Quia timet injunction

Islington London Borough Council v Elliott and Anor [2012] EWCA Civ 56; 1 February 2012

In May 2004 the first claimant wrote to the defendant authority expressing concern that the foundations of her house might be undermined if trees growing in the garden of an adjoining property, of which the authority was the freehold owner, were allowed to grow unchecked. By September 2007, no steps had been taken to reduce the size of the trees or to remove the trees despite further correspondence between the parties and assurances from the authority. Accordingly, the claimant instructed solicitors who wrote to the authority regarding problems emanating from the authority’s property, including the trees. On 20 March 2009, proceedings were issued by the claimants seeking damages and a quia timet injunction. In the interim, the authority had decided to remove the trees but had not informed the claimants or carried out the work. In its defence served on 28 April 2009, the authority pleaded that a works order had been issued on 10 December 2008 to remove the trees and that the work would be carried out within a reasonable period of time. The parties were unable to resolve their differences as to costs. The principal issue that fell to be determined was whether a claim to a quia timet injunction to prevent a nuisance could succeed when the alleged nuisance had, at the date of the trial, caused no physical damage to the claimant’s property but was likely to do so unless prevented by an order of the court. Consideration was given to CPR Part 44.