Kitzing v Fuller

An interim injunction requires more than an arguable underlying claim. The court must assess whether granting or withholding relief is more likely to produce a just result, including the risk of irremediable prejudice. Relief should not be granted where there is no real risk that the defendant will undertake the restrained activity. The applicant must also formulate the injunction in clear and sufficiently precise terms, particularly where breach may lead to committal. A claim that ordinary estate management substantially impairs sporting rights may be seriously arguable, but that does not justify interim relief without evidence of a continuing or threatened interference.

The claimant held registered sporting rights over land owned by the defendant, including rights to shoot and to preserve and rear game. She alleged that the defendant’s tree-felling and clearance of woodland cover substantially interfered with those rights and sought an interim injunction prohibiting further felling, removal or cutting back of trees and ground cover.

The defendant maintained that the works were planned estate management, had been completed before the application, and would not resume apart from necessary work on damaged or diseased trees. The application had first been heard on 4 March 2016, when interim relief was refused and the matter was adjourned for a two-day hearing. The central issues were whether there was a serious issue to be tried and, if so, whether interim relief was necessary and properly formulated.

1. Serious issue to be tried. Applying the principles in American Cyanamid v Ethicon, the court should not ordinarily resolve disputed facts or difficult questions of law at the interlocutory stage. The inquiry is whether the claim is seriously arguable. On the evidence, it was just arguable that ordinary estate management could substantially change the character of land and materially reduce its fitness for shooting and for preserving and rearing game. The court made no final determination of that issue.
2. Approach to the balance of convenience. The court adopted the approach stated by Lord Hoffmann in National Commercial Bank Jamaica Ltd v Olint Corporation Ltd: the question is whether granting or withholding relief is more likely to produce a just result, having regard to the likelihood and extent of irremediable prejudice, the adequacy of damages, the cross-undertaking and the relative strength of the cases where that can be assessed without a mini-trial.
3. No present threat. Interim injunctive relief requires a real risk that the defendant will undertake or resume the activity sought to be restrained. The defendant’s evidence, supported by his estate manager, established that the planned works had finished and that there was no proper basis for doubting his stated future intentions. The circumstances therefore differed from HVE (Electric) Ltd v Cufflin Holdings, where continuing repetition of the wrong demonstrated the need for protection.
4. Uncertainty and width. The proposed injunctions were too broad and uncertain. An order restraining every step unlawfully interfering with sporting rights was a bootstraps form of order. The remaining terms were also objectionably wide, particularly in light of the claimant’s recognition that some estate-management works might be necessary. The applicant had to place properly drafted terms before the court; it was not for the court to redraft the injunction.
5. Disposition. The application was dismissed. The arguable underlying claim did not overcome the absence of a present threat and the oppressive and uncertain effect of the proposed orders.

The application was first heard on 4 March 2016. Interim relief was refused, subject to an assurance by the defendant concerning further clearance works, and the application was adjourned for the return hearing. The present judgment dismissed the application after the adjourned hearing.