Elisabeth Robertson Applicant v Christina Washburn Alfredo Callwood Respondents
| Jurisdiction | British Virgin Islands |
| Judge | Hariprashad-Charles J |
| Judgment Date | 23 September 2011 |
| Judgment citation (vLex) | [2011] ECSC J0923-2 |
| Date | 23 September 2011 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHCV2011/0158 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
Claim No. BVIHCV2011/0158
Ms. Tanya N. Scantlebury of Price Demers & Co. for the Applicant
Mr. Lewis Hunte QC of Hunte & Co. Law Chambers for the Respondents
Mandatory injunctions on interlocutory applications - Test for the grant of mandatory injunction - Least risk of injustice if injunction was wrongly granted - High degree of assurance that applicant will be able to establish right at trial - Whether special circumstances must be shown - Serious issue to be tried - Are damages an adequate remedy
The applicant and the respondents are neighbours. Their lands are contiguous to each other. In November 2006, the respondents undertook excavations on their property to construct a driveway. It is alleged that this resulted in the undermining of portions of the applicant's land thereby causing damage to it. The parties attempted to resolve their dispute with the assistance of their respective lawyers. In or around March 2007, the respondents commenced building a retaining wall but never completed it. On 24 August 2008, the parties had a joint site inspection with personnel from the Public Works Department and the Town and Country Planning Department at the site of the dispute. During the inspection, the second respondent agreed to resume construction a retaining wall but to date, the works remain outstanding.
The applicant then applied for a mandatory injunction on an interlocutory application for the respondents to complete the construction of a retaining wall on their land.
HELD:
[1] It is not part of the court's function at this interlocutory stage to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed and mature considerations. There are matters to be dealt with at trial. But, where, however, the grant or refusal of an injunction is incapable of recompense by damages, the relative strength of the parties' case may be considered particularly in an application such as the present one: American Cyanamid Co. v Ethicon [1975] AC 396 at 408-409 referred to.
[2] A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted: see Halsbury's Laws of England (4 th ed.) Vol. 24 at para. 848. In this application, the special circumstance which is pleaded is the looming possibility for another active hurricane season and the applicant fears that more damage will be caused to her property.
[3] The test to be applied for the grant of a mandatory injunction is which course is likely to involve the least risk of injustice if it turns out to be 'wrong': Chadwick J in Nottingham Building Society v Eurodynamics Systems Ltd1, later approved by the Court of Appeal in Zockoll Group Limited v Mercury Communications Ltd2. In the present application, the respondents can be compensated in damages if the order was wrongly obtained whereas the applicant's land cannot be un-eroded if further destabilization occurs over the upcoming hurricane season. In addition, there is a high degree of assurance that the applicant can establish her right at trial.
The sole issue to be determined here is whether the circumstances of this case are appropriate for the imposition of a mandatory injunction on an interlocutory application.
On 28 July 2011, I gave an oral reasoned judgment granting the mandatory injunction prayed for by the applicant ordering the respondents to complete the construction of a retaining wall in accordance with the recommendations outlined in the report of Kraus-Manning Construction Services Inc dated 10 December 2010 ("the Kraus-Manning Report"). I had promised to reduce my oral reasons into a written judgment. I do so now.
The applicant and the respondents are neighbours. In or about November 2006, the respondents undertook excavations on their property to construct a driveway. It is alleged that the excavations resulted in the undermining of portions of the applicant's land thereby causing damage to it. The parties attempted to resolve their dispute with the assistance of their respective lawyers. In or around March 2007, the respondents commenced building a retaining wall but never completed it.
On 24 August 2008, the parties had a joint site inspection with personnel from the Public Works Department ("the PWD") and the Town and Country Planning Department (the TCPD") at the site of the dispute. During the inspection, the second respondent agreed to resume construction of the retaining wall but to date, the works remain outstanding.
On 22 June 2011, the applicant brought an action for damages for breach of contract, negligence and nuisance for the damage caused to her land. On the same date, she applied for a mandatory injunction for the respondents to complete construction of the retaining wall in accordance with the recommendations outlined in the Kraus-Manning Report or alternatively, that she be permitted to construct the wall at the respondents' expense.
From the outset, I remind myself of the principles emanating from the landmark case of American Cyanamid Co. v Ethicon3 which establish the general approach that a court ought to take at this interlocutory stage of the hearing. The evidence available to the court is incomplete. It is given on affidavits and has not been tested by oral cross-examination. The court cannot adequately try on affidavits or witness statements the truth or falsity of the applicant or respondents' assertions.
Now to the evidence which was adduced thus far. The applicant produced her affidavit supported by documentary evidence from three expert witnesses and a Report from Mr. Potter, the Chief Planner at the TCPD. 4
In a nutshell, she averred that she is the owner of a parcel of land which is contiguous to the respondents' land. In or about November 2006, the respondents commenced excavation of their land which caused damage to her land. Negotiations commenced between the parties with a view to resolve the problem. Subsequently, the respondents commenced building of a retaining wall but stopped notwithstanding the intervention of the PWD and the TCPD. The applicant relied on the Report from the TCPD which is indeed telling. Mr. Potter, the Chief Planner, conducted a joint site inspection with the parties. He advised, among other things, the following:
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1. "Failure by Mr. Callwood to finish construction of the retaining wall in a timely manner has continued to undermine both the applicant as well as the respondents' properties.
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2. It was agreed that Mr. Callwood should resume construction of the retaining wall as soon as weather conditions permit. Mr. Callwood indicated that he would resume by November 2008 and this was agreed upon.
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3. Both parties are to work together towards the sustainable development of their properties and the community as a whole."
Subsequently, the applicant employed the services of three experts, namely: Messrs. Ronald Gurney, Craig Noblett and Marc Downing. The gist of their reports support her contention that (1) the cause of the loss of the land is as a direct result of the respondents' excavation and (2) the urgent construction of a retaining wall would be an appropriate method to prevent further damage occurring to the applicant's property particularly since the hurricane season has just began.
At paragraph 12 of her affidavit, the applicant deposed that damage to her property increased during the hurricane season last year and she is extremely concerned about the
level of damage that will be caused this year. She stated that if the retaining wall is not built expeditiously, the damage to her property will continue.On 4 July 2011, the respondents filed a joint affidavit. They deposed that in or about 2006, they commenced construction on their land which adjoins the applicant's land and in order to gain access to the construction site, they carried out excavation to construct a driveway. They averred that no slippage or adverse effects to the applicant's land have occurred either before or after the excavation. 5
At paragraphs 9 and 10, the respondents deposed as follows:
9. "It is true that we commenced construction of a retaining wall but since the excavation was carried out we suffered no adverse effects to parcel 117 or to our driveway or the building we constructed. Completion of the retaining wall was not and is not a matter of urgency and we decided to delay its completion pending our acquisition of sufficient funds.
10. Parcel 149 is also not adversely affected by the excavation we carried out and it cannot be adversely affected unless slippage of Parcel 117 first occurs."
The respondents have submitted an expert report of Mr. Amilcar Camilo, Managing Director of Mirsand Town Planning and Architects Ltd. The Report is dated 29 June 2011 and in summary, states:
"The instability on Mrs. Robertson's land (Parcel 149) is not the result of any excavation done on Ms. Washburn's land (Parcel 117). It is the result of the transportation and depositing of loose dirt and boulders on her land. … She could have secured this loose material in the manner explained above and so prevent it escaping onto Ms. Washburn's land. Even after Ms. Washburn completes her own retaining walls, that will not prevent escape of the loose soils and the boulders from Mrs. Robertson's land. It will prevent some of it from proceeding beyond the retaining wall."
As I earlier stated, it is not part of the court's function at this interlocutory stage to try to...
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