BLACKS SOLICITORS: Because He Fears

An injunction is a Court Order that compels a party to either carry out or refrain from a specific act. Injunctions are equitable remedies granted by the Court. A party who fails to comply with an injunction can face either a civil penalty (such as monetary sanctions) or a criminal one (imprisonment) and they can also be charged with contempt of court which could ultimately result in imprisonment.

It is possible to apply for an injunction before any damage has taken place, these are known as quia timet injunctions (from the Latin for “because he fears”). This type of injunction is designed to restrain wrongful acts which are threatened or imminent but which have not yet taken place. However, quia timet injunctions are extremely rare because they are not granted very lightly by the courts.

The case of London Borough of Islington v Elliot and Morris demonstrates the reluctance of the courts to grant quia timet injunctions. In that case tree roots from a property belonging to the Council were allegedly encroaching onto a neighbour’s property with the potential to cause severe damage. For several years, the Council took no action claiming that they would not remove the trees until it was proven that they were causing significant damage. The Claimants brought proceedings seeking damages and a quia timet injunction to force the Council to remove the trees even though no damage had yet been caused. Eventually the Council did remove the trees before the matter came to trial. As the Council had removed the trees, the only issue which the Court had to consider was which party was responsible for the cost of the legal action. The Council argued that a quia timet injunction would never have been granted and therefore they should not have to pay the Claimants’ costs.

At first instance, the Court found that it would have been likely to grant the injunction had the trees still remained. However, the Court of Appeal reversed that decision and held that whether a quia timet injunction would have been granted would depend on:

if the prospect of damage was sufficiently imminent and certain; and

if the Defendant’s refusal to act to avoid it was obvious.

Despite there being considerable delay, the Council had eventually removed the trees and had done so before any damage had occurred and the Court of Appeal was therefore of the view that there was no necessity for the grant of a quia timet injunction and so the legal action had been unnecessary and costs should not be awarded to the Claimants for claiming such relief.

This case is a stark reminder that court action, particularly urgent interim relief applications, should not be launched into without careful thought and planning to avoid adverse cost penalties.

We at Blacks Solicitors can assist and advise on all types of civil claims and interim relief applications including applications for injunctions. Please contact Luke Patel on 0113 227 9316 or email him at “LPatel@LawBlacks.com”.

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