Nicosia Municipality's interlocutory injunction application against trespassing licensees dismissed due to balance of convenience.

[*304] 1981 March 19

(HJICONSTANTINOU, S.D.J.)

IN THE DISTRICT COURT OF NICOSIA

Municipality of Nicosia,

Applicants,

v.

A. Chr. Solomonides & Bros. Ltd.,

Respondents.

(Application in Action No. 459/81).

Injunction – Interlocutory injunction - Prayer for, substantially the same to the prayer in the action - Desirability of avoiding trial of the same question on twooccasions - Application to restrain entry on land - Considerable inconvenience, expense and. damages will be caused to respondents if ultimately it turns out that it was not right to grant the injunction against them - Application dismissed.

K. Michaelides, for the Applicants.

P. Ioannides for T. Papadopoulos, for the Respondents.

DECISION

The following decision was delivered by:-

HJI CONSTANTINOU, S.D.J.: This is an application [*305] whereby Nicosia Municipality/Applicants pray for an interlocutory injunction, restraining the respondent Company, its officers, servants, agents and/or representatives from entering into immovable property under Plots 74, 77 and 78 of Sheet/Plan 29.39.E.2 and 40W.2 in Kaimakli, and/or possessing or using or interfering into the said immovable property.

The above prayer is substantially identical to the prayer in the same action with the exception that in the action there is a further relief claimed, that of damages.

The grounds on which the injunction is based appear in the accompanying affidavit made on behalf of the applicants. The gist of those grounds is that the respondents are considered as gratuitous licensees for a period of six months, ending on 6.9.80, and that in spite of the fact that the respondent Company has since the expiration of the licence been repeatedly called upon to vacate the premises, the respondents failed to do so.

The respondents opposed the application on grounds appearing in the affidavit accompanying the their opposition. The gist of those grounds is that the respondents took possession of the said premises by virtue of a contract and/or for valuable consideration. I need not recite here all the grounds referred to in these affidavits as I do not propose to determine which of those grounds are true and. correct and which are not true and correct. [*306] My duty is to determine this application on the basis of the contents of the affidavits as no further evidence has been adduced on, behalf of either side.

In addressing the Court, the learned counsel appearing for the Municipality maintained that the gratuitous licence having expired the respondents should be considered as trespassers. However, in spite of that he added that the licence having been revoked the respondents again have become trespassers. He referred to what is stated in the last paragraph of para. 763 in p. 365 of Halsbury’s Laws of England, 3rd ed., Vol. XXI, where it is stated:

“Where, the owner of premises had revoked a licence to use them, granted to another person, an interim injunction was granted to restrain the former licensee from trespassing on the premises, even though he might have a claim for damages for breach of contract against the owner of the premises in respect of the revocation of the licence.”

He further maintained that the case of Thompson v. Park, (1944) 2 All E.R. 477, is. an authority on the matter.

Learned counsel appearing for the respondents maintained that the aforesaid authorities do not apply in this case. The facts in the Thompson case were completely different and that in the present case there has been no revocation of the licence a revocation to which reference to the passage in the Halsbury’s Laws.of England above, is made. He maintained that the authority in the matter [*307] is the case of Winter Garden Theatre (London) Ltd. v. Millenium’ Productions Ltd., (1947) 2 All E.R. 331.

In the London Borough of Hounslow v. Twickenham Garden Developments Ltd., (1970) 3 All E.R. 326, at p. 339, Megarry J. said:

“It seems to me that the actual result in Thompson v. Park could be amply supported merely by saying that if a person forcibly and riotously breaks into a building in the occupation of the land-owner, the Court will grant to that land-owner an interlocutory injunction expending the intruder, even though the intruder has acted under a disputed claim to a subsisting licence to share the occupation of the building with the land-owner. As Goddard L.J. pointed out, the status quo to be preserved was not that which existed after the intruder’s illegal and criminal acts, but that which existed before they were committed. If Thompson v. Park is read in that somewhat restricted sense, much of the difficulty disappears. Further, the fact that the only licence claimed was a licence, to share and not a licence for exclusive occupation, seems to me to be of importance. As Goddard L.J. said, the Court cannot specifically enforce an agreement for two people to live peaceably under the same roof’. If the Courts sought to enforce a licence to share, a multitude of practical problems would arise which [*308] would be absent if the licence was for exclusive occupation. I may also mention that, in Errington v. Errington ((1952) 1 All E.R. 149, at p. 155). Denning L.J. plainly regarded Thompson v. Park as having lost its force as regards revocation of the Licence.”

In the Court of Appeal case of Verrall v. Great Yarmouth Borough Council

(1980) 1 All E.R. at p. 844, Letter ‘G’, Lord Denning M,R. is reported to have said:-

“So I hold that the observations in Thompson v. Park are no longer law. I agree with what Megarry J. said about them, in London Borough of Hounslow v. Twickenham Garden Developments Ltd.”

And Roskill L.J., in the same case, at p. 846, Letters R - G, is reported to have said:

“Following that was the

decision of this Court consisting of Goddard and Du Parcq L.J.J., in Thompson v. Park. with all respect to the observation of Lord Denning M.R., that that was a decision.of two Lords Justices which, for that reason, we need not necessarily follow, I should feel compelled to follow that decision if I thought it were still consistent with other and later cases; but to my mind, with very great respect to the memory of late Green M.R., and of both Goddard and Du Parcq. Lord Justices, I do not think that the reasoning underlying those decisions [*309] can stand alongside the later decision of the House of Lords in the well known

case of Winter Garden Theatre (London) Ltd., v. Millenium Productions Ltd., though the decision in Thompson v. Park can readily be supported for

the reasons given by Megarry J. in London Borough of Hounslow v. Twickenham Garden Developments Ltd.”

It is clear from the facts alleged before me, that the position of the present respondents differs from that of the respondent in the Thompson v. Park case. The present respondents started occupation of the premises of the Municipality as licensees and have since then.retained possession. They have never vacated the premises and then tried to move in again as in the Thompson case.

“The effect of a licence by A’ to permit B’ to enter upon A’s land or to use his premises for some purpose, is, in effect, an authority which prevents B’ from being regarded as a trespasser when he avails himself of the licence.” (Thomas v. Sorrell (1673) Vaugb. 330 at p. 351 ). “Such a licence may fall into one of various classes. It may be a purely gratuitous licence in return for which A’ gets nothing at all, e.g., a licence put to walk across A’s field. Such a gratuitous licence would plainly be revocable by notice given by A to B’.

Even in that case, however, notice of revocation [*310] conveyed to B when he was in the act of crossing A’s field could not turn him into a trespasser until he was off the premises, but his future right of crossing would thereupon cease. There is another class of licence which may be called licence for value, in which B gives consideration in the permission he obtains from A, and this last class may be further sub-divided. In some cases the construction may be given once for all, as, for example, by the payment of a capital sum or by conferring a single benefit at the beginning ……. in other cases, the consideration may take the form of a periodic payment, as is the case in the appeal we are now considering.

There is yet a third variant of a licence for value which constantly occurs, as in the case of a ticket to enter premises and witness a particular event, such as a ticket for a seat at a particular performance at a theatre or for entering private grounds to witness a day’s sport. In this last class, the implication of the arrangement, however it may be classified in law, plainly is that the ticket entitles the purchaser to enter and, if he behaves himself, to remain on the premises until the end of the event which he has paid his money to witness.

Such, for example, was the situation which gave rise to the decision of the Court of Appeal in Hurst v. Picture Theatres, Ltd., [*311] (1915) 1 K.B. p.1” (Per Viscount Simon in the House of Lords case of Winter Garden Theatre (London) Ltd., v. Millenium Productions Ltd., (1947), 2 All E.R., 531 at p. 335). “ …. but it is, I think, safe, as well as desirable for the decision of this case, to say that one who remains on the land of another after his licence to use it has terminated will not be considered a trespasser before he has had a reasonable time in which to vacate the premises.” (Per Lord McDermott, Letters B - C, in the Winter Garden case, supra, at p. 344).”That is well

settled, though the assessment of what is reasonable may depend on a great variety of factors and/cause considerable

difficulty in particular instances. This period of grace can, of course, be the subject of agreement, but it exists for gratuitous as well as for contractual licensees and, on that account, must, I think, be generally ascribed to a rule of law rather than to an implied stipulation. For that reason it need not be read into this contract.”

(Winter Garden Theatre (London) Ltd., v. Millenium Productions Ltd., (1947), 2 All E.R. p. 331 at p.335).

But as I stated earlier on, I am not here to decide the relief claimed in the action, but I am considering whether in the circumstances, and on the basis of the grounds set up in. the affidavits, I should grand the interlocutory injunction prayed for, or not. [*312]

In the Chancery Division the modern tendency is to avoid trying the same question on two occasions, and in ordinary cases only to grant interlocutory injunction where the right to relief is clear.” (Halsbury’s Laws of England, 3rd ed., Vol. XXI, para. 763, p. 364). “The plaintiff must also as a rule be able to show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not.enough”. (Halsbury’s Laws of England, above, para.765, at p. 366). “Where, any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury to which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should, ultimately turn out to be right.”(Halsbury’s Laws of England, above, para.766, at p. 366).

It is clear.both from the relief claimed by the writ of summons as wells as from the contents of a letter sent to the Nicosia Municipality on behalf of the respondents by their counsel, dated 6.3.80, that the respondents upon failure to vacate the premises undertook and may be liable [*313] to pay damages at £10.- per day as from the expiration of the first six months’ period as stated at the beginning of this

decision. This is the last relief claimed by the Nicosia Municipality.in the writ of summons. On the contrary, if an injunction is granted as prayed for, this would create considerable inconvenience, expenses and damages to the respondents, if.ultimately it turns out that it was not right to grant such an injunction against them.

Thus, having in mind all the above, and taking into consideration other relevant matters such as irreparable damages, urgency and trial of the same.matters on two occasions, I have, decided to refuse to grant the injunction prayed for. But as regards costs, I would make no order.

In the .result, this application is dismissed with no order as to costs.

Application dismissed with no order as to costs.