Hiscox Syndicates Ltd & Anor v Pinnacle Ltd & Ors

When deciding whether to vary an existing interim injunction, the court applies the Cyanamid principles. It first asks whether there is a reasonably arguable claim and defence, then assesses the balance of convenience in light of circumstances as they have developed since the injunction was granted.

Temporary obstruction of a highway may be permissible, depending on the facts, degree of obstruction and measures taken to mitigate its effects. At the interlocutory stage the court should avoid finally determining liability on untested evidence. A variation may be granted where alternative access is adequate, properly managed and supported by appropriate security for foreseeable loss.

The claimants, Hiscox Syndicates Ltd & Anor, occupied offices adjoining a major redevelopment site for The Pinnacle in the City of London. They had obtained injunctions concerning vibration, water penetration and access after earlier proceedings in the Chancery Division.

The defendants applied to vary the access injunction so that demolition could proceed while alternative car-park, pedestrian and vehicular routes were provided. The central issues were whether the proposed works involved arguable public nuisance or infringement of a frontager’s rights, and whether the balance of convenience justified varying the existing order.

1. The application to vary the access injunction was granted in substance, subject to the safeguards and amendments identified by the court. The court was not deciding the parties’ ultimate liability.
2. Applying the Cyanamid principles, there were reasonably arguable claims and defences on both sides. The defence based on reasonable temporary obstruction of a highway, supported by Harper v Haden [1933] Ch. 298 and Westminster City Council v Ocean Leisure [2004] EWCA Civ 970, raised issues of fact and degree. The court declined to make a final nuisance determination on untested witness-statement evidence.
3. The balance of convenience had to be reassessed because circumstances had changed since the earlier injunction. The alternative car-park route had to operate continuously, provide a minimum 4.1-metre carriageway and a footpath of at least four feet, include suitable holding and turning arrangements, and be supervised by three marshals. It also had to accommodate access for servicing and vehicles up to 32 tonnes.
4. The alternative access route for the entrance tunnel could operate on the relevant weekends with four permanent marshals. The proposed demolition method was not unreasonable on the evidence, although no final finding was made on its lawfulness.
5. Before works began, the defendants had to confirm that the first £1 million of insurance cover was in force and provide adequate security for business interruption caused by any breakdown in the alternative access arrangements. The variation did not make the defendants’ conduct lawful and did not determine the validity of the City of London’s road-closure arrangements.

This was a first-instance application to vary an existing injunction. The judgment records that the Chancellor had earlier granted limited access relief, and that His Honour Judge Hodge QC subsequently granted injunctions concerning vibration, water penetration and access in January 2008.