IN THE HARROGATE COUNTY COURT CLAIM NO. HG03 4591
FREDERICK SHARPE Claimant/ Applicant
FERGUS VAUGHAN-WILLIAMS Defendant/ Respondent
DEFENDANT’S SKELETON ARGUMENT
1. D opposes C’s application for an interim injunction on 4 grounds, namely that:
a) The C’s allegations do not amount to a cause of action.
b) The facts do not constitute a claim for injunctive relief.
c) The C does not ask for precise relief.
d) The balance of convenience favours D rather than the C.
2. D will rely upon the Defence and the witness statement of Fergus Vaughan-Williams.
THE LEGAL REQUIREMENTS TO BE SATISFIED TO OBTAIN AN INTERIM INJUNCTION
4. The court must be satisfied prior to grant an interim injunction that application supported by evidence: CPR, r 25.3(2). These are as follows:
i) The facts must give rise to the cause of action against the Ds, supportive evidence appear in the witness statement of Fergus Vaughan-Williams
ii) The facts must give rise to the claim for injunctive relief, the clear evidence can be found in the witness statement of Fergus Vaughan-Williams
iii) The C must be sought precise relief, full explanation appears in the witness statement of Fergus Vaughan-Williams.
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 allegations do not amount to an alleged cause of action, namely nuisance. In fact, the instruments, which are played by D or his pupils between the hours of 2.00 p.m and 9.00 p.m, are an harmonium, a piano and a violin. Furthermore, the music is not loud even not louder than a television set on about average volume. The music is not played continuously, though something like 45 minutes per hour playing. Therefore, the music was not played at a volume or at times which could distrub a reasonable person. My submission is that the injunction must be refused because neither the reasonable activities on the D’s land amount to nuisance nor serious question to be tried on the substantive claim: the witness statement of Fergus Vaughan-Williams.
8. b) Adequacy of damages to the applicant:
The alleged interferences do not constitute an adequate damage on the part of the C. The damage is, nuisance, non pecuniary. However, the question is how the C or his wife could suffer much inconvenience even if the music were too loud (in fact which is not) as they both go out to work during the week and except for holidays or days off , so there is no one in the house until about 6.30 p.m. or 7.00 p.m. Further, they are often out all day on Saturdays: the witness statement of Fergus Vaughan-Williams, para-6.
9. c) undertaking in damages:
Although, C is willing to give an undertaking on the granting of injunctions, the undertaking does not provide an adequate safeguard for the D who may be unjustifiably prevented from continuing to play music by himself and his pupils. C’s details financial position are given as follows:
i) His annual salary is $18,000 per annum before tax and some savings.
ii) He has also $ 3000 in a building society account.
10. d) Balance of convenience:
On the facts of the case, the balance of convenience tends to favour the D. D would face financial ruin, namely 70% of his tuition fees comes from evening pupils, if the court grants the injucntion. If D fails to continue evening classes many of his pupils would go elsewhere, he would suffer a major loss of income to the extent and no longer be able to support himself and his wife from the remaining tuition fees and the fees from the Local Education Authority for his morning work. If on the other hand the injunction was not granted, C and his wife might find inconvenience, due to music, for two hours during the weekdays as they generally come from work after 7.00 p.m.
11. C seeks an order both for interim injunction to restrain the Ds 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.D therefore seeks an order for the judgment set aside to defend the claim. D is confident that he has a good defence and a satisfactory explanation for his failure to file a defence within the required period.