Costs consequences for defendant of injunction to restrain breach of party wall award

Lucy Hayes

Iouri Chliaifchtein v Wainbridge Estates Belgravia Limited is a comparatively rare example of a reported case concerning an injunction granted to prevent the alleged breach of a party wall award. In this case the defendant sought its costs of an injunction obtained against it by the claimant on the basis that the injunction had been incorrectly granted and the claimant had acted precipitately in applying for it. The decision provides useful illustration of the types of factors the court will take into account when awarding costs in such cases.  

The defendant was a property developer who was carrying out extensive redevelopment works to several properties on Grosvenor Crescent in Belgravia; the claimant was a homeowner who lived in an adjoining property. A party wall award between the two parties included a detailed method statement of how the works should be carried out, notably in relation to “probing” for underground obstructions and the removal of any such obstructions (which had to be done manually, to depths of no more than 60 cm at a time, using a “trench box” to support the excavation).

The claimant found the defendant’s contractors using a mechanical digger to remove a large piece of rusted metal from the ground close to the party wall, not using a trench box or any other method of supporting the excavation walls. He immediately instructed his solicitors to contact the defendant stating that this was a breach of the party wall award. The defendant denied this and referred to an undertaking that it would comply with the method statement. The claimant applied to the Technology & Construction Court for an injunction preventing the defendant from carrying out excavations close to the party wall and requested that the defendant give a formal undertaking to the court. The defendant failed to give the undertaking, and the court granted the injunction.

The defendant said it was happy for the injunction to continue (as it had finished work in the area), but argued that the claimant should pay its costs of the application, because it considered it had not breached the party wall award, and, even if it had breached the award, the claimant had acted precipitately in seeking the injunction. This resulted in a further hearing to determine, on the facts, whether the award had been breached. Coulson J commented that, “The costs of all this have been significant, yet they have been costs that have been incurred solely in order to enable the parties to argue about their liability for costs, surely the most pointless exercise in any civil litigation”.

On the facts, Coulson J concluded that the party wall award had been breached. He also considered that that claimant had not acted unreasonably in seeking an injunction; he was “entitled to take what steps he reasonably [could] to protect his property and his right to enjoy it with his family”. In contrast, the defendant’s conduct on site had been “cavalier” and it had been unreasonable in refusing to accept liability: “It would have been much better for the defendant to acknowledge that a mistake had been made and that the usual costs consequences flowed”. The judge also took into account the fact that the claimant had successfully obtained (and continued) the injunction; although this was not determinative, it was “clearly a relevant factor”.

Taking all of this together, Coulson J ordered the defendant to pay the claimant’s costs of the injunction application.

Iouri Chliaifchtein v Wainbridge Estates Belgravia Limited [2015] EWHC 47 (TCC)

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