Susan Birkin v Guardweald Limited & Anor

A claim for a mandatory injunction to enforce a repairing covenant is not premature merely because the defendant’s liability in damages has not yet accrued. If delay makes an injunction futile, the court may award damages in lieu for the earlier period. The fusion of law and equity prevents technical distinctions from defeating that relief. Where a respondent’s notice is, in substance, a cross-appeal, the time limit for an appeal applies. An application to serve it late requires consideration of the proposed grounds, delay and prejudice. Prejudice includes depriving the appellant of the opportunity to decide whether to pursue its appeal. Here, that prejudice outweighed the other considerations.

Susan Birkin brought proceedings against Guardweald Limited and Greenhill Securities (Developments) Limited concerning disrepair to her leasehold flat. The Official Referee entered judgment against Greenhill in action No. 117 and ordered both defendants to pay the costs. The judgment also covered a later action, No. 717, which was not under appeal.

Greenhill appealed only the costs order in action No. 117. The first-instance judge had held that Greenhill, as assignee of the reversion, was not liable in damages until it had received notice of the defects and a reasonable time to repair had elapsed. Greenhill argued that the writ had therefore been issued prematurely. Birkin also sought leave to serve a respondent’s notice out of time, raising alternative arguments on liability. The central issues were whether the injunction claim made the action properly constituted and whether leave should be granted for the late respondent’s notice.

The Court of Appeal unanimously dismissed the appeal.

1. Injunction claim. The action was not premature. The pleaded claim included a mandatory injunction requiring the landlords to carry out remedial works. That was a valid claim when the writ was issued, even on the assumption that Greenhill’s liability in damages arose only after notice and a reasonable period for repair.
2. Damages in lieu. By the time of trial, the repairs had been completed and an injunction would have been futile. That did not deprive the court of jurisdiction to award damages in lieu for the earlier period. The fact that such damages might be described as equitable, and that no separate claim had been labelled equitable damages, did not justify a different result given the fusion of law and equity.
3. Respondent’s notice. Under rule 6 of Order 59 of the Rules of the Supreme Court, the respondent’s notice should have been served within 21 days of the notice of appeal. Applying VCS Ltd v Magmasters Ltd [1984] 1 WLR 1208, the court treated a notice which was effectively a cross-appeal as subject to the same timing logic as an appeal. The relevant considerations included the apparent strength of the proposed arguments, the delay, and prejudice. The substantial prejudice to Greenhill included losing the opportunity to decide whether to continue with its appeal in light of the proposed cross-appeal and later authority. That prejudice outweighed the factors favouring an extension.
4. Orders. The appeal was dismissed with costs. Leave to serve the respondent’s notice out of time was refused. Birkin was ordered to pay Greenhill’s costs of and occasioned by the application for an extension of time.

• High Court of Justice, Queen’s Bench Division (Official Referee’s Business). Judgment was entered against Greenhill in action No. 117, with costs payable by both defendants. The order also covered a later action, No. 717, which was not appealed.
• Court of Appeal (Civil Division). Greenhill’s appeal against the costs order in action No. 117 was dismissed. Leave for Birkin to serve a respondent’s notice out of time was refused.