Obstruction or wrongful interference with an easement such as a right of way can give rise to a claim in nuisance.
Generally, in these types of cases the remedy sought in court will be for a declaration and an injunction either for an order prohibiting a person from doing something (a prohibitory injunction) or requiring a person to do something (a mandatory injunction).
If your right of way has been obstructed or someone is threatening to obstruct your right of way you should not delay taking action. Failure to object or take any action until much later may be interpreted as acquiescence and raise an estoppel defence or in some cases possibly a claim that you have abandoned your right of way. Passive conduct may amount to acquiescence and so form the basis of an estoppel if it can be shown that the party standing by has induced the would-be defendant to believe that his rights will not be enforced and that other party has, as a consequence, acted in a way which would make the subsequent enforcement of those rights unconscionable.
In the case of Lester v Woodgate [2010] EWCA the defendant removed the remains of a pathway and its supporting brickwork to enlarge its car park. The Court of Appeal found that the claimant’s predecessor was aware that the works did interfere with the right of way but made no objection either to the excavation of the path or to the tarmacing and subsequent use of the extended parking space up to 2004.
The court upheld an earlier court’s findings that the claimant’s predecessor’s decision not to object to the destruction of the footpath made it unconscionable for the claimants as its successors in title to seek now to enforce the 1980 right of way as granted.
It is therefore necessary when your right of way has been obstructed to object in writing and if necessary to seek an interim injunction.
An interim (temporary) injunction is often granted where the other party, if not stopped by the court might cause irreparable or immeasurable damage by continuing the conduct which has led to the dispute.
An interim injunction can be applied for and granted at an early stage in the court proceedings, before the final decision of all issues by the court at trial. In effect the interim injunction should only impose such relief as is reasonably necessary to preserve the status quo, or stop the ongoing harm. Interim injunctions may become permanent if the claimant is successful at trial. A failure to comply with an injunction may lead to proceedings for contempt of court and may result in a fine or imprisonment.
Injunctions as a remedy are not available as of right. They are granted at the discretion of the court.
The court in the case of American Cyanamid Co –v- Ethicon Limited [1975] UKHL 1 laid down guidelines for the court to consider when deciding whether to exercise its discretion that include (i) Would damages be an adequate remedy? (ii) Where does the balance of convenience lie? (iii) Are there any other special factors?
One of the factors that the court will have regard to is whether there has been any delay in seeking the injunction. However, if you fail to apply for an interim injunction it does not preclude you from obtaining a permanent injunction at the trial. However, failure to seek an interim injunction is a factor that may be taken into account by the court when exercising the court’s discretion –Snell & Prideaux Ltd v Dutton Mirrors Ltd [1995] 1 EGLR 259.
Any delay in making an application will likely reduce the chances of obtaining an injunction if it cannot be satisfactorily explained.
If an interim injunction is granted the applicant will need to give a binding undertaking that they will compensate the respondent if it later turns out that the interim injunction should never have been granted and the respondent has suffered losses as a consequence.
If your easement is being obstructed/wrongfully interfered with you should seek specialist advice as soon as possible.
Quinn & Co have experience of dealing with rights of way disputes and in applying for injunctions. If you wish to discuss your case and see how we can help you please contact Joseph Quinn on 01392 248858 or email us at mail@quinnlaw.co.uk or fill in our contact form and we will call you as soon as possible.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.