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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Brothers Enterprises Ltd v New World Hospitality UK Ltd  EWHC 2455 (Ch) (11 August 2017)
Cite as:  EWHC 2455 (Ch)
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B e f o r e :
|BROTHERS ENTERPRISES LIMITED|
|- and -|
|NEW WORLD HOSPITALITY UK LIMITED||Defendant|
MR J McLINDEN QC and MR T BISHOP (instructed by Woodroffes Solicitors) appeared on behalf of the Defendant.
Crown Copyright ©
MR JUSTICE ROTH:
"As you know, the hotel renovation programme is well underway and now reaching the final and most critical stage. With this in mind, the work that we have proposed on the ground floor reception area and public toilets which will affect access from Oliver's Steakhouse will need to be agreed. We have had a few discussions about this to date but I have yet to hear back from you with regard to your proposed solution. As the scheduled works are planned to take place before the start of summer, we need to come to an agreement and sign off on the final designs by the end of February, so I kindly ask you to come back to me as soon as possible in order to proceed with an amicable solution.
Furthermore, it is our obligation as the landlord to inform our tenants when any major works take place on the premises and therefore [we] will be writing to City Restaurants to inform them of our intentions".
"We are writing to you on behalf of our client, Royal Norfolk (Paddington) Ltd. Further to the facade and room refurbishments that have been ongoing for the past few years, the hotel will soon be undergoing construction works to its entrance lobby, shop front, first floor restaurant, corridors throughout and the plant room in the basement. The work will commence on 17 July 2017 after the hotel closes to the public on 15 July and will continue for ten weeks, ending approximately on 29 September 2017".
"Access to the hotel's ground floor toilets will be hoarded off from the construction as access through the hotel front entrance will be restricted to construction personnel only for health and safety reasons. Access to these toilets will be via the Greene King pub and through a hoarded off corridor for females. Male toilets in the basement will remain as is".
Then there is some reference to possibly having to have unisex toilets for a short period.
"It is my opinion that it would be highly unlikely that an environmental health officer would take issue with the temporary arrangement for access along the route marked red on the plan and that the council would similarly be highly unlikely to intervene in the matter on a formal basis or serve a notice pursuant to s.20 in that regard".
S.20 is a reference to s.20 of the Local Government (Miscellaneous Provisions) Act 1976. The route to which he is referring is the route going out into the street, across the frontage of the hotel to the tavern.
"… redecorating, repairing, maintaining, renewing or rebuilding any structural part of the building or any adjoining premises of the lessor".
"In my opinion, it may be stated as a good working rule that –
(1) If the injury to the plaintiff's legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the defendant to grant an injunction:-
then damages in substitution for an injunction may be given".
"The approach to be adopted by the judge when being asked to award damages instead of an injunction should, in my view, be much more flexible than that suggested in the recent cases of Regan and Watson. It seems to me that (1) an almost mechanical application of A L Smith LJ's four tests, and (2) an approach which involves damages being awarded only in 'very exceptional circumstances,' are each simply wrong in principle and give rise to a serious risk of going wrong in practice …
The court's power to award damages in lieu of an injunction involves a classic exercise of discretion which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal suggested in Regan and Watson. And, as a matter of practical fairness, each case is likely to be so fact-sensitive that any firm guidance is likely to do more harm than good. On this aspect, I would adopt the observation of Millett LJ in Jaggard where he said:
'Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion in some cases by granting an injunction and in others by awarding damages instead. Since they are all cases on the exercise of discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that, in similar circumstances, it would not be wrong to exercise the discretion in the same way, but it does not follow that it would be wrong to exercise it differently'."
"I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not. And, subject to one possible point, I would cautiously (in the light of the fact that each case turns on its facts) approve the observations of Lord Macnaghten in Colls, where he said:"In some cases, of course, an injunction is necessary - if, for instance, the injury cannot fairly be compensated by money - if the defendant has acted in a high-handed manner - if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money".
"Where does that leave A L Smith LJ's four tests? The application of any such series of tests cannot be mechanical. I would adopt a modified version of the view expressed by Romer LJ in Fishenden. First, the application of the four tests must not be such as 'to be a fetter on the exercise of the court's discretion'. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted".
"If you proceed with an application to the court, kindly bring to the attention of the court all of the correspondence of today and ideally please apply upon notice to us".
The "correspondence of today" that he referred to included a copy of the project manager's letter of 12 July, which was sent under cover of an email to Jimmy on 17 July.
Transcribed by Opus 2 International Ltd.
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**This transcript is approved by the Judge**