Patel v W. H. Smith (Eziot) Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE NEILL
Judgment Date28 January 1987
Judgment citation (vLex)[1987] EWCA Civ J0128-1
CourtCourt of Appeal (Civil Division)
Docket Number87/0049
Date28 January 1987
Between:
(1) Jashbhai Kashibhai Patel
(2) Maniben Jashbhai Patel
(3) Ashwinkumar Patel
(4) Pushpaben Ashwinkumar Patel
Appellants (Plaintiffs)
and
(1) W. J. Smith (Eziot) Limited
(2) Shyama Manufacturing Co. Ltd.
Respondents (Defendants)

[1987] EWCA Civ J0128-1

Before:

Lord Justice May

Lord Justice Neill

and

Lord Justice Balcombe

87/0049

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LEICESTER COUNTY COURT

(His Honour Judge Coulson)

Royal Courts of Justice

MR. GAVIN LIGHTMAN, Q.C. and MR. GEOFFREY ZELIN (instructed by Messrs G. Lebor & Co.) appeared on behalf of the Appellants/Plaintiffs.

MR. J. WEEKS, Q.C. and MR. U. STAUNTON (instructed by Messrs Robinson & Turner, Leicester) appeared on behalf of the Respondents/Defendants.

LORD JUSTICE MAY
1

I will ask Lord Justice Balcombe to give the first judgment in this case.

LORD JUSTICE BALCOMBE
2

This is an appeal from an order made by Judge Coulson in the Leicester County Court on 15th August 1986 whereby he dismissed the plaintiffs' application for an interlocutory injunction to restrain trespass by the defendants.

3

The plaintiffs are the registered proprietors of certain freehold property at 34 Mansfield Street, Leicester. The western side of that property comprises a yard, which itself is bounded on the western side by No. 32 Mansfield Street. The first defendant owns the freehold of No. 32. The second defendant is the tenant of part of No. 32.

4

The dispute concerns the parking by the defendants of vehicles in the yard of No. 34. There is also a minor matter concerning the positioning by the second defendant of one dustbin in the yard.

5

The two properties were originally in one ownership. When the two properties were separated in 1948 the conveyance of No. 32 included a right of way over the yard of No. 34 for the benefit of No. 32. It is conceded by the plaintiffs that this includes the right to park for the purposes of loading and unloading. However, the defendants claim a wider right to park vehicles in the yard.

6

A Mr. Johnson, who is a director of the first defendants, has given evidence by affidavit to the following effect:

"Since 1948 the Yard between No. 32 and No. 34 Mansfield Street Leciester….. has always been used by the First Defendant and the said William Harry Smith [he was the predecessor in title of the first defendants] to park some eight vehicles used in the running of the business carried on at No. 32 and up to eight vehicles would be parked in the Yard mostly in a single line along the length of the outside wall of No. 32."

7

For the purposes of this interlocutory application, it is conceded by the plaintiffs that those facts should be taken as correct.

8

Then one comes to the origin of the present dispute. In July 1986 the plaintiffs issued a summons and particulars of claim in the Leicester County Court claiming an injunction restraining the defendants from parking or placing articles in the yard, or allowing any other persons to park vehicles or place articles in the yard. It will be noticed, of course, that that claim is not qualified in any sense, even to the extent of parking for the purposes of loading and unloading in pursuant of the exercise of the right of way.

9

To those particulars of claim a defence was put in on 14th August 1986 claiming, first, the express right of way granted by the 1948 conveyence, and there is to be implied in that plea a claim of a right to park for the purposes of loading and unloading. Secondly, a right to park a single line of eight vehicles in the yard along the length of the outside wall of No. 32 pursuant to the fiction of a lost modern grant. Thirdly, the same right i.e. to park a single line of eight vehicles along the outside wall of No. 32) is claimed by virtue of twenty years' user. Thus, claims two and three claim a prescriptive right to park vehicles in the yard, beyond any right which would simply be for the purposes of loading and unloading as part of the exercise of the right of way.

10

At the hearing of this appeal an attempt was made to introduce a claim to a right to park under the effect of section 62 of the Law of Property Act 1925. That case had not been pleaded, it had not been argued below and there was no evidence, in my judgment, which supported it.

11

There was no respondents' notice seeking to argue it and in the course of the hearing we refused to allow a respondents' notice to introduce that point at this stage.

12

The application for an interlocutory injunction made by the plaintiffs in the Leicester County Court followed the form of the injunction claimed by the particulars of claim and it is now conceded by Mr. Lightman on behalf of the plaintiffs that that claim is wider than that to which he is entitled.

13

In support of the application evidence was filed, first, by the plaintiffs. I read from the affidavit of Mr. J.K. Patel, the first plaintiff, the following passages. First, he says: "I do not dispute the defendants' right to use the yard as an access way to their premises for the purpose of loading and unloading." Then he continues:

"When the plaintiffs acquired Number 34 in 1978 we agreed with the First Defendant that its representatives could park in the yard so long as such parking was not a nuisance. The agreement was a licence only and did not give the First Defendant any vested right or easement allowing them to park in the yard.

Since moving into occupation, those working for the Second Defendant have treated the yard as their own and as if they had an unlimited right to park there and have abused the licence allowed to them. In addition to parking in the yard they have also kept large dustbins there which are a permanent obstruction. The use of the yard as a car park by the Second Defendant so obstructs the yard as to prevent access to Number 34 where we (the plaintiffs) carry on business as garment manufacturers and interferes with our operations to an extent that has now become intolerable.

By letter dated 10th March 1986 and again on 9th May 1986 our Solicitors gave notice to each of the Defendants terminating the licence granted to them when we acquired the property and required them to stop parking in the yard. Notwithstanding those letters, the Second Defendant continues to park in the yard and to obstruct it. I believe that it will continue to do so until restrained from so doing by this Honourable Court."

14

In reply to that, the defendants put in evidence. I have already referred to paragraph 6 of the evidence of Mr. Johnson and I now read from paragraph 8 onwards:

"Title to No. 34 has passed to various parties but at all times the First Defendant and its predecessor in title and their tenants have parked vehicles in the Yard along the outside wall of No. 32.

In 1978 No. 34 was sold to the Plaintiffs and from the outset they objected to vehicles belonging to the First Defendant being parked in the Yard. The Plaintiffs alleged that there was no right to park vehicles in the Yard vested in the First Defendant or any other party.

In an attempt to placate the Plaintiffs and resolve the matter the First Defendant discussed with the Plaintiffs whether a contractual licence to park a number of vehicles in the Yard should be made between the First Defendant and the Plaintiffs, however at no time was a final agreement for such a licence ever made."

15

Then he produced a bundle of correspondence in relation to these discussions. I continue with paragraph 11:

"Despite these objections by the Plaintiffs the First and Second Defendants have never been prevented from parking vehicles in the Yard and they have continued to park vehicles in the Yard.

At no time has the Yard been used by the First Defendant to park vehicles so as to obstruct the user of the Yard by the Plaintiffs.

The Second Defendant is the tenant of the First Defendant and I am familiar with their business and the vehicles used in conjunction therewith, and the Second Defendant has not and does not use the Yard to park vehicles so as to obstruct ingress and egress thereto. However, the Second Defendant does use the Yard to park vehicles but these vehicles are parked in single file along the outside wall of No. 32."

16

Finally I refer to a passage from the affidavit of Mr. Kumar, a director of the second defendants:

"The Second Defendants have one dustbin in the Yard and this is placed against the wall of No. 32 Mansfield Street and does not constitute in any way an obstruction.…..

I would deny that the Second Defendants have or is using the Yard to park vehicles so as to obstruct ingress and egress thereto, for any vehicles that are parked are parked in single file along the outside wall of No. 32 Mansfield Street. It would not be in the interests of the Second Defendants to cause any obstruction in the Yard for access is required at all times for loading and unloading and to the fire escapes."

17

That being the evidence, the learned judge gave a short judgment in which he said this:

"I have considered this application for an interim injunction and I will deal with it under the four heads that are usually considered on interim applications.

I find that, contrary to Mr. Zelin's suggestion on behalf of the Plaintiffs, there is a defence to be reckoned with and that there is a serious issue to be tried.

As to Damages, I find that the Plaintiffs' undertaking as to Damages would probably not be an adequate remedy for the Defendants if this case is ultimately decided in their favour, because of the loss or likely loss of commercial activity and profit if they were in the interim excluded from using the area for parking from time to time. That is not to say that I find that the evidence before me...

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