If you are being prevented from exercising your right of way or your right of way is being physically obstructed so that you cannot use it then one of the remedies open to you is to apply to the court for an injunction.
Often people’s reaction is to get the police involved. However, as it is a civil matter generally the police are unable to do anything about it and wisely, do not want to get involved in the dispute.
People associate any process in the law as being lengthy. However, the point of an injunction is to take swift action to prevent a breach of their rights and to preserve the status quo until such time as the issues surrounding the dispute are resolved by the court. That way the court orders the other side to stop blocking your right of way until such time as the dispute is determined by the court.
In the case where a right of way was being blocked, the wording of the injunction would be drafted so as to prevent the other side and their agents or servants from taking any steps to block it both in a specific and in a general way to minimise any ambiguity. Failing to comply with an injunction usually results in contempt of court proceedings which themselves result in a fine or imprisonment.
If your right of way has been deliberately blocked then injunctive proceedings need to be considered. The application to the court is simple and needs to be backed up by evidence usually in the form of a witness statement.
We would therefore suggest that should this situation arise that clients make a detailed note of the incident that has given rise to prevent them from using their right of way and if possible to take photographs. This is particularly useful where the overall actions amount to the other side preventing you from exercising your right of way, for example, where the neighbour parks his vans park on the driveway each day to unload several times as he runs his business from his premises and thereby prevents you using your right of way to gain access to or from your property.
However, if applying for an injunction where no proceedings have yet been issued one would normally have to give an undertaking to file a claim form within a specified time limit which starts of an action. In other words you cannot go for an injunction in isolation, there must be a main action on the go or one must be started so that the court can decide the issues surrounding the dispute.
A hearing for an injunction can take place without the other party being present although it is clearly preferable that they are there not least from a practical point of view. If they are not present the court would require you to give an undertaking to pay damages if it later transpires that the injunction should not have been granted, for example, where the vehicle blocking the right of access was not owned or controlled by the other party.
If your right of way is being obstructed we will be able to assist you. Please contact Joseph Quinn on 01392 248858 to discuss your matter.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such.