Interim Injunctions and the Party Wall Act

One of the more frustrating aspects of providing party wall advice is having to tell an adjoining owner whose neighbour has commenced work without serving notice that their only formal remedy is an interim injunction. The purpose of this post is therefore to provide some guidance to owners who find themselves in that situation and look at ways of keeping the costs down.

Depending upon how much of the work has been completed unlawfully, the building owner may agree to put things on hold and serve notice(s) to cover the remainder of the work. The chances of this happening are greater if they believe that you are serious about obtaining an injunction. Make your intentions clear in a letter and deliver it by whatever means you can e.g. post, hand a copy to the builder, emails, WhatsApp etc. It may be that a threat of an injunction (which costs nothing) is sufficient for them to think twice and do the right thing.

At the same time, contact your building insurers and check whether you have legal cover. Many insurance companies will include a policy without charge or for a small additional fee so you might be surprised to find that you have it.

If not, pause and think about whether you really want to go down this route. These are the 3 main points to consider:

• Does that work that has been undertaken definitely fall within the scope of the party wall act? Most surveyors, including Taylor Mitchell, are happy to provide some initial advice without charge.
• What is the risk to your property? If it is negligible, the court may decide that the balance of inconvenience does not support granting an injunction.
• Would damages be an adequate remedy? If so, these could be agreed with the building owner or determined in court without the works having to be stopped.

If you are satisfied that an injunction is in your best interests seek some legal advice before proceeding. Like surveyors, most solicitors will be happy to spend some time discussing the background to the matter and the chances of success before being formally instructed.

Check that the solicitor has experience in dealing with procedures under the Act and only proceed once you are clear on the likely costs and they have been confirmed in writing. You should also discuss what can realistically be recovered if the injunction is shown to have been necessary.

If you have the time, you can reduce the costs by doing some of the work yourself e.g. prepare the bundle of documents and set out the facts in chronological order (which will serve as the first draft of your Witness Statement). If you have been liaising with a party wall surveyor, instruct them to provide a Witness Statement in support of your application.

The Witness Statement(s)/supporting documents need to confirm:

1. That there is a serious issue to be tried (any failure to comply with Act is serious).
2. That the balance of convenience favours and injunction.
3. That there is a need for urgency – why 48 hours’ notice has not been given.
4. That you have the means to provide a cross-undertaking in damages (i.e. to pay any damages which the building owner may sustain in consequence of the injunction which the Court considers the claimant ought to pay).
5. Any other material fact which should be drawn to the court’s attention.

Your legal adviser will explain the procedure but, in short, the application is made by submitting a Claim Form or application notice N244 under CPR Part 7. It should be accompanied by a draft Order.

The Court will generally accept an undertaking that you will issue the claim on the Defendant (the building owner) within 48 hours.

The parties will be instructed to attend court on a future date to argue the merits of the injunction.

If you live in the Cambridgeshire of north Essex area and require advice on a party wall matter, you are welcome to contact the author of this post on 01799 543532 or via email.