Pavledes & Anor v Hadjisavva & Anor

The only live issues in this action are, first, whether in the circumstances of the case, it is appropriate to make a declaration as to the claimants’ admitted rights and, secondly, costs.

The claim relates to rights of light enjoyed by the building comprised in a property known as 15-21 Arcola Street, London E8 (the claimants’ property), of which the claimants are the freehold proprietors. The defendants are the registered freehold proprietors of an adjoining property known as 27 Arcola Street, London E8 (the defendants’ property).

In January 2005, the defendants obtained planning permission to build a two-storey addition at the rear of their property and a one-storey addition at the front of the property.

By a letter dated 29 April 2009, the claimants’ surveyor, Mr George Palos, informed the defendants that he had undertaken a rights of lights assessment which showed that their proposed development would infringe rights of lights enjoyed by the claimants’ property and invited the defendants to undertake not to carry out the proposed development.

The defendants instructed an architect, Mr Adrian Betham, to deal with this issue on their behalf. Between May 2009 and January 2012, there was extensive correspondence between Mr Betham and the claimants, their surveyor and their solicitors. Mr Betham contended that the claimants’ property did not have the benefit of rights of light over the defendants’ property, any such rights having been abandoned, and that, in any event, any loss of light would be negligible. In a letter dated 21October 2010, he made clear that the development had started and that the remainder would follow in due course, albeit that 14 days’ notice would be given in respect of works claimed to affect the rights of light alleged by the claimants.

By a letter dated 10 January 2012, Mr Betham gave 14 days’ notice of the defendants’ intention to carry out the proposed works, with a modification which Mr Betham contended would avoid infringement of any rights of light attached to claimants’ property.

The claimants’ solicitors responded with a letter dated 13 January 2012, informing Mr Betham that they were instructed to issue proceedings for an injunction. The defendants instructed solicitors who in a letter dated 20 January 2012 stated that they needed time to take their clients’ full instructions before replying substantively. In the meantime, they confirmed the defendants’ undertaking, given without admission and without prejudice to their clients rights, not to carry out works which could affect “the alleged rights to light claimed by your client” without 14 days’ prior notice. In a further letter dated 30 January 2012, they provided the defendants’ undertaking not to carry out works which would change the top floor and roofline without 14 days’ prior notice. This was stated to be given without prejudice to “our clients’ contention that if the development proceeds in accordance with our clients’ planning permission, it will not affect your clients’ rights to light”.

There is no evidence of further communication until 13 March 2012 when the claimants’ solicitors threatened to issue proceedings unless the defendants acknowledged their rights of light claim, undertook not to proceed with the development and agreed to pay their legal costs amounting to about £6,000 and their surveyors’ costs.

The defendants’ solicitors replied on 14 March 2012 that there was no justification for the issue of proceedings in the light of the undertaking given on 30 January 2012 and continued:

“Until we were instructed very recently, our clients’ architect has tried to negotiate and agree a way forward with your client. Unfortunately, this has not been possible to date. Therefore, our clients are now in the process of instructing their own specialist Rights of Light Surveyor to prepare a Rights of Light Report.

This Report will establish whether Mr Palos’ conclusions about the impact that our clients’ proposed development would have on light in Units 15-21 are correct.

It will be necessary, amongst other things, to ascertain whether Mr Palos has:-

1.

Adopted the correct measurements for, and the correct locations of, the apertures in the eastern elevation of number 15-21; and

2.

Properly given credit for light obtained from other sources.

Our clients’ specialist will report on the extent and nature of any “cut backs” which may be necessary should it be the case, which is not admitted, that the development as currently proposed would infringe or affect your client’s rights of light.”

On 19 March 2012, the claimants’ solicitors stated that they would need to protect their clients’ position by issuing proceedings. The defendants’ solicitors replied on the same day:

“As we have previously stated, our client cannot, at least at present, acknowledge that the proposed development will breach your client’s rights of light. Our client has yet to receive a report from a specialist rights of light surveyor, albeit that he is now in the process of obtaining such a report.

Our client is, however, prepared to provide a rather wider undertaking than he has previously provided. In our letter dated 30 January 2012, we stated that “our client will undertake not to carry out any works which will change the existing top floor and roof line of the current building without first providing to your client (through yourselves) with 14 days prior written notice.” Our client now goes further. He agrees not to carry out any further works to implement the proposed development without first providing you with 14 days written notice.

Especially given that wide undertaking, it would, (in our view) obviously, be premature and inappropriate for your client to commence proceedings.

There is no call to litigate the issue of whether the development would interfere with your client’s rights of light at a time when our client (and his lawyers): (i) are unable to form their own view on that issue without input from a rights of light surveyor; and (ii) are obtaining a report on that issue from such a surveyor. Also, if your client (quite unreasonably) did seek to litigate that issue, he would not, as things stand, be entitled to an injunction. A claimant is entitled to a quia timet injunction only if there is a “strong possibility” of unlawful conduct (see Lloyd v Symonds [1998] EWCA Civ 511); and, at least until such time as our client notifies you that he proposes to proceed with the development, there is no prospect that your client’s rights of light will be interfered with.

More generally, litigation should be regarded as a last resort.”

The claimants’ solicitors replied, again on the same day:

“We refer to your earlier letter of today and whilst pleased to note the undertaking now being given you seem to have totally overlooked the fact that:

1.

Our respective clients have been in correspondence for 2 years now as such our client has to date been most patient.

2.

Throughout this time your client chose to be represented by Mr Betham despite our client repeatedly informing him that Mr Betham is not a right of light specialist.

3.

Our client has had to incur substantial legal and professional fees in defending its position.

In the circumstances, we are of the view that our client as a condition of accepting the undertaking now being given can insist that your client must agree to pay his legal and professional fees. In the absence of this, we shall proceed to issue proceedings which in any event are now drafted.”

A claim form was issued on 27 March 2012 and was served with particulars of claim shortly afterwards. At this stage, Andreas Pavledes was the sole claimant and Theodoros HadjiSavva was the sole defendant. Their respective wives, as joint registered proprietors, were later joined as parties. The particulars of claim succinctly asserted the rights of light and identified the respects in which it was alleged that the proposed development would interfere with them. The relief claimed was a declaration as to the existence of the rights of light and an injunction to restrain the defendants from interfering with them.

On 3 May 2012, the defendants served a defence. It annexed a surveyor’s report dated 1 May 2012 and pleaded in paragraph 19:

“In light of the contents of that report (and in relation to paragraphs 4-7 of the Particulars of Claim), the Defendant: (i) admits that the Property enjoys prescriptive rights of light over 27 Arcola Street; (ii) (on the assumption that the technical analysis carried out by Mr Palos is accurate) accepts that the Development would (unlawfully) interfere with those rights of light; (iii) intends, at least for the foreseeable future, to proceed on the assumption that Mr Palos’ technical analysis is correct; and (iv) confirms that he and his wife do not intend to carry out the Development or, indeed, any other development that would interfere with any of the Property’s rights of light (indeed, the Defendant and his wife have decided, rather than carrying out any development at 27 Arcola Street, to let that property in its existing state).”

It was further pleaded in the defence that, having regard to the matters set out in paragraph 19 and the state of the correspondence before the issue of the proceedings, there was no basis on which the court could properly make the declaration or grant the injunction sought. The defendants did not intend or threaten to interfere with the rights of light and no practical purpose would be served by making any declaration about the nature or extent of the rights of light.

On 18 May 2012, the claimants’ solicitors informed the defendants’ solicitors that having regard to the admission made in the defence, there was no longer any need to seek a declaration or injunction, but they were entitled to costs. They wrote to Master Marsh in similar terms. However, at a CMC on 13 June 2012, the claimants made clear that while they did not pursue the claim for an injunction, they were still seeking a declaration. The Master gave directions for trial, limited to remedy and costs.

In accordance with the Master’s directions, the defendants served a witness statement of Mr HadjiSavva, in which he stated:

“18.

I have now obtained Mr Harris’ report. In essence, Mr Harris has advised me that I cannot proceed with the development in its current form without infringing Mr and Mrs Pavledes’ rights of light.

19.

My wife and I accept that advice. We accept that Mr and Mrs Pavledes enjoy rights of light over No.23-27. At least for the foreseeable future, we are content to proceed on the basis that the detailed technical analysis carried out Mr and Mrs Pavledes’ surveyor is correct. We do not intend to do anything that would infringe Mr and Mrs Pavledes’ rights of light.

20.

My wife and I have decided that, in view of the problems with the right of light issues, we will not carry out any development at No.23-27 for the time being. Instead, we will let the entirety of the property under a 5 year lease in its existing state. The proposed letting of No. 23-27 is now well advanced. We have found a tenant and my solicitors are instructed to deal with the grant of the proposed lease.”

In a further witness statement dated 30 October 2012, Mr HadjiSavva confirmed that he and his wife were proceeding to let the property for a term of five years.

It was submitted by Mr Johns for the claimants that the circumstances of this case were such as to make it appropriate to make a declaration as to the rights of light. There had been a long-running dispute conducted in correspondence over a period of three years in which the defendants had denied the rights of light and denied that their proposed development would interfere with any rights of light that might exist. In January 2012, they had given 14 days’ notice of their intention to proceed with the development. Although when faced with the strong stance taken by the claimants, the defendants had said that they would take further advice and would not proceed without giving a further 14 days’ notice, this was expressly without prejudice to their rights.

The position remained the same more than two months later when the proceedings were issued. Although the defendants had by their defence admitted that the claimants’ property enjoyed rights of light over the defendants’ property and that their proposed development would unlawfully interfere with those rights of light, the latter concession was expressly on the basis that the technical analysis carried out by the claimants’ surveyor was accurate. The defendants’ stated in their defence that they intended “at least for the foreseeable future” to proceed on that assumption. The defendants did not therefore unequivocally admit the claimants’ case. In any event, the dispute had reached the point where the claimants were entitled to greater protection than would be given by admissions in the defence. Those admissions would not prevent the defendants from subsequently raising a contrary case. In the absence of a confirmatory deed executed by the defendants, a declaration was appropriate. It would be unjust to the claimants not to resolve the dispute conclusively with a declaration as to their rights.

For the defendants, Mr Weekes based his argument in opposition to the grant of a declaration on a principle which he formulated as follows:

“In a quia timet action, a court should grant an injunction, or make a declaration, only if the defendant is threatening or intending to act unlawfully – with the result that there is an “imminent” or “immediate” threat that the claimant’s rights will be infringed.”

A “quia timet action” means an action based on a threat by a defendant to act contrary to a claimant’s rights, no actual infringement having (yet) occurred. In support of this principle, Mr Weekes relied on three authorities, decided in 1877, 1937 and 2012, to which I refer below.

Mr Weekes submitted that the claimants did not plead and, in any event, could not establish that there was any imminent threat to their rights of light. Whatever the position had earlier been, the defendants had retreated before the issue of the claim form. They had undertaken not to carry out any further work on their proposed development save on 14 days’ notice and were taking expert legal and other advice on their position. He submitted also that the declaration sought was too vague, to serve any practical purpose or to enable the affected property owners to understand their rights. The real purpose of the action was, he submitted, to recover the claimants’ pre-action costs.

Mr Weekes submitted that there were good reasons for the principle he propounded. It ensured that there was a substantial basis for quia timet proceedings. Legal proceedings were an anxious, expensive and time-consuming matter for the parties and absorbed the scarce resources of the court. This principle avoided unnecessary litigation.

I will first make some general points about the remedy of a declaration. The present jurisdiction is statutory. The power conferred by statute on the Court of Chancery in the mid-nineteenth century was subsequently applied to the High Court, by the Judicature Acts and now by section 19 of the Senior Courts Act 1981. The court may make a binding declaration whether or not any other remedy is claimed: CPR 40.20. It is a matter for the court’s discretion whether to grant a declaration in the circumstances of any particular case, although it is of course a judicial discretion to be exercised in accordance with general principles.

It is widely acknowledged that the circumstances in which the court will be prepared to make a declaration have broadened since the decision of the House of Lords in Gouriet v Union of Post Office Workers [1978] AC 501, where Lord Diplock stated at p.501:

“…. a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.

….. the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.”

The principal developments since Gouriet have concerned questions which are not directly relevant to the circumstances of this case, such as whether the court will determine issues which have become “academic” as between the parties or whether all persons which will be affected by the declaration need to be parties, including whether the court will make a declaration as to the meaning of the contract when all the contracting parties are not also parties to the litigation. In Rolls-Royce PLC v Unite the Union [2009] EWCA Civ 387; [2010] 1 WLR 318, Aikens LJ at [120] summarised the applicable principles, of which the first three are relevant to the circumstances of this case:

“(1)

The power of the court to grant declaratory relief is discretionary.

(2)

There must, in general, be a real and present dispute between the parties before the court as to the existence or extent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant.

(3)

Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question.”

With the qualification to paragraph (2) that the dispute could relate to legal rights which might come into existence in the future (as Lord Diplock acknowledged in Gouriet), Moore-Bick LJ agreed with this summary in Milebush Properties Ltd v Tameside Metropolitan Borough Council [2011] EWCA Civ 270; [2012] 1 P&CR 3 at [87].

It will be noted that there is nothing in these general statements requiring an actual or an imminent infringement of a legal right before a declaration will be made. The willingness of the courts in appropriate cases to make declarations as regards rights which may arise in the future or which are academic as between the parties suggests that the court’s jurisdiction is not so tightly constrained.

The first authority on which Mr Weekes relied for the existence of the principle which he put forward was Cowley v Byas (1877) 5 Ch D 944. This was not a claim for a declaration but for an injunction. The defendant successfully appealed against the grant of an interlocutory injunction. The judgment of Jessel MR is concerned with the circumstances in which the court will grant an interlocutory injunction. In that case not only was there no immediate threat on the defendant’s part to do any acts alleged to interfere with the claimant’s rights but there was not the remotest possibility of the defendant doing so nor the remotest intention on his part of doing so. It provides no support for Mr Weekes’ proposition so far as it relates to the grant of a declaration.

In the second authority, Draper v British Optical Association [1938] 1 All ER 115 the defendant association had adopted a code of ethics which restricted advertising by its members. The association alleged that the plaintiff was in breach of the code and convened a meeting to consider whether he should be expelled from the association. Before the meeting, the plaintiff issued his writ, claiming a declaration that it would be ultra vires the defendant association to attempt to enforce the code of ethics against the plaintiff and for a declaration that the defendant was not entitled to expel the plaintiff. At the trial of the action, Farwell J refused to make the declaration sought, for reasons which he explained at pp 118-119 and 120. In the latter passage, Farwell J said:

“It seems to me impossible for the court to say that the council shall not hold such a meeting. When they hold their meeting, if they elect to expel the plaintiff for some reason which is not a good and sufficient reason, or if, in seeking to expel the member, they are acting ultra vires in any way, then no doubt this court will interfere, and will say at once that the resolution purporting to expel the plaintiff is ultra vires, and that, in the circumstances, he has not been expelled, but has remained a member. Then the court, no doubt, would restrain the association, if necessary, from purporting to expel him. But to come to the court and to ask the court to restrain the council from holding a meeting before the meeting has been held – which is something in the nature of a quia timet action – when nobody knows what is going to happen at the meeting, seems to me again to be a misconception of the whole position.”

This is consistent with the practice of the court, to which Farwell J referred at p.116, of not granting relief in respect of meetings duly convened but awaiting the outcome of the meeting and, only if the challenged resolution is passed and proper grounds exist, granting declaratory and/or injunctive relief in respect of the resolution. It is not, in my view, authority for the proposition that a declaration will only be granted if a threatened wrong is imminent.

The final authority was the decision of Sir Andrew Morritt C in CIP Property (AIPT) Ltd v Transport for London [2012] EWHC 259 (Ch). This was the main basis for Mr Weekes’ submission and it is necessary to look at it in a little detail.

The claimant (Aviva) was the freehold proprietor of properties close to the underground station at Tottenham Court Road. It contended that a proposed development above the station, forming part of the Crossrail project, would infringe the rights of light enjoyed by those properties. Aviva brought proceedings against Transport for London, London Underground Limited and the third defendant, which was proposing the development. The third defendant did not own the site but it had a right of pre-emption over the station and an entitlement, upon exercising that right, to build above it. The third defendant had worked up plans for the proposed development. Aviva issued proceedings seeking a declaration that the defendants were not entitled to obstruct the rights of light enjoyed by its properties and an injunction to restrain them from doing so. Some months after the issue of the proceedings, the third defendant applied for planning consent for its proposed development, which had not been determined by the time of the hearing before the Chancellor. Assuming planning consent were given, the exercise of the third defendant’s option and the proposed development would not take place for at least five years.

The defendants applied for the summary dismissal of the claim.

The arguments of the defendants were summarised by the Chancellor at [20]:

“In these circumstances the defendants through their counsel submit that the claim is premature and bound to fail. They suggest that it is premature because, first, the third defendant does not own the relevant land and may never do so, second, that the first and second defendants, who do own the relevant land, have no proposals for its development which could infringe any rights to light of Aviva and, third, that no planning permission has been granted to anyone to do any work anywhere in such a way as might infringe those rights. Counsel submits that the claim is bound to fail because there is no immediate threat such as to justify a quia timet injunction, and he relies on Cowley v Byas [1877] 5 Ch D 944. He says there is no chance of a declaration being granted either, in reliance on Draper v The British Optical Association [1938] 1 All ER 115. Finally, he contends that there is no risk that delay in proceedings at this stage would prejudice the rights of Aviva in the future, for which purpose he refers to an oddly named case called HKR UK II CHC Limited v Healey [2010] EWHC 2245.”

The Chancellor reviewed the authorities relied on at [24]-[29], stating at [23]:

“It is convenient to start with reference to the authorities to which I have been referred. They fall into two categories; the principles regarding the grant of a declaration and the principles relating to the grant of quia timet injunctions. They are, as might be expected, broadly similar.”

At [24], the Chancellor referred to and cited from Draper v British Optical Association and then commented in relation to it:

“Thus, in relation to prematurity the rules in relation to declarations are much the same as for quia timet injunctions.”

At [27] he turned to the authorities on quia timet injunctions. At [28], having referred to Cowley v Byas, he said:

“Thus for the grant of a quia timet injunction there must be an immediate threat to do something which requires the intervention of the court to prevent it. That principle is asserted in similar language in all the subsequent cases to which I have referred.”

In considering the facts the Chancellor found at [32]-[38] that there was no immediate threat to infringe Aviva’s rights.

The Chancellor concluded as regards the claim for a declaration at [40]:

“In summary, I consider that the claim against the third defendant by Aviva for the declaration it seeks is misconceived because it is premature and would serve no useful purpose now. In addition I have considerable doubt as to the possibility of any meaningful definition of the relevant issues, given that the development does not have the benefit of any planning permission and may change substantially in the next five years anyway.”

At [41] the Chancellor said as regards the claim for an injunction:

“I also consider that the claim for an injunction is misconceived. There is not now and cannot be for at least five years an immediate threat by the third defendant to infringe the rights to light claimed by Aviva. None of the matters on which Aviva relies can alter the indisputable fact that it is impossible for the third defendant to infringe the rights to light Aviva claims before 2017 at the earliest.”

There is in my judgment no oversight on the Chancellor’s part in applying the test of imminent threat to the claim for an injunction but not to the claim for a declaration. The cases to which he referred established the requirement of an imminent threat as a ground for the grant of a quia timet injunction. He applied to the claim for a declaration the test of prematurity and utility. While the Chancellor considered in his judgment that the principles as regards both remedies are broadly similar and, as regards prematurity, “much the same”, he clearly did not apply the test of imminent or immediate threat to the claim for a declaration, and the authorities would not have justified him in doing so.

In my judgment, Mr Weekes cannot make out a principle that before the court will grant a declaration as to the claimant’s rights, there must be shown to be either an actual infringement or the threat of an imminent infringement. It is entirely understandable that there should be this requirement for the very different remedy of an injunction. The Chancellor’s decision in CIP Property does however clearly illustrate that the court may refuse a declaration on grounds of prematurity or because it would not serve a useful purpose.

The fact that the claimants need not show an imminent threat of the infringement of the rights of light enjoyed by their property does not mean that a declaration should be made. The issue is whether the circumstances of the case are such as to make it appropriate for the court, in exercise of its discretion, to grant a declaration. Is there a real dispute between the parties such as to make it appropriate to grant a declaration, taking account, as stated by Neuberger J in Financial Services Authority v Rourke [2002] CP Rep 14, of:

“justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration.”

As to the existence of a dispute regarding the claimant’s rights to light and the effect of the defendants’ proposed development, there was clearly a very real dispute in January 2012 and in the period leading up to it. The defendants, through their surveyor, had for some considerable time vigorously asserted that the claimants’ property enjoyed no relevant rights of light and that the proposed development would not in any event interfere with them.

The defendants’ position changed in January 2012, but only to the extent of informing the claimants that they were seeking new advice and that they would not proceed with that part of the proposed development which might interfere with the claimants’ alleged rights of light save on 14 days’ notice.

In March 2012, faced with the renewed threat of legal proceedings, the defendants extended their undertaking by agreeing not to commence any development work save on 14 days’ prior notice.

There was not however an acknowledgement by the defendants of the claimants’ rights or an acknowledgement that their proposed development would interfere with those rights. In January 2012 the Defendants’ solicitors reiterated the defendants’ intention that the “alleged” right to light would not be affected by the development. The undertaking was given without any admission and without prejudice to the defendants’ rights. In March 2012, the defendants’ solicitors again made clear that no admission was being made as to the claimants’ position.

Mr Weekes relies heavily on paragraph 19 of the defence which I have earlier quoted, but it is not an unconditional acceptance of the claimants’ position. It proceeds expressly “on the assumption that the technical analysis carried out Mr Palos is accurate” and states that the defendants then proceed on that assumption “at least for the foreseeable future”.

In my judgment, the terms of the defence and the undertakings given before the issue of proceedings cannot be said to have laid to rest the very sharp dispute which had previously existed. At best, the defendants put the dispute into abeyance, but reserved the right to revive it at their discretion.

The declaration sought by the claimants is directed to an issue which has been a very live issue between the parties and which has not been resolved.

In these circumstances, would it be just and would it serve a useful purpose to grant declaratory relief? In my judgment, it would, precisely because it would bring resolution and finality to this issue. In view of the previous history, I do not consider it would be just to deny that resolution and finality to the claimant. Mr Weekes submitted that the defendants would not be bound by paragraph 19 of the defence, so as to prevent them from re-asserting their prior position. Without a declaration, the claimants will be left in a position of uncertainty, with the defendants reserving the right to re-assert their prior position on 14 days’ notice given at a time of their choosing.

It does not meet the point to say, as Mr Weekes did on behalf of the defendants, that for the foreseeable future there is no likelihood of infringement. The defendants have recently let their property on a lease expiring in 2017. But it would be open to the defendants to agree an early surrender. In any event, given the background to this case, which is very different to that which existed in CIP Property, I see no very good reason why resolution of the issue should await the end of the lease.

Equally, for much the same reasons that the grant of a declaration would be just, it would serve a useful purpose. It would bring finality to the dispute, enabling all parties to know where they stood. Mr Weekes submitted that if the claimants had plans to sell their property, there would be a justification for the grant of a declaration at that stage, but not in circumstances where a sale was no more than a possibility in the future. I do not accept that the claimants are obliged to wait until then before seeking a declaration of their rights. I see every reason for dealing with it now, rather than waiting until either the claimants wish to sell or the defendants re-assert their position, and then having to deal with it, perhaps at very short notice.

If, in their defence, the defendants had unconditionally acknowledged the claimants’ rights and the effect of their proposed development on those rights, they might well have been in a position to argue that the claimants should have waited a little longer before they issued proceedings and should not therefore have their costs. But the defendants did not adopt that position.

I therefore conclude that a declaration should be granted as to the claimants’ rights. The defendants took issue with the terms of the declaration proposed but I did not hear full argument on that. I will invite counsel to seek to agree the terms of a declaration, failing which there will have to be further submissions on it.