Tanya Jones, instructed by WBW Solicitors, represented the successful Claimant at a hearing by obtaining a final mandatory injunction against the Defendants.
The Claim concerned a boundary dispute between two neighbouring properties whereby one neighbour had taken down a boundary fence, and replaced it with a new fence which encroached on the neighbouring property, thereby trespassing.
The judgment included a declaration of the boundary line between the two neighbouring properties, damages for trespass, and a final mandatory injunction which required the Defendants to remove and re-instate the boundary fence according to the boundary line.
The Judge was assisted by a skeleton argument containing the relevant case law surrounding the area and was taken to the Land Registration Act 2002, which describes Land Registry plans as only showing “general boundaries”.
The Judge was reminded of its discretion to grant injunctive relief, and the court had to be satisfied that the final injunction was appropriate. The court had to take the following into account:
- The extent to which damages are likely to be an adequate remedy;
- The ability of the other party to pay damages;
- The balance of convenience, and
- Any clear view that the court can form as to the relative strengths of the parties’ cases.
AL Smith LJ set out the principles to be applied in deciding whether to grant an injunction or award damages in Shelfer v City of London Electric Lighting Co [1895] 1 Ch D 287. The principles are:
- “if the injury to the Claimant’s legal rights is small; and
- Is one which is capable of being estimated in money; and
- Is one which can be adequately compensated by a small money payment; and
- The case is one which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given.”
The Judge in the instant case was satisfied that the boundary fence was not substantial in nature and was a structure which could be easily moved. The Claimant had proved their case on a balance of probabilities that the boundary line was situated within the curtilage of their land, which meant the Defendants were trespassing. The Judge held in favour of the injunction being granted. Tanya is keen to grow her property law practice. She is happy to advise and represent both claimants and defendants in all areas of property and has a particular interest in easements, rights of way, and boundary disputes.