Morris v Redland Bricks Ltd

JurisdictionUK Non-devolved
JudgeLord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Upjohn,Lord Diplock
Judgment Date13 May 1969
Judgment citation (vLex)[1969] UKHL J0513-2
Date13 May 1969
CourtHouse of Lords
Redland Bricks Limited
and
Morris and Another

[1969] UKHL J0513-2

Lord Reid

Lord Morris of Borth-y-Gest

Lord Hodson

Lord Upjohn

Lord Diplock

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Redland Bricks Limited against Morris and another, that the Committee had heard Counsel, as well on Monday the 24th, as on Tuesday the 25th, Wednesday the 26th and Thursday the 27th, days of February last, upon the Petition and Appeal of Redland Bricks Limited, of Redland House, Castle Gate, Reigate, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 1st of May 1967, so far as regards the words "this Appeal be dismissed" might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Alfred John Morris and Gwendoline May Morris (his wife), lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 1st day of May 1967, in part complained of in the said Appeal, be, and the same is hereby, Set Aside except so far as regards the words "with costs to be taxed by a Taxing Master and paid by the Defendants to the Plaintiffs or their Solicitors", and that the Order of the Portsmouth County Court, of the 27th day of October 1966, thereby Affirmed, be, and the same is hereby Varied, by expunging therefrom the words "The Defendants do take all necessary steps to restore the support to the Plaintiffs' land within a period of six months": And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Portsmouth County Court to do therein as shall be just and consistent with this Judgment.

Lord Reid

My Lords,

1

For the reasons given by my noble and learned friend, Lord Upjohn, I would allow this appeal.

Lord Morris of Borth-y-Gest

My Lords,

2

I have had the advantage of reading the Opinion of my noble and learned friend, Lord Upjohn, with which I agree.

3

I would allow the appeal.

Lord Hodson

My Lords,

4

I have had the advantage of reading the Opinion of my noble and learned friend, Lord Upjohn, with which I agree.

5

I would allow the appeal.

Lord Upjohn

My Lords,

6

This appeal raises some interesting and important questions as to the principles upon which the Court will grant quia timet injunctions, particularly when mandatory.

7

The facts may be simply stated. The Respondents, Mr. and Mrs. Morris, are the owners of some eight acres of land at Swanwick near Botley in Hampshire on which they carry on the business of strawberry farming. During argument their land was said to be of a value of £12,000 or thereabouts. This land slopes downwards towards the north and the owners of the land on the northern boundary are the Appellants who use this land, which is clay bearing, to dig for clay for their brick-making business.

8

The Appellants naturally quarry down to considerable depths to get the clay, so that there is always a danger of withdrawing support from their neighbours' land if they approach too near or dig too deep by that land. Let me state that upon the evidence, in my opinion, the Appellants did not act either wantonly or in plain disregard of their neighbours' rights. Their chief engineer and production director in evidence said that he considered that they left a safe margin for support of the Respondents' land. In this he was in fact wrong. But the Appellants had retained for twelve years a distinguished geologist, who gave evidence, to advise them on these problems, though there is no evidence that he was called in to advise them before their digging operations in this area.

9

The Appellants ceased their excavations on their land in 1962 and about Christmas, 1964, some of the Respondents' land started slipping down into the Appellants' land, admittedly due to lack of support on the part of the Appellants. Further slips of land took place in the winter of 1965-66. So in July, 1966, the Respondents issued their plaint in the County Court against the Appellants claiming damages (limited to £500) and injunctions, and the matter came on for hearing before His Honour Judge Talbot (as he was then) in September and October, 1966. Between these hearings a further slip of land occurred. After a full hearing with expert evidence on either side he granted an injunction restraining the Appellants from withdrawing support from the Respondents' land without leaving sufficient support and he ordered that:

"The [Appellants] do take all necessary steps to restore the support to the [Respondents'] land within a period of six months."

10

He also gave damages to the Respondents for the injury already done to their lands by the withdrawal of support, in the sum of £325. On 1st May, 1967, the Appellants' appeal against this decision was dismissed by a majority of the Court of Appeal (Danckwerts and Sachs L.JJ., Sellers L.J. dissenting).

11

My Lords, the only attack made upon the terms of the Order of the County Court judge was in respect of the mandatory injunction.

12

It is, of course, quite clear and was settled in your Lordships' House nearly a hundred years ago in Darley Main Colliery Co. v. Mitchell 11 A.C. 127) that if a person withdraws support from his neighbour's land that gives no right of action at law to that neighbour until damage to his land has thereby been suffered; damage is the gist of the action. When such damage occurs the neighbour is entitled to sue for the damage suffered to his land and equity comes to the aid of the common law by granting an injunction to restrain the continuance or recurrence of any acts which may lead to a further withdrawal of support in the future.

13

The neighbour may not be entitled as of right to such an injunction, for the granting of an injunction is in its nature a discretionary remedy, but he is entitled to it "as of course" which comes to much the same thing and at this stage an argument on behalf of the tortfeasor, who has been withdrawing support that this will be very costly to him, perhaps by rendering him liable for heavy damages for breach of contract for failing to supply e.g. clay or gravel, receives scant, if any, respect. A similar case arises when injunctions are granted in the negative form where local authorities or statutory undertakers are enjoined from polluting rivers; in practice the most they can hope for is a suspension of the injunction while they have to take, perhaps, the most expensive steps to prevent further pollution.

14

But the granting of an injunction to prevent further tortious acts and the...

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