Hiscox Syndicates Ltd & Anor v The Pinnacle Ltd & Ors

On an application to vary an interim injunction, the court must first consider whether there is a reasonably arguable claim and defence. If so, it must assess the balance of convenience, including any material change since the original order. Temporary obstruction of a highway may be permissible, depending on the facts and degree of obstruction and the measures taken to mitigate its effects. A frontager’s private right of access extends to the highway; interference beyond that point is ordinarily a public nuisance issue. An interim order may be varied pragmatically to permit works where alternative access, traffic management and adequate security for potential business interruption losses are provided. Such variation does not determine whether the underlying works are lawful.

The claimants, office occupiers adjoining a major redevelopment site, sought injunctions in nuisance concerning vibration, water penetration and access. Earlier orders were made in the Chancery Division after a detailed hearing before His Honour Judge Hodge QC. Following transfer of the proceedings to the Technology and Construction Court, the defendants applied to vary the access injunctions so that parts of two access tunnels could be obstructed during demolition, while alternative access routes were provided.

The central issues were whether the claims and defences remained reasonably arguable, whether the balance of convenience had changed, and what safeguards should govern any variation.

1. Application and governing approach. The application to vary the existing access injunction was considered under the Cyanamid principles. The claims and defences on liability were all eminently arguable. The court therefore did not determine the final merits, but assessed whether the balance of convenience justified variation in light of developments since the earlier order.
2. Public nuisance and frontager’s rights. Members of the public and highway users have rights to pass and repass. However, authorities including Harper v Haden [1933] Ch. 298 and Westminster City Council v Ocean Leisure [2004] EWCA Civ 970 supported an arguable case that reasonable temporary obstruction may be permissible. Whether an obstruction is actionable depends on fact and degree, including the measures taken to address its consequences. A frontager’s private right of access extends to the highway; interference after that point engages the public nuisance question.
3. Alternative access. Variation was appropriate in principle. The alternative car park route had to remain available continuously, provide a carriageway of at least 4.1 metres plus a footpath of at least 1.216 metres, include a suitable holding and turning area, and be supervised by three traffic marshals at all times. It also had to accommodate access for servicing the claimants’ premises and support vehicles up to 32 tonnes. The weekend alternative access route was acceptable in principle with four permanent marshals.
4. Security and final effect. Before works began, confirmation was required that £1 million of insurance cover was in force, together with adequate security for business interruption caused by loss of access. The order was to transfer the access obligations to the alternative routes by injunction or undertaking. The judgment and resulting order did not determine that the defendants’ works were lawful. Consequential drafting and costs matters were adjourned for further consideration.