Trustees Ltd v Papakyriacou & Anor

An express easement may be subject to time limits validly fixed by the servient owner’s successor. Where tenants continue to use an easement outside those hours with the landowner’s permission, the landowner should limit that permission, and a limited injunction may be granted even if a more extensive order is sought. A best endeavours injunction is a high and potentially contentious obligation and should not be imposed lightly. The court should also be cautious about a final order materially affecting non-parties who have had no opportunity to make representations. The absence of proven past breach and a clear undertaking to notify users may justify refusing an injunction against the landowner’s own future use.

Trustees Limited owned land burdened by an easement allowing adjoining commercial occupiers to use a loading bay, subject to times approved by the grantor. After acquiring the servient land, Trustees prescribed hours and sought injunctions against the Papakyriacous, their tenants and licensees, alleging out-of-hours use and obstruction.

The High Court judge held the time determination valid but dismissed the claim, finding no proved post-determination out-of-hours use and ordering Trustees to pay the respondents’ costs: [2009] EWHC 3163 (QB). Trustees appealed against the factual findings, refusal of injunctive relief and costs order. The central issues were whether the tenants had continued to use the loading bay outside the prescribed hours, whether that use was with the respondents’ permission, and what relief and costs should follow.

Lord Justice Rimer delivered the judgment, with Lord Justices Moses and Longmore agreeing.

1. Respondents’ own use. The judge was entitled to accept the oral evidence that the respondents had not used the loading bay outside the prescribed hours. An appellate court should not substitute a different factual finding where the trial judge saw and heard the witness and the finding was open on the evidence. The refusal of an injunction against the respondents’ own future use was therefore within the judge’s discretion, particularly because the respondents had accepted the validity of the restrictions and would comply with them.
2. Tenants’ use. The respondents’ solicitors’ letter and amended Defence contained unequivocal assertions that the tenants continued to use the loading bay outside the prescribed hours. Those assertions, together with the respondents’ evidence, amounted to a clear admission. The judge erred by failing to take that material into account and should have found that the tenants had continued the out-of-hours use.
3. Permission and relief. It was unrealistic to regard the tenants’ use as occurring without the respondents’ permission. Until the respondents wrote to the tenants after trial, that permission was unrestricted. The respondents should have limited it after receiving Trustees’ valid time determination. A lesser injunction requiring notification of the restrictions and limitation of permission could properly have been granted, although the proposed locking injunction was disproportionate and procedurally problematic.
4. Best endeavours and non-parties. A best endeavours injunction imposes a high obligation, may be futile where control or sanctions are limited, and may generate further litigation. The court should also be wary of a final injunction materially affecting tenants who were not parties and had no opportunity to make representations. The undertaking to notify any tenants not already informed was accepted, and no injunction was granted.
5. Costs. The errors concerning the tenants’ use, permission and appropriate lesser relief materially affected the costs decision. The costs of the proceedings below, and the costs of the appeal, were to be reconsidered on written submissions.

• Court of Appeal (Civil Division): The appeal succeeded in substance. The court found that the tenants had continued to use the loading bay outside the prescribed hours and that their use was with the respondents’ permission, but accepted an undertaking instead of granting an injunction. The costs order was to be reconsidered.
• High Court, Queen’s Bench Division: His Honour Judge Richard Seymour QC held that Trustees had validly prescribed the hours of use but dismissed the claim, finding no proved out-of-hours use and refusing injunctive relief. Citation: [2009] EWHC 3163 (QB).