Standing your ground on injunctions can carry a high price
Injunctions in respect of party wall awards are rarely the subject of High Court judgments in the Technology & Construction Court (TCC). The recent case of Chliaifchtein v Wainbridge Estates Belgravia Ltd highlights issues to consider when seeking to stop works which are potentially in breach of a party wall award; in particular, who is liable for the costs of the injunction?
The party wall in this case concerned two adjoining properties in Grosvenor Crescent in Belgravia. The award made clear that the pile probing for obstructions adjacent to the wall was to use a 3m long pin and any obstructions were to be removed using a trench box installed to the depth of the obstruction using the dig-and-push method.
It was the case of the claimant (a home owner) that the defendant’s contractor was removing a large piece of rusted metal from the ground adjacent to the party wall without using a trench box. He immediately contacted his solicitor who in turn contacted the defendant. When the defendant denied being in breach of the method statement referred to in the party wall award, the claimant’s solicitor obtained an injunction from the TCC to stop the works that same day. While the defendant was content for the injunction to continue, the parties disagreed as to who was liable for the legal costs.
It was the defendant’s case that its contractor was not removing an ‘obstruction’, but excavating an RSJ that had been deliberately left in the ground a fortnight before (apparently for reasons of space), after it had used it to probe the ground. Therefore, it argued that it was not in breach of the party wall award, and that in prematurely seeking an injunction the claimant should not be entitled to its costs.
The judge had to decide whether or not the defendant was in breach of the party wall award; and whether the claimant acted precipitately in seeking the injunction.
It was the defendant’s case that its contractor was not removing an ‘obstruction’, but excavating an RSJ that had been deliberately left in the ground a fortnight before
The judge held that the defendant was in breach of the party wall award: the probing operation (the use of the RSJ) and its failure to use a trench box were contrary to the method statement. He further found that, as a matter of common sense and basic health and safety law, the method statement concerned removal of obstructions as a consequence of the probing (ie the RSJ) in addition to any obstructions that were already there.
With regard to the conduct of the claimant in seeking the injunction, the judge looked to the past history between the parties (which had been acrimonious) and the defendant’s conduct on site. In short, the claimant’s property was a family home and he was entitled to take what steps he reasonably could to protect it, the defendant’s conduct on site was cavalier and the claimant’s success in obtaining and maintaining the injunction was clearly a relevant factor. He held that the defendant was unreasonable in refusing to accept liability for the costs.
This case not only highlights the importance of strictly complying with method statements, but also sets out factors the court may take into account when determining whether seeking an injunction to stop works is reasonable. Each case will clearly turn on its own facts, though it is useful to see how the court may interpret the liability for costs.
This case came before the judge only because the parties could not agree about the costs of the injunction. After extensive evidence, the combined legal costs came to just over £60,000. The judge’s comment therefore comes as no surprise: ‘…costs have been incurred solely to enable the parties to argue about their liability for costs, surely the most pointless exercise in any civil litigation.’
Stacy Sinclair is an associate at Fenwick Elliot
Principal designer: CDM Regs 2015
Regulation 11 of the forthcoming CDM Regulations 2015 sets out the roles and obligations of the principal designer, the dutyholder which will replace the CDM co-ordinator under the 2007 Regulations. The client (domestic or commercial) must appoint a principal designer in writing if there is, or if it is reasonably foreseeable that there will be, more than one contractor working on the project at any time.
As the draft guidance sets out, the principal designer has obligations to plan, manage, monitor and co-ordinate health and safety in the pre-construction phase of a project. This includes identifying, eliminating or controlling foreseeable risks and ensuring designers carry out their duties. In addition, the principal designer is to prepare and provide relevant information to other dutyholders and liaise with the principal contractor to assist in the planning, management, monitoring and co-ordination of the construction phase.
Furthermore, the new regulations will allow domestic clients to transfer their obligations to the principal designer or principal contractor – Appendix 5 of the draft guidance sets out additional notes.