David Peter Buckley v David Francis Timbury (No 2)

David Peter Buckley sought relief against David Francis Timbury and another, regarding an easement over a driveway. The dispute arose from the blocking of sub-surface drains by rocks, which interfered with the easement. The matter was before the court to determine the appropriate form of relief, and to decide the costs associated with the proceedings.

The primary legal issues concerned the form of relief Buckley was entitled to, specifically whether an injunction was appropriate, and whether a declaration should also be made. It was also necessary to determine whether any injunction should be conditional on the payment agreed in previous consent orders. The court had to balance Buckley’s entitlement to relief against the defendants' rights and the need for a practical and enforceable solution.

The court held that Buckley was entitled to an injunction restraining the placement of rocks that blocked the sub-surface drains, as this interference with the easement was actionable. The court also considered it appropriate to make a declaration to clarify the rights and obligations of the parties. The injunction was to be conditional upon the payment agreed in the previous consent orders, ensuring that the relief granted was fair and enforceable. The court found that Buckley was successful on the main issue but not on a lesser one, and thus the plaintiff should bear some of the defendants’ costs. However, given the differing roles of the two defendants, the court opted for a flexible apportionment of costs, rather than applying a presumption of equal liability.

The court ordered that an injunction be granted to Buckley, conditional on the payment agreed in the previous consent orders, and also made a declaration clarifying the parties' rights and obligations. Buckley was ordered to pay a proportion of the defendants' costs, with a more flexible apportionment applied due to the differing roles of the defendants in the proceedings.