHJ Dodd
There has been no challenge to the judge's findings of fact. The incident on which the application for the injunction was based was captured on CCTV and the words spoken were recorded by Mr Tennyson on his mobile phone. The judge's factual findings were:
“6 The CCTV footage seems to me to show, tolerably clearly, Mr Tennyson about to walk past the two other gentlemen and through the gateway. He stopped. There was some brief conversation during which Mr Ellison approached and walked towards Mr Tennyson and stood, it seemed to me, very close to him.
7 The audio file records Mr Ellison saying “Yes?” twice, as (it is agreed) Mr Tennyson made to walk past. In the context and with that tone it was an enquiry as to who Mr Tennyson was. Mr Ellison did not recognise Mr Tennyson and was of course entitled to ask the identity of those who were about to walk on to his land, albeit land which was the subject of a right of way in favour of the claimants.
8 Mr Tennyson, as part of the exchange, said words to the effect, “And you are?” asking Mr Ellison to identify himself. Mr Tennyson accepts that he knew who Mr Ellison was. He would have it that he addressed him in that way so as to reduce rather than increase tension. However, Mr Ellison's response was not a reduction in tension: his response was to say this: “Mind your own fucking business, you little twat,” and shortly thereafter, “I could kill you now.” There is no more conversation on the audio file. The video file shows that after the exchange Mr Tennyson walked swiftly away.
12 The defendant admits saying, “Mind your own fucking business you little twat,” and saying, “I could kill you,” albeit he says that he said the latter to himself and did not think that Mr Tennyson would hear him; it is clear Mr Tennyson did hear him and it was recorded via the means I have described.
As far as the basis for injunctive relief was concerned, the judge concluded:
“15 I will deal firstly with whether there is any basis for the injunction being sought. Apart from American Cyanamid, to which I have been referred rather than taken to and which it seems to me is not directly on this point, no authority of any sort has been produced before me today so I will apply the law as I understand it to be.
16 An injunction, if this is not a truism, is granted for a purpose. One such purpose is the protection or enforcement of a legal or equitable right and it follows that if no such legal right is infringed there can be no injunction. So, for example, there was some litigation a long time ago in which the plaintiff sought to prevent a neighbour changing the name of his house. It was unsuccessful: there was no right to protect. On the other hand, where there is a right which the law protects then axiomatically there is a remedy.
17. There is no doubt, in my judgment, that the claimants are entitled to have their legal advisers come to their property and therefore go across the defendant's land on the right of way without the fear of harassment, threats or assault.
18. There are, on my understanding, two other free-standing purposes relevant here: the prevention of vexatious, oppressive or unconscionable conduct in litigation and the protection of the court's own processes.”
The Order
The judge considered that the order proposed by the respondents was in some respects too wide and restricted the ambit of the relief both geographically and by requiring actual knowledge sufficient to identify a person to whom the restrictions applied.
The defendants were made subject to prohibitions in the following terms until trial or further order:
“1. Whether by themselves or either of them or by instructing or encouraging others, the defendants shall not abuse, harass, assault, threaten, physically approach, position themselves within 10 yards of or speak directly to: (a) Jeremy Tennyson of Hart Jackson & Sons, solicitors with offices in Ulverston, or (b) any other person who is, and who the defendants have been informed is, a partner of or otherwise works for Hart Jackson & Sons. The restriction upon positioning themselves within 10 yards of such persons shall not apply when they are in a building used by HM Courts & Tribunal Services for public hearings.
2. Whether by themselves or either of them or by instructing or encouraging others, the defendants shall not abuse, harass, assault, threaten, physically approach, position themselves within 10 yards of or speak directly to any expert or other person who has been or is engaged by or on behalf of the claimants to assist them with these proceedings whom the defendants have been informed is such an expert or other person. The restriction upon positioning themselves within 10 yards of such persons shall not apply when they are in a building used by HM Courts & Tribunal Services for public hearings.”
The Grounds of Appeal and Argument
The grounds of appeal are:
“1. The learned judge erred in law by granting the injunction.
2. In reaching his conclusion the learned judge failed to follow American Cyanamid v Ethicon [1975] UKHL 1 to which he was referred.
3. The learned judge erred in granting an injunction when the test in American Cyanamid (above) could not be fulfilled.
4. The learned judge erred in concluding that he was able to grant an interim injunction as a freestanding remedy concerning individuals not party to these proceedings without a claim for a final remedy at trial relating to the litigants in this case.
Paragraph 1.2 of the appellants' skeleton for the appeal frames the issue as:
“…whether the learned Judge was right to grant an interim injunction relating to individuals and a firm which are not party to this litigation and which does not relate to a cause of action pleaded for determination at trial within this litigation.”
The appellants argued that the issue was really one of settled practice and precedent and that there was no example of an injunction being granted in similar circumstances. It was not therefore a question of jurisdiction but of the exercise of the court's powers within that jurisdiction. The requirement that there should be an underlying cause of action remained extant in the absence of any practice of making such injunctions and that this was essentially an example of the claimant making an application which should in fact have been made by Mr Tennyson or his firm.
The argument went further by asserting that the reason why Mr Tennyson had not brought his own proceedings was because he could not make out a cause of action under the Protection from Harassment Act 1997 given that it required a course of conduct towards the victim; in other words, two or more incidents. In this way the injunction application “allowed those seeking to benefit from the injunction to subvert the statutory provisions which would have prevented such an injunction.”
There was, accordingly, it was said, no serious issue to be tried because the protections sought and provided for in the order did not arise between...
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Flexible Approach Applied In Granting Preliminary Injunction To Prevent Party Harassing Opponent's Solicitors
...abusing, harassing, assaulting or threatening the claimant's solicitors until trial or further order: Linemile Properties Ltd v Plater [2023] EWHC 810 (Ch). The defendant argued that the interim injunction should not have been granted as it did not protect a legal or equitable right which t......