Jacklin & Anor v Chief Constable of West Yorkshire

Where a claimant has a prima facie entitlement to an injunction protecting a property right, the Shelfer checklist is a working rule, not an exhaustive code. Its four conditions are cumulative. Satisfaction of the first three does not by itself justify damages in substitution. The defendant must also show that an injunction would be oppressive, assessed in all the circumstances. The discretion belongs to the trial judge, whose decision should be disturbed only for an error of principle. Delay and limited use may be relevant, but they do not necessarily defeat an injunction. The court may consider whether the defendant knew that the right was asserted and proceeded with substantial works without clarifying the parties’ rights.

Mr and Mrs Jacklin owned a house benefiting from a claimed right of way over Back Road, including vehicular access. The Recorder found that the right existed and had not been abandoned. Following obstruction by the West Yorkshire Police, he granted an injunction requiring the removal or adjustment of obstructions while permitting limited security arrangements.

The Chief Constable appealed on the remedy issue only. The grounds included limited use, delay, lack of substantial benefit, operational and security concerns, and the cost of compliance. The Court of Appeal also considered an application to rely on further evidence. The central issue was whether the Recorder had erred in principle in granting an injunction rather than awarding damages.

Disposition. The appeal was dismissed. The application to rely on further evidence was refused.

1. The choice between an injunction and damages in substitution was a matter of judicial discretion. The principles in Shelfer and Jaggard were a working rule, not an exhaustive code. The four elements were cumulative: the defendant had to establish that the injury was small, measurable in money and adequately compensable by a small payment. Those matters were insufficient without the additional consideration that an injunction would be oppressive. All the circumstances had to be considered.
2. The Recorder had considered the relevant factors, including the alternative access, the limited use of Back Road, the operational and security arguments, the likely expense of compliance, and the parties’ conduct. His conclusion that an injunction would not be oppressive was open to him.
3. Delay was relevant, but it did not automatically defeat the injunction. The Recorder was entitled to treat a formal written protest as unnecessary. The police knew that a vehicular right of way was being asserted before carrying out substantial works, but proceeded without checking their own title documents, requesting the claimants’ deeds, or clarifying the position. Returning the parties to their 1997 position was therefore not inequitable, unconscionable, unjust or oppressive.
4. The possible rights of neighbouring owners did not alter the result. Any consequences arising from their own claims were not consequences of the litigation between the parties. The further evidence was unlikely to assist the Chief Constable and was refused.

Lloyd LJ gave the leading judgment. Rix LJ agreed. Buxton LJ also agreed and emphasised that an appellate court is particularly reluctant to interfere with a discretionary decision based on the trial judge’s assessment of the witnesses, the history of the matter and the relationships between the parties.

• Court of Appeal (Civil Division): Appeal dismissed and application to rely on further evidence refused: [2007] EWCA Civ 181.
• Leeds County Court: Mr Recorder Hirst found that the claimants had a vehicular right of way which had not been abandoned and granted an injunction against obstruction.