Injunctions for breach of party wall act 1996: the only legal option

Conaghan & Conaghan v Abdul (2022) Edmonton County Court “return date hearing”

This follows the ex-parte injunction of the 11.02.22 Mr Abdul (the Defendant) instructed Mr Stuart Frame junior counsel of Tanfield Chambers www.tanfieldchambers.co.ukto argue that the injunction was wrong, excessive and should be lifted.

The return date hearing on the 18.02.22 at Edmonton County Court, Ms Antonia Halker of Lamb Chambers www.lambchambers.co.ukwas appointed by the Claimants (Conaghan).

The circumstances in relation to this injunction flows very neatly on from my blog on the Shah v Kyson and Power case insofar as when a building owner breaches the Party Wall Act and/or creates a trespass the only remedy available to the adjoining owner is to seek injunctive relief.  This legal remedy has been successfully adopted on numerous occasions by my clients, as listed below.

1. Dodosh v Bibizadeh & Bibizadeh [2014] County Court at Central London.

2. Franco Rusciani v Kamal Kumar and Rajesh Sharma (2012) Chelmsford County Court.

3. Hart v Spencer (2017) County Court at Romford.

4. Peter J Edmond v Nicholas Bartholomew Denham & Helen Julie Seekings-    Denham (2021) H00PE335

5. MacLachlan v Patel (2019) - County Court at Central London HHJ Luba

6. Mills & Mills v Savage & Savage [2016] County Court at Central London

7. Takhar V Mohammed (2014) County Court at Central London (inunction rejected)

8. Zaher & Zaher v Patel (2019) - County Court at Central London HHJ Luba

9. Conaghan & Conaghan v Abdul (2022) County Court at Edmonton

Stuart Frame’s grounds for contesting the injunction were based on frighteningly similar terms to his arguments in the 2021 Edmonds v Denham & Seekings Denham case in the Peterborough Court [insert link here] which resulted in an injunction.

Mr Abdul the building owner had admitted in his witness statement that he had committed a trespass, and that he had breached the Party Wall Act.  There is also a video recording where Mr Abdul rather denies his identity to Dr. Antino when questioned and then says “we will not stop unless you get an injunction.”

Mr Abdul and Mr Frame could hardly be surprised that the adjoining owners exercised their legal right to stop the works by obtaining an ex-parte injunction.

Returning to Mr Frame’s grounds these are in bullet form as follows: -

1) The trespass has been overegged.

2) The trespass is de minimus.

3) The breaches of the Act are de minimus.

4) The remedy is damages not injunctive relief.

5) Mr. Abdul can build his own structure alongside the Claimants wall and they cannot do anything about it.

Therefore, on that basis Stuart Frame asked for the injunction to be lifted.

Ms Antonia Halker responded: -

(1)   A trespass is a trespass there is no defence in law and you cannot simply say “well we have trespassed onto your land and here is some money”.  A trespass has to be removed.

(2)   The Defendant had refused to stop works and engage with the Party Wall Act, and that was the only legitimate legal remedy available to the Claimants.  The Defendant has made assertions that there were previous structures enclosed on the Claimants wall but had not given disclosure of any evidence to support that position

(3)   Historical Google photographs show that there was no structure up to June 2019so there are questions that need to be fully pleaded.

Deputy District Judge rejected Mr Frames position and held that the injunction should stay in place in terms as set out at the ex-parte injunction hearing.

Mr Stuart Frame argued that would effectively stop the Defendant doing other building works such as putting electric cables into the roof joists and that therefore that should be excluded.

Mr Frame argued that the Court is not the correct remedy and that the parties should go to ADR, perhaps mediation and that would be the correct approach.  Ms Halker countered and submitted that at this stage there is simply too many unknown facts, lack of disclosure etc. for anything to be taken to ADR.

The Judge agreed with Ms Halker.  The injunction remains in place, costs are reserved.

If only the building owner had complied with the Act the costs/delays would have been avoided.