Incident at an injunction

Injunctions are everyone's nightmare – work on site is proceeding swimmingly and the court steps in to restrain activities or stop them altogether. In the world of models and footballers, injunctions are routine. Less so on construction sites, although they are sometimes granted to restrain trespassers, overhanging of tower cranes and noise or nuisance.

Many will remember the shudders that went through the industry when the City Corporation obtained an injunction against Bovis Construction on behalf of residents. Bovis, construction manager of a site at Beaufort House, near Petticoat Lane in London, had repeatedly ignored complaints about breaches of a Section 60 notice under the Control of Pollution Act 1974 restraining hours of working. The court granted an interlocutory injunction against further infringement, upheld by the Court of Appeal.

The issue of injunctions has come to the fore again in proceedings begun by Mark Gregory against the developer of a site adjoining his home – Spring Cottage, Tunbridge Wells, Kent. Having unsuccessfully objected to the scheme at planning stage, Gregory was not then aware that he might also have the benefit of restrictive covenants (in this case, that no more than one residential building may be built on the land). The developer was apparently aware of this rule, but nevertheless, building work on two blocks of flats proceeded in July 2001.

In March 2002, having appointed a new solicitor, Gregory became aware of the restrictive covenant and belatedly applied to the court for an interim injunction restraining the developer. The intent was to prevent the developer from proceeding further (even though the buildings were by then at roof level), pending a full trial enforcing the restrictive covenant and preventing development altogether.

The judge applied several well known tests. First, did Gregory's claim for a permanent injunction at the trial give rise to a serious issue to be tried? Yes, said the judge, although there were some difficult issues that had to be addressed. The developer had proceeded in full awareness of the existence of these restrictive covenants, but nevertheless was entitled to complain that Gregory had delayed unreasonably in starting his action, during which time it had spent enormous sums. It was not the developer's fault that Gregory was not more vigilant about his rights.

The judge was clear that it would cause disproportionate damage to require the developer to stop work

Second, did the balance of justice lie in favour of granting or refusing an injunction? In other words, if Gregory succeeded at trial, would he be adequately compensated for the loss suffered because building work had proceeded in the meantime? Yes, said the judge – the development was so far advanced that it was causing Gregory interference with his rights of light and air and was overshadowing his cottage.

Third, if damages were an adequate remedy, would the developer be in a financial position to pay such damages? Probably – it seemed to have the benefit of a restrictive covenant insurance indemnity policy. But there were doubts. And, given those doubts, if the injunction were granted but Gregory failed at full trial, would he be able to compensate the developer for the loss sustained by being prevented from completing the development? No, said the judge – standing time and delays would exceed £500,000 and push the developer into insolvency.

As Gregory's prospects of recovering from the developer, if no injunction were granted, were regarded as better than the developer's if it were, the judge thought that this pointed to a refusal rather than a granting of the injunction.

Finally, where did the "balance of convenience" lie? The judge was clear that the development works were so far advanced that it would cause disproportionate damage to require the developer to stop. If Gregory had launched his claim at the start of the development, the judge thought an injunction may have been granted, but it was too late to stop it.