Want a much easier tactic than wielding an injunction? Try war
Injunctions or court orders which require someone to stop doing something crop up in all walks of legal life. You find them in matrimonial law, usually ordering violent men to stop beating their women or, less commonly, ordering them out of the family home. In employment law, injunctions are granted to stop well-informed employees from setting up on their own on their former employers' doorsteps. In commercial law the turbo-powered 'Mareva' injunction is invoked to prevent would-be defaulters from removing their assets from the jurisdiction before judgment is given. But you very rarely come across an injunction in construction law.
For those practitioners who like a quiet life, this is no bad thing. Applying for an injunction is high octane work. The clients arrive, with no notice at all, in a state of panic induced by whatever-it-is that they are trying to stop happening.
The complexities of their problems have to be mastered on the spot and then prodigious amounts of documentation have to be prepared in no time at all.
All this is followed by a feverish wait outside the judge's rooms (sometimes with other pent-up, unhappy petitioners, sometimes at strange hours of the night or day), and then the mad dash to serve the injunction before whatever-it-is is done.
An injunction is occasionally seen on a construction site, however, when the employer takes the rather drastic step of determining (ie ending) a contract, and the contractor, equally dramatically, refuses to pack up and go.
Most contracts entitle the employer to bring the contractor's employment to an end in particular circumstances - including, for example, the failure 'to proceed regularly and diligently' with the works. Employers and certifiers are understandably reluctant to invoke these powers even in the face of extreme provocation from recalcitrant contractors. If they are justified in ending the contract, the employer still faces the disruption, delay and expense of engaging replacement contractors to complete the works.Things are seldom that clear cut, however, and if it transpires that whatever went wrong, it was no fault of the contractors, then the employer faces the prospect of reimbursing the contractor for the profit he would have made on the job had he been allowed to stay. Because the stakes can be so high, most contractors call foul whenever a determination notice is served and steel themselves for a fight.
The fight they usually have in mind, of course, is over money. Some go further, however, and refuse to relinquish their possession of the site.
They argue that as the employer had no grounds for determination, they have no reason to leave.
The scene for the battle of the building site is then set. It is on these rare occasions that an injunction is called for. So what are the employers prospects of successfully regaining possession of their own land before the rights and wrongs of the situation have been thoroughly investigated?
The traditional view was that the contractors right to possession of the building site was temporary only and could be revoked by the employer. Even if the employer was wrong to boot the contractor off site, the court would not prevent him: the contractor could be adequately compensated for his financial losses, whereas the court could not hang around, like a clerk of works, and make sure that the contractor continued to perform up to scratch.
In the 1970s the decision in Hounslow LB v Twickenham Garden Developments threw a spanner in the works. The judge found that the contractor was, by implication, allowed to stay on site until completion. So long as there was a dispute as to the validity of the determination, the contractor was entitled to stay. The practical consequences of this decision conjure with the absurd. A contractor, besieged by the combined forces of the owner, certifier and (no doubt) lawyers, defiantly standing his ground and claiming his right to complete the works. The project owner, unable to break down the barricades and bring in alternative contractors. The placards, the loud hailer, the armed police . . . yes, it does seem all a bit unlikely. Perhaps it is not so surprising then that there is little call for injunctions in construction law.