When should you seek an injunction in party wall cases? When should you advise your clients to seek an injunction? What is the best time to seek an injunction, how do you go about it, and, often most importantly, what is it going to cost?
Injunctions are orders made by the Court which either require a Defendant to do something, or, more commonly, to stop doing something.
In the party wall context one normally obtains an injunction to prevent notifiable works continuing (a “prohibitory” injunction), or, less commonly, an injunction requiring the building owner to carry out works – temporary shoring or weathering (a “mandatory” injunction). Sometimes one needs a combination of prohibitory and mandatory injunctions.
The legal basis for obtaining an injunction is usually that the building owner, lacking the necessary authority provided by written consent or a valid award, is carrying out works which constitute a trespass, nuisance or breach of statutory duty.
The answer to the question “When should I seek an injunction?” is almost always “Immediately”.
If a building owner is carrying out notifiable works without written consent or an award in place, there is, almost by definition, a risk of damage to the adjoining owner’s property. Part of the reason for the existence and scope of the Party Wall etc. Act 1996 (“the Act”) is to provide a mechanism for balancing the rights of the building owner to develop his property against the rights of the adjoining owner not to have his property damaged by those works, and not to be unnecessarily inconvenienced by them.
A building owner who has not complied with his obligations to notify the adjoining owner of notifiable works, or who, after notification, has failed to follow through by obtaining an appropriate award, will almost certainly be regarded by the court as having a cavalier attitude towards the adjoining owner’s property and rights.
Consequently, it will usually be very easy to persuade a court to grant an injunction preventing notifiable works continuing unless and until an appropriate party wall award is in place.
However, courts will be less likely to be impressed with an application for an injunction where the adjoining owner has waited for several weeks or months before applying for an injunction. Such delay will often suggest to the court that the risk to the adjoining owner or his property is minimal, and consequently courts are less likely to grant an injunction the longer the adjoining owner delays in applying for the same.
If things have reached the stage where the adjoining owner thinks an injunction is or might be necessary, do not prevaricate; act immediately.
Risk of damage
Whilst the court might well grant an injunction where it is clear that any notifiable works are being undertaken without written consent or an award in place, it will always be more appropriate to seek such an injunction where there is a clear and present risk of damage to the adjoining owner’s property.
This is most obviously the case where excavation or underpinning works are taking place. These will always justify an injunction, whether or not any damage to the adjoining owner’s property has yet been caused.
That is not to say that courts are unwilling to grant injunctions in cases where the risk of damage is lower. There is, in practice, almost a presumption that unauthorised notifiable works carry with them a risk of damage sufficient to justify the granting of an injunction. However, it is prudent for adjoining owners and their surveyors to consider whether the works in question really do carry with them a real risk of damage to the adjoining owner’s property before deciding to pull the trigger on an injunction application.
It is unfortunately also quite common for building owners to carry out works which the adjoining owner cannot be sure are notifiable or not. The first thing the adjoining owner knows about such works is when his Monday morning breakfast is interrupted by the sound of Kango hammers next door, and clouds of dust coming out of his fireplace. It is obviously very difficult for an adjoining owner in these circumstances to know whether the works in question are notifiable or not.
The obvious starting point in such circumstances is for the adjoining owner and/or his surveyor, to attempt to contact the building owner to try and find out what is going on. In the absence of co-operation, this can quickly escalate through polite enquiries of the site manager, through texts and phone calls to the building owner, and to solicitors’ letters threatening injunctions. In practice, if a building owner refuses to engage with an adjoining owner in these circumstances, but instead continues with, or accelerates his works, the Court will always be very sympathetic to an injunction application. Indeed, I have had at least one case where an injunction was granted in such circumstances, and, even when it later transpired that no notifiable works had taken place, the adjoining owner still obtained an award of costs, primarily because of the building owner’s failure to respond to letters and phone calls.
How to apply for an injunction
The Courts are actually quite well set-up to hear injunction applications. There is standard form N16A which Claimants wishing to apply for an injunction can complete.
The application should, if time allows, be supported by a short witness statement, often prepared by the adjoining owner’s party wall surveyor, but sometimes by the adjoining owner himself. The essential ingredients of such a statement are (1) a description of what works the building owner is carrying out, or appears to be carrying out, (2) the fact that neither written consent or a relevant award authorising such works is in place, (3) the attempts which have been made to contact or communicate with the building owner as to such works, and (4) any damage which has occurred, or what the risk of damage is or might be to the adjoining owner’s property.
Where matters are truly urgent – for example where the works appear to represent an immediate risk to the fabric or structure of the adjoining owner’s property – it is usually possible to obtain a hearing before a judge within a few hours; even out of normal court hours where circumstances justify it. Furthermore, in such circumstances, judges will be prepared to grant injunctions on the basis of an oral account of the evidence to be given; the person giving that evidence promising (“undertaking”) to the court that they will write and sign a witness statement to the same effect as soon as possible after the hearing.
There is no doubt that suitably qualified and experienced solicitors and counsel will make the process of applying for and obtaining an injunction far smoother and less stressful. However, courts are also very used to self-represented litigants making such applications. and there is no reason in principle why adjoining owners, should not make such applications themselves.
How much does it cost?
If an adjoining owner makes an application themselves, it may be possible to obtain an injunction for little more than the court costs of issuing such an application – currently £255 for an application on notice. If a surveyor is used to produce a short report or witness statement, that might add a few hundred pounds more.
Once lawyers become involved, however, costs are likely to increase substantially. Whilst costs can vary dramatically depending on the complexity and value of the case, the urgency, and the skills and experience of the lawyers involved, my experience suggests that obtaining an injunction, with or without notice, is likely to run to something between £5,000 and £15,000 in legal costs.
Of course, if the court grants an injunction, and later decides that the adjoining owner was indeed justified in seeking it, the building owner will normally be liable to pay the adjoining owner’s legal costs. In practice, this will usually mean that the building owner will have to pay somewhere between two-thirds and three-quarters of the costs which the adjoining owner has actually had to pay to his lawyers. Complete recovery of legal costs almost never happens.
And what is a “cross-undertaking”?
When Claimants come to court and ask for an injunction, the Court will usually require them to give what is known as a “cross-undertaking” to the Court. A cross-undertaking is a promise to the Court that if, at the end of the case, the Court decides that an injunction should not have been given, the Claimant will pay whatever damages to the Defendant the Court thinks appropriate.
In building cases, the potential cost of stopping building work in the middle of a contract can be enormous, and many Claimants will think very carefully before seeking an injunction because they do not want to take the risk of having to pay enormous damages to the Defendant if it turns out that an injunction was not justified.
However, in a party wall context, the risks to an adjoining owner seeking an injunction tend to be very limited indeed. Not only is it usually clear, albeit not always, whether notifiable work is being carried out by the building owner, but the adjoining owner will also know whether or not written consent or an award exists, and will in any event normally only seek and/or be given an injunction which covers notifiable works. Indeed, in the last decade I have only come across one case in which a cross-undertaking was called upon.
Injunctions are undoubtedly a useful means for adjoining owners to ensure that building owners comply with their obligations under the Act. Provided that adjoining owners act reasonably, obtaining injunctions need not be unduly difficult or expensive, but they are never cost-free, and, like any form of litigation, should not be undertaken lightly. As always, if in doubt, seek expert legal advice.