Kitzing v Fuller [2016] EWHC 804 (Ch)

[2016] EWHC 804 (Ch)Case No C30MA228
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre,
1 Bridge Street West,
Venue Manchester, M60 9DJ.Date Thursday 31st March 2016
B e f o r e:
HIS HONOUR JUDGE HODGE QC
sitting as a Judge of the High Court
DIANA CAROLYN KITZING
Claimant
- and -
JASON VICTOR FULLER
Defendant
Transcribed by:
JOHN LARKING VERBATIM REPORTERS
Suite 305, Temple Chambers,
3-7, Temple Avenue,
London, EC4Y 0HP
Telephone: 020 7404 7464
MR ADAM ROSENTHAL (instructed by Messrs Loxley, Gloucestershire) appeared as counsel on behalf of the claimant.
MR THOMAS GRANT QC and MR CHRISTOPHER NEWMAN (instructed by Metis Law LLP,
Venue Leeds) appeared as counsel on behalf of the defendant.
APPROVED J U D G M E N T
JUDGE HODGE QC:
Between
KitzingClaimantFullerDefendant
[1]This is my extemporary judgment in a claim by Diana Carolyn Kitzing against Jason Victor Fuller, claim number C30MA228. This is the adjourned hearing of the claimant's application, issued on 1st March 2016, for an interim injunction to restrain the defendant from interfering with the claimant's sporting rights over freehold and (in part) concurrent leasehold land owned by the defendant known as Winsley Hurst Hall and situated at Burnt Yates, Harrogate in the County of North Yorkshire. The claimant's application first came before the court in the interim applications list in Manchester on 4th March 2016. On that occasion the claimant was represented by Mr Duncan Heath (of counsel) and the defendant was represented by Mr Christopher Newman (also of counsel). The application had been estimated at only an hour. It soon became quite apparent that that time estimate was wholly inadequate and, indeed, that the matter should be stood over as an application by order. For the reasons that I gave in an extemporary judgment delivered that morning (and a transcript of which has since been obtained and approved), I refused to grant any interim injunctive relief over to the effective hearing of the application. My order recorded that the defendant had agreed not to carry out any further tree felling or clearance of laurel and rhododendron bushes in an area marked red on the first three unnumbered pages of exhibit MK1 attached to the supporting witness statement of Mr Mark Kitzing (the son of the claimant) dated 25th February 2016 until the return date of the application. On the basis of that assurance, the order provided:(1) that the application was adjourned to be heard on 29th and 30th March 2016, with a time estimate of two days, and that the following directions should apply to the application;(2) the defendant was to file and serve any evidence in opposition to the application by 4 o'clock on Monday 14th March;(3) the claimant was to file and serve any evidence in response by 4 o'clock on Monday 21st March;(4) in the event that the respondent did not act in accordance with the respondent's assurance, the applicant had permission to reinstate the application prior to the return date upon 24 hours’ notice to the respondent's solicitors by email;(5) the costs of the application were reserved.[2]The evidence filed in support of the application took the form of a single witness statement dated 25th February 2016 from the claimant's son, Mr Mark Eberhard Kitzing, who is also the manager of the shoot organised on a non-commercial basis by the claimant, together with exhibit MK1, which extended to some 290 pages of documents and photographs. Evidence in answer to the application was filed by and on behalf of the defendant in accordance with the terms of my order. There were three witness statements. The first was that of the defendant himself, Mr Jason Victor Fuller. That witness statement runs to some 106 paragraphs and exhibits various photographs as exhibit JVF1 and various documents as exhibit JVF2. Secondly, there was a witness statement from the defendant's social partner, Miss Katy Van Pagh. Thirdly, there was a witness statement from the defendant's estate manager, Mr Robin Hardcastle. All of those witness statements were dated 14th March 2016. Evidence in response from the defendant took the form of four witness statements, all dated 18th March 2016. First, there was a second witness statement of Mr Kitzing, together with exhibit MK2. Secondly, there was a witness statement from the claimant herself, together with exhibit DK1. Thirdly, there was a short witness statement from Mrs Bethany Kitzing (who is the wife of Mark Kitzing and thus the daughter-in-law of the claimant). Fourthly, and finally, there was a witness statement from Mr Richard Baldwin, who is a chartered surveyor and a member of the Winsley shoot managed by Mr Mark Kitzing on behalf of his mother, the claimant.[3]Prior to the service of the claimant's responsive evidence, there was an exchange of letters between the parties' solicitors: Loxley, for the claimant, and Metis Law, for the defendant. That exchange of correspondence is dated 16th March 2016 and can be found at divider 14 of the application bundle. The letter from Loxley stated that the writer had reviewed the defendant's witness statements and, as to Mr Fuller's future intentions, it was said to appear from his witness statement that he had completed all the felling and clearing works he had planned. However, the writer did note that Mr Fuller had said that he had some replanting and spreading of woodland mix to be done when the weather was right. In the light of that, Loxley saw no reason why the defendant could not agree to extend the assurance he had given not to carry out further tree felling or clearance of laurel and rhododendron bushes pending the trial of the action. If the defendant was prepared to agree to that, the claimant was prepared to agree to an order suspending her application until trial on the same terms as the order made on Friday 4th March. In other words, the defendant's assurance would be recorded in the recital to any order and the claimant would be at liberty to apply to reinstate her application if the assurance was breached. It was said that that would give the claimant comfort that the status quo would be preserved until trial, whilst the defendant would not be subjected to any injunction and attendant penal notice, the prospect of which clearly exercised him. Loxley inferred that that might be why the defendant was reluctant to give an undertaking but was prepared to give an assurance. The letter continued:
"In respect of the proposed replanting works and spreading of woodland mix that your client refers to in his witness statement, our client recognises that between now and trial there may be certain works on the ground that become necessary for perfectly sound estate management reasons. Subject to being provided with full details of any works that are proposed, she will be entirely sensible about any such works and, during the period to trial and upon reasonable notice, she will be willing to consent to any necessary works being carried out on a case by case basis. We invite you to seek instructions on our client's proposal. If it is rejected, please provide reasons as to why your client is not prepared to extend the assurance. In light of the significant costs that we are about to incur in replying to your client's lengthy witness statements, we would ask for a response by 5 p.m. today."
In the letter in response, Metis Law made it clear that the defendant did not agree to the claimant's proposal for the following reasons: First, it was said to be clear from the defendant's evidence that, quite apart from the underlying lack of legal merit of the claimant's application, the defendant did not in fact intend to carry out the acts which the claimant sought to enjoin. He had stated that through counsel at the hearing on 4th March and in correspondence from Metis Law to Loxley before that date. Nonetheless, the claimant had persisted in seeking to have a substantive hearing listed. The defendant had now repeated his position in a witness statement verified by a statement of truth. The law was said to be set out in Gee on Commercial Injunctions at paragraph 2.029 and Metis Law did not intend to repeat it in their letter. The defendant did not need to give the claimant any form of assurance recorded as a recital in an order. He had stated his position clearly in a witness statement and, as a result, Metis Law did not believe that the court would or should order an injunction against him. Indeed, it was said now to be clear from Loxley's letter that it had realised that it would be inappropriate and improper to seek an injunction against the defendant - a point which Metis Law said they had been making since Loxley had first intimated their application. Secondly, the proposal from Loxley was said to be in marked contrast to the position adopted by Mr Heath at the hearing on 4th March - and reference was made, by way of example, to paragraph 7 of his skeleton argument. Thirdly, it was said to be clear from Loxley's letter that the consequence of the form of order that Loxley sought would be that the defendant would have to seek the claimant's consent, upon reasonable notice being given, to take any steps of felling or clearance at all on the vast bulk of his land. Indeed, it was said to be clear that the claimant now went further and expected to be given reasonable notice of any works proposed to be carried out on the property by the defendant, including replanting works, and to have a right to withhold consent, subject to being “entirely sensible about any such works”. Quite apart from whether the claimant would be “entirely sensible” about that, which the defendant seriously doubted, the proposition that the defendant should be required to seek the claimant's consent to how he managed his estate only needed to be stated to be revealed as misconceived. Fourthly, it was also said to be clear that by accepting, in Loxley’s letter, that the defendant was entitled to undertake certain works of felling and clearance on his property (subject to the claimant's right to prior notice and, acting reasonably, to withhold consent), the claimant had revealed that the injunction she was seeking, both on an interim basis and at trial, i.e. on an in perpetuity basis, which allowed for no exceptions, was, on that ground alone, misconceived. Fifthly, given Loxley's position as set out in their letter, it was said to be clear that the claimant in reality accepted that an injunction against the defendant was neither necessary nor appropriate. Neither she nor her counsel could properly advocate on an open position, given the terms of Loxley's letter (and in any event, given the background and the evidence), that the court should order injunctive relief supported by a penal notice against the defendant. The defendant was said by then to have incurred substantial costs responding to the claimant's application, including attendance at court on 4th March, and in preparing witness evidence in reply, which evidence was, in any case, completed by the time that Loxley's letter had been received. Metis Law invited the claimant to formally abandon her application for injunctive relief, which it was said she could no longer properly persist in, and to agree to pay the defendant's costs. In a letter dated 18th March, Loxley stated that the claimant was not persuaded by Metis Law's argument that she ought to abandon her application and pay the defendant's costs. There was a detailed response to Metis Law's letter. On 21st March, Metis Law wrote a further letter stating that they had by then had an opportunity to consider the claimant's particulars of claim, which had been settled by Mr Charles Harpum (of counsel), and Metis Law noted that the particulars of claim did not maintain the allegations of bad faith against the defendant in the form of allegations of deliberate and intentional damage to sporting rights which had been made in Mr Mark Kitzing's first witness statement and had been maintained by the claimant's then counsel, Mr Heath, at the hearing on 4th March. Metis Law presumed that such allegations had now been abandoned, and sought confirmation in writing by return that the claimant and her counsel would not be seeking to rely on those parts of Mr Kitzing's evidence alleging bad faith on the part of the defendant, and that the claimant's counsel would not be making any submissions to that effect, written or oral, at the hearing on 29th March. Loxley's reply, dated 21st March 2016, stated that there was a distinction between pleadings and evidence, whereby the pleadings set out the claim and the evidence supported it. Loxley said that Metis Law could take it from that that the allegations they were referring to had not been abandoned, and the confirmations that Metis Law were seeking would therefore not be forthcoming. Furthermore, Loxley did not see what there was to be achieved by litigating points like that in correspondence.[4]It is appropriate to record that in opening this application counsel now appearing for the claimant accepted that her pleaded case did not assert bad faith or intentional wrongdoing. He, however, went on to submit that he did not need to go that far in the light of the case that was pleaded and having regard to the case law authorities.[5]I can set out the background to the present application by reference to the particulars of claim. Paragraphs 1 to 4 operate by way of introduction. They are non-contentious. The claimant is the owner of certain sporting rights over land at Burnt Yates in North Yorkshire. They are a profit a prendre in gross and are registered as such at the Land Registry, with title number NYK403338. Further details of the rights are set out in the particulars of claim. The lands subject to those rights include Winsley Hurst Hall, Burnt Yates. The defendant is the owner of the freehold title to the Hall, which is registered at the Land Registry with title number NYK422262. He also has a concurrent leasehold interest in part of the same land that is registered with title number NYK90290. A dispute has arisen between the claimant and the defendant as to the effect and scope of the rights. Paragraphs 5 to 26 of the particulars of claim set out the history of the Hall and the rights. It is sufficient for me to refer merely to the transfer of the freehold land to the defendant, dated 27th February 2015. Clause 4 of that transfer, as pleaded at paragraph 23, provides that:
"For the avoidance of doubt, all rights of sporting, being those contained in an assent of the 7th of July 1998 between the personal representatives of the claimant's late mother and the claimant, are excluded from the transfer and the property is transferred subject to sporting rights granted by that assent which assented the following rights to the claimant, namely, the exclusive right with friends and others of shooting, fishing, grousing, fowling, fox hunting and sporting over and taking all manner of fish, game, woodcock, snipe, quail, hares, rabbits, wild fowl, deer and trapping vermin, and the right to preserve and rear game for normal shooting purposes over the whole of the Winsley Hurst Estate."
There is also an ancillary right of way. Clause 5 of the transfer, as pleaded at paragraph 24, contained covenants by the buyer with the seller, including two relating to shooting and game. Those covenants were as follows:
"5.10 Not to shoot or engage in any field sports on the property except that shooting, for the sole purpose of controlling vermin, shall not be treated as a breach of this clause. 5.11 Not to lure away or intentionally scare off any game or take game or game eggs on or from the property."
Counsel for the defendant also places reliance upon clause 5.12 of the transfer. That provides that:
"5.12 Subject to clause 6.10 [which is a covenant to observe and manage the trees at the property in accordance with a Forestry Commission Woodland Management Plan], not to fell, cut or damage any yew or wellingtonia tree on the property save where such tree is damaged, diseased or is dangerous."
Mr Grant QC points to the fact that there is no similar covenant against felling, cutting or damaging any other trees or ground cover and, specifically, laurel and rhododendron bushes. Paragraph 26 summarises the position in these terms:
"The position of the defendant is therefore that he is bound by the rights by virtue of the terms of both the lease and the transfer."
Paragraphs 27 to 34 set out details of the rights and their exercise. They are said to extend not only to the Hall but also to the Estate and certain other properties. The shoot is said to be enjoyed by the claimant, her family, her friends and a number of local residents. There are said to be up to 15 days each year in which shooting takes place on the shoot, usually between October and the end of January. For the last five or six years the claimant's son, Mr Mark Kitzing, who lives on the estate, is said to have managed the shoot for her. The claimant will adduce evidence at trial to show that ground cover is essential to the working of the shoot because without it the birds are vulnerable to birds of prey, and the natural habitat for pheasants. The claimant will also adduce evidence at trial to show that the lands included outside the Hall's immediate curtilage form the central part of the shoot over which the claimant has the rights. The reasons for that are said to be that: (a) the northern part of the shoot is poorly wooded; (b) the greatest concentration of woodland is in the south; and (c) the lands within the Hall form the most important part of that woodland. Because of the location of the woodland, the land within the Hall forms the central hub of the shoot. There are 21 drives on the shoot, of which five are said to be on or directly adjacent to the land comprised within the title to the Hall. The claimant will also adduce evidence at trial as to: (a) the usual practice of conducting a shoot; (b) how she has conducted the shoot, in particular in the period since the defendant came to live at Winsley Hurst Hall in 2012; and (c) how that conduct of the shoot conforms to the usual practice. I should interpose to say that it is apparently common ground that the defendant in fact actually moved into Winsley Hurst Hall in 2013.[6]Paragraphs 35 to 47 set out the events that have happened. In the period following the assignment of part of the property demised by the lease to the defendant in 2012, and prior to his acquisition of the freehold of the Hall, the defendant did not in any way take issue with the claimant over the exercise by her of the sporting rights.[7]Since the defendant's acquisition of the freehold of the Hall in February 2015 there are said to have been two developments. First, the defendant began to complain about the manner in which the rights were being exercised over his property, and specifically about the conduct of Mr Mark Kitzing. That led to the defendant's solicitors, Metis Law, sending the claimant a letter before action on 24th July 2015 which included challenges to the legal validity of some of the rights, and allegations of nuisance, trespass and harassment. The claimant's solicitors, Loxley, responded to the letter before action on or about 18th September 2015 and there has been correspondence since that date which has not resolved the issues. Following the defendant's letter before action, the claimant commissioned a report on the rights from a chartered surveyor, who is said to be an expert on shooting rights, Mr J.M. Osborne. That report was concluded in November 2015 and signed by Mr Osborne on 1st December 2015. It was then sent to Metis Law that day. The second development which has prompted the present proceedings is that the defendant has undertaken extensive clearance of the ground cover and trees in the vicinity of the Hall, outside the curtilage of Winsley Hurst Hall itself. Initially, there was clearance of some ground cover by the defendant in the summer of 2015. This was a cause of considerable concern to the claimant and it was addressed by Mr Osborne in his report. In the covering letter to Metis Law which enclosed Mr Osborne's report, Loxley explained, by reference to the report, how clearance of ground cover had had a very significant and adverse effect on the shoot. The subsequent correspondence between the parties' solicitors did not resolve matters. In February 2016 the defendant recommenced the clearance of ground cover and started an extensive programme of tree felling in the vicinity of Winsley Hurst Hall, which is one of the most important areas of the shoot. The position when the present proceedings were commenced was that the ground cover in the area immediately surrounding the curtilage of Winsley Hurst Hall had been very substantially reduced. It is the claimant's case that such reduction seriously damages the operation of the shoot; in particular, it substantially reduces the ability of the woodland to hold game. At trial, the claimant will adduce evidence as to the extent of the denudation carried out by or on behalf of the defendant and its adverse effect on the shoot. It is the claimant's case that the conduct of the defendant has already fundamentally changed the character of an important part of the shoot that is subject to the rights and, unless the defendant is restrained from further woodland clearance and tree felling, he will further and irreparably damage the shoot. The defendant's conduct is said to constitute an unlawful infringement of the rights and to be a trespass and/or a nuisance. It is said to have caused loss and damage to the claimant in that it has significantly reduced the areas of the shoot in which the rights can be effectively exercised. The prayer for relief claims:(1) A declaration as to the nature and extent of the claimant's entitlement to the sporting rights over the Hall.(2) A declaration that the defendant has unlawfully interfered with those rights.(3) An injunction that the defendant must not, by himself, his agents or servants or otherwise howsoever, do the following acts or any of them on the defendant's land which is edged red, but excepting the land edged in blue on the plan attached: (i) take any steps whatsoever unlawfully to interfere with the rights; (ii) take any steps whatsoever to fell and/or remove trees; (iii) take any steps whatsoever to remove ground cover, or take any steps whatsoever substantially to cut back ground cover;(4) Further or alternatively, damages;(5) Interest;(6) Further and other relief; and(7) Costs. I note that the prayer for relief in the particulars of claim does not reproduce the terms of paragraph (5) of the prayer for relief in the original claim form, which was a claim for aggravated damages. The application for interim injunctive relief mirrors precisely the terms of the injunctive relief claimed in paragraph (3) of the prayer for relief in the particulars of claim.[8]It is appropriate for me at this point briefly to summarise the various witness statements relied on for the purposes of this interim injunction application. Mr Kitzing's first witness statement gives an overview at paragraphs 7 to 10. He addresses the history of the defendant's land and the sporting rights at paragraphs 11 to 15 and the history of the shoot at paragraphs 16 to 19. At paragraphs 20 to 22 he deals with the sale by the trustees to the defendant. At paragraph 23 he states that since 2015, when the transfer to the defendant was completed, the claimant has not made any significant alterations to the shoot or its operations. The defendant is said to have known how the shoot was operated prior to buying the land because he had lived in the Hall for about three years before purchasing it. Mr Kitzing then addresses the defendant's actions at paragraphs 24 to 33. He states that not long after the transfer (which, of course, was dated 27th February 2015) it became apparent that the defendant was felling trees and clearing woodland and cover and that this was having an adverse impact on his mother's sporting rights. He sets out the history in rather more detail in the succeeding paragraphs. At paragraph 33 he states that the defendant's actions led him and his mother to conclude that, if she did not apply for an interim injunction, there was a real risk that the defendant would continue to grub up or raze ground cover and fell trees. The failure to give any undertaking was said also to show that the defendant was intent on continuing to act in breach of the claimant's sporting rights. Mr Kitzing addresses the issue of a serious question to be tried at paragraphs 34 to 44 of his witness statement. He invites the court to conclude that there is a serious question to be tried, namely, whether the defendant's acts and threatened acts amount to an actionable interference with his mother's sporting rights. The defendant's actions are said to be plainly interfering with the sporting rights. He says that they have been, and will be, adversely affected by the defendant's actions. He refers to exhibits and relies upon the opinion of Mr Osborne. He summarises section 9 of that report at paragraph 37. He says that Mr Osborne opined that:(a) cutting back laurels and rhododendrons will affect the shoot because pheasants like to hide in such bushes;(b) the woods will become very open, so game will not inhabit them;(c) the defendant has rendered some areas of woodland almost unusable;(d) from Mr Osborne's inspection of the site, the works undertaken by the defendant are very significant indeed;(e) there will be a very significant adverse effect on the composition of the shoot; and(f) the sporting rights will be damaged for a very long time. Mr Kitzing says that he agrees with Mr Osborne's analysis of the effect of the defendant's acts. He says it is obvious from the photographs exhibited to Mr Osborne's report, and as a matter of common sense, that the removal of such an enormous amount of ground cover will have a detrimental effect on the sporting rights, massively reducing the ability of the woodland to hold game; there will be fewer places for birds to hide from predators, fewer nesting sites and less shelter from wind and snow. The environment will be a killing ground for raptors, without any continuous plots of cover for the birds to move safely between the different areas of woodland. He says that the height of the bushes is very important for flushing for birds and explains why at paragraph 41. At paragraph 42 Mr Kitzing says that he fears that the defendant's acts are simply a deliberate attempt to interfere with his mother's sporting rights. Even if the defendant is not interfering with those sporting rights deliberately, it is said to be the necessary by-product of his acts. Mr Kitzing is at a loss to understand why the defendant has removed so much ground cover. The defendant's stance in correspondence in response to the claimant's concerns has included the rather blithe assertion that there can be no substantial interference with the claimant's rights because she can exercise those rights over the rest of the estate. That is said completely to ignore the fact that the defendant had acknowledged his mother's sporting rights over the defendant's land in the transfer; and it also ignores the crucial role that the defendant's land plays in the operation of the shoot. Mr Kitzing addresses the balance of convenience at paragraphs 45 to 48. He asks the court to preserve the status quo, meaning that the land should stay in its present state. He addresses his mother's ability to give a cross-undertaking in damages at paragraphs 49 to 50. At paragraphs 51 to 58 Mr Kitzing addresses the defendant's complaints. It is necessary for me to refer only to paragraph 58:
"My mother and I were concerned to deal with the defendant's complaints as reasonably as we could. The main reason for instructing Mr Osborne was to see if we could improve the way in which we operate the shoot to alleviate some of the defendant's concerns. The defendant has not engaged in our attempts to do so but instead appears intent on acting unilaterally, for no good reason, in a manner which risks ruining the shoot."
That was the evidence in support of the interim injunction application.[9]In his witness statement in answer, Mr Fuller addresses the background to the application at paragraphs 8 to 11. He says that before addressing the claimant's application he believes it important to make clear at the beginning of his witness statement that Mr Fuller's partner, Katy Van Pagh, and himself have been the subject of a campaign of harassment by Mrs Kitzing, her son Mark and, to a lesser extent, Mr Kitzing's wife, Bethany, which started around the time that Mr Fuller purchased the property in February 2015. Mr Fuller believes it to be important for the court to understand the context in which the claimant now makes her application against the defendant for an injunction. It is said to be important for the court to understand this background because Mr Kitzing suggests that Mr Fuller's attitude towards the shoot completely changed after the purchase. In fact, Mr Fuller says that it was Mr Kitzing's attitude to Mr Fuller which changed. Mr Fuller also makes it clear that he believes that the actions and behaviour of the Kitzing family towards himself and Katy are motivated to some extent by either:(a) some kind of jealousy or animosity arising from the facts identified in subparagraph (9) (a);(b) a desire to put pressure on Mr Fuller to force him to sell the property;(c) a reluctance of the Kitzing family to part with actual control of the land sold; or(d) perhaps a combination of those things. He says that the Kitzing family made it expressly clear in April 2015 that they intended to try to control the manner in which Mr Fuller utilised his property by requiring him to defer to them by constantly, to use their terminology, "enforcing their rights". He refers to various documents, identified at subparagraphs (10) (a) and (b). At paragraph 11 he says that the Kitzing family have been good to their word and there have been many, many acts of harassment (perhaps close to a hundred). When Mr Fuller was served with the injunction application he had already instructed his lawyers to finalise proceedings against Mrs Kitzing and her son for, amongst other things, harassment, nuisance and trespass. They were well on their way to finalising those claims when Mrs Kitzing issued her own claim. At paragraphs 12 to 53 Mr Fuller gives examples of what are said to amount to acts of harassment, nuisance and trespass. At paragraphs 54 to 77 Mr Fuller addresses the works that he has carried out. I can take it up at paragraph 72, which Mr Grant QC, leading counsel for Mr Fuller, described in his address to the court as, "a useful and informative paragraph". The works were said to have been carried out in two phases. Phase 1 related specifically to work south of the garden, work on the north bank, work to the west of the garden, and some work to the east of the garden. That is said to have been carried out from late February 2015 to August 2015. Phase 2 of the works is said to have related to a parcel of woodland below the west of the garden, which had not been completed during phase 1, and work south of the garden up to the laurel bushes south of the pond. That work was carried out in February 2016. Mr Fuller says that he understands from Robin Hardcastle, his estate manager, that of the works carried out since February and March 2015 to date, around 85% of the works were carried out by August 2015, with the final 15% of the works that Mr Fuller had planned to do long before the involvement of Mrs Kitzing's solicitors, and which he has described as being undertaken south of the pond and down towards the cross-roads, being completed between 1st and 27th February 2016. Mr Fuller says that the reason why he ceased works in and around the woodland between August 2015 and February 2016 was out of respect for the shoot and the preparations for it. The shoot began in early October 2015 and finished on 30th January 2016. Mr Fuller says that he has now completed the works which he is permitted to carry out under the felling licence, and which Robin discussed with a Mr Will Richardson for the Forestry Commission, and which have been carried out in accordance with Mr Fuller's obligations at clause 6.10 of the transfer. Mr Fuller says that he has no intention of carrying out any further felling or clearance works, except for removing damaged or diseased trees from time to time. To be clear, that is not because of anything done by the Kitzing family, but because the works he had planned to do, and started doing soon after his purchase of the property, have now been completed. I should record that, in Mr Mark Kitzing's second witness statement, expressly responding to Mr Fuller's first witness statement, Mr Mark Kitzing's only comment on paragraph 72 relates to the works described in sub-paragraph 72 (a) as phase 1. Mr Kitzing's only comment is that the works were conducted during the nesting season, and without consulting the shoot manager. There is no comment upon the remainder of paragraph 72. At paragraphs 73 and 74 Mr Fuller says that what he plans to do in order to continue his ambition to restore the woodland to health is to carry out replanting, as discussed with Mr Richardson, and also to apply woodland mix to the areas which are bare. Those are the areas which were so densely overgrown and neglected under the trustees' ownership, and which can now be regenerated effectively. Mr Fuller stresses that the bare areas have largely arisen from the fact that these areas were so overgrown that the light could not penetrate, so that everything below had died away. Mr Fuller says that it is not in his interests to leave the ground completely bare, nor would he desire that; he wants a natural looking, healthy, bio-diverse and well kept woodland surrounding his home. In time, natural and wild plants will repopulate areas which currently look bare, and the woodland mix will obviously help with that. There is no comment on either of those paragraphs in Mr Mark Kitzing's second witness statement. It is, however, fair to point out that certain aspects of those paragraphs are addressed in Mr Osborne's recent letter, to which I will return. At paragraph 75 Mr Fuller says that Mr Kitzing claims to be concerned that the woods cannot now hold game. That is just wrong, in Mr Fuller's view, and completely contrary to the evidence and the fact that, despite the vast majority of the works being carried out over a five to six month period, between late February 2015 and August of that year, Mr Kitzing was able to operate an effective, and seemingly successful, shoot between October 2015 and the end of January 2016. Indeed, Mr Fuller says that the fact that Mr Kitzing has operated a successful shoot, and that he has not once during the four month period when the shoot was taking place complained that the shoot has been damaged, or provided any evidence at all to support his, and his expert's, contention that the shoot has been damaged, proves that there is in fact no substance at all in his complaint. Pheasants are said to be plainly visible in and around the property and they appear to have no issues at all crossing open ground. Mr Kitzing addresses that paragraph at paragraphs 65 and 66 of his second witness statement. He says that the recent shooting season was not successful and that the shoot has been damaged:
"It was one of our worst seasons ever for percentage returns, which is how shoots are generally gauged. Overall, we shot 662 birds, compared with 900 for the previous season. This means that our percentage return dropped from a respectable 50% for the previous year to 35%."
Mr Mark Kitzing says that he has compared their percentage returns with other shoots last year. In 2015, the average return was 44% and in 2014 the average return was 39.24%. Therefore, returns went up overall that year, but the claimant's went quite dramatically down. He says that they did not say anything to this effect until after the season was over as you have to shoot the whole season to get a true picture of what has gone on. The fact that you can see pheasants now is a bad thing. There would have been many more unseen pheasants safe in the ground cover before it was removed. The pheasants are now easier for the defendant to see, as well as all of their predators. Mr Grant acknowledges that one could not get a true picture of the success of the shoot until the end of the season, at the end of January. The point that Mr Grant makes is that there is no mention of an unsuccessful shooting season in the evidence originally filed in support of the interim injunction application. At paragraph 76 of his witness statement, Mr Fuller refers to an extract from the Game and Wildlife Conservation Trust website. That is said to make it clear that the pheasant is really a species of woodland edge and agricultural land. That is said to show that thick, dark, overgrown woodland is not, as Mr Kitzing suggests, a necessary condition for pheasants to exist. Mr Kitzing addresses this at paragraph 76 of his second witness statement. He says that the Winsley Woods provided fantastic shelter for game all year round, but especially in winter. He goes on to elaborate upon that. At paragraph 77 of his witness statement, Mr Fuller concludes that he believes that he has taken positive steps to improve the woodland in the property he purchased in 2015 and with time the areas that they have cleared (and in various locations intend to reseed) will re-sprout into healthy-looking woodland. He believes that that will benefit the shoot. At paragraph 68 of his second witness statement, Mr Mark Kitzing says that some of the bushes that have now been cut to stump will grow back but it will take 15 to 20 years before they provide any suitable cover. He says that that is demonstrated by certain photographs which he exhibits. That is an issue that is addressed more fully in Mr Osborne's recent letter. At paragraphs 78 to 80 Mr Fuller refers to supportive comments that he says that he has received from two of the claimant's co-trustees (and who are two of her sisters), Mrs Pamela Holden and Mrs Patricia Clauson. He says that he believes that it is telling that members of the Kitzing family take an entirely positive view of what he has done to the house and grounds. They rightly recognise that the property was in a state of disrepair and that, at considerable cost, Mr Fuller has restored it to its former glory. Mr Kitzing's sole comment is that he has no objections with what the defendant has done to his house. Mrs Kitzing addresses this evidence at paragraph 19 of her witness statement. What she says is that she has not spoken to her sisters since their visit, but she understands that Pamela Holden did say that the property was much improved. The claimant says that she does not know if Pamela commented specifically on the woodland and drive, but Pamela is said to be a polite person and Mrs Kitzing there says that she was being polite. In his submissions to the court, Mr Grant described this paragraph as being, "off-hand to the point of glibness." It is perhaps worthy of note that the claimant does not appear to have spoken to her sisters and co-trustees about their visit to the defendant's property, notwithstanding the comments of Mr Fuller at paragraphs 78 to 80 of his witness statement. At paragraph 81, Mr Fuller says that he believes that the injunction application, and the order being sought, is in fact no more than a further attempt to intimidate and harass him, and to seek unlawfully to restrict how he might use his own land. He believes it to be without legal merit, it was not preceded by any proper letter setting out the alleged claims, and the cause of action is, to this day, said to be entirely unclear. At paragraphs 82 to 85 of his witness statement Mr Fuller explains why he says that there is no serious issue to be tried. He says that the transfer set out his obligations in detail and that it does not prevent him from felling trees or clearing ground cover. He says that the allegation that he has been acting maliciously is patently absurd, and he sets out the reasons why. At paragraph 85 he says that he has removed ground cover where it was so overgrown that the woodland floor was dying beneath it. In three of the four areas he has either left in roots which will regrow, planted trees himself, or brought woodland mix to spread on the areas in question. The only area that he does not intend to do that to is to the east of his lawn, which is a relatively small triangular area where he intends to extend his lawn. Mr Kitzing's only comment upon this is at paragraph 70 of his second witness statement, commenting on paragraph 83 of Mr Fuller's statement where Mr Fuller says that the trustees have not made any complaint about his conduct and that he has not lured away, or intentionally scared off, any game, or taken game or game eggs on or from the property. Indeed, he has been careful not to carry out any very noisy work during the shooting season. That is said to be incorrect:
"The defendant often runs two back-pack petrol engine leaf blowers for hours in the middle of the woods the day before a shoot. On hearing them, birds will run off scared in the opposite direction. The workmen usually start from the house and work their way towards the main road and the end of the drive, effectively operating as a wall of sound, slowly pushing the pheasants away and off the estate."
At paragraphs 86 to 101 Mr Fuller asserts that the restrictions which the claimant is seeking to impose upon him by her application would prevent him from looking after his estate as he says he is surely entitled to do and fulfilling his obligations pursuant to clause 6.10 of the transfer. Those points are then elaborated upon. At paragraph 87 Mr Fuller reiterates that he has now completed the works that he had planned, although some replanting and spreading of woodland mix remains to be done when the weather is right. There is no comment upon that paragraph in Mr Kitzing's second witness statement. At paragraph 102 Mr Fuller states that, moving forward, he does not have any plans to clear or thin any more areas. He may need to fell the odd tree if it is damaged or diseased. He needs to do further work replanting and seeding three of the four areas. He cannot see how this could cause serious, irreversible, and uncompensatable damage to Mrs Kitzing's sporting rights. He says that it is telling that they have known about the matters complained about for around a year. If the works were doing such serious damage to their rights, why did they not seek an injunction in March 2015 and, in any case, much sooner than 1st March 2016? There is no comment on that paragraph by either Mr or Mrs Kitzing. At paragraph 103, Mr Fuller says that he believes that the truth is that the injunction is wanted by the Kitzing family for an ulterior purpose, not to prevent actual serious damage to rights, but as a weapon to taunt him. It is said to be the latest manifestation of a long-running campaign of harassment, nuisance and trespass. There is no express comment upon that paragraph in Mr Kitzing's second witness statement. Mr Fuller addresses the issue of delay at paragraphs 104 and 105. He says that the plain fact is that the shooting season preparations began in August 2015, and the shooting season itself started in early October, ending only on 30th January 2016, and works were not carried out during the shooting season as a matter of courtesy. Mr Fuller summarises his evidence and case at paragraph 106. He says that has done absolutely nothing wrong. He lives in the property with his partner, Katy, who is said to be so distressed by the Kitzing family's behaviour, and specifically the behaviour of Mark, that she has had to visit the doctor with stress-related symptoms. In fact, Katy has been so affected by the Kitzing family's campaign of harassment that she has suggested they just sell the property and move elsewhere. Mr Fuller is adamant that they should not be forced out of a home that they love because of the actions of the Kitzing family. In any case, even if he was minded to sell, this dispute (which would need to be disclosed to any purchaser), and the behaviour of the Kitzing family generally, is likely to have a severe impact on his ability to sell the property at its true value.[10]It is unnecessary for me to refer to Katy Van Pagh's witness statement. Mr Robin Hardcastle's witness statement confirms that Mr Fuller's statement is accurate to the best of Mr Hardcastle's knowledge and belief. Mr Hardcastle goes on to give further details of some of the incidents which he has personally witnessed and the effect that it has had on him. He says that Mark Kitzing has been abusive to him on numerous occasions. Mr Hardcastle's impression of him is of an interfering person who seems to have nothing better to do with his time than to hang around Mr Fuller's property, trying to make Mr Fuller's life a misery. At paragraph 7 Mr Hardcastle says that it seems to him that the shoot has been functioning just as well, notwithstanding the fact that works have been carried out around the woodland area. He does not believe that the complaint of the Kitzings that the works have damaged the shoot is a genuine one. The fact that the shoot has remained fully operational, albeit operating what is said to be dangerously close to Mr Fuller's residential property, suggests that it has not been damaged at all. The account given of the works in Mr Fuller's statement is said to be accurate. It is nonsense to suggest that they are damaging anything. They have taken advice throughout from Will Richardson, who has visited the property and liaised with Mr Hardcastle on about five occasions. They are trying to restore a neglected, dark and overgrown woodland into a beautiful, healthy, natural woodland in which animals and wildlife will flourish and which can be enjoyed by future generations. Mr Richardson is said to have advised them on how best to do that and has marked up trees that might be felled. In Mr Hardcastle's view, the work that they have done, at considerable effort and expense, is entirely positive and beneficial to the land - a view which was shared by some of the trustees whom he showed around the property with Katy only a few weeks ago. That is the defendant's evidence.[11]In her only witness statement, Mrs Kitzing, the claimant, says that she has grave difficulties accepting that the defendant will not go back on his word, and that he has only given a very limited assurance up to the return date of her application. She explains the capacity in which she is bringing the claim at paragraphs 6 through to 18. At paragraph 15 she says that they had no reason to believe that the defendant had any issues with the way the shooting rights were exercised and they therefore thought that, once he had purchased the freehold and the 30 acres, they would simply be able to continue to exercise their shooting rights in the same way as they had for the three previous years. In the period since the transfer, the claimant has made no significant changes whatsoever to the manner in which they exercise the shooting rights so it therefore came as a shock to the claimant when, almost as soon as the transfer had happened on 27th February 2015, the defendant started raising issues with them to do with the exercise of the shooting rights and started acting in a manner (by felling trees and clearing the undercover) that was detrimental to the exercise of those rights. The manner in which the defendant has acted since he purchased the freehold is said to be in stark contrast to how he had acted prior to and during the transaction and to how he had led them to believe he would behave. That is why Mrs Kitzing is said to be wary about trusting the defendant when he offers only an assurance and refuses to offer an undertaking. In the course of his oral address, Mr Grant castigated that paragraph as:
"The most exiguous evidence against what Mr Fuller has said in his own witness evidence and has done on the ground."
At paragraph 19 Mrs Kitzing proffers her only specific comments on Mr Fuller's statement. They relate to paragraphs 78 to 80 and I have already related them in the course of setting out Mr Fuller's evidence in those paragraphs. The rest of Mrs Kitzing's short witness statement relates to the allegations of harassment, nuisance and trespass. She does not believe that any of those allegations about the behaviour of her family are relevant to her application for an interim injunction. However, she does not accept that the allegations are well-founded and responds briefly to them. It is unnecessary for me to refer further to what she has to say in that regard.[12]Mr Kitzing's second witness statement updates his first witness statement to explain what happened from 26th to 28th February 2016 and responds to statements made in the defendant's witness statement. The update is set out at paragraphs 6 to 9. At paragraph 7 Mr Kitzing relates going out to the woods on the morning of Saturday 27th February and seeing that the works that had been going on during the week had been stepped up. At paragraph 8 Mr Kitzing says that he returned the next day, on Sunday 28th February, and that work was ongoing. He exhibits two photographs that he took on that visit, showing that bonfires were still lit and the digger still on site. He says that a huge amount of clearance was done between 25th and 28th February 2016. He illustrates that by way of comparison photographs taken on both dates in the same spot, which are said to show that the rhododendron bushes and laurels have been completely obliterated. The remainder of Mr Kitzing's witness statement is a response to the allegations made in Mr Fuller's witness statement. I have already related some of what he has to say in that regard. It is necessary for me only to refer to paragraph 73, the concluding paragraph. There Mr Kitzing refers again to the plans which he had attached to his first witness statement. Plan B was said to show the area of ground cover in the summer of 2015 and plan C to show the much reduced area of ground cover following the most recent works, which was only up to date as at 25th February 2016. Mr Kitzing observes that, as can be seen on plan B, while the defendant had significantly reduced the area of ground cover, there was still a large continuous area of cover left for them to work with. So, while they were very upset with what Mr Fuller had done, they had thought that, if Mr Fuller stopped there and replanted, and paid attention to Mr Osborne's expert report, they could move forward. In addition, they wanted to be reasonable neighbours. Mrs Kitzing did not therefore take legal action at that point. Mr Rosenthal points out that it is only the state of the ground cover as shown on plan B (rather than plan C) which can possibly be reflected in returns for the 2015 to January 2016 shoot.[13]It is unnecessary for me to refer to Bethany Kitzing's witness statement beyond observing that it contains no reference to the tree-felling incident on 10th February 2016 which is referred to in paragraph 28 of Mr Kitzing's first witness statement and which was the subject of Loxley's first letter to Metis Law after works of tree felling and ground clearance recommenced following the end of the 2015 to 2016 shoot.[14]Mr Richard Baldwin's witness statement gives evidence about the conduct of the Winsley shoot. It is unnecessary for me to refer to it in any detail. I merely observe that there is nothing within it to support the evidence in Mr Kitzing's second witness statement, at paragraphs 65 to 66, to the effect that the recent shooting season was not successful for the Winsley shoot.[15]Although not contemplated by my order of 4th March, further witness evidence has been served. Mrs Kitzing has made a second witness statement, the purpose of which was to produce a letter that her solicitors received from the expert, Mr Mark Osborne, late on 21st March 2016 and therefore too late to be exhibited to her first witness statement, and also to exhibit certain title documents referred to in the particulars of claim. Mrs Kitzing explains that, at the hearing on 4th March, a question had been raised over whether the clearance works done by the defendant to his property, and the damage that they had caused, was remediable. At paragraph 9 of his original report Mr Osborne had expressed the opinion that, due to the scale of some of the clearance works, it would be necessary to carry out replanting in certain locations and that that would take a good deal of time. In the light of the comments made at the 4th March hearing, Mrs Kitzing's solicitors had written to Mr Osborne on 11th March asking him to expand on the opinion that he had put forward on the issue of replanting and, in particular, to address the following four issues:(1) the nature and extent of the replanting works that would need to be undertaken;(2) an estimate, so far as it was possible to give one, of the likely costs of carrying out such works;(3) the length of time that it was likely to take before any replanting would be as suitable as the previous natural cover; and(4) why it was that, in his opinion, a process of active replanting was necessary rather than simply leaving the vegetation to regenerate naturally. Mr Osborne's letter of 21st March addresses each of those issues.[16]Mr Fuller's second witness statement deals with a few of the points of fact raised in the claimant's evidence served on 21st March. He reiterates his earlier evidence that the allegation that he has deliberately set out to interfere with the applicant's sporting rights is absolutely false. Mr Fuller also makes it clear that the correspondence from Loxley in February 2016 had no bearing on the timing of his works. He says that the works in question were completed on 27th February 2016, which was the Saturday. At paragraph 9 he says that the key point he wishes to make is that, despite the planned works resuming on 1st February, proceedings were not threatened until some weeks later and, by the time the threatened proceedings were actually received (and then only in draft form) on Monday 29th February, the planned works had already been completed. He emphasises that the works which took place on 26th and 27th February (the Friday and Saturday) were a planned continuation of existing works which he had recommenced on 1st February 2016. They were not instituted in response to anything written by Mrs Kitzing's solicitors. Mr Fuller deals with an alleged lack of consultation at paragraphs 10 through to 12. He says that, given Mark Kitzing's thoroughly obstructive and unhelpful behaviour, he had chosen to use Clive Mitchell as an intermediary to consult with Will Richardson, the named agent on the woodland management programme. Mr Rosenthal submitted to the court that there had been no justification for Mr Fuller refraining to engage in consultation with Mark Kitzing, who was the shoot manager and who had been identified as an important consultee in the Woodland Management Plan. Amongst general points that Mr Fuller makes, at paragraph 16, he expresses his lack of belief that Mr Kitzing's comments at paragraphs 65 and 66 of his witness statement hold true. He says that he has raised the issue of falling bird numbers with Mr Francis Body, whom he knows well and who runs a nearby shoot at Ripley Castle. That shoot is said to hold at least 50,000 birds a season and to employ four full-time gamekeepers. He attaches an email from Mr Body dated 22nd March 2016 which explains his belief as to why bird numbers may have been down the last season. This is said to be down to two main factors, both caused by unseasonal weather conditions. Given those two factors, Mr Body understands that some shoots were well down on their returns. Mr Fuller says that it is notable that no mention has ever been made in these proceedings about supposedly reduced bird numbers until the applicant's responsive evidence. In any event, her ability to come on to the defendant's land to rear and shoot pheasants has never been impeded in any way, and he has never given, nor would he have given, any warranty that his land would be kept in a particular state to suit the applicant's desires. He says that he, obviously, would never have spent £600,000 on the land if he had had to give such a warranty. At paragraph 17 Mr Fuller reiterates that it is not his attitude to Mrs Kitzing and her son which has changed but theirs towards him. At paragraph 18 he says that he has now stated in a witness statement that the substantive clearance works he has set out to do have finished. He does not intend to do any further substantial clearance and felling work, although he obviously may need to do various works from time to time in order to look after his estate and to comply with the woodland management programme. He says that what he has said is true. It is not suggested that he has done any such work since the issue of Mrs Kitzing's application, almost a month earlier. He refers to Mrs Kitzing's solicitors' request for full details of any works that were proposed to the estate on the basis that she would, being entirely sensible about it, be willing to consent to any necessary works being carried out on a case by case basis. Mr Fuller comments that it is clear from this that if Mrs Kitzing decided that she objected to any proposed works, including any replanting or spreading of woodland mix, then on her proposals she could withhold consent. He says that he hopes the court can understand why he felt it completely unacceptable to find himself in a position where he would be expected to effectively give Mrs Kitzing right of veto over any works at all that he might wish to carry out to his property - works which he says he is legally entitled to do. Mrs Kitzing's proposal, in fact, was even more intrusive than the injunction she was asking the court to grant. That is Mr Fuller's further evidence.[17]In his second witness statement, Mr Robin Hardcastle further clarifies the scope and extent of the works which recommenced at Winsley Hurst Hall on 1st February 2016. Those works were said to have been first planned and begun in February 2015 and they had ceased in August 2015 so as not to interfere with the 2015 to 2016 shoot and its preparation. That shoot had started in October 2015 and ended on 30th January 2016. When the work had ceased in August 2015 approximately 85% of the planned works had been carried out. Mr Hardcastle relates that the works finished on Saturday 27th February and were not ongoing on Sunday 28th February, and that the works had finished the previous day as planned. The bonfires which Mr Kitzing referred to were burning embers from the previous day. The digger had remained in situ and was moved and stored behind Mr Fuller's property on Monday 29th February 2016. Mr Hardcastle states that it is definitely not the case that any of the works were carried out in response to correspondence from Mrs Kitzing's solicitors; they had been planned since February 2015 and resumed on 1st February 2016 after the 2015/2016 shoot had ended. Mr Hardcastle says that he was not even aware that Mrs Kitzing was threatening to issue court proceedings until Mr Fuller had mentioned it to him shortly before the works were completed. The works carried out in February 2016 were totally unconnected to any correspondence from Mrs Kitzing's solicitors and had begun, as planned, on 1st February 2016. That concludes the evidence.[18]I make it clear that I have considered in detail the witness evidence, the documents and the submissions presented to me. Inevitably, in an extemporary judgment delivered on the second day of a two day hearing there will be particular documents, authorities and points (both factual and legal) to which I have been referred that I do not consider to be necessary for my determination of this interim injunction application. I make it clear that the fact that I do not mention a particular matter does not mean that I have overlooked it or that I have not considered it in the course of my deliberations. To mention every single point would make this extemporary judgment unduly lengthy and unmanageable (and probably unpalatable).[19]On this application the claimant is represented by Mr Adam Rosenthal (of counsel), who did not appear on 4th March. The defendant is represented by Mr Thomas Grant QC, leading Mr Christopher Newman (also of counsel), who did appear before me on 4th March whereas his leader did not. Both counsel had submitted detailed written skeleton arguments which I had pre-read. The hearing had been listed to commence on Tuesday 29th March but unfortunately, due to technical reasons, the Manchester Civil Justice Centre was unable to operate on that day. Happily, I was able to begin at about 10 past 10 on the morning of Wednesday 30th March and to continue this two day application today, Thursday 31st March. I was able to use the afternoon of Tuesday 29th March to re-read the skeleton arguments and to consult the bundle of - in the event - some 25 authorities that was submitted to me. Mr Rosenthal addressed me in opening for about two and a half hours. Mr Grant addressed me in total for about four and a quarter hours, beginning shortly before the luncheon adjournment on day 1, continuing on the afternoon of day 1 (adjourning at about 4.50) and resuming at just after 10 past 10 this morning, and concluding at about 11.30. Mr Rosenthal then addressed me in reply for a little over an hour. The hearing concluded at 12.45 today and I started delivering judgment at 2 o'clock this afternoon.[20]Mr Rosenthal began by reminding me of the principles applicable to the grant of an interim injunction, as set out in the leading case of American Cyanamid v Ethicon. He referred me to the summary of those principles which is now to be found at paragraph 15-8, on pages 2831 to 2832 of the current (2016) edition of Volume 2 of Civil Procedure. Mr Rosenthal referred me in particular to principles 10 and 11 but it is necessary to start at principle 3:
"(3) It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on the written evidence as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial ... (10) However, the court must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. (11) So, unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the claimant has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought."
I note that at the foot of page 2832 and continuing on page 2833 the commentary states that in the American Cyanamid case Lord Diplock said that: 21. Mr Grant later referred me to what is said at paragraph 15-15 about the relative strength of each party's case. He did so because Mr Grant relied upon observations of Laddie J in the case of Series 5 Software Limited v Clarke [1996] 1 AER 853 at page 865 between C and E: "If … the court is able to come to a view as to the strength of the parties’ cases on the credible evidence, then it can do so. In fact, as any lawyer who has experience of interlocutory proceedings will know, it is frequently the case that it is easy to determine who is most likely to win the trial on the basis of the affidavit evidence and any exhibited contemporaneous documents. If it is apparent from that material that one party's case is much stronger than the other's then that is a matter that the court should not ignore." 22. Later on, against F to G, Laddie J said this: "… it appears to me that in deciding whether to grant interlocutory relief, the court should bear the following matters in mind. (1) The grant of an interlocutory injunction is a matter of discretion and depends on all the facts of the case. (2) There are no fixed rules as to when an injunction should or should not be granted. The relief must be kept flexible. (3) Because of the practice adopted on the hearing of applications for interlocutory relief, the court should rarely attempt to resolve complex issues of disputed fact or law. (4) Major factors the court can bear in mind are (a) the extent to which damages are likely to be an adequate remedy for each party and the ability of the other party to pay, (b) the balance of convenience, (c) the maintenance of the status quo, and (d) any clear view the court may reach as to the relative strength of the parties' cases." 23. Mr Rosenthal emphasises that the court should not have regard to the strength of the respective parties' cases unless it is able to reach a clear view as to their relative strengths. He also directs my attention to observations of Judge Hacon, sitting in the Intellectual Property Enterprise Court, in the case of Epoch Co Limited v Character Options [2015] EWHC 3436 (IPEC) at paragraphs 4 through to 6. There Judge Hacon referred to Laddie J's view that the merits of the claim as a whole should be taken into account to a greater extent than had hitherto been supposed. Judge Hacon said that, as far as he was aware, that view had not been endorsed by other courts. He made reference to observations of Robert Walker LJ in Guardian Media Group Plc v Associated Newspapers Ltd in which it had been pointed out that the American Cyanamid principles did not prevent the court from giving proper weight to a clear view on the merits provided that it did not require a mini-trial on copious evidence. Judge Hacon thought that he must apply American Cyanamid according to the traditional (as opposed to a more radical) reading. It was on that basis that he turned to consider whether there was a serious issue to be tried. Arguably those observations are obiter because, in the event, an interim injunction was refused.[21]Mr Grant has also taken me to the well known judgment of Lord Hoffmann, speaking for the Privy Council, in the case of National Commercial Bank Jamaica Limited v Olint Corporation Limited [2009] UKPC 16, reported at [2009] 1 WLR 1405, at paragraphs 16 through to 18. There Lord Hoffmann observed that at the interlocutory stage, the court must assess whether granting or withholding an injunction was more likely to produce a just result. The court has to engage in trying to predict whether granting or withholding an injunction was more or less likely to cause irremediable prejudice (and to what extent) if it turned out that the injunction should not have been granted or withheld, as the case might be. The basic principle was that the court should take whatever course seemed likely to cause the least irremediable prejudice to one party or the other. Among the matters which the court might take into account were the prejudice which the plaintiff might suffer if no injunction was granted or the defendant might suffer if it was; the likelihood of such prejudice actually occurring; the extent to which it might be compensated by an award of damages or enforcement of the cross-undertaking; the likelihood of either party being able to satisfy such an award; and the likelihood that the injunction would turn out to have been wrongly granted or withheld, that is to say, the court's opinion of the relative strengths of the parties' cases. However, I am satisfied that the court should not embark upon a detailed consideration of that relative strength unless it is able to form a clear opinion on the evidence and in accordance with the law.[22]In my judgment, the court should approach the grant of interim injunctive relief not on a mechanistic or a formulaic approach but with a view to assessing whether, having regard to the various matters identified by Lord Hoffmann, the grant or withholding of an injunction is more likely to produce a just result in the case before it. That is the approach that I intend to adopt.[23]Against that background, I turn, first, to consider whether there is a serious issue to be tried. For the defendant, Mr Grant submits that, on the facts alleged in the particulars of claim, there is no serious issue to be tried as to an actionable nuisance given that:(1) (and unsurprisingly) the common law allows an owner to take steps to manage his land, notwithstanding the presence of sporting rights over it;(2) the express terms of the transfer by which Mr Fuller took ownership of the land, to which the applicant was a party, permit, and indeed require, land management activities; and(3) there is no pleaded allegation of bad faith. Mr Grant elaborates upon that aspect of the case at paragraphs 10 to 19 of his written skeleton argument. He submits that the applicant must show that she has a seriously arguable claim, in the sense that she must satisfy the court at this stage that she has a reasonable prospect of establishing at trial that the respondent's felling of trees and cutting back of ground cover on his own land constitutes an actionable nuisance. He submits that the applicant cannot do that, even on the assumption that her factual evidence is accepted without qualification. He points out that there is no restrictive covenant preventing such activities and, in fact, the transfer pursuant to which Mr Fuller took ownership of the land permits him to do works, such as using the land for agricultural purposes, which would plainly require such activities to be carried out, and obliges him to undertake such activities to maintain the land in accordance with the Woodland Management Plan attached to the transfer. He makes the further point that, even if those express rights and obligations in the transfer had not been bargained for, the common law unambiguously supports Mr Fuller's position. He refers to passages in Woodfall on the Law of Landlord and Tenant and Megarry and Wade on the Law of Real Property. Paragraph 14.039 of Woodfall states that:
"A grant of sporting rights does not prevent the occupier of the land from cutting down timber in the ordinary course of management of his estate, even though the cutting down will prejudice the shooting; or from destroying gorse and underwood, or from offering the estate in lots for building land. But the occupier cannot deliberately drive away the game."
Later, it is said that:
"Where land was sold for farming subject to a reservation of hunting and shooting rights, the holder of those rights could, providing he took reasonable care, exercise those rights to enter the land for the purpose of shooting, rearing and preserving game without limit and even if so doing interfered with agricultural activity on the land."
Authority for the latter proposition is to be found in the unreported case of Pole v Peake, The Times, 22nd July 1998. A similar passage is to be found in Megarry and Wade, 8th edition (2012) at paragraph 3-033:
"It is no infringement of a right to take game if the servient owner merely cuts timber in the ordinary way, even if he thereby drives away game; but it is otherwise if fundamental changes in the land are made, as where the whole or a substantial part of the land is built upon or converted into racing stables."
Those propositions are said to be supported by the authorities cited in Woodfall. Mr Grant has taken me through the various supporting authorities. He submits that the law is clear that unless (possibly) bad faith is specifically alleged and proved, in the sense of steps taken and intended solely for the purpose of injuring the sporting rights, the holder of sporting rights has to take the land as he or she finds it, and there is no implied obligation on the landowner not to cut down trees or clear undergrowth. That is said to be the case even if the owner covenants to use his best endeavours to preserve the game and so, a fortiori, it must be the case where the right to “preserve and rear game” is simply granted to the holder for profit (as in this case). There is no allegation in the particulars of claim in the present case that the defendant has deliberately taken steps to drive away game or any similar act of bad faith. Mr Rosenthal accepted in the course of his oral submissions that he could not rely on any such case. Given that there is no pleaded allegation of bad faith or wilful injury to sporting rights, and given that the evidence before the court adduced by Mr Fuller is said clearly to demonstrate that the works were carried out openly over a long period of time and with the assistance of expert silvicultural advice in order properly to manage Mr Fuller's estate, Mr Grant submits that there is no triable issue of actionable nuisance; and on that basis the application falls at the first hurdle. Even if, contrary to that submission, the court considers that a triable issue is raised, its manifest weakness is said to be relevant to the exercise of the court's discretion. Mr Grant points out that the rights in question in this case are to shoot and to preserve and rear game, and the authorities make it clear that there is no implied right to have the land kept by the owner in any particular state. He submits that, once it is appreciated that that is the extent of the right, it is self-evidently the case that it has not been interfered with. The land remains woodland and the claimant is still able to exercise her sporting rights, as evidenced by the fact that the shoot has continued to take place. The claimant is still able to rear and preserve game using exactly the same techniques that she has always used, such as the use of feeders. In summary, the activities which the claimant is permitted to do, she is still able to do. There is said to be no evidence to the contrary.[24]Mr Rosenthal, for the claimant, submits that there is a serious issue to be tried. He emphasises that the threshold is a low one, the question being whether the pleaded claim is frivolous or vexatious. He submits that this is not the forum for deciding disputed issues of fact, or even nuanced questions as to whether the alleged interference with the claimant's sporting rights is substantial or serious. In his reply, Mr Rosenthal placed particular reliance upon three passages in the judgments of the three members of the Court of Appeal in the case of Peech v Best [1931] 1 KB 1. Mr Rosenthal submitted that it was wrong to undertake a micro-analysis of the law on the basis of statements in textbooks on the law of real property and the law of landlord and tenant generally; rather, it was preferable to look at what is said in the underlying authorities. In Peech v Best, at pages 14 to 15, Scrutton LJ said that the case could be tested in this way:
"May a landlord who grants sporting rights over a farm for valuable consideration, turn the whole farm into building land?"
It appeared to Scrutton LJ that:
"… fundamentally changing the character of the land over which sporting rights are granted, though it is not with the deliberate intention of injuring the sporting rights, and though it is a thing which a landowner would have power to do if he does not injure the rights of others, if it has the necessary effect of substantially injuring the rights of others is derogation from the grant, and is a substantial interference with the profit a prendre granted."
If that was true of building affecting the whole land, or cutting down all the timber on the land for sale, it appeared to Scrutton LJ to be true of partial changes in the land, provided that they substantially injured the rights granted. He dismissed the appeal on the footing that the trial judge in that case had found that the conduct of the defendant had substantially affected the claimant's sporting rights. Greer LJ (later Lord Fairfield) summarised the law at page 18 thus:
"Though [a lease of sporting rights] would not operate to restrain the landlord from interfering with the sporting rights by carrying out any reasonable and normal operations which might be deemed advisable for the purpose of dealing with the land to the best advantage as farming land, he would have no right to put the land to uses which have nothing to do with farming requirements, so as to oust entirely the sporting tenant from exercising his rights over a substantial part of the land included in the grant."
It seems to me that that statement of the test supports Mr Grant's position rather than that of Mr Rosenthal. At page 24 the third member of the Court, Slesser LJ, put the matter in these terms:
"… the learned judge, having heard the evidence, has come to the conclusion that the plaintiff has suffered damage from the physical obstruction of the shooting rights. He had not found, nor indeed was it seriously suggested, that the use of the land for racing stables was in any way reasonably necessary or at all connected with the farm management. I think this is a case where the injury done cannot be said to fall within the principle of Gearns v Baker, and what was done was not for the management of the land; rather does the case resemble Dick v Norten, where the timber was felled solely for mercantile purposes, in which case damages were given by an experienced Chancery judge [Peterson J]."
Again, it seems to me that that formulation supports Mr Grant's position rather than that of Mr Rosenthal. Mr Rosenthal submits that the judgments disclose differences in approach and that the law is not altogether clear. The burden of deciding matters of fact and degree is one that can only be discharged by a judge at trial in the present case; but Mr Rosenthal goes on to make the point that in Peech v Best and the earlier authorities, the court was considering simply whether the acts of the owner of land over which sporting rights were exercisable were a substantial interference with shooting rights. In the later case of Pole v Peake, the rights were not just to shoot and remove game but also to enter the appellant's land for the purposes of “preserving and rearing” game. He says that it was held that those additional rights involved a further curtailment of the rights of the freehold owner in respect of his use and enjoyment of the freehold land beyond the rights which he might have had if the land were merely subject to shooting rights. He submits that the Court of Appeal rejected the appellant's argument that the respondent's rights over the appellant's land could not be exercised in any manner which interfered with the reasonable and normal agricultural activities on the land. The Court of Appeal accepted the respondent's argument that, as holders of a profit in gross entitling them to “preserve and rear” game, they were not constrained in terms of reasonableness or otherwise as to how they exercised their profit; the only constraints arose from the terms of their grant. Mr Rosenthal accepts that the Court of Appeal in Pole v Peake was primarily concerned with the rights of the owner of the profit and not with the rights of the owner of the land burdened by that profit. However, he submits that the Court of Appeal proceeded by considering how each parties' rights were to be balanced against each other. The Court was engaged in considering the relative rights of the owner of the profit and the owner of the land over which the profit was being exercised - as appeared from pages 8 to 9 of the transcript as paginated by Mr Rosenthal. Mr Rosenthal sought to highlight the conclusion at pages 10 and 11. One of the declarations that had been granted by the Recorder at first instance was that:
"By reason of the terms of the Deed the [appellants] must not change the character of their land … so as substantially to interfere with the excepted and reserved rights … but the [appellants] may adopt normal agricultural practices that do not substantially change the character of the land."
Buxton LJ, who delivered the only reasoned judgment (with which Simon Brown and Schiemann LJJ both agreed), referred to the terms of that declaration as "somewhat obscure" and noted that it had not been sought to be disturbed by the appellants. But Buxton LJ went on to say that:
"The declaration does, however, make clear that it is not open to the appellants to adopt farming practices that interfere with the exercise of the respondents’ shooting and rearing rights."
Mr Rosenthal submits that that was not a mere statement of fact but constituted a tacit approval of the terms of the declaration that had been granted. He submits that a right to preserve and rear game is a broader right than a mere right of shooting game and that it may operate to curtail the rights of the landowner to a greater extent than a mere right of shooting. He submits that the law is not straightforward and that this application is not the forum for resolving difficulties in reconciling conflicting statements in the authorities. Mr Rosenthal submits that that is a matter for the trial judge.[25]I must confess that my mind has wavered on this point. I acknowledge the force of the points made by Mr Grant. However, it does not seem to me that, on an application for an interim injunction, it is appropriate for the court to embark upon a detailed exposition of the circumstances in which acts of normal estate management by the owner of land burdened, not simply by shooting rights, but also by rights to “preserve and rear game for normal shooting purposes”, may constitute an actionable interference with those rights. On the present state of the authorities, it seems to me, without deciding the point definitively, that it is at least fairly arguable that acts carried out in the normal estate management of one's land may be actionable at the suit of the holder of rights of shooting, and of preserving and rearing, game if they substantially change the character of the land so as to render it materially less fit for the purposes of shooting and preserving and rearing game for shooting purposes. On the evidence before the court, in particular that of Mr Osborne, supporting the evidence of Mr Mark Kitzing, I am satisfied that there is just about a seriously arguable case that there has been an actionable interference with the claimant's rights. However, I put it no higher than that. The matter is one for the trial judge. However, that is but the first stage in the process of determining whether there should be the grant of interim injunctive relief.[26]In the course of his oral submissions, Mr Grant referred to an additional authority, not included within his skeleton argument. That was the case of Re Lord Cable [1977] 1 WLR 7. I was taken to an observation of Slade J at page 19, between F and G:
"On any claim for an interlocutory injunction, the court must still, as a first step, consider whether the evidence available to the court discloses or fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial; if the available evidence fails to disclose this, the motion” - or now the application - “will fail in limine” - or, I think, at the first hurdle - “and questions of balance of convenience will not fall to be considered at all."
Mr Grant invited the court to look at the terms of the injunction which will be sought at trial, and which merely reproduces the terms of the interim injunction sought on the instant application. He poses the question:
"Is it remotely possible that the court would grant an order in those terms on the evidence presently before the court?"
He submits that there is no conceivable way that an order in those terms could be granted at trial. He submitted that the question is not whether the acts that have been carried out thus far amount to an actionable interference with the claimant's sporting and related rights but whether what is sought to be enjoined would amount to such an actionable interference. In that connection, it is relevant to have regard to the extent of the works that have been carried out thus far, and what further works the defendant is threatening to do. Mr Grant submits that Mr Fuller's evidence is that the substantive works complained of have in fact finished and so there can be no justification for the injunctive relief sought. He elaborated upon that at paragraphs 26 through to 31 of his written skeleton argument. He also made the point that the interim injunctive relief sought is contradicted by the claimant's own position, as set out in her letter of 16th March (previously cited) in which her solicitors had written on an open basis inviting Mr Fuller to give an assurance not to carry out any further work pending trial, and stating that the claimant recognised that between now and trial there might be certain works on the ground that became necessary for perfectly sound estate management reasons. That was said to be flatly inconsistent with the injunction which was now being sought, both on an interim and a final basis. Mr Grant submits that it is trite law that the court will not grant interim injunctive relief unless there is credible evidence of the necessity for such relief, and that the respondent intends to do that which is sought to be enjoined. He cites, by way of example, the decision of the Court of Appeal in the case of HVE (Electric) Limited v Cufflin Holdings [1964] 1 WLR 378. In particular, he refers to observations in the judgment of Salmon LJ at page 386. Mr Rosenthal invited me to read the whole of what Salmon LJ had to say on the subject. I therefore do so, at pages 386 to 387:
"The Queen's Bench judges do not grant injunctions merely because they will do no harm but, like their brethren in the Chancery Division, grant them only if there is evidence before them of the likelihood of the wrong complained of being repeated and evidence before them that the plaintiffs need interlocutory protection against those wrongs. The real question here is: does the evidence show that there is a likelihood that the defendants, unless restrained, will repeat the threats to other customers of the plaintiffs before the trial? I must confess that to my mind the evidence leads to no other conclusion than that there is such a danger. I ask myself: How is it usually proved in an application for an interlocutory injunction, in whatever Division the application may be brought, that the defendants are likely to repeat the wrong which the plaintiffs have shown prima facie that they have committed? The answer, in my experience, is that the plaintiffs say: 'Look at what they have done and have gone on doing.’ Surely this is the best evidence that, having embarked on a policy of this sort for the purpose of injuring their trade rivals, they are likely to pursue the policy unless prevented from doing so? I come to the conclusion here that, having embarked on this policy of making unjustifiable threats to the plaintiffs' customers, it is plain that, unless restrained, the defendants are likely to repeat their threats between now and the trial of the action."
[27]In the present case what is said for the defendant is that the claimant cannot say, "Look not only at what the defendant has done but what he has gone on doing" because he has ceased the works in accordance, he says, with his original intentions, uninfluenced by the claimant or her solicitors, and he is not going on doing the works. He has disclaimed any intention to do so. Mr Grant refers me to what I had said at paragraph 14 of my judgment of 4th March. There I accepted that, on the claimant's case - and I acknowledged that I was in no position at that moment, given the absence of any evidence from the defendant, to decide whether that case was correct or not - whilst the defendant had resumed works of felling trees and removing ground cover, the defendant had now said that he would not continue with that, and I said that there was no reason to think that the defendant would not keep his word. Mr Grant says that I have been vindicated in that by the defendant's subsequent failure to resume the works which he had by then ceased. Mr Grant submits that, if Mr Fuller is telling a lie to the court when he says that he has no intention of resuming the works, then it will become visible to everyone if he is untrue to his word. He submits that any deception would be immediately revealed. He contrasted the situation in the case of the use of client lists in a claim for an interim injunction against misuse of confidential information where the use of a client list may be much more difficult to ascertain. In the present case, Mr Grant submits that it is wholly inappropriate for any injunction to be granted, not least because it seeks to enjoin an activity which the defendant has no intention of carrying out.[28]Mr Rosenthal submits that the court ought to be cautious about accepting that the defendant's clearance and felling works have ended. He provides reasons for that at paragraph 41 of his written skeleton argument. Whilst I note the points that Mr Rosenthal makes in those paragraphs, and the points made by Mr Grant in response thereto, it does seem to me that those points do fail adequately to take account of the fact that the defendant in fact had stopped works in August 2015 so as not to interfere with the shoot and that he recommenced the works in February 2016 only after the shoot had concluded its activities for the 2015 to 2016 season.[29]Mr Rosenthal submitted that the defendant's statement of his present intentions provided no safeguard for the claimant. He also invited the court to treat Mr Fuller's evidence that the works had been pre-planned with caution. He made the point that, if the works had been pre-planned, then the lack of any consultation with Mr Kitzing, as the shoot manager identified as an important consultee in the Woodland Management Plan, was even more astonishing. And Mr Rosenthal also submitted that the absence from the evidence of any scheme of works was also a matter which should excite the court's suspicions. Mr Rosenthal also pointed to the defendant's attitude since he had acquired the freehold; he was said to have been unco-operative, refusing to engage or consult with the claimant or her son, he had continued to refuse in practical terms to acknowledge the reserved rights, and there had been what was described as "a huge change in his attitude" since acquiring the freehold of the land.[30]In my judgment, on the evidence before me, there is no reason to disbelieve the clear statements of the defendant, supported as to the programme of works by the evidence of Mr Hardcastle, that he had embarked upon a programme of works which had been pre-planned, that he had discontinued those works out of consideration for the shoot and its members, and that he had then resumed those works after the shoot had concluded, and that he had completed them as planned, and uninfluenced by the correspondence from the claimant's solicitors, on Saturday 27th February. There is no reason to disbelieve what he says as to his future intentions. Mr Rosenthal sought to distinguish the observations (relied upon by Mr Grant) of Buckley J in the case of Bridlington Relay Limited v Yorkshire Electricity Board [1965] Ch 436, at 445 between C and D, on the footing that they were confined to quia timet injunction proceedings. In my judgment, those observations are not to be so confined. In all cases where injunctive relief is sought, one must pose the question: Is there a real risk that the defendant will do the works or undertake the activities sought to be enjoined? In my judgment, and in contrast with the situation considered by Salmon LJ in the Cufflin case, there is here no proper basis, on the evidence, for thinking that there is any real risk that the defendant will embark upon, or resume, any of the activities sought to be enjoined. On that basis, and consistently with the authorities, including the statement of Lord Eldon, the Lord Chancellor, in Coffin v Coffin (1821) Jacob's Reports 70 at 72 that: "… the court never grants injunctions on the principle that they would do no harm to the defendant, if he does not intend to commit the act in question: but if there be no ground for the injunction, it will not support it." it would not be appropriate for the court, on the present application, to grant interim injunctive relief. Indeed, I have some sympathy for Mr Grant's expression of perplexity as to why we are here in court today.[31]However, there is a further ground upon which it seems to me, looking at the matter in accordance with the principles laid down by Lord Hoffmann in the Olint case, that I should refuse the grant of interim injunctive relief. That is because the terms of the injunction sought would be oppressive to the defendant; they would leave him not knowing what he could or could not do on his land and would leave him with a sword of Damocles hanging over his head and capable of being wielded by someone who, on the evidence, is not well disposed towards either the defendant or his occupation and enjoyment of his considerable residential estate. In saying that, I make no findings as to the merits of the intimated claim on the part of the defendant for harassment and intimidation. All counsel acknowledge that it is not possible for the court, on this interim application, to reach any view as to the merits of the defendant's assertions of harassment and intimidation. However, what is clear is that the defendant has genuine concerns that, if an order is made enjoining him from certain activities, with the threat of committal to prison for breach, then that will have a stifling effect upon his enjoyment of land for which he has paid a considerable sum of money. As Mr Grant submitted, this is a case with a history, each party having a close connection with this land, and that is likely to affect the way any injunction is likely to be policed by the claimant or her son. That consideration has to be viewed against the background of the principle that was clearly articulated by Neill LJ in the case of Hussain v Hussain [1986] Family 134 at 142 between C and D:
"It is always important that an injunction should be in clear terms so that the person enjoined knows what he is ordered to do or prevented from doing and so that on any committal proceedings the scope of the order is not in doubt. As O'Connor J said in Thomas (P.A.) & Co v Mould [1968] 2 QB 913 at 293: 'where parties seek to invoke the power of the court to commit people to prison and deprive them of their liberty, there has got to be quite clear certainty about it'."
Mr Grant criticised the breadth and the lack of clarity of the first of the proposed injunctions sought by the claimant: that is an injunction preventing the defendant from “taking any steps whatsoever to unlawfully interfere with the claimant's sporting rights”. In the course of his submissions, Mr Rosenthal acknowledged, as I have already mentioned, that the law is not altogether clear in this area, and that the burden of deciding matters of fact and degree is one that can only be discharged by the trial judge. Against that background, it is wholly inappropriate for the court to be granting an injunction preventing a respondent from taking any steps whatsoever to unlawfully interfere with the claimant's sporting rights. Indeed, Mr Rosenthal acknowledged that in the course of his reply. He accepted that injunction (i) was a “bootstraps” form of order. In my judgment, it is far too lacking in certainty for any court to make an order in those terms. Mr Rosenthal accepted in his reply that injunctions in the terms of (ii) to (iv) would adequately protect the claimant and he therefore did not urge on the court the grant of an injunction in the terms of (i). Mr Grant attacked paragraph (iv) - "taking any steps whatsoever to substantially cut back ground cover” on the defendant's land - also on the grounds of uncertainty. What, he said, was meant by "substantially"? He attacked the other two forms of injunction - preventing the defendant from “taking any steps whatsoever” either “to fell and/or remove trees” or “to remove ground cover” from the defendant's land - because of their width. He went so far as to suggest that those were the most invasive conceivable orders, which would have the most extraordinary inhibiting and frightening effect. Given that the court has in its armoury search and seizure orders, it seemed to me that Mr Grant's submissions were somewhat hyperbolic; but it does seem to me that there is force in the points that Mr Grant makes as to their width, particularly given the recognition on the part of the claimant, in her solicitors' letter of 16th March 2016, that "between now and trial, there may be certain works on the ground that become necessary for perfectly sound estate management reasons." Mr Rosenthal submitted that it would be perfectly clear to the defendant, in the light of all the evidence, what conduct was being enjoined, and he would be well aware of what he could or could not do. He emphasised that the proposed injunctions did not prevent the defendant from undertaking replanting, although that is not a recognition that appears to have been shared by his instructing solicitors, as reflected in the pre-penultimate paragraph of Loxley's letter of 16th March 2016, which appeared to envisage that such works should be subject to an element of control on the part of the claimant. Mr Rosenthal submitted that it was unnecessary for the court to conclude that at trial the court would be prepared to grant an injunction in the precise terms sought in the application notice; rather, the court should ask itself whether the court at trial would modify the terms of the injunctions sought so as to afford proper redress to the claimant? He submitted that, if the precise terms of the injunctions sought in the prayer for relief in the particulars of claim, or in the application notice, were not such as to commend themselves to a judge, then the court should not be constrained from making no injunction order at all but should, rather, redraft the injunctions so as to do justice between the parties. He said that, if it was appropriate to order some interim injunctive relief, then the matter was one for the court and that the court had a discretion. It does not seem to me that that is an appropriate way to approach an interim injunction application. The applicant for interim injunctive relief should set out the terms of the injunctions sought in terms that can properly be put before the court, and not leave it to the court to redraft the injunction. Mr Rosenthal himself recognised that it might be appropriate to redraft injunction (ii) so as to remove the words, " ... and/or remove" between "fell" and "trees". He recognised, I think, that there might need to be some qualification so as to except from the scope of injunction (ii) diseased or damaged trees from the prohibition against felling or removal. In my judgment, it is not for the court to embark upon such an exercise; rather, it is for the applicant for interim injunctive relief to identify precisely the terms of the injunction which he or she seeks and to put that before the court. I have had proffered to me no draft other than that in the form of order attached to the original application notice. I am not prepared to embark upon a form of redrafting; but even if I were, that is no answer to the objection that I have already identified which is that there is, on the evidence, no threat against which it is necessary for the court to grant an injunction.[32]Therefore, for all of those reasons, it seems to me that the present injunction application should fall to be dismissed. For the reasons I have given, I am satisfied that there is just about an arguable case of interference with the sporting rights, which extend to rights of preserving and rearing game but, on the evidence presently before the court, the claim is not the strongest; and on that evidence there is simply no threat of an activity against which the protection of interim injunctive relief is needed. There is force in the point that Mr Grant makes - although it does not seem to me to be a separate ground for refusing interim injunctive relief - that the delay in this case during 2015, between February and August, demonstrates that there is no genuine need for an injunction pending trial. But, in any event, there is no present threat to carry out any further works which ought to be enjoined; and the grant of an injunction will have a stifling and intimidating effect upon the defendant which is simply not justified on the evidence. Therefore, for those reasons, I dismiss the claim for interim injunctive relief. -----------------------------------------------------------

Cited in 2 later judgments