Stephen Pincus v Sandeep Singh Johal & Anor

This is my judgment on an application by the claimant by notice in this matter dated 14 July 2023. The claim in which it is made was begun by claim form issued on 19 August 2022. It alleges that the defendants have wrongfully interfered with a right of way vested in the claimant to entitle him to use a concrete platform situated on the second defendant’s land at 19 Millicent Road, Leyton, London E10, so as to access an entrance to his own next-door commercial premises at 21 Millicent Road. The first defendant is concerned in the management of the second defendant, and therefore of the land. The application currently before me is for an order that the claimant be permitted to enter on the defendants’ land to reinstate the concrete platform. I shall return to that in due course, but first I will deal with the background to the matter and the procedural aspects of the claim.

The claimant’s land contains a commercial property which at the time of the hearing was let to a commercial tenant. I understand that the lease was due to come to an end by effluxion of time on 7 December 2023, but I do not know if it has been renewed or statutorily continued, if the tenant is holding over or indeed has left. At the time of the hearing the evidence was that the tenant would unload goods on the unbuilt part of the claimant’s land and take them by fork-lift truck up a concrete ramp on that land. The ramp becomes a platform by the side of the building and then turns a corner and passes onto that part of the platform on the defendants’ land, so as to have access to the entrance to the building on the claimant’s land, which (i) is at the height of the platform but (ii) abuts the defendants’ land. On the plan below, the defendant’s land (no 19) is edged in red, and the claimant’s land (no 21) is immediately adjacent to the south-east. The areas coloured blue indicate the concrete ramp, starting at ground level inside the claimant’s land and finishing at door entry level in the defendant’s land.

The interference alleged was that the defendants began to demolish the platform, making it impossible for the tenant to take goods into the building by fork-lift truck. The photograph below, taken on 19 August 2022, shows the concrete ramp as it turns the corner from the claimant’s land (on the right) onto the defendant’s land (on the left). The boundary between the two is the wall of the building on the right. It can be seen that, as at the date of the photograph, parts of the ramp appear to have been removed or damaged.

On 4 September 2022 the claimant applied by notice for an interim injunction against the defendants, to restrain the alleged wrongful interference. On 20 September 2022, Miles J granted a mandatory and prohibitory injunction, requiring the defendants to reinstate the damaged platform and not to interfere further with the claimant’s alleged right. The defendants carried out certain remedial works to the ramp, although not completing them by the date stipulated in the order of Miles J. I include below a photograph of part of the ramp after the defendants’ works had been done, in particular showing the manhole cover which features later in the story, and which can also be seen in the previous photograph. (These may be regarded as “before” and “afterwards” views.)

On 15 February 2023, the court, at the request of the claimant made under CPR rule 12.4(1) in Form N227, entered judgments against the defendants in default of defence. I will set out the relevant rules in due course. As is made clear later, there were in fact several requests for judgment in default, and also additional correspondence which must be considered. But I will come to that.

On 22 May 2023, the defendants issued notice of application for an order to set aside the default judgments. On 14 July 2023, the claimant issued notice of application for “an Order permitting [him] to reinstate the Loading Platform to an acceptable standard”, as well as for damages and costs. These two applications came before me on 26 October 2023. At the outset of the hearing, I heard and dismissed (for reasons given at the time) an informal application for an unsigned witness statement of the defendants’ surveyor, Mr George Charalambous, dated the day before, to be admitted on the defendants’ behalf.

I then went on to hear the defendants’ application to set aside the default judgments. However, after hearing counsel on both sides, I dismissed it, for the reasons I then gave orally. These reasons have now been transcribed, and are to be found on the usual websites under neutral citation number [2023] EWHC 2997 (Ch). No application was made to me for permission to appeal, and, so far as I am aware, no appellants’ notice has been lodged. The consequence is that the default judgments stand.

Having heard and disposed of the defendants’ application, I then heard the claimant’s application of 14 July 2023 for an order to permit him to reinstate the platform and for damages and costs. Having heard that application, I considered whether I should give an extempore judgment or reserve it. In the event I told the parties later the same day (26 October 2023) that I would reserve my judgment. However, the next day I found on the court file the final request by the claimant for default judgment, which was filed at court on 14 February 2023, together with an accompanying letter confirming that the claimant was “content not to pursue all non-monetary aspects of the Particulars of Claim”. This was not in the bundle, and had not been referred to at the hearing the previous day. (In his sixth witness statement, dated 17 November 2023, the claimant solicitor explains that the failure to include this in the bundle was an oversight, for which he apologised.)

I therefore invited the parties to let me know if they wished to make further submissions in the light of this document. Both sides agreed to the following directions, which I formally made on 3 November 2023:

The claimant served his submissions, in the form of a witness statement by the claimant’s solicitor (5 pages, plus a 10-page exhibit), on 17 November 2023. That is of course one day late. The claimant seeks a retrospective extension of time for this, which I will give, no point being taken by the defendants. Although the defendants were due to file their submissions by 30 November 2023, there was apparently a mix-up between counsel and his solicitors as to who should file, and it was only on 7 December that written submissions from counsel were received. These ran to just over 13 pages, plus 127 pages of authorities annexed.

By letter dated 13 December 2023, the claimant sought an extension of time for his reply submissions to 13 January 2024, on the ground that his counsel would be on leave from 19 December to 8 January. This letter did not on its face state that it had been copied to the defendants (cf CPR rule 39.8(4)). Once it was confirmed that the letter had also been sent to the defendants, on 14 December 2023 I extended time for lodging and service of any reply submissions of the claimant to 4 pm on Monday 8 January 2024. However, it is not clear that my decision was passed on to the parties. At all events, on 9 January 2024, following a further application, I extended time again to 4 pm on Friday 12 January 2024. On 11 January 2024, the claimant filed a further written submissions of about 11 pages, plus a supplemental bundle of 76 pages and an authorities bundle of 73 pages.

This veritable cornucopia of written submissions, received at a time when I was busy with other work, and not expecting still to be dealing with this case, has unfortunately slowed down the production of my judgment. I apologise for the delay.

For various purposes arising on this application, it is necessary to bear in mind some details of the claimant’s claim as formally pleaded against the defendants. Unfortunately, there are two versions of the “Amended particulars of claim” in the papers before me. The one in the hearing bundle, produced by the claimant’s solicitors for the hearing on 25 October 2023 before me, appears to be dated 4 September 2022. But I now have a second version, which is exhibited to the sixth witness statement of the claimant’s solicitor, Shaun Murphy, dated 17 November 2023, which (as set out below) was filed on that day. This version says it is “Amended pursuant to the order of Mr Justice Miles of the 20 September 2022”, and carries the date of 11 October 2022.

I do not know why the earlier version of 4 September 2022 was contained in the bundle for the hearing on 25 October 2023, when there plainly was a later version in existence. Moreover, and so far as I can see, the order of Mr Justice Miles dated 20 September 2022 is not in the bundle. I have checked the court file, and find that paragraph 4 of that order reads “Permission is granted to the Claimant to amend the Particulars of Claim in the form annexed hereto”. Unfortunately, the version on the court file has nothing annexed to it. For present purposes, I shall proceed on the basis that the later version is the correct and duly authorised one, although that is not the version in the bundle. Accordingly, it is to that version that I shall refer for the purposes of this judgment.

Paragraphs 38-39, and 42-43 of the amended particulars of claim dated 11 October 2022 relevantly read as follows:

The prayer for relief in the amended particulars of claim reads:

The issues with which I propose to deal on this application, and the order iwhich I will do so, are as follows:

As to the first issue (standing), the defendants say that the claimant does not have standing, because his claim is in nuisance, and he is not in possession of the dominant tenement, having let it to a third party who has not been joined to these proceedings. As to the legal nature of the claim, the amended particulars of claim are not as clear as they might be. Paragraph 22 states:

Nuisance is a claim about damage to a proprietary interest in land. It is clear that a lessee, even a yearly or weekly tenant, in possession of land can sue in nuisance: Inchbold v Robinson (1869) LR 4 Ch 388; Jones v Chappell (1875) LR 20 Eq 539. But mere occupation of land on its own, without a proprietary interest, is not enough: Hunter v Canary Wharf Ltd [1997] AC 655, HL. On the other hand, it is also clear that the owner of an incorporeal hereditament, such as an easement, may sue for interference with that easement: Celsteel Ltd v Alton House Holdings [1985] 1 WLR 204, 216.

The proprietary interest concerned need not, however, be in possession. A reversioner, such as the claimant is, may sue in nuisance in respect of damage to the reversion: see for example Kidgell v Moor (1860) 9 CB 364 and Bell v The Midland Railway Company (1861) 10 CB (NS) 287. So, to be actionable, the damage must be of a permanent nature. As Parker J said in Jones v Llanrwst Urban DC (No.2) [1911] 1 Ch 393, 404 (a case of nuisance by a riparian owner against an authority which discharged sewage into the river flowing past his land), that means “such as will continue indefinitely unless something is done to remove it.” Over a century later, Morgan J confirmed in Metropolitan Housing Trust Ltd v RMC FH Co Ltd [2018] Ch. 195, [54], that a “reversioner can sue in relation to a nuisance where the nuisance will, or even might, continue to a time when the reversion falls into possession”. That was in the context of a right to light, but I do not consider that a different principle applies to a right of way.

Here the reversion was due to fall in very shortly after the hearing (and may now have done so). On any view, if physically damaging the platform so that, until it is repaired or reconstructed, or, when so reconstructed, it is less convenient and less safe to use a right of way over it amounts to a nuisance, it is a “permanent” nuisance for this purpose. It may continue until the reversion falls into possession, which therefore damages the reversion. Accordingly, I hold that the claimant has standing to sue for the nuisance alleged, without joining his tenant.

It is also clear from the decision of the Court of Appeal in Nicholls v Ely Beet Sugar Factory Ltd[1936] 1 Ch 343 that, although the claimant must prove an infringement of the legal right, he or she need not prove actual damage. So, the next question is whether there is evidence of interference with the right of way. In my judgment there is. The right of way granted to the claimant was over the entire width of the platform, and not any particular part. As set out in the written evidence, and as can be seen from the first photograph reproduced earlier in this judgment, a substantial part of that width had been demolished, and in practice the right of way could not so conveniently and safely be exercised over the demolished part. It has now been restored but, as the claimant says, defectively. The question is whether the demolition and defective reconstruction was a sufficient infringement.

In B & Q plc v Liverpool & Lancashire Properties Ltd (2001) 81 P & CR 20, the claimant had a right of way to its commercial premises over the whole of a large area adjacent. It used that right for deliveries by large lorries. The defendant proposed to extend a building so as to encroach on the area over which the right of way subsisted, arguing that the encroachment would not be sufficient to interfere with the exercise of the right. Blackburne J referred to and quoted extensively from the decision of the Court of Appeal in West v Sharp (2000) 79 P & CR 327, and the decision of Scott J (as he then was) in Celsteel Limited v Alton House Limited [1985] 1 WLR 204.

In particular, the judge cited the following passage from the judgment of Mummery LJ in West v Sharp, at 332:

On the basis of these authorities, Blackburne J concluded:

In my judgment the claimant’s insistence on continuing to use “the whole of what he contracted for” is indeed reasonable. The claimant’s preference for having the whole width of the ramp to take goods up to his building entrance was and is neither unreasonable nor perverse. The demolished part has now been replaced, but the claimant says defectively. The brick retaining wall was inadequately rebuilt, and had to be demolished and done again. In addition to this, the remedial works carried out by the defendants have left a manhole cover protruding upwards from the concrete slab of the ramp rather than sitting flush with the ground. This can be seen in the second photograph reproduced earlier. It is both a trip hazard and an obstacle to the moving of heavy goods over the surface of the ramp.

In my judgment, it is no answer to say that, with care and using narrower pallets, the claimant and his tenants can avoid the manhole. Nor is it an answer to say that complaining of a trip hazard is analogous to (and should be judged by the test for) a quia timet mandatory injunction to prevent personal injury. The claimant seeks a restoration of the status quo ante, in which there was a right of way over a ramp of a certain width with no obstacle or trip hazard. That is what he bargained for, and that is what he was granted. In my judgment, considering the situation and purpose of the ramp, this is a sufficiently substantial interference with the claimant’s right to amount to a nuisance.

The next question is whether the claimant has abandoned the claim to an injunction. As already stated, the claimant’s solicitors made a number of requests for judgment in default of defence. The first three of these were on 6 December 2022, 13 December 2022, and 25 January 2023. Each of them was rejected, though for various reasons. The solicitors wrote to the court by letter dated 14 December 2022 to say that they were instructed “not to pursue the claim for declaratory relief”, and also filed a letter of even date from the claimant himself to the same effect. Both these letters expressly referred to abandoning the claim to a declaration.

However, a fourth request for judgment in default of defence was made on 14 February 2023. According to the court’s electronic file, it was uploaded by the solicitors at 1755 on 14 February, and accepted by staff at 1644 on 15 February 2023. It is event no 54 on the file. On the same day, and at the same time, the claimant’s solicitors e-filed a letter saying:

According to an email from court staff to the claimant’s solicitors dated 20 February 2023, the request for judgment of 14 February was referred to Master Clark. She directed that judgment be entered in default of defence

Despite the lack of reference to it in this letter, the master would also have seen the letter of 14 February 2023, because that was filed at the same time as the request and accepted by staff at the same time. The two are next to each other on the file. As a former chancery master, I know that a master who has been sent an alert about the request would also be alerted to the accompanying correspondence, and in any event could not fail to see from the event log that there was correspondence immediately next to it on the file. It is clear (from the terms of the court’s email) that she also saw the solicitors’ letter of 14 December 2022. However, it is unclear whether her attention was drawn to the difference in language between the letter of 14 December and the letter of 14 February. At all events, judgment in default was sealed on 15 February 2023 (timed at 1915) and thereafter sent out to the claimant’s solicitors.

In his sixth witness statement, dated 17 November 2023, and made specifically in relation to this point, the claimant’s solicitor Shaun Murphy said this:

The reference in paragraph 9 of the witness statement to “Judgment for £10,000” is a reference to the claim under paragraph 43 of the Amended Particulars of Claim for aggravated damages in the sum of £10,000. But Master Clark pointed out that the claim to damages is not a claim to a liquidated sum, and that the letter of 14 December 2022 said the claimant was seeking damages “for an amount to be decided by the court”.

There is a further point to mention. The claimant’s solicitor says in his evidence that it was clear from the inter-solicitor correspondence that the claim to an injunction was still pursued and had not been abandoned. He refers to five letters from his firm to the defendants’ solicitors. The first two and the fifth were sent in November 2022. The third was sent in January 2023. All of these were therefore sent before the letter of 14 February 2023. But the letter of 14 February was written to support the latest request for the default judgments, and, in apparently abandoning “non-monetary aspects” of the claim, would inevitably be read as superseding the earlier letters. The fourth letter was written to the defendants’ solicitors in June 2023, opposing their application to set aside the default judgments, the benefit of which the claimant wished to retain. Moreover, this letter did not say that the application for an injunction was still pursued. It said only that a claim for damages and costs was still being made.

The relevant rules of the CPR are the following:

It will be seen that the simple request route to default judgment is appropriate only where the claim made is for money (whether in a specified sum or to be assessed) or the delivery up of goods where a money alternative is available. If any other remedy is claimed, and not abandoned, an application must be made under CPR Part 23. That will involve notice being given to the defendant, and a hearing taking place. It will take time, and involve extra costs. The claim in the present case was for money, but (originally) also for a declaration and final injunctions. Despite the terms of rule 12.4(3), no application was made under Part 23. On the other hand, on the request for judgment being made, the matter was referred to the master, who, after considering the matter and taking account of the letters from the solicitors, directed that judgments in default be entered.

The only authority cited to me on the operation of these rules was Robins v Kordowski [2011] EWHC 1912 (QB). In that case, a problem arose with some similarities to the present. As set out by the judge, the proceedings began thus:

Then in April 2011 judgment was entered against Mr Kordowski in default of defence, for damages to be assessed. Subsequently, two applications were issued:

The argument on abandonment is put in paragraphs 55 and following:

In that case, as in this, the claimant proceeded by way of a request for a default judgment rather than by way of an application under Part 23. Nevertheless, in that case it was held that the claimant was not to be taken to have abandoned the claim to injunctive relief in the claim form. But it is necessary to see that decision in the context of the particular facts of that case. The act of abandonment alleged was the making of the application for a default judgment by simple request under CPR rule 12.4(1) instead of by application notice under CPR part 23 under rule 12.4(3). As the judge said,

The present case is different. The act of abandonment considered here is not simply applying for default judgments by request under rule 12.4(1). It is also the letter of 14 February 2023 accompanying the request for default judgment of the same date. This letter expressly abandons “all non-monetary aspects” of the claim. In his evidence, set out above, the claimant’s solicitor explains that he did not consider this expression to cover the claim to an injunction, because that had already been granted by Miles J on 20 September 2022. The claimant’s problem is that what was granted by Miles J was an interim injunction, intended merely to hold the ring until the court could decide whether, the claimant’s case being either admitted or proved, any of the final relief sought in the claim should be granted.

That relief (as set out in the prayer to the amended particulars of claim) included (i) a mandatory order for the defendants to restore the raised platform and (ii) a prohibitory order restraining them from obstructing or interfering with the claimant’s right of way and access. Both are discretionary remedies. None of that relief had so far been granted. It was still for consideration. It was therefore capable of being abandoned in order to obtain a default judgment by request under CPR rule 12.4(1). On its face, the letter of 14 February effects that abandonment.

The letter must also be read in its context. The claimant had previously made three separate requests for a default judgment under rule 12.4(1). Each of them had failed for some reason. The claimant had now made a fourth such request. The rules made clear (as indeed they still do) that a default judgment may be obtained by simple request under that rule only if the relief sought is restricted to money (whether a liquidated or an unliquidated sum) or delivery of goods with a money alternative. If any other relief was sought, it had to be by Part 23 application notice. No such notice was given in the present case. The claimant did not wish to proceed in that way. The matter was referred to the master, who considered the relevant documents, and decided that judgment in default could be entered on the basis of the request, and without the need for an application notice. That can only be on the basis that the master understood that, by reason of the letter, all non-monetary relief was being abandoned. Robins v Kordowski is thus distinguishable.

CPR rule 13.6 reverses the effect of any abandonment of claims if the default judgment obtained by request under rule 12.4(1) is set aside. This benefits the claimant who obtains a default judgment but later loses it on application by the defendant. In this case, the defendants’ application to set aside the default judgments failed, and so rule 13.6 has no express application. But its existence and limits show that the rule maker has considered the circumstances in which a claimant having abandoned a claim should be allowed nonetheless to continue with it. It implies that there are no other circumstances in which a claimant having abandoned a claim may do so.

The court having reached the conclusion that the claims to injunctions have been abandoned, the claimant now asks that the court “exercise its discretion to regularise the position”. This expression is not altogether clear, but the principal jurisdiction for “regularising” the position is identified by the claimant’s counsel as CPR rule 3.10. That rule empowers the court to make orders to remedy what are called “errors of procedure”. Here the solicitor’s error was to use the phrase “non-monetary aspects” in his letter when he says that he meant “non-declaratory aspects”. However, had he used the latter phrase, he would not have been able to obtain the judgments in default which he had requested. Rule 12.4(3) would have applied, and he would have had to make a Part 23 application, which he deliberately did not do. In my judgment, that was not an error of procedure within this rule. The solicitor meant to employ the procedure that he did. At best, it was an error of language in using a phrase bearing a meaning which (unknown to others) was not intended.

It is of course possible for the court to set aside orders made and judgments entered, particularly when vitiated by fraud, mistake or other similar vitiating factor (see eg CPR rule 3.1(7); Tibbles v SIG plc [2012] 1 WLR 2591, CA). But I do not consider that the “internal” mistake of the claimant’s solicitor as to what he meant by “non-monetary aspects”, unexplained to the court (or anyone else) until his sixth witness statement was made in November 2023, can justify that here. Certainly, no authority has been cited to me in support of that view.

Accordingly, I hold that the claimant must be taken to have abandoned the claim to the mandatory and prohibitory injunctions, and is now restricted to his claim in damages, for which there will need to be an inquiry before the master. In these circumstances, it is not necessary for me to consider whether it would have been appropriate to grant the injunction now sought, to require the defendants to permit the claimant to enter onto their land and restore the ramp to its pre-existing condition. The claimant’s application is accordingly dismissed. I would be grateful to receive an agreed minute of order to give effect to this judgment, and any further directions that may be necessary.