IN THE LANCASTER COUNTY COURT CLAIM NO. LC04 1256
EDITH DOYLE- Claimant/ Applicant
(1) SYLVIA HANCOCK
(2) ANDREWS BROTHERS BUILDERS LIMITED- Defendants/ Respondents
CLAIMANT’S SKELETON ARGUMENT
1. The Claimant/Applicant (‘C’) seeks ‘urgent’ injunctions without notice under CPR, r 23 to restrain the Defendants (‘Ds’) from causing a nuisance to the C and remove immediately all debris, mud or water which has entered into the C’s land as a result of the construction work.
2. C relies upon the Claim Form, Application notice 19/01/04, the witness statement of Edith Doyle (‘ED’) 19/01/04 and exhibit ED1–3 and the witness statement of Peter Jenkins.
3. Since Friday 9th January, the second D's have carried out massive building work on a house belonging to the first D, known as the Mill House in Barton Lane, which is adjacent to the C’s house. The work they carry out is often extremely noisy and starts at about 7.30 a.m. and continues until about 8.00 p.m. or sometimes 9.00 p.m. Their work interferes with C’s private life. Further, C sustained personal injury loss and damage as a result of the D's activities.
THE LEGAL REQUIREMENTS TO BE SATISFIED TO OBTAIN AN INTERIM INJUNCTION
4. The court has discretion to grant an interim injunction if it is satisfied that:
a) Application supported by evidence: CPR, r 25.3(2).
i) The facts giving rise to the cause of action against the D's, supportive evidence appear in the witness statement of Edith Doyle.
ii) The facts giving rise to the claim for injunction relief, the clear evidence can be found in the witness statement of Peter Jenkins.
iii) The precise relief sought, full explanation appears in the Application notice.
5. b) The evidence covers the substantive issues and good reasons for not giving notice: CPR, r. 25.3(3); PD 25, Para. 3.4. This is an extremely urgent application. The instructing solicitor telephoned to the second D's, who gave a clear indication that neither he nor his brother, Carl, intend to appear at the hearing. The first D is on holiday was telephoned in her business number on several occasions today and messages were left, no reply has been received, although her ‘out of office’ voice mail message indicated that she will be back at work on Friday 23rd January 2004.
6. c) The evidence shows the urgency of the application: CPR, r.25.2 (2) (b).
There is a real and immediate risk of serious injury being caused, either to a visitor to her home or to herself or to her remaining fish and her plants, If Ds continue their activities unrestrained.
7. Lord Diplock in American Cyanamid Co v. Ethicon Ltd (1975) laid down guidelines on how the courts should exercise discretion to grant interim injunctions. These are as follows:
a) Serious question to be tried:
It is clear in the substantive claim that the C’s allegation amounts to a cause of action known to the law such as:
i) This is a private nuisance as ‘Unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it’.
ii) Breach of Art 8(1) of the ECHR due to the interference with her private life.
8. b) Adequacy of damages to the applicant:
C suffered damages for the plants, the fish and her accident as a result of the Ds activities. The damages in the measure are recoverable at common law will be an adequate remedy and that Ds in a financial position to pay them.
First, acid-loving plants: azalea, rhododendron and heather C grows into her back garden was very badly affected due to the cement contains a high content of lime which ran onto C land as full explanation appear in the witness statement of Edith Doyle Para 6.
Second, last week five fish died, estimate value at $ 100 to $150 each, as a result of the cement dust and or cement-mix and water has flowed into C’s ornamental pool as full explanation appear in the witness statement of Edith Doyle Para 6.
Third, C had injured her right wrist and hand when she had been cleaning up rubbish from her front garden then she slipped on a lump of wet clay landed on her right hand as full explanation appear in the witness statement of Edith Doyle Para 7 and exhibit ED 3 Para 2.
9. c) undertaking in damages:
C is willing to give an undertaking on the granting of injunctions to pay damages to D's if they suffer unjustifiable loss. C’s details financial position are given as follows:
i) Approximately $800 in her current account and a further $50,000 in a 90-day notice investment account.
ii) Receives a state pension amounting to $350 per month and an income from her teachers’ pension of $1,500 per month.
iii) Granary Cottage is valued at about $250,000, which is in her sole name without mortgage.
10. d) Balance of convenience:
On the facts of the case, the balance of convenience tends to favour the C. If D's continue their activities unrestrained, there is a real and immediate risk of serious injury being caused, either to a visitor to her home or to herself or to her remaining fish and her plants. Where as if the injunctions are granted to the C, the second D's might both take an extra month to complete the work than expected date and lose the bonus $1000.Regarding the first D, she might have to wait a month more to move into the Mill House, although her husband, will be discharged from the hospital in March 2004, who might be accommodated either into her present residence or suitable rented place for a month. On the other hand, if the D's permitted to continue their construction works in the period prior to trial, it might well become useless to grant injunctions after trial because either C or her visitor can be seriously injured within this time or her remaining fish and plans can be destroyed.
11. C seeks an order both for interim injunction to restrain the D's from causing or permitting building work to be carried out on a house otherwise than between 8 a.m. and 6 p.m Monday to Friday, in such as manner as to cause a nuisance and for mandatory injunction to remove immediately all debris, mud or water which has entered into the C’s land as a result of the construction work.