Regan v Paul Properties Ltd and Others

JurisdictionEngland & Wales
JudgeLORD JUSTICE NEUBERGER,Lord Justice Mummery,Lord Justice Tuckey,Lord Justice Wilson
Judgment Date26 October 2006
Neutral Citation[2006] EWCA Civ 1391,[2006] EWCA Civ 1212
CourtCourt of Appeal (Civil Division)
Date26 October 2006
Docket NumberA3/2006/1742,Case No: A3/2006/1742

[2006] EWCA Civ 1212

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION

(MR STEPHEN SMITH QC)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Neuberger

A3/2006/1742

Dennis Regan
Claimant/applicant
and
(1) Paul Properties Dpf No. 1 Limited
(2) Peter Michael Lahaise
(3) John Reginald Griston
Defendants/Respondents

MR D HOLLAND (instructed by Messrs Child & Child, London SW1X 7EE) appeared on behalf of the Appellant.

MR C STONER (instructed by Messrs Dawsons, London WC2A 3RZ) appeared on behalf of the Respondent.

Judgement

LORD JUSTICE NEUBERGER
1

This is an application for permission to appeal against a decision of Mr Stephen Smith QC sitting as a Deputy High Court Judge in a case which he heard over three days, and in which he gave reserved judgment on 27 July, some two weeks ago. The case involved a claim by the claimant, Mr Regan, against the defendants, Paul Properties DPF No. 1 Limited and others. The claimant contended that a building which was in the process of being developed, possibly well under way by the time of the hearing, interfered with his rights of light. In essence two main points arose. The first was whether, as the claimant contended, there was an interference with his right to light. The second was whether, if so, an injunction should be granted to restrain the interference, as he claimed. The claimant won on the first point and lost on the second. He seeks to appeal on the second point. He also seeks to appeal against the judgeays decision that he pay half the defendants' costs.

2

The defendants have decided to be represented on a " Jolley v Jay basis". Both counsel, Mr David Holland and Mr Christopher Stoner, who respectively appear for the claimant and the defendants, have been, to use Mr Stoner's expression, parachuted in, because Mr Bickford-Smith and Mr Francis, who appeared for the parties below, are on vacation. I am very grateful to both counsel for the way they have assisted the court.

3

Four questions arise. The first is whether I should give permission to appeal on what I will call the main issue, which is whether judge was right to refuse to grant an injunction and leave the claimant to his remedy in damages. The second question is whether there should be permission to appeal on costs. The third question is whether an interlocutory injunction, granted by the judge over 18 August, while this application was being made, should be continued. The fourth question is, if permission to appeal is granted, should there be an order for an expedited appeal.

4

On the first question, Mr Stoner rightly emphasises that the question of whether or not to grant an injunction was ultimately a matter for the judge's discretion, and that an appeal accordingly faces, at least in principle, a grave difficulty. I accept that, and it is fair to say that this point is reinforced by the fact that, in general at least, the judge gave a very careful and full judgment. In particular, he made findings in paragraph 95 which involved concluding that the four well-known tests laid down by A. L. Smith LJ in the Shelfer case, cited in paragraph 76 of his judgment, were satisfied. Nonetheless, I cannot in all fairness rule out the possibility that an appeal on the main issue could succeed.

5

First, it seems to me that in his skeleton argument before he went away, Mr Bickford-Smith, and in his oral submissions today Mr Holland, rightly focussed on the last sentence of paragraph 85 of the judgment. In that sentence, it seems to me, it is arguable that the judge went wrong in principle in holding that good reason had to be shown by the claimant before he could be granted an injunction, and that the normal rule was that he should be left to his remedy in damages. I think it is arguable that this is wrong, but I am by no means satisfied that this would certainly result in a succesful appeal. (a) On examination of the principles and authorities by this court, it may transpire that the judge correctly summarised the approach to be adopted. (b) Even if that is not the case, the way the judge expressed himself might be regarded as no more than somewhat extravagant in the context of the relevant part of the judgment. (c) Even if that is wrong, it may well be that the wrong statement of the law, viewed in the context of his judgment as a whole, did not affect his ultimate decision. Nonetheless, it is not for me to come to any such conclusion at this stage unless I can clearly and confidently do so, and I cannot.

6

Secondly, it seems to me that it may be arguable that what may appear to be one of the strongest sentence in the whole judgment for the defendants – that is, the penultimate sentence at paragraph 95(4) – could be said to involve almost sanctioning a compulsory purchase principle in favour of a large developer who is going to make a large profit at the expense of the small man. I think there is a point to be argued there. I am not currently impressed by the arguments that the judge may have gone wrong anywhere else in paragraph 95 of his judgment, particularly, as Mr Stoner rightly emphases, he visited the premises and heard the evidence and therefore was in a particularly good position to assess the facts. However, as I am giving permission to appeal on the main issue, it does not seem sensible to shut the claimant out from arguing the other points on the main issue he seeks to raise on that paragraph – albeit at his risk on costs.

7

Thirdly, in the light of the figures as I currently understand them, it may be that the balancing exercise was not quite as clearly in favour of the defendants as the judge thought. It may depend on one's view of the likely level of damages, a matter which was touched on in argument but into which I do not propose to go at this stage.

8

All in all, the main issue is one on which I have reached the conclusion that an appeal stands a real prospect of success, and I therefore grant permission to appeal on it. I would like to add a word of warning to the claimant. He has already had a fairly disastrous time in the sense that, as I have mentioned, he has had to pay half the defendants' costs as well as his own costs. While he is going to get damages, I strongly suspect that it would be a pleasant surprise for him if they were even near to being equal to his overall costs liability. He is not a very rich man, as I gather from Mr Stoner, and he should not regard the grant of permission as an encouragement to think that he will win the appeal. He may win—obviously, otherwise I would not be giving permission. But he should think carefully before embarking on a course which will involve him incurring further risk. The risk is underlined by the fact that, while I am going to continue the injunction, it will only be on terms that he gives a cross-undertaking in damages which could involve him in substantial further financial liability.

9

So far as the second question, the appeal on costs, is concerned, it would be inappropriate for me to grant permission, as I have not even seen the judgment on costs. However, it would be somewhat harsh on the claimant for me simply to leave it there. On the face of it, the judge's decision on costs could be said to have been a little heavy on the claimant, bearing in mind that he won on the point of principle, namely whether his light was interfered with, and he is going to get something by way of substantial damages. However, I do not know what offers were made and I have not seen the judge's reasons for his decision on costs. I think the fairest course to take is to refuse permission to appeal on that ground, but to give the claimant specific leave to renew his application, once he and his legal advisers have seen the judgment, if it is thought appropriate to do so. Any such renewed application can be heard by the Court of Appeal at the same time as they hear the appeal on the main issue, and if they give him permission to appeal on costs, then that appeal can be heard at the same time.

10

I turn to the third question. As I have already indicated, it seems to me that, having granted permission to appeal, it would be somewhat harsh to refuse to continue the injunction, unless there was good reason to do so. I would be taking away with one hand, by refusing an injunction, what I give with another, permission to appeal, if I did not continue the injunction. Having said that, I regard it as essential that the injunction is only continued on terms that it is supported by a cross-undertaking in damages from the claimant. Mr Holland realistically accepts that must follow and, as I have indicated, that that will put the claimant at risk.

11

As to the fourth question, I am satisfied that fairness to both the claimant and the defendants, in light of the conclusions I have reached, indicates that, if at all possible, and if it is not unfair on other litigants, this appeal should be expedited. I have talked to the listing officer, who is of course inundated with work but has very kindly agreed not merely to assist but to be here in court to see if we can fix a date today. It seems to me right from both parties' points of view that that happens.

12

If it is possible to settle this matter amicably in the meantime, I think it is highly desirable that the parties do so. I have mentioned the risk to the claimant, but it is only fair that I emphasise that the defendants are also at risk. As I have explained, there is a prospect of this appeal succeeding, otherwise I would not be giving permission; and the financial consequences of a succesful appeal would not be very attractive to the defendants. It may be that too much effort and money have already been...

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24 cases
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    • Court of Appeal (Civil Division)
    • 26 January 2009
    ...there was no basis for the proper grant of an injunction. 42 Simon J then referred to and quoted from the judgment of Mummery LJ in Regan v Paul Properties [2007] Ch. 135 paras 35–37 as to the continuing effect of the decision in Shelfer. He quoted from the judgments of Sir Thomas Bingham ......
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    • Supreme Court
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    ...consider Shelfer and some of the subsequent cases, which were more fully reviewed by Mummery LJ in Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135, paras 103 In Shelfer, the Court of Appeal upheld the trial judge's decision to grant an injunction to restrain noise and vibration. Lindley......
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    ...see Jaggard v Sawyer [1995] 1 WLR 269 and Midtown Ltd v City of London Real Property Ltd [2005] 1 EGLR 65(cp Regan v Paul Properties [2006] EWCA Civ 1391). 49 Is the position the same as regards the subsoil? In principle there is no reason why the subsoil should be treated any differently. ......
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    ...consider Shelfer and some of the subsequent cases, which were more fully reviewed by Mummery LJ in Regan v Paul Properties DPF No 1 Ltd [2007] Ch 135, paras 103 In Shelfer, the Court of Appeal upheld the trial judge's decision to grant an injunction to restrain noise and vibration. Lindley......
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  • Construction, Property & Real Estate (Case Law Review, Issue 2 – February 2007)
    • United Kingdom
    • Mondaq United Kingdom
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    ...for the negligence of an independent contractor. Rights to light injunction Regan v Paul Properties [2006] EWCA Civ 1319 [2006] WLR 1131 [2006] CILL 2411 The appellant was the owner of a long leasehold of a maisonette. The erection of a multi-storey building substantially reduced the light ......
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