BARBADOS 


[Ureported]


                                                           IN THE SUPREME COURT OF JUDICATURE


COURT OF APPEAL


 


Civil Appeal No. 7of 2010


 


BETWEEN:


 


                                     MARK MALONEY                Appellant


 


                                                         AND                                                     


 


 OLSON ROBERTSON          Respondents


 DONOVAN MYERS


CLEMENT PROVERBS     


 


 


BEFORE: The Hon. Peter D. H. Williams, The Hon. Sandra P. Mason, and The Hon. Andrew Burgess, Justices of Appeal.


        


2011:   17 February; 21 March and 30 September 


 


Mr. Leslie Haynes Q.C. and Ms. Karen Perreira for the Appellant


Mr. Ralph Thorne Q.C. and Mr. Keith Robertson for the Respondents


 

JUDGMENT


 


PETER WILLIAMS JA


 


I.        INTRODUCTION AND BACKGROUND


 


[1]   This appeal requires us to determine whether the judge was correct when he refused to discharge an interim injunction which he had imposed after a hearing on the merits where the applicant was restrained from proceeding with further construction on the second storey of his dwelling house because of an alleged breach of a restrictive covenant.


[2]      Messrs. Olson Robertson, Donovan Myers and Clement Proverbs, the first, second and third plaintiffs in the High Court action and the respondents in the appeal are the owners of Lots 72, 48 and 68 respectively at Durants Golf Course, Christ Church.  Mr. Mark Maloney, the defendant in the High Court action and appellant in the appeal, is a building contractor and the owner of Lot 69 with the dwelling house thereon.


[3]      On 18 February 2008, Mr. Maloney commenced renovations to his house.  The renovations can briefly be described as a significant and expensive upgrade to the existing house: the roof was restored and replaced; a mezzanine floor was added over the bedrooms, family room and kitchen; an enclosed deck was created and the swimming pool was relocated.  Messrs. Robertson, Myers and Proverbs objected to the work because they claimed that it was done in breach of a restrictive covenant which allowed not more than one single-storied dwelling on the property.  Mr. Douglas Trotman, Attorney-at-Law wrote a letter dated 22 May 2008 on behalf of the three owners to Mr. Maloney drawing his attention to the alleged breach of covenant and requesting that the “second storey” be removed.  Mr. Maloney claimed that he never received the letter.


II.       THE PROCEEDINGS


           (a)  The claim


[4]      On 9 June 2008, a writ and statement of claim were filed in which the plaintiffs alleged that the defendant was in breach of one of the covenants referred to in a conveyance dated 6 June 1978 prohibiting any building or erection comprising more than one single-storied dwelling house on the property.  The plaintiffs alleged a diminution of the value of their properties; the second and third plaintiffs alleged a loss of air and light and the second plaintiff alleged the loss of a previously unobstructed view of the golf course. The plaintiffs therefore claimed an injunction to restrain the defendant from proceeding with any further construction on the second storey; an order compelling the defendant to demolish the second storey and damages for breach of covenant.


           (b)  The defendant’s undertaking in lieu of injunction


[5]      On 9 June 2008, the plaintiffs also filed a summons for orders as follows:


“1.  The defendant be restrained and that an injunction be granted restraining the defendant whether by himself, his servants, agents or otherwise from proceeding with any further construction on the second storey at Lot 69 Durants Golf Course, Durants, Christ Church.


 


2.  Any other relief this Honourable Court deems fit.”


 


The summons was supported by an affidavit of Mr. Myers, who exhibited the relevant conveyances containing the restrictive covenant.  He stated that in late April 2008 he noticed that construction had started on a second storey of the defendant’s one storey dwelling house and informed the defendant of the breach of covenant.  The defendant told Mr. Myers that based on legal advice he had “certain exceptions” in his deed which allowed him to carry out the renovations and that he would provide them but never did.


[6]      On 18 June 2008, the summons for an injunction came on for an urgent hearing before Chandler J and the defendant gave an undertaking to the court that he would cease construction work on the dwelling house with effect from 19 June 2008 until further order of the court.  He was ordered to be at liberty to file and serve his affidavit in response on or before 3 July 2008.  The hearing of the summons was adjourned to 17 July 2008.  Costs were ordered to be costs in the cause.  We should add that when the defendant gave the undertaking he was not represented by his present counsel.  No formal order on the summons was filed. 


[7]      The defendant realised subsequently that the roof was not sealed and water-proofed and made a written request to the plaintiffs to vary the undertaking.  Having received no response, the defendant applied by summons filed on 3 July 2008 for a variation of his undertaking to enable him to water-proof the roof.  The defendant also requested that the plaintiffs give a cross-undertaking as to damages and pay the costs of the application.  On 9 July 2008, Chandler J made an order varying the undertaking to permit water-proofing of the roof.  The parties failed to submit a draft order for approval despite being ordered to do so.   


           (c)  The interim injunction


[8]      On 17 July 2008, the hearing on the application for an interim injunction resumed.  It is important to note that the defendant did not file an affidavit in opposition to the application, though he was given liberty to do so on or before 3 July 2008 at the initial hearing on 18 June 2008.  According to the note recorded on the jacket of the court file, Chandler J made an order that the defendant be restrained from proceeding with any further construction on the second storey at Lot 69.  The order was made in terms of the summons and therefore not made expressly until further order but this was implied.  According to the court file, “usual undertakings in damages by the first and second plaintiffs and cross-undertaking by the defendant” were given.  The third plaintiff stated in his affidavit filed on 30 December 2008 that he also gave an undertaking and the second plaintiff in his affidavit filed on the said 30 December 2008 confirmed that the plaintiffs gave cross-undertakings in damages to the defendant.  The defendant was also ordered to file his defence within 14 days of the date of the order.  Costs were ordered to be costs in the cause.  Yet again, no formal order was filed and it is not clear what precisely transpired at the hearing on 17 July 2008.        


(d)   The defence


[9]      On 22 August 2008, the defence was filed.  The defendant admitted the parties and recited the covenants affecting the properties: not to erect more than one single-storied dwelling house; not to erect any building of a greater height than 20 feet above the highest point on the land and not to erect more than one dwelling house.  The plaintiffs’ sole complaint in the statement of claim was in relation to breach of the single-storey restriction to which the defendant answered in paragraph 4 (a)(ii) of the defence as follows:  


“Between the ground floor and the ceiling the defendant has introduced a mezzanine (a low storey between the first floor and the second floor).  The mezzanine is sectional and is not a separate floor running across the entire building and does not create a second story in the dwelling house.” 


 


           The defendant denied a breach of the covenants but stated that in any event there had been such a change in the character of the neighbourhood that the object of the covenants had “disappeared” and breaches of the covenants had been increasingly committed with the knowledge and acquiescence of the plaintiffs.  The defendant further relied on the fact that the second plaintiff (with his wife, who was not a party to these proceedings) had obtained a court order modifying the covenant prohibiting more than one dwelling house or duplex apartment so as to allow them to build townhouses on Lot 49.  [Lot 48 is owned by Mr. Myers; Lot 49 is owned by Mr. and Mrs. Myers.]   The defendant by reason of the above claimed that the covenant restricting the creation of a second storey was no longer capable of being enforced.


[10]    The defence stated that the renovations were structurally completed and the remaining works comprised only installations of fixtures and fittings.  The defendant denied that the value of the plaintiffs’ properties had diminished in value or that there was loss of air and/or light or loss of view of the golf course because of the renovations.  The defendant denied that the plaintiffs were entitled to the relief sought and the loss and damage claimed.       


III.    APPLICATION TO DISCHARGE THE INTERIM INJUNCTION


           (a)  The summons and amended summons


[11]    The defendant filed a summons with a certificate of urgency on 26 November 2008 for an order that the undertaking given by him on 18 June and varied on 9 July 2008 be discharged.  There was a misunderstanding in the summons; it was not the undertaking that needed to be discharged but the interim injunction.  We need to explain this point as it is a mistake perpetuated throughout the proceedings and in the skeleton arguments.  In summary, up to the time of the filing of the summons on 26 November 2008, the following events had taken place.  On 18 June 2008 the defendant gave an undertaking in lieu of an injunction; on 9 July 2008 the undertaking was varied and on 17 July 2008 the judge made an order granting the injunction.  The undertaking was therefore given pending the hearing of the application for an injunction and thereafter was superseded by the grant of the injunction.  There was no appeal by the defendant against the grant of the injunction.  The misunderstanding in the summons was corrected by filing an amended summons on 23 December 2008 asking that the order made on 17 July 2008 be discharged.  The defendant’s request was based on two grounds: (i) the second plaintiff’s failure to disclose that he and his wife had applied for and were granted by the High Court a variation of the restrictive covenant so as to allow the building of town houses on Lot 49 that they both owned and (ii) the plaintiffs were late in seeking injunctive relief as at that time all the structural work which constituted the alleged breach of the restrictive covenant had been completed and therefore the imposition of the injunction was futile.  The summons and amended summons also requested that the plaintiffs fortify their undertaking in damages by paying or securing the sum of $83,800.  There was also a request for an exchange of a list of documents within seven days, inspection within seven days thereafter and a speedy trial.


           (b)  The affidavits


[12]    The summons filed on 26 November 2008 was supported by the defendant’s affidavit filed on the same date with the summons.  In conformity with the summons, it purported to address a variation of the undertaking given on 18 June rather than a variation of the order granting the injunction on 17 July.  It set out in great detail the history and facts of the matter; these would have been more relevant to the hearing on the injunction on 17 July than to the hearing for its discharge.  However, the affidavit supported the two grounds of the defendant’s application to discharge.  In relation to the first, the defendant exhibited the court documents concerning the modification of the covenant of Lot 49 owned by the third plaintiff and his wife in High Court Suit No. 896 of 2007.  On 19 November 2007, Worrell J made an order which deemed obsolete the restriction on building not more than one dwelling house or duplex on Lot 49 and ordered that it be amended to allow for the construction of one dwelling house or duplex apartment or multiple town houses. In relation to the second, the defendant explained in detail the work that had already been done on the house and what remained to be done and that no structural work remained to be done that impacted on the restrictive covenants.  A large number of photographs of the construction work in progress were exhibited.


[13]    The defendant also exhibited to his affidavit a report dated 20 October 2008 of Dr. Yolanda Alleyne, a Chartered Town Planner with recommendations on the proposed discharge/modification of  restrictive covenants on the property.  The defendant has been at pains to stress throughout the proceedings that whereas he instructed Dr. Alleyne to proceed as if there was a breach of the restrictive covenants (no doubt to facilitate an application to discharge them which in fact was subsequently filed and which we refer to below), he wished to maintain his position in these proceedings that there was no breach, namely, that the mezzanine floor did not constitute a second storey.  However, Dr. Alleyne described as existing on site “a two-storey structure for the most part” and stated that the erection of the second storey was “in breach of existing restrictive covenants on the land”.  Dr. Alleyne stated that no application had been made when she wrote her report to the Chief Town Planner to carry out the proposed development.  She also found that the erection of the dwelling was in breach of existing restrictive covenants on the land.  However, she expressed the opinion that a modification of the restrictive covenants under section 196 of the Property Act, Cap. 136 would be consistent with efficient land use policy and she recommended that the restrictive covenants be discharged or modified to facilitate the proposed development of Lot 69.


[14]    The defendant set out in his affidavit the financial hardship caused by his inability to complete the renovations.  He stated that he was in rental accommodation, would incur further costs in re-mobilising the workers and increased costs of construction, storage and security.  He therefore requested that the cross-undertakings be fortified in the sum of $83,800.


[15]    The defendant in his affidavit filed on 12 February 2009 gave details of the town planning application and permission granted to him on 5 February 2009 to develop Lot 69 subject to the conditions attached to the permission.   The judge did mention this fact at paragraph [19] of his decision; however, the existence of town planning permission does not absolve the owner of land from compliance with the covenants attached thereto.  “The rule is that covenants and other adverse interests such as easements will take precedence and remain enforceable and the court may grant the injunction whatever the status of any planning consent”: see paragraph 15.47 of “Restrictive Covenants and Freehold Land: A Practitioner’s Guide”, Third Edition (2009) by Andrew Francis.   


 [16]   The second plaintiff in an affidavit of response filed on 30 December 2008 pointed out that the wording in the conveyance of his (and his wife’s) property at Lot 49 permitted the construction of a multi-storey structure whereas Lot 69 did not.


           (c)  The High Court decision


[17]    The only matter that was properly before the judge was the amended summons filed on 23 December 2008, which was heard on 6 and 7 January 2009.  Nevertheless, in the decision is listed the hearing date of 17 July 2008, the date on which the interim injunction was imposed.  The judge gave his reasons for the imposition of the injunction on 17 July at paragraph [36] to [42] of his decision.  He stated: (i) there was a serious issue to be tried; (ii) the plaintiffs appeared to have a strong case; (iii) damages would not be an adequate remedy; (iv) the delay in bringing the action was not sufficient reason to refuse the injunction; and (v) the balance of convenience lay with imposing the injunction.  There has been no appeal against the imposition of the injunction on 17 July and in the circumstances it is not necessary to discuss the judge’s reasons for its imposition.


[18]      What was before the court was the amended summons to discharge the injunction; this did not require a rehearing of the injunction application.  The hearing of the amended summons should have been properly limited to the two grounds relied on in support of the summons.  The first ground was really a complaint of non-disclosure; that the second plaintiff and his wife obtained a modification of the covenants to Lot 49 without disclosing this fact.  The judge dealt with the issue at paragraphs [9], [11](a), [13], [28] and [29] to [35] of the decision.  The judge held that the second plaintiff and his wife “did what the law required of them, namely, to apply to discharge the covenant and not to build in breach of it”: at paragraph [30].  The second ground was the contention that all of the structural work which was alleged to have breached the covenants had already been completed and therefore the injunction was futile.  The judge dealt with this issue at paragraphs [11](b) and [18] of the decision.  The judge did not make any specific finding on this matter but implicit in his decision was the virtual finding that the defendant was in breach of the covenant and therefore the injunction should not be discharged.       


[19]    On 23 April 2010, the judge therefore dismissed the (amended) summons to discharge the injunction (not the undertaking as erroneously stated in the order filed on 16 December 2010).  The judge also refused the defendant’s application for the plaintiffs to fortify their undertaking in damages.  He ordered the defendant to pay the plaintiffs’ costs. 


IV.     THE APPEAL


(a)        Notice of appeal


[20]    The appeal was against the said order of Chandler J made on 23 April 2010 refusing “the application to discharge the order [of 17 July 2008]” (paragraph [43] of the decision).  It follows that the references in the notice of appeal to the undertaking given by the defendant on 18 June and varied on 9 July 2008 instead of to the order made on 17 July 2008 were erroneous.  The grounds of appeal that we have to discuss are that: (i) the injunction was futile and ineffective in that the structural works comprising the second storey had been completed at the time of making the order (July 17 2008); (ii) the injunction was far greater in scope than was necessary or reasonable taking into account the plaintiffs’ case; (iii) the judge failed to make an order that the plaintiffs fortify their undertaking in damages notwithstanding that they had not demonstrated their ability to honour the undertakings; (iv) the judge erred in making an award for costs in favour of the plaintiffs on an interlocutory application and (v) the judge erred in failing to make an order for a speedy trial.  The appellant sought in the notice of appeal that the order of the injunction be discharged (although he mistakenly thought it was his undertaking from which he had to be discharged); that there be a speedy trial of the action and that costs be costs in the cause.


(b)  Law and discussion


[21]      In view of the wide manner in which this appeal was presented we need to emphasise that the appeal encompasses a narrow point of law, namely, the discharge of an injunction imposed after a hearing with all the parties present and a determination on the merits.  The grounds of appeal stray outside this narrow point and challenge the imposition of the injunction itself.  There was no appeal against the imposition of the injunction on 17 July 2008 and this is an appeal only against the judge’s refusal to discharge the injunction on 23 April 2010.  


[22]      The legal position is that there must be “a significant change of circumstances or the defendant becoming aware of new facts which could not reasonably have been known or found out before” when the order was made: “Injunctions” by David Bean, Tenth Edition (2010) at 6.25, hereinafter referred to as Bean. The authority cited for that proposition is the English Court of Appeal decision of Chanel Ltd. v. FW Woolworth & Co Ltd [1981] 1 All ER 745 at 751 in which Buckley LJ stated the following principle:


“In my judgment an order or an undertaking to the court expressed to be until further order, by implication gives a right to the party bound by the order or undertaking to apply to the court to have the order or undertaking discharged or modified if good grounds for doing so are shown…When the motion for an injunction came before the judge inter partes, the defendants did not seek any adjournment to permit them to put in evidence in answer to the plaintiffs’ evidence…Ought they to be allowed to reopen the matter six months later, having armed themselves with evidence which they could have obtained on the earlier occasion but failed to do so?  In my judgment the answer should be No.  They, the defendants, are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they probably would have obtained.  Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter.  The fact that he capitulated at the first encounter cannot improve a party’s position.”                 


 


[23]      We can dispose shortly of the two grounds in support of the amended summons.  There is no merit in the first ground, namely that there was a material non-disclosure that vitiated the imposition of the injunction, for the following reasons: (i) the information with regard to the Myers’ application to modify the covenant of Lot 49 was a matter of public record and not within the knowledge of only the second plaintiff; (ii) the information could have been produced by the defendant before the hearing of the summons on 17 July 2008 and in compliance with the judge’s order made on 18 June 2008 giving the defendant liberty to file an affidavit (which he did not) in response for the hearing on the said 17 July 2008 and (iii) it does not follow that because the covenant of Lot 49 was modified that the same considerations would apply to Lot 69 especially in view of Dr. Alleyne’s report which pointed out that the restrictive covenants on the lots at Durants vary to take account of the undulating land and the position of the lots in relation to the golf course. 


[24]      There is also no merit in the second ground, namely that all the structural work had been completed when the injunction was granted and the imposition of the injunction was therefore futile, for the following reasons: (i) even if the structural work had been completed it would not have been right for the defendant to complete the renovations and expend further money thereby making it more difficult for the trial judge of the action to order a demolition of the structure in the event that the mezzanine floor was found to be in breach of the covenant and (ii) it would not have been right to allow the defendant to complete the renovations in the light of the judge’s holding that “if this court were to discharge the order the result would be to sanction the defendant’s breach of his contractual obligations contained in the covenant”: at paragraph [34] of the decision.


[25]      “The principle of Chanel is that if a point was open to the applicant on an earlier interlocutory application and was not pursued, then it is not open to the applicant to take the point in a later application when there has been no material change of circumstances and no new facts”: see “Commercial Injunctions”, Fifth Edition (2004), by Steven Gee at paragraph 20.061.  There were no good grounds in support of the amended summons; there was no significant change of circumstances or new facts of which the defendant became aware which could not reasonably have been known or found out when the injunction was ordered.  The judge therefore properly refused to discharge the injunction and dismissed the amended summons.  This holding effectively disposes of the substantive issue in the appeal.  Nevertheless, the appeal has raised other matters on which it would be appropriate for this Court to express an opinion.          


            (c)  Fortification of the undertakings


[26]      The appellant appealed from the judge’s refusal to order fortification of the plaintiffs’ undertakings in damages (paragraph [43] of the decision).  As there was some dispute on this in the absence of the orders of the court being filed, a perusal of the court files makes it clear that the plaintiffs did give undertakings in damages (and the defendant gave a cross-undertaking in damages).  In any event where an injunction is imposed in favour of a plaintiff the court will generally imply that an undertaking has been given.  The judge did not specifically state his reasons for refusing to fortify the undertaking but there were at least two good reasons for so doing: first, the judge took the view that on the evidence before him the defendant had breached “his contractual obligation contained in the covenant” (paragraph [34] of the decision); and secondly, the defendants were owners of their Lots on the Golf Course.


[27]      The legal position with regard to a claimant’s undertaking is succinctly stated in Snell’s Equity, Thirty-Second Edition (2010), General Editor, John McGhee QC at paragraph 18-066 as follows:       


“Interim injunctions are stop-gap remedies, which are granted on the basis of what is necessarily an incomplete picture.  In deciding whether to grant such a remedy, the court will therefore wish to be satisfied in two respects: that an ultimately unsuccessful claimant can be obliged to compensate the defendant for having ‘wrongly’ stopped his proposed activity and that there is a good reason to believe that the obligation will be honoured.  The first of these is addressed by the giving of an ‘undertaking in damages’: a claimant is almost invariably required to give such an undertaking; and an undertaking to this effect (unless expressly disavowed) will be implied if the court grants an injunction or accepts an undertaking in lieu thereof.  If in the drawing up of the order for an interim injunction, the undertaking is inadvertently omitted, it will be inserted by the court afterwards.”      


 


By Part 17.4 (2) of the Supreme Court (Civil Procedure) Rules, 2008 (CPR) a party applying for an interim injunction under Part 17.1 (1)(a) must undertake to abide by any order as to damages caused by the granting of the order.


(d)  Speedy trial


[28]      We should not be unmindful of the appellant’s position.  However misguided he might have been, especially as a building contractor himself, in commencing the renovations without town planning permission and in possibly breaching the covenants (we make no determination of the substantive issue), the fact is that this case has been pending for over three years.  This cannot be right, fair or satisfactory.  The amended summons requested disclosure and inspection of documents and a speedy trial.  It is one of the appellant’s complaints that the judge failed to make an order for a speedy trial of the action.  The order of the court on an application for interim relief should reflect the terms of the application and give some guidance and direction as to the future conduct of the action.  This will often mean that the judge making the interim order will be required to hear the action within an appropriate time frame.


[29]      Following the interim injunction imposed on 17 July 2008, the defendant (not the plaintiffs) filed a summons for directions on 16 April 2009 on which the usual orders were made on 8 May 2009.  The defendant filed his list of documents on 16 September 2009.  No list of documents was filed by the plaintiffs nor have they taken any action to bring the matter on for trial. 


[30]      An interim injunction is generally granted “in order to hold the ring” until the dispute between the parties can be properly decided at a trial: Morritt LJ in Desquenne et Giral U.K. Ltd v. Richardson [2001] F.S.R. 1 at 7.  There is an obligation on a plaintiff who has obtained an injunction in his favour to press on expeditiously with the substantive case.  In Greek City Co. Ltd. v. Demetriou [1983 2 All E.R. 921 at 928, Goulding J said:


“[T]he plaintiffs obtained undertakings from the defendants immediately after the issue of the writ by means of a motion for an injunction to endure until the trial of the action.  It is elementary in the High Court that a party who seeks the equitable remedy of injunction before questions of right and wrong have been tried between him and the defendant has to exert diligence and promptness.  It happens every day that a plaintiff’s application for interlocutory relief is refused because he has not come to court quickly enough.  Logically it appears to me that, if he is given relief until the trial of the action, he is under a special obligation to get on with the action speedily because the defendant is restrained, it may be justly or it may be unjustly, but that cannot be known until the trial.”


 


[31]      Similarly, in relation to a Mareva injunction, Glidewell LJ in Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings plc. [1988] 3 All ER 178 at 185 said:


“It is intended as an adjunct to the action itself, not as a substitute for relief to be obtained on trial.  In other words, a plaintiff who succeeds in obtaining a Mareva injunction is in my view under an obligation to press on with his action as rapidly as he can so that, if he should fail to establish liability in the defendant, the disadvantage which the injunction imposes on the defendant will be lessened in pressing ahead with these proceedings.”


 


Dillon LJ at 188 said:


“[W]here a party has obtained a Mareva injunction, that party is bound to get on with the trial of the action, not to rest content with the injunction.  The injunction is merely ancillary to the trial of the action to hold the position until the action comes on for trial.”    


 


The principles stated above apply similarly in relation to the interim injunction imposed in the instant case.


[32]      When the judge gave his decision on 23 April 2010, the plaintiffs were in default of filing their list of documents.  On the court file a letter dated 19 October 2009 from Ms. Perreira to the Registrar of the Supreme Court requested that a date be fixed for a case management conference under Part 27 of the CPR.  The judge should have ordered an early trial as the matter had already been pending for nearly two years: see Parts 73.4 and 25.1 (2)(l) of the CPR as well as Part 17.8 of the CPR (power to give directions for an early trial on an application for an interim injunction) and Bean at 5.34.  We would therefore order an early trial of the action, subject to what the parties may agree and to what we say in relation to the pending proceedings to discharge or modify the covenants.


[33] On 11 November 2009, five months before the judge gave his decision, Mr. Maloney filed High Court Claim No. 1941 of 2009 under section 196 of the Property Act, 236 for a discharge or modification of the covenant prohibiting the erection of a dwelling house upon Lot 69 which consisted of more than a single storey so as to allow for the erection of a two-storied dwelling house.  He stated in his affidavit that the application was made “out of an abundance of caution and in an effort not to breach any of the covenants”.  Messrs. Robertson, Myers and Proverbs opposed the application and in support of their opposition they (not Mr. Maloney) exhibited Dr. Alleyne’s report.  The claim is part-heard before Alleyne J (Acting). 


[34]      Mr. Maloney’s position lacks consistency: in the breach of covenant case (No. 950 of 2008) he is defending his renovations as not being in breach of covenant and yet he has filed a case (No. 1941 of 2009) to modify the same covenants he claimed that he is not breaching.  Mr. Thorne Q.C. rightly expressed concern that case No. 1941 of 2009 was due to be heard two days after the appeal hearing and that this Court was not made aware of this fact for its consideration in the pending appeal. It seems to us that there may be a tacit understanding between the parties to proceed on the modification case and not proceed further on the breach of covenant case. In these circumstances the parties may not wish to proceed to a speedy trial.  As stated above our order is subject to the parties themselves agreeing the manner in which the two cases should proceed.  In Shepherd Homes Ltd. v. Sandham [1970] 3 All ER 403 at 413, Megarry J refused to impose a mandatory injunction and granted a stay of the proceedings so as to allow the defendant to apply to the Lands Tribunal for a modification of the covenant under the Law of Property Act 1925, s. 84. He stated that “the basic concept is that of producing a ‘fair result’, and this involves the exercise of a judicial discretion” (page 412b).  This Court should exercise its discretion to arrive at a fair result to the parties.  It should place some time frame on a resolution of the litigation.  We therefore direct that the necessary steps be taken to expedite the pending proceedings which should be concluded before 31 December 2011. 


            (e)  Costs          


[35]      The appellant’s contention is that costs should not have been awarded against him but should have been ordered to be costs in the cause, in conformity with the previous cost orders.  We do not agree with this contention.  The plaintiffs had already obtained an injunction against the defendant following a hearing of the parties on the merits. The defendant in effect had a rehearing of the matter based on two unmeritorious grounds.  In the circumstances, it was reasonable for the judge to order the defendant to pay the plaintiffs’ costs in any event, subject to what we say below.


[36]      We appreciate that the appropriate cost order in respect of interim injunctions is not straightforward as explained in Bean at 5.46 to 5.50 and in the decision of Neuberger J in Picnic at Ascot v. Kalus Derigs [2001] F.S.R. 2.  However, it would not be fair to order the defendant to pay the full costs of the High Court hearing and the appeal.  Although the defendant was not entitled to a discharge of the injunction as a result of the appeal we have concluded that he was entitled to some relief on the amended summons in terms of directions which should have been given for the future conduct of the action to facilitate a speedy trial.  We would therefore limit the plaintiffs to two thirds of their costs here and below.  Further, on 17 February 2011, Mr. Keith Robertson appeared for the respondents and requested an adjournment to brief senior counsel, which was granted to 21 March 2011.  The respondents were ordered to pay the appellant’s costs thrown away.  It follows that the plaintiffs/respondents are entitled to two thirds of their costs for two days’ hearing in the High Court and one day’s hearing in this Court (and for the appearance for the judgment) and the defendant/appellant is entitled to the cost thrown away for the one day in this Court.  We therefore so order and certify that the costs here and below are fit for two counsel.


[37]      The judge ordered the costs to be agreed or taxed.  The new CPR which commenced on 1 October 2009, do not provide for taxation of costs.  We therefore first have to decide whether the CPR or the old Rules of the Supreme Court, 1982 (RSC), are applicable to the costs order that we make.  The transitional provisions in Part 73.3 of the CPR provide that where, as in the instant case, a trial date had not been fixed in proceedings commenced before the commencement date the Registration Office of the Supreme Court is required to fix a date, time and place for a case management conference and that the CPR apply from the date of the case management conference.  In this case the Registry did not comply with Part 73.3 and although Ms. Perreira by letter requested a date for a case management conference there is no record on file of a reply to her letter or notification of a date for a conference.  In the circumstances, the CPR would seem not to apply to these proceedings until a date of the case management conference has been given.  The costs are therefore to be agreed or taxed under the RSC.


[38]      Nevertheless, Part 74.4 provides that in proceedings commenced before the commencement date of the CPR where the court has to exercise a discretion, as in the instant case, it may take into account the overriding objective stated in Part 1 of the CPR to deal with cases justly so far as is practical and the criteria listed in Part 25 for the active management of cases.  Clear commentary on the overriding objective of the CPR and case management and pre-trial review is to be found in Chapters 1 and 23 of “The Caribbean Civil Court Practice 2011, Editor-in-Chief, David DI Mambro.  We have taken the principles of the CPR into account by giving directions that hopefully will ensure that a resolution of the matter is achieved quickly and efficiently.              


[39]      We make our order on costs subject to any representations in writing which the parties may wish to make to us and copy to the other side within 14 days of the delivery of this judgment.  In the event that we receive written representations, we will intimate to the parties whether our order nevertheless stands or whether it is modified and in what way.  


V.       DISPOSAL   


[40]    Regrettably, important orders made in the proceedings were not drawn up and filed.  The failure to draw up and file orders in compliance with the rules has resulted in a lack of clarity as to some aspects of the proceedings.  Some of the information provided to the Court was not accurate.  In the circumstances, we have had in some instances to resort to the original court files and use the information contained therein as the best record of what transpired at the hearings.  Order 42 of the RSC required that generally every order of the Court should be drawn up.  Similarly, Part 42 of the CPR provides that:


“42.5 (1) Every judgment or order must be drawn up by the party having carriage of the order or judgment unless


 


(a)      the court directs someone else to draft it;


 


(b)      the court dispenses with the need to do so; or


 


(c)       it is a consent order under rule 42.7.


 


(2) 


 


(3)               Where a party fails to file a draft of an order within 14 days after the direction was given, any other party may draft and file the order.


 


(4)  …”    


          


Further, when an undertaking is given, a formal order should be drawn up with a penal notice and filed and served: see Bean at 6.03.  It is important that Part 42 is strictly complied with and that judges ensure that their orders are drawn up and filed.


[41]      The appeal is therefore dismissed.  The costs are as ordered in paragraph [36] above and subject to paragraph [39].  We order that the proceedings be concluded expeditiously in accordance with our directions in paragraph [34].


 


 


Justice of Appeal


 


 


 


Justice of Appeal                                                                                Justice of Appeal