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Redland Bricks Ltd v Morris and Another [1969] 2 All ER 576, [1969] 2 All ER 576
Contract Law (LAW1030)
University of Leeds
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Redland Bricks Ltd v Morris
Overview | [1970] AC 652, | [1969] 2 All ER 576, | [1969] 2 WLR 1437, 113 Sol Jo 405, | 211 Estates Gazette 153
Redland Bricks Ltd v Morris and Another [1969] 2 All ER 576
HOUSE OF LORDS
LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD HODSON, LORD UPJOHN AND LORD DIPLOCK
24, 25, 26, 27 FEBRUARY, 13 MAY 1969
Injunction — Form of order — Mandatory injunction — Order in general terms not specifying details of work to be done — Injunction requiring defendants to take all necessary steps to restore the support to the plaintiffs' land.
Injunction — Mandatory injunction — Discretion over grant of remedy — Principles on which exercised — Loss of support of plaintiffs' land by reason of defendants' excavation on neighbouring land — Order requiring expenditure of £30,000 for benefit of land, etc, worth not more than £12,000.
The respondents were market gardeners who farmed eight acres of land; this was adjoined by the appellants' land which the appellants used to dig for clay. In 1964 some of the respondents' land slipped, due to lack of support, into the appellants' land. Slips occurred again in 1965 and 1966. It was likely that further slips would occur rendering a large part of the respondents' land unworkable as a market garden. To remedy the slipping was estimated to cost about £30,000. The respondents' land was worth £12,000. In October 1966 a county court judge granted two injunctions in favour of the respondents: (i) an injunction restraining the appellants from withdrawing support; and (ii) a mandatory injunction “that the [appellants] do take all necessary steps to restore the support to the [respondents'] land within a period of six months”. On appeal against the mandatory injunction,
Held – Although there was a strong probability that grave damage would, in the future, accrue to the respondents, the injunction would be discharged because in its terms it did not inform the appellants exactly what they had to do (see p 577, letters f and g, p 580, letter f, and p 581, letter h, post); Meux's Brewery Co v City of London Electric Lighting Co ([1891–1894] All ER Rep 838) distinguished. Dicta of Joyce J in A-G v Staffordshire County Council ([1905] 1 Ch at p 342) approved. Dictum of Maugham LJ in Fishenden v Higgs and Hill Ltd ([1935] All ER Rep at p 450) approved. Per Curiam: since the appellants had behaved, although wrongly, not unreasonably, it would have been wrong to have imposed on them the obligation of remedying the slip at a cost of £30,000; that would have been unreasonably expensive. The judge would, however, have been justified in imposing an obligation to do some reasonable and not too expensive works which might have had a fair chance of preventing further damage (see p 577, letters f and g, and p 581, letters d and h, post).
Principles on which mandatory injunctions granted, discussed (see p 579, letter h, to p 580, letter f, post). Decision of the Court Of Appeal (sub nom Morris v Redland Bricks Ltd [1967] 3 All ER 1) reversed. Appeal allowed.
Notes
As to mandatory injunctions, see 21 Halsbury's Laws (3rd Edn) 361–364, paras 757–762; and for cases on the subject, see 28 Digest (Repl) 772–781, 239–319.
Cases referred to in opinions
A-G v Staffordshire County Council [1905] 1 Ch 336, 74 LJCh 153, 92 LT 288, 69 JP 97, 28 Digest (Repl) 890, 1202. Darley Main Colliery Co v Mitchell (1886), 11 App Cas 127, [1886–90] All ER Rep 449, 55 LJQB 529, 54 LT 882, 51 JP 148, 17 Digest (Repl) 85, 62.
[1969] 2 All ER 576 at 577
Durell v Pritchard (1865), 1 Ch App 244, 35 LJCh 223, 13 LT 545, 28 Digest (Repl) 779, 305. Fishenden v Higgs and Hill Ltd [1935] All ER Rep 435, 153 LT 128, 19 Digest (Repl) 210, 1519. Isenberg v East India House Estate Co Ltd (1863), 3 De GJ & Sm 263, 33 LJCh 3929 LT 625, 28 JP 228, 46 ER 637, 28 Digest (Repl) 776, 276. Kennard v Cory Brothers & Co Ltd [1922] 1 Ch 265, affd, CA, [1922] 2 Ch 1, 91 LJCh 452, 127 LT 137, 28 Digest (Repl) 777, 291. Meux's Brewery Co v City of London Electric Lighting Co, Shelfer v Same [1895] 1 Ch 287, [1891–94] All ER Rep 838, 64 LJCh 216, 72 LT 34, subsequent proceedings, [1895] 2 Ch 388, 28 Digest (Repl) 792, 418. Woodhouse v Newry Navigation Co [1898] 1 IR 161, 28 Digest (Repl) 780, * 254.
Appeal
This was an appeal by Redland Bricks Ltd from an order of the Court of Appeal (Danckerts and Sachs LJJ; Sellers LJ dissenting) dated 1 May 1967 and reported [1967] 3 All ER 1, upholding the judgment of His Honour Judge Talbor dated 27 October 1966, granting a mandatory injunction in favour of the respondents, Alfred John Morris and another, and awarding damages and ordering the appellants to take all necessary steps to restore the support to the respondents' land. The appeal was in respect of the injunction only. The facts are set out in the opinion of Lord Upjohn.
Sir Milner Holland QC and R L Johnson for the appellants.
C A Settle QC with D C Gordon for the respondents.
Their Lordships took time for consideration
restraining the appellants from withdrawing support from the respondents' land without leaving sufficient support and he ordered that:
“The [appellants] do take all necessary steps to restore the support to the [respondents'] land within a period of six months.”
He also gave damages to the respondents for the injury already done to their land by the withdrawal of support, in the sum of £325. On 1 May 1967, the appellants' appeal against this decision was dismissed by a majority of the Court of Appeal (Danckwerts and Sachs LJJ; Sellers LJ dissenting). My Lords, the only attack made on the terms of the order of the county court judge was in respect of the mandatory injunction.
It is, of course, quite clear and was settled in your Lordship's House nearly 100 years ago in Darley Main Colliery Co v Mitchell that if a person withdraws support from his neighbour's land that gives no right of action at law to that neighbour until damage to his land has thereby been suffered; damage is the gist of the action. When such damage occurs the neighbour is entitled to sue for the damage suffered to his land and equity comes to the aid of the common law by granting an injunction to restrain the continuance or recurrence of any acts which may lead to a further withdrawal of support in the future.
The neighbour may not be entitled as of right to such an injunction, for the granting of an injunction is in its nature a discretionary remedy, but he is entitled to it “as of course” which comes to much the same thing and at this stage an argument on behalf of the tortfeasor, who has been withdrawing support, that this will be very costly to him, perhaps by rendering him liable for heavy damages for breach of contract for failing to supply, eg, clay or gravel, receives scant, if any, respect. A similar case arises when injunctions are granted in the negative form where local authorities or statutory undertakers are enjoined from polluting rivers; in practice the most they can hope for is a suspension of the injunction while they have to take, perhaps, the most expensive steps to prevent further pollution. But the granting of an injunction to prevent further tortious acts and the award of compensation for damage to the land already suffered exhausts the remedies to which at law and (under this heading) in equity the owner of the land is entitled. He is not prejudiced at law for if, as a result of the previous withdrawal of support, some further slip of his land occurs he can bring a fresh action for this new damage and ask for damages and injunctions. But to prevent the jurisdiction of the courts being stultified equity has invented the quia timet action, that is an action for an injunction to prevent an apprehended legal wrong, although none has occurred at present, and the suppliant for such an injunction is without any remedy at law.
My Lords, before considering the principles applicable to such cases, I must refer to the judgments in the court below. Unfortunately, due possibly
[1969] 2 All ER 576 at 579
to some misunderstanding, much of the judgments were taken up with a consideration of the applicability of the principles laid down in Meux's Brewery Co v City of London Electric Lighting Co, Shelfer v Same in the well-known judgment of A L Smith LJ That case was, however, concerned exclusively with the proper principles on which in practice Lord Cairns' Acta (which gave a discretion to the Court of Chancery to award damages in lieu of an injunction) should be applied. Before your Lordships, counsel on both sides said that in the Court of Appeal they had never relied on Lord Cairns' Act or on Meux's case, indeed in an action started in the county court with its limited jurisdiction as to damages it was obvious that this must be so; and they did not rely on these matters before your Lordships. So for my part, I do not find the observations of the Court of Appeal as helpful as usual, for neither Lord Cairns' Act nor Meux's case have anything whatever to do with the principles of law applicable to this case.
a Ie, the Chancery Amendment Act 1858
My Lords, quia timet actions are broadly applicable to two types of cases. First, where the defendant has as yet done no hurt to the plaintiff but is threatening and intending (so the plaintiff alleges) to do works which will render irreparable harm to him or his property if carried to completion. Your Lordships are not concerned with that and those cases are normally, though not exclusively, concerned with negative injunctions. Secondly, the type of case where the plaintiff has been fully recompensed both at law and in equity for the damage he has suffered but where he alleges that the earlier actions of the defendant may lead to future cases of action. In practice this means the case of which that which is before your Lordships' House is typical, where the defendant has withdrawn support from his neighbour's land or where he has so acted in depositing his soil from his mining operations as to constitute a menace to the plaintiff's land. It is in this field that undoubted jurisdiction of equity to grant a mandatory injunction, that is an injunction ordering the defendant to carry out positive works, finds its main expression, though of course it is equally applicable to many other case. Thus, to take the simplest example, if the defendant, the owner of land, including a metalled road over which the plaintiff has a right of way, ploughs up that land so that it is no longer usable, no doubt a mandatory injunction will go to restore it; damages are not a sufficient remedy, for the plaintiff has no right to go on the defendant's land to remake his right of way.
Isenberg v East India House Estate Co Ltd and Durell v Pritchard have laid down some basic principles, and your Lordships have been referred to some other cases which have been helpful. The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be “as of course”. Every case must depend essentially on its own particular circumstances. Any general principles for it application can only be laid down in the most general terms:
- A mandatory injunction can only be granted where the plaintiff shows a very strong probability on the facts that grave damages will accrue to him in the future. As Lord Dunedin saidb it is not sufficient to say “timeo”. It is a jurisdiction to be exercised sparingly and with caution but, in the proper case, unhesitatingly.
b In A-G for the Dominion of Canada v Ritchie Contracting and Supply Co Ltd; [1919] AC 999
- Damages will not be a sufficient or adequate remedy if such damages does happen. This is only the application of a general principle of equity; it has nothing to do with Lord Cairns' Actc or Meux's case.
c Ie, the Chancery Amendment Act 1858
- Unlike the case where a negative injunction is granted to prevent the
[1969] 2 All ER 576 at 580
continuance or recurrence of a wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of a future apprehended wrong must be an element to be taken into account: (a) where the defendant has acted without regard to his neighbour's rights, or has tried to steal a march on him or has tried to evade the jurisdiction of the court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. As illustrative of this see Woodhouse v Newry Navigation Co; (b) but where the defendant has acted reasonably,
£30,000 which I have just mentioned would not necessarily have complied with it for although it would in all probability have prevented any further damage it was not guaranteed to do so and that is what in effect the mandatory order of the learned judge required. My Lords, in my opinion that part of the order of the county court judge cannot stand and the appeal must be allowed.
I have given anxious consideration to the question whether some order could not be made with a view to imposing on the appellants some obligation to make a limited expenditure (by which I mean a few thousand pounds) to lessen the likelihood of further land slips to the respondents' land but, not without reluctance, I do not think this would be a helpful course. First, the matter would have to be tried de novo as a matter of expert evidence because the trial judge is not available and because 2 1/2 years have elapsed since the trial, without, so far as their Lordships know, any further land slips, and on that expert evidence may have something to say. The costs of such a further inquiry would be very heavy and the inquiry possibly inconclusive. Secondly, the respondents are not unduly prejudiced, for in the event of a further land slip all their remedies at law and in equity will be open to them and they will no doubt begin in a more appropriate forum than the county court.
For these reasons I would allow the appeal. The appellants, however, must pay the respondents' costs here and below in accordance with their undertaking.
LORD DIPLOCK.
My Lords, I have had the advantage of reading the opinion of my noble and learned friend, Lord Upjohn, with which I agree. I would allow the appeal.
Appeal allowed.
Solicitors: Baileys, Shaw & Gillett (for the appellants); Kerly, Sons & Karuth, Ilford agents for Shenton, Pitt, Walsh & Moss, Winchester (for the respondents).
S A Hatteea Esq Barrister.
End of Document
Redland Bricks Ltd v Morris and Another [1969] 2 All ER 576, [1969] 2 All ER 576
Module: Contract Law (LAW1030)
University: University of Leeds
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