Obtaining a quia timet injunction to prevent trespass

Vastint Leeds B. V. v Persons Unknown [2018] EWHC 2456 (Ch)

Vastint Leeds B.V (“Vastint”) is the owner of the former Tetley brewery site in Leeds. The site is a development site and much of it is therefore unoccupied. There are safety issues with the site including that fact that some of the buildings are unsafe and structurally unsound and there are hazardous materials on site including asbestos.

In order to try and prevent trespassers accessing the site Vastint put in place various security measures including security patrols and weekly inspections of vacant properties but, notwithstanding these measures, there were four instances of trespass involving caravans in 2011, 2016, 2017 and 2018. And, more recently, alarms had been triggered on site. Vastint had also incurred clean-up costs of approximately £25,000 after rubbish/unwanted items were left on the property following the instances of trespassing.

Furthermore, although no illegal raves at the site had been identified, Vastint was concerned about a number of incidents involving actual or attempted illegal raves taking place at a site in East London owned by another member of the group that Vastint is a part of.

Vastint therefore sought a quia timet (‘because he fears’) injunction against persons unknown (as the defendants could not be identified). A quia timet injunction is an injunction that is granted before anything has happened to cause the applicant harm. So the applicant is, in effect, asking for an injunction to stop the respondent doing something in the future that will cause the applicant harm.

Vastint argued that if the court granted an injunction: it would have a real effect in preserving the site from trespass; it would underline the seriousness of the position to the police who might be more responsive in the case of any trespass in breach of a court order; and, because the order would have a penal notice attached to it, they would more easily be able to instigate the contempt of court procedures.

The case was heard by Mr Justice Smith in the High Court. He explained that when considering whether to grant a quia timet injunction the court follows the following two-stage test:

  1. First, is there a strong possibility that, unless restrained by injunction, the defendant will act in breach of the claimant’s rights?
  2. 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 regards the first stage of the test, Mr Justice Smith concluded that it was relevant to look, among other things, at what other steps the claimant might take to ensure the infringement does not occur, and that it was therefore relevant here that Vastint had taken considerable steps to prevent trespass but the threat still existed.

As for the second stage, he looked at what would happen if no quia timet injunction was granted, and therefore how effective an immediate interim injunction plus damages would be as a remedy for that infringement.

Applying the two-stage test he concluded that there was a strong probability that unless restrained by injunction Vastint’s rights would be infringed both by future trespass, and by people organising, involved in or participating in raves. He was not persuaded, however, that an injunction was needed to prevent future fly tipping. The first limb of the test was therefore satisfied. He also concluded that the second limb of the test was satisfied because the harm that might arise from an act of trespass ought, if possible, to be avoided and Vastint would incur significant costs in removing trespassers from the site.

Mr Justice Smith therefore decided it was appropriate to grant a time-limited quia timet injunction in respect of threatened incursions by:

  1. Persons seeking to establish a more than temporary or more than purely transient occupation of the site.
  2. Persons organising, involved in, or participating in raves.

This decision is useful for explaining in what circumstances landowners might be able to obtain a quia timet injunction against persons unknown, and the legal principles that a court will need to consider.

The judgment can be accessed here: https://www.bailii.org/ew/cases/EWHC/Ch/2018/2456.html

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