Mohammed Sheraz Akhtar v Mohammed Ali Khan

Hearing dates: 1, 2, 5, 6, 7, 8, 9 February, and 17 June 2024

Written additional closing arguments filed 20 February 2024

Draft judgment sent to the parties' legal representatives on 11 June 2024

Introduction

This is my judgment following the trial of:

a. cross claims for prescriptive easements for the benefit of and over adjoining properties; and

b. claims for damages/injunctive relief for assault, battery, harassment, nuisance and/or trespass.

To better understand the nature of the dispute, the following is a rough plan of the layout of the relevant properties:

C1, C2 and C3 are the sons of C4, and together they are the freehold owners of a commercial property at 401–403 Foleshill Road, Coventry, CV6 5AQ (“ the Property”).

The Property comprises a building and yard area (“ the Yard”). The Yard is situated next to 367 Foleshill Road, Coventry, CV6 5AQ (“ the Neighbouring Property”), which was another commercial property. Until relatively recently, there was a restaurant building located on the Neighbouring Property with a fire door that opened onto the Yard (“ the Side Door”).

In 2002 or 2006, the Yard was divided by a gated fence, which was erected across the middle of the Yard (“ the Yard Fence”) thereby establishing the “ Top Yard” and the “ Bottom Yard”.

The Property originally included two relatively small strips of land (“ the Strips of Land”), which were compulsorily purchased by Coventry City Council in 1990 for a proposed road widening scheme. Ultimately, only part of the acquired land was used for the road widening scheme, which left unused:

a. The strip of land running the whole length between the Property and Foleshill Road (“ the Triangular Strip 1”).

b. A strip of land running part of the length between the Property and Lockhurst Lane (“ the Triangular Strip 2”).

In 2018, D1 purchased the Triangular Strip 1 and the Triangular Strip 2 (together “ the Triangular Strips”) from Coventry City Council.

D1, D2, D3, D4 and D5 are brothers (“ the Defendants”). From 2006/2007, the Defendants were involved together in a restaurant business operating at the Neighbouring Property initially under a lease. However, in 2013, D2 acquired the freehold title, which was then transferred to D1 in 2015. Following a fire in 2016 the restaurant closed, and in 2017/2019 planning permissions were obtained to redevelop the Neighbouring Property for mixed use as a restaurant with residential units above. The conditions of the planning permissions included that there be residents' car parking spaces located on the Yard.

Demolition works commenced at the Neighbouring Property, and as part of those works a temporary fence was erected down the length of part of the Yard (“ the Temporary Fence”). In the early hours of the morning of 1 August 2019, C1, his 3 sons, and C2 attended the Property and began removing the fence panels from the Yard, and which then led to an ugly confrontation with members of the Khan family (“ the Confrontation”).

Shortly thereafter, another fence was erected by or on behalf of D1 on the Triangular Strip 1 (“ the Road Fence”) thereby preventing C1 from gaining vehicular access to the Property from Foleshill Road, although the Property remained accessible from Lockhurst Lane.

The Claimants claim that “the Property has the benefit of an easement in the form of a right of way over the Triangular Strip [1] which entitles the occupiers of the Property and their visitors, servants, customers, agents, employees, licensees and the like to pass over the Triangular Strip [1] for all purposes and at all times of the year both on foot and with vehicles”.

D1 counterclaims that the Neighbouring Property has the benefit of easements (i) “to park cars within the [Yard]” and (ii) to access and egress the Yard for all purposes “at the point of where the [Side Door] formerly existed in the northern building of the restaurant building which stood upon the Neighbouring Property”.

The claim and counterclaim are for prescriptive easements founded upon alleged uninterrupted user for a continuous period of at least 20 years.

The Claimants pursue the following additional claims:

a. The Claimants claim damages in nuisance/trespass against the Defendants for –

i. obstructing the use of the right of way over the Triangular Strip 1 primarily being loss of rental income estimated at £80,000;

ii. placing a blue container (“ the Blue Container”) in the Yard from 2008/2009 to date without permission;

iii. using the Property to facilitate the demolition and/or construction works on the neighbouring Property, and in doing so causing damage to the surface of the Yard;

iv. using the building of the Property to store various items previously located at the Neighbouring Property in the now demolished restaurant including sinks, tables, fryers, chairs and glasses.

b. The Claimants claim injunctive relief –

i. restraining the Defendants from trespassing onto the Property whether to facilitate development of the Neighbouring Property or otherwise;

ii. requiring the Defendants to desist from doing anything to impede the Claimants and their visitors, servants, agents, employees, and licensees, and the like from gaining access to and using the Property;

iii. requiring the Defendants to remove the Blue Container and any remaining building/demolition materials from the Yard;

iv. requiring D1 to remove the Road Fence erected on the Triangular Strip 1; and

v. prohibiting D1 from parking vehicles on the Property or encouraging others to do the same.

c. C1 and C2 claim damages in trespass to the person allegedly suffered during the course of the Confrontation. Specifically, it is claimed that —

i. all the Defendants assaulted C1 and C2;

ii. D1 committed a battery against C1 by grabbing him by the back of the neck and throwing him to the ground; and

iii. D2 committed a battery against C1 by forcing him against the railings located at the junction of Foleshill Road and Lockhurst Lane causing him to be unable to breathe.

d. The Claimants claim that they have been harassed by the Defendants both during the Confrontation and subsequently through abuse, threats, intimidation, mockery and physically preventing access to the Property. Consequential relief is sought pursuant to the Protection from Harassment Act 1997 –

i. damages; and

ii. an injunction prohibiting the Defendants from contacting or communicating with the Claimants in any way (either directly or indirectly).

Background in more detail

Mr Mohammed Boota was the father of C1, C2 and C3, and the wife of C4.

On 23 February 1982, Mr Boota became the freehold owner of the Neighbouring Property from where he operated a furniture business in partnership with his brother-in-law, Mr Mohammed Fazal.

By way of a written agreement dated 23 August 1985, Vinmalpo Limited leased the Property to Mr Boota for a period of 99 years (“ the Vinmalpo Lease”). Mr Boota's furniture business then operated from both the Property and the Neighbouring Property.

On 31 January 1986, the Vinmalpo Lease was registered at HM land Registry under title number WM370906.

On 19 November 1986, Mr Boota obtained planning permission for a change of use of the Neighbouring Property to a restaurant (“ the Tandoori Palace”), which he then ran again in partnership with Mr Fazal.

In 1988, Mr Boota transferred the freehold title of the Neighbouring Property to Mr Parvez Akhtar, who is the son of Mr Fazal and the nephew of Mr Boota.

On 23 January 1989, Mr Boota became the registered freehold owner of the Property, but Mr Boota's leasehold interest was not closed at the Land Registry such that the Charges Register of the freehold estate of the Property contained the Vinmalpo Lease. It is the Claimants' primary case that this entry was a mistake because, upon Mr Boota having acquired the freehold of the Property on 23 January 1989, the leasehold estate and the freehold estate merged thereby determining the Vinmalpo Lease. The Defendants argue that there was no merger. 1

On 17 October 1990, Coventry City Council completed the compulsory purchase of and became the registered freehold owner of the Strips of Land.

The Re-Amended Particulars of Claim assert:

“[8.] In or around 1990, Mr Boota sub-let the Property to Mr Tom Gormley who ran a car sales business “ T G Cars” at the Property. At some point HSS

Tool Hire took over occupation of the Property from T G Cars and occupied the Property until in or around 2000 when they surrendered their lease.”

In his written evidence, C1 was unsure whether HSS Tool Hire took over occupation of the Property by way of an assignment of the existing lease to Mr Gormley or by the grant of a new lease. No copies of any lease agreements are now available, but it is the Defendants' case that because the Vinmalpo Lease continued to exist, the lease to Mr Gormley must have been a sub-lease as originally pleaded in the Particulars of Claim.

In 1992/1993, there was a fire at the Neighbouring Property causing the Tandoori Palace to close. Following a period of refurbishment, Mr Parvez Akhtar, by way of an oral agreement, leased the Neighbouring Property for use as a restaurant to an...