Brothers Enterprises Ltd v New World Hospitality UK Ltd

Where an interim injunction would determine the practical outcome because the trial will occur after the threatened interference has ended, the court must consider the underlying likelihood of success, alongside all discretionary factors. A temporary obstruction of an easement may amount to substantial interference, particularly where access is fundamental to the claimant’s business. The Shelfer guidelines remain relevant, but must not be applied mechanically or treated as a fetter on discretion. Damages may be appropriate where commercial loss can be quantified and the defendant faces serious disruption from an injunction. The parties’ conduct, including failures in notice and frank disclosure on a without-notice application, is relevant to whether injunctive relief is just and equitable.

The claimant operated a restaurant adjoining the defendant’s hotel. Customers used an easement over the hotel premises to reach toilet facilities. Hotel refurbishment works blocked that access temporarily. The claimant sought an interim injunction requiring access to remain available.

An interim injunction had initially been granted without notice by Mr Justice Norris. Mr Justice Mann declined to continue it immediately and adjourned the matter for determination on notice. The issue before Roth J was whether interim relief should be granted where the obstruction would end before trial, taking account of the strength of the claim, the availability of damages, alternative access arrangements, and the parties’ conduct.

1. The application for an interim injunction was refused. The proposed obstruction would probably end before trial, so any later injunction would be academic. The court therefore had to consider the underlying likelihood of success, as well as the ordinary discretionary factors: Lansing Linde v Kerr [1991] 1 WLR 251.

2. The defendant’s suggested implied right to interfere with the easement in order to carry out works was arguable, but the implication of terms into a written lease was not easy to establish and the court could not regard the defence as likely to succeed. The total temporary blockage of the right of way was substantial interference. Its temporary nature remained relevant, and access to toilet facilities was fundamental to the restaurant’s operation. The court noted the comparable observations in Barrie House (Freehold) Ltd v Bin Mahfouz Company (UK) Ltd [2012] EWHC 353 (Ch) at para 41.

3. The court considered the Shelfer guidelines, including whether the injury was small, capable of monetary estimation, adequately compensable by a small payment, and whether an injunction would be oppressive. The claimant’s trading losses could be assessed by reference to its trading history. The defendant had also proposed a feasible, though inconvenient, temporary alternative access arrangement.

4. The guidelines were not to be applied mechanically. The discretion to award damages instead of an injunction must remain flexible, with a prima facie position in favour of an injunction but no rigid rule requiring one. The court relied on the approach in Lawrence v Fen Tigers Ltd [2014] UKSC 13, particularly paras [119]–[123].

5. The defendant’s failure to give adequate practical notice of the obstruction counted against it. However, the claimant’s conduct also mattered. It gave inadequate notice of the without-notice application and failed to draw important correspondence fully to the attention of the judge. The circumstances did not justify proceeding without notice, and the evidence put before the judge concerning licensing requirements was inaccurate.

6. Having regard to the temporary nature of the interference, the feasibility of alternative access, the quantifiability of commercial loss, the serious disruption an injunction would cause to the refurbishment, and the conduct of both parties, it was just and equitable to refuse the injunction.

• High Court (Chancery Division): Mr Justice Norris granted short-term interim relief without notice on 24 July 2017.
• High Court (Chancery Division): Mr Justice Mann declined to continue the injunction immediately on 31 July 2017 and adjourned the matter for determination on notice.
• High Court (Chancery Division): Roth J refused the restored application for an interim injunction.