Injunctions and committal

fixing health and safety hazardExplaining Injunctions and committal The BLA Landlords Association

Injunctions and committal
Interim injunctions may be sought without notice or on notice. The grant of an interim injunction is a discretionary remedy. Except where the right
to be protected is clearly established, it is necessary, in accordance with the
principles laid down by the House of Lords in American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL, for the applicant to show that:
1) damages are not a sufficient remedy;
2) there is a serious issue to be tried (although not necessarily a prima
facie case); and
3) the balance of convenience favours the grant of an injunction (eg, to maintain the status quo). Breach of an injunction amounts to contempt of court. Contempt may be punished by imprisonment. However, particular care has to be taken by applicants when drafting and serving injunctions and when making applications to commit, since committal orders are likely to be refused if there are any procedural defects.

Court of Appeal
Lewis v Lewis
[ 99 ] WLR 2 ; [ 99 ] All ER 2 , CA
Retrospective dispensation with service of injunction On applications to commit for contempt for breach of a mandatory injunction, county courts cannot dispense with the need for service of the order retrospectively. However, there is nothing to prevent them from doing so where the purpose of the injunction is to restrain a party from doing something. In this case there was evidence that the defendant had been deliberately evading service.

Love v Herrity
( 99 ) 2 HLR 2 7; [ 99 ] 2 EGLR 44; [ 99 ] 2 EG , CA
American Cyanamid principles not applicable where clear right; tenants denied injunction where landlord had re-let premises The appellants were joint assured tenants of a flat owned by the landlord. They fell into arrears with their rent and received a notice purporting to terminate their tenancy on 5 January 1990. In mid December the tenants left the premises temporarily. The landlord changed the locks and re-let the premises. The tenants obtained an ex parte injunction requiring the landlord to readmit them. This was subsequently discharged because although, following American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL, the judge found that there was a serious issue to be tried and that damages would not be an adequate remedy, the fact that the premises had been re-let meant that the balance of convenience was that it was more appropriate to await trial than to continue the interlocutory injunction.
The tenants appealed. The Court of Appeal allowed the appeal. It was agreed that the tenants were assured tenants. Consequently, their right to occupy could only be brought to an end by a court order or by their unequivocally giving up possession to the landlord. The notice was not effective and the evidence of the tenants’ conduct fell far short of establishing that they had given up possession. The tenants had left belongings in the premises and the landlord’s conduct in changing the locks showed that he expected them to return. Consequently, the matter was clear and there was not a serious

Injunctions
Harassment and illegal eviction issue to be tried. The further questions referred to in American Cyanamid did not require consideration. However, an injunction to be readmitted could not be enforced owing to the letting of the flat to a third party. The proper order was to make a declaration that, as against the landlord, the tenants were entitled to possession of the flat on an assured tenancy, with liberty to apply. If the tenants applied to add the third party as a party to the proceedings for the purpose of obtaining possession of the flat, the court would then reconsider the matter.Note: It is likely that the tenants would have recovered possession more quickly if they had, from the outset, taken possession proceedings against the new ‘tenant’ on the basis that, since they were entitled to exclusive possession, the new ‘tenant’ was merely a trespasser as against them (see Street v Mountford (B2.4) and Borg v Rogers [1981] CAT 330 (UB)).

Parsons v Nasar
( 99 ) 2 HLR , CA
Injunction must clearly set out what landlord needs to do to readmit tenant where premises had been re-let After a tenant had been evicted, she obtained an ex parte injunction that ‘the Defendant do permit the Plaintiff to re-enter the premises at 135, Tenby Drive and do have quiet enjoyment thereof until the hearing of this claim’. The landlord did not allow the tenant back into the premises and was sentenced to 14 days’ imprisonment for contempt. He appealed. The Court of Appeal held that the injunction was defective in that, because the landlord had already re-let the premises, it failed to set out clearly what he should have done. The order should have specified what positive steps the landlord was required to take. It was also defective in that it failed to state by what date the landlord had to comply with it. The trial judge had also erred in refusing to hear the application to discharge the injunction before the application to commit.

Patel v W H Smith (Eziot) Ltd [ 987] WLR 8 ; [ 987] 2 All ER 9, CA
Prima facie right to injunction against trespass to land Landowners are prima facie entitled to injunctions preventing trespass to their land where title is not in issue, even where the acts complained of cause no harm. In such circumstances it is unnecessary to consider the balance of convenience (cf American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL).

Committal
Court of Appeal Howes v Howes [ 992] 2 FCR 287; ( 992) 42 NLJ 7 , CA
Proper service of committal order necessary Where an injunction has been breached, a person cannot be committed by the county court pursuant to a committal order unless a copy of the committal order has been served in accordance with the provisions of CCR Ord 29 r1(5).

O’Neill v Murray ( 990) Times October, CA
Committal order must set out breaches A committal order which fails to set out the breaches of an injunction which have been proved is defective and should be set aside.

Parsons v Nasar ( 99 ) 2 HLR , CA (see O7. )
Injunction defective for failing to specify clearly what landlord should do Note: For other cases where committal orders have been set aside for procedural defects, see Clarke v Clarke [1990] 2 FLR 115, CA (order not in Form N29 and delay in serving it) and Temporal v Temporal [1990] 2 FLR 98, CA (no time specified for compliance with order). Although these were both matrimonial cases, the same principles apply in cases involving landlords and tenants.

Saxby v McKinley ( 997) 29 HLR 9, CA
Immediate custodial sentence for disregard of injunction to readmit tenants A landlord evicted two tenants who were in arrears with their rent by changing the locks while they were away. He knew that what he had done was unlawful and a criminal offence. After they had been deprived of their accommodation for 30 days, he disregarded an injunction ordering him to readmit them.
The Court of Appeal held that he was properly committed to prison for 28 days for contempt of court. The contempt was serious and the consequences of his actions were potentially disastrous for the tenants. An immediate custodial sentence was not wrong in principle and was fully justified.

Wright v Jess[ 987] WLR 07 ; [ 987] 2 All ER 0 7, CA
In exceptional circumstances committal can be ordered ex parte In exceptional circumstances a court may commit a contemnor on an ex parte application if it is the only way to uphold the authority of the court or to protect the applicant. Here, the respondent was jailed for two years.
Note: Although this was a domestic violence case, the same principles apply in breach of covenant for quiet enjoyment cases. See also CCR Ord29 r1 and Warwick Corporation v Russell [1964] 1 WLR 613, ChD.

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