When one party threatens to do something which infringes the rights of another, he may be threatened with Injunction proceedings. If the parties disagree about the underlying legal rights, it may also be necessary for the Claimant to ask the Court to make a “Declaration” as to those legal rights before considering whether or not it is appropriate to grant an Injunction.
When a prospective Defendant is faced with the prospect of such proceedings, one option is to offer a voluntary undertaking promising not to take the offending action without giving at least 14 days’ notice of his intention to do so. Often such a proposal is put forward alongside settlement negotiations so as to give the parties some breathing space with the hope that litigation can be avoided whilst the settlement negotiations are underway. The principle is that if the Defendant gives 14 days notice of his intention to continue with the action that he was proposing this would give the Claimant an opportunity to apply for an Injunction if he still believes that he has a right to obtain it.
However, it is not invariably the case that the Defendant can avoid litigation by undertaking not to take any further infringing action other than on 14 days’ notice: if at the same time it is clear that the Defendant takes a different view about the underlying rights, it may still be open to the Claimant to apply to the Court for a Declaration of the legal interests involved.
A recent example
The general principles can be illustrated by the recent case of Pavledes –v- Hadijsavva [2013] EWHC 124 (Ch) which involved a dispute between neighbouring land owners. The Defendants obtained planning permission to build an extension to their property and the Claimants indicated that they believed that the proposed extension would infringe the rights of light enjoyed by the Claimants’ property. The parties could not reach an agreement as to whether or not the Claimant was entitled to those rights of light but in any event the Defendant gave an undertaking that they would not carry out any of the building works without giving 14 days’ prior notice.
However, the Claimants wanted a resolution to the underlying dispute even though they did not need to apply for an Injunction (because of the undertaking the Defendants had given). They therefore threatened to issue proceedings unless the Defendants acknowledged
- the rights of light claim; and
- undertook not to proceed with the development at all; and
- agreed to pay their costs.
The Defendants refused this request and argued that there was no need for the Claimants to issue proceedings because they were not intending to carry out the building work.
The Claimants therefore decided to issue proceedings. Once the Defendants had obtained an expert’s report, they then admitted that the Claimants had prescriptive rights of light over the Defendants’ property and that the proposed development would unlawfully interfere with those rights of light.
As a result the Court decided that it was reasonable for the Claimants to have issued the proceedings against the Defendants even though the Defendants had indicated that they would not commence any building work other than by giving 14 days’ notice. The Court took the view that it was unreasonable for the Defendants to argue that this was a satisfactory interim position. Even though the Defendants had indicated that they would not proceed except on 14 days’ notice, the Claimants remained under a continuing threat that the Defendants would decide to continue with the building work because they had not admitted the underlying claim.
Summary
In the past the Courts have indicated a reluctance to declare the rights of the parties following the issue of proceedings unless it is clear that the parties are in dispute. The Defendants sought to argue that the parties were not currently in a dispute and that it was therefore premature for the Claimants to have issued the proceedings. The Court disagreed.
If a prospective Defendant in such a situation is seeking to avoid the possibility that the Claimant will issue proceedings it may not be sufficient (otherwise than on an interim basis) for the Defendant simply to offer not to proceed with the potentially infringing action for the time being. At some point, the prospective Defendant will be required to elect whether he wishes to admit the claim or run the risk of proceedings being issued. If he chooses not to admit the claim, he is likely to find himself on the receiving end of court proceedings.