Trespass – seeking an injunction in advance of harm

Trespass – seeking an injunction in advance of harm

Obtaining quia timet injunctions against persons unknown

What can a landowner do if he fears that trespassers will come onto his land and cause damage to the land or perhaps injury to themselves; and wants to pre-empt this from occurring in advance?

This question was considered in the recent decision of Vastint Leeds BV v Persons Unknown [2018] EWHC 2456.

The property in question is a development site in Leeds with unoccupied, unsafe and structurally unstable buildings; with hazardous substances, such as asbestos, present on site.

The owners, while having put in place their own security measures, such as security patrols and alarm systems, were unable to prevent instances of trespass (and attempted trespass) onto the site and wider area belonging to the landowner, over recent years. There was clear risk to the health and safety of any trespassers themselves, to whom the landowner owed a limited duty of care; and of significant cost to the landowner in dealing with trespass.

The landowner sought a “quia timet” injunction, that is to say an injunction granted where no actionable wrong has been committed, to prevent the occurrence of an actionable wrong, or to prevent repetition of an actionable wrong. The jurisdiction to do so extends not only on an interim basis but, as here, as a final or perpetual injunction.

Having reviewed earlier authorities, the court helpfully set out a summary of the factors to be considered, as follows:

  1.  A distinction is drawn between final mandatory and final prohibitory quia timet injunctions. The former obliges the defendant to do something, whilst the latter merely oblige the defendant not to interfere with the claimant’s rights, it is harder to persuade a court to grant a mandatory than a prohibitory injunction. That said, the approach to the granting of a quia timet injunction, whether mandatory or prohibitory, is essentially the same.
  2. Quia timet injunctions are granted where the breach of a claimant’s rights is threatened, but where (for some reason) the claimant’s cause of action is not complete. This may be for a number of reasons. The threatened wrong may, as in this case, be entirely anticipatory. On the other hand, the cause of action may be substantially complete, such as where an act constituting nuisance or an unlawful interference with the claimant’s land had been committed, but damage not yet sustained by the claimant but was only in prospect for the future.
  3. When considering whether to grant a quia timet injunction, the court follows a two-stage test:  First, is there a strong probability that, unless restrained by injunction, the defendant will act in breach of the claimant’s rights.  Secondly, if the defendant did an act in contravention of the claimant’s rights, would the harm resulting be so grave and irreparable that, notwithstanding the grant of an immediate interlocutory injunction (at the time of actual infringement of the claimant’s rights) to restrain further occurrence of the acts complained of, a remedy of damages would be inadequate?

As to the first stage, the following factors are relevant:

  1. If the anticipated infringement of the claimant’s rights is entirely anticipatory – as it was here – it will be relevant to ask what other steps the claimant might take to ensure that the infringement does not occur. Here, Vastint had taken considerable steps to prevent trespass; and yet, the threat still existed.
  2. The attitude of the defendant or anticipated defendant in the case of an anticipated infringement is significant.
  3. Where acts that may lead to an infringement have already been committed, it may be that the defendant’s intentions are less significant than the natural and probable consequences of his or her act.
  4. The time-frame between the application for relief and the threatened infringement may be relevant. The remedy sought must not be premature.

As to the second stage, assuming no quia timet injunction, but an infringement of the claimant’s rights, how effective will a more-or-less immediate interim injunction plus damages in due course be as a remedy for that infringement? The following factors are material:

  1. The gravity of the anticipated harm. The seriousness of any irremediable harm is a factor that must be borne in mind.
  2. The distinction between mandatory and prohibitory injunctions.

Here, Vastint did not know the identity of any persons likely to trespass and so could give no evidence as to their attitude or intentions, and this would have been a strong indicator against the granting of an injunction. That said, Vastint had taken careful security measures but, despite such measures, caravans had previously entered on to the site and might well do so again; and the site was considered (like others belonging to Vastint) to be attractive for the holding of raves. Accordingly, the first stage of the test was made out.

The second limb of the test was also met. Firstly, because of the serious risk of harm to trespassers and to staff and contractors who had to deal with the trespassers. Secondly, the significant costs that Vastint would incur in the case of removing trespassers from the site.

Accordingly, the application for the quia timet injunction was successful, allowing Vastint to safeguard the site against future trespassers.

William Lawrence