Hazelwood v Hazelwood

On a renewed application for permission to appeal, the court may replace an injunction with an undertaking to the court where that provides an effective resolution without further cost or procedural difficulty. The undertaking may reproduce the injunction’s substantive restrictions and is enforceable by contempt proceedings. An injunction may therefore be dismissed against the applicant while the undertaking remains in force. The court may adjourn the permission application on those terms, allowing the other party a limited opportunity to apply to set the order aside.

The proceedings arose from a boundary dispute between the owners of No 149 Prince of Wales Road and the owners of No 147. The second defendant, Mr Omar Narayan, renewed an application for permission to appeal against an injunction made by His Honour Judge Waine in the High Walsall County Court. The injunction restrained him from entering the claimants’ property and from damaging specified structures. Although his involvement had been described as relatively minimal, he offered an undertaking in equivalent terms. The central issue was how the application and injunction should be dealt with.

1. The renewed application for permission to appeal was adjourned on terms. The injunction made against the applicant, but not against his mother, was dismissed, and the applicant gave an undertaking to the court in equivalent terms.

2. The undertaking prohibited the applicant, whether personally or through servants, agents or otherwise, from entering the claimants’ property as identified in the County Court order of 1 October 2001. It also prohibited him from undermining, cutting away or otherwise damaging structures erected under paragraph 5 of that order, or any structures on the claimants’ property.

3. The court explained that breach of the undertaking would constitute contempt of court, making the applicant liable to be dealt with accordingly. The undertaking therefore replaced the injunction as the operative restraint against him.

4. The claimants were given an opportunity to apply to set the order aside, although the court did not encourage such an application. An undertaking is principally a matter between the court and the person giving it, rather than between that person and another party. If no application was made, the undertaking would stand and the appeal need not proceed further.

• Court of Appeal (Civil Division) — The renewed application for permission to appeal was adjourned on terms. The injunction against the applicant was dismissed and replaced by an undertaking.
• High Walsall County Court — His Honour Judge Waine made the injunction against the second defendant in the boundary proceedings.