January 22, 2019

Quia timet injunctions

Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch)

Developers facing the risk of trespassers coming onto vacant development sites and causing substantial damage will welcome the High Court’s decision in Vastint Leeds BV v Persons Unknown [2018] EWHC 2456 (Ch), where it ordered an injunction to prevent incursions by trespassers.

The facts

Vastint is the developer of the site at the former Tetley Brewery in Leeds. With its development taking place in phases, parts of the site were left vacant. Despite putting a number of security measures in place, there had been a number of incidents of trespass/attempted trespass, involving caravans, which had resulted in clean-up costs of about £25,000. One of Vastint’s group companies had also been the victim of various incidents at a site in East London involving illegal raves. Vastint also referred to the increase in “professional” fly-tipping operations causing significant delay and irrecoverable costs to developers. Vastint was further concerned that, as the development works progressed, there would be increased safety risks with buildings being structurally unstable and the presence of asbestos.

To prevent the risks posed by travellers, those organising and participating in raves and illegal fly-tipping, Vastint applied to the Court for a quia timet injunction to prevent further incidents before they occurred. The developer considered that such an injunction would be a real deterrent to trespassers because of the penal notice it carries and attached risk of being in contempt of Court. Vastint further believed that it would help in getting assistance from the police (who, as developers will know, do not normally get involved in trespass of commercial premises unless proceedings are issued).

Injunction against persons inknown

It is well established that proceedings can be issued and an order made against an unnamed defendant where:

  1. The name of the specific defendant is not known;
  2. There is a specific group/class of defendants but not all of their names are known; or
  3. The defendants are defined by reference to their future act of infringement.

It was this third category that was at play here. Judge Smith confirmed that an order could be made against such a category of defendants provided that the description of the defendants is sufficiently clear (i.e. it should not require a legal interpretation or be subjective).

Quia timet injunctions

This is a preventive injunction, where no wrong has yet been committed, but to prevent its occurrence. For such an injunction to be granted, the court will apply a two-stage test:

  1. There must be a strong probability that, unless restrained by injunction, there is a real and imminent risk that the defendant will breach the claimant’s rights; and
  2. The harm/damage caused by such an act will be so grave and irreparable that damages would not be an adequate remedy.

If the above two tests are not met, the appropriate remedy will be for the claimant to seek an injunction once the damage/nuisance materialises.

When considering these questions, the court will have regard to other steps that have been taken to prevent the issue (and whether the risk still exists despite those measures), the attitude of the defendant (this must suggest that the defendant is likely to commit the infringement), the timeframe of the infringement (in other words the risk must be imminent), and whether an interim injunction (after the event) plus damages would be an effective remedy having regards to the gravity of the anticipated harm.

Decision

Despite expressing some doubt over the lack of evidence with regards to the intention/attitude of the potential trespassers because their identity was unknown, Judge Smith acknowledged that the security measures put in place by Vastint had been insufficient to prevent incidents of trespass. In the circumstances, he was satisfied that there was a strong probability of further incursions by caravans and those involved in or participating in raves. He therefore found that the first stage of the above test was made out in relation to those categories of trespassers.

He was, however, not convinced that there was a real risk of fly-tipping, having seen no evidence other than this occurring at other sites in the country.

As to the gravity of the harm that might be caused by trespassers, Judge Smith acknowledged that there were serious risks to life and limb to trespassers but also staff and contractors. In addition, he recognised that further incidents would likely result in significant costs to Vastint and that, although it could in theory be compensated by damages, the reality is that such costs are very unlikely to ever be recovered. It followed that the second stage was also made out and the injunction was granted.

As the order was made against persons unknown, the judge sought to limit its ambit as clearly as possible so that it would only affect those it was intended for.

Comment

Developers who have been the victim of trespassers will be all too familiar with the delays and costs that such incidents can cause. Although this decision does not mean that such an injunction will be available in all cases (as there must be a real threat and risk of significant harm being caused), it may assist developers dealing with particularly problematic sites. It is, however, important to note that the Court will have regard to the other measures taken by the developer to limit the risk in the first place and the evidence of the risk in question.

The article first appeared in our Real Estate Bulletin - January 2019.