Neighbour Boundary Disputes – Sophie Phillips Obtains Final Injunction in Trespass ClaimPark Square Barristers
Sophie Phillips, instructed by Alison Boffey at Wilkin Chapman LLP, represented the successful Claimants at a judgment hearing by obtaining a final injunction against the Defendant.
The claim concerned a boundary dispute between two neighbouring properties whereby one neighbour had built a structure partially on their own property and partially on the neighbouring property thereby trespassing.
The judgment awarded included a declaration of the boundary line between the two neighbouring properties as well as a final injunction mandating the defendant to remove the structure that was trespassing on the Claimants’ property.
The Judge was taken to the growing amount of case law surrounding this area, particularly in relation to injunctions.
In exercising its discretion to grant injunctive relief, the court has to be satisfied that it is appropriate for judgment to be entered by way of a final injunction. The issues the court will usually consider are:
(a) The extent to which damages are likely to be an adequate remedy;
(b) The ability of the other party to pay damages;
(c) The balance of convenience; and
(d) Any clear view that the Court can form as to the relative strengths of the parties’ cases (Series 5 Software Limited v Clarke  1 AER 853].
The principles to be applied in deciding whether to award an injunction or damages in lieu were laid down by AL Smith LJ in Shelfer v City of London Electric Lighting Co  1 Ch D 287, 322-323. AL Smith LJ set out what he described as ‘a good working rule’ that:
(i) “if the injury to the [claimant’s] legal rights is small; and
(ii) is one which is capable of being estimated in money; and
(iii) is one which can be adequately compensated by a small money payment; and
(iv) the case is one which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given.”
It was also emphasised in Shelfer that a court will not permit a wrongdoer to continue in a wrongful act by allowing him to purchase the claimant’s rights by means of an award of damages.
The Judge in the instant case was satisfied that, after being taken to the case of Daniells v Mendonca & Anor (1999) 78 P&CR 401, the Defendant had failed on the third limb of the test laid down in Shelfer. The structure built by the Defendant was not substantial in nature and was not a structure that would have been oppressive for them to take down. The Claimants had proved their case on a balance of probabilities that the boundary line was situated in a location which meant that the
Defendant was trespassing. The Judge therefore held that the balance of convenience favoured the injunction being granted.
This case is an example of the hard work and efficiency of the Claimants’ legal team (Wilkin Chapman LLP and Sophie Phillips) meaning that a final injunction was obtained within three months of the claim being issued.
Sophie has a growing property law practice. She is happy to advise both claimants and defendants on the prospects of their case as well as advising on complex legal issues related to property law which require further in-depth knowledge and research.