HO KWOK HING v. LAM TAI HING TSO AND OTHERS

HCA 694/2017

[2018] HKCFI 378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 694 OF 2017

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D E C I S I O N

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The parties

1.  This action was commenced by the plaintiff by a Writ of Summons endorsed with a Statement of Claim on 23 March 2017 (later amended on 30 March 2017) (“the Amended Statement of Claim”).  The plaintiff claims to be the “… Tenant/Occupier/Equitable Owner…” of a property known as Lot 814 in Demarcation District No. 96, Yuen Long, New Territories (“Lot 814”), the registered owner of which is Tsun Tsai Tong (“the Tong”).  The defendants are a ‘Tso’ and its new managers (“the Tso”), the Tso being the registered owner of the property known as Lot No. 813 in Demarcation District No. 96, Yuen Long, New Territories (“Lot 813”).

The action

2.  In summary, the principle relief claimed by the plaintiff in the action is a right of way over Lot 813 in order to access Lot 814, which as the numbering suggests is directly adjacent.

3.  By the claim the plaintiff also seeks other relief as regards alleged threatening and nuisance acts said to have been committed by the defendants and/or their servants as a result of which it is alleged that the plaintiff has suffered fear and mental anguish, and also relief in relation to a structure (“the Hut”) apparently constructed on Lot 813 and properties claimed to be within the Hut, all of which (including the Hut, despite it being affixed to the land) are said to be the property of the plaintiff.  However, at the hearing before me on 25 January 2018, the only substantive issue argued was the claimed right of way.  The Hut had by then already been demolished and the issue of any contents for the large part already resolved.

The present application

4.  Immediately following the commencement of the action the plaintiff issued a summons dated 24 March 2017 pursuant to O 29 r 1 seeking an interim relief pending trial, including an interlocutory injunction as follows:

“1. An injunction to restrain the Defendants whether by himself or his servant or agents or any of them or otherwise howsoever from doing the following acts or any of them that is to say: –

(a) Erecting the 2 metal poles with a metal bar built in-between to block the Right of Way as claimed by the Plaintiff;

(b) Erecting the metal wire net to block the Plaintiff’s Land and his other four Huts on Lot No. 814 R.P., D. D. 96 ….”

The two previous hearings of the application

5.  It appears that the plaintiff was not well prepared for the first hearing of the application before the Honourable Madam Justice Lisa Wong on 7 April 2017.  While the Writ of Summons is endorsed with a detailed Amended Statement of Claim, at the time of the hearing before Her Ladyship no affirmation evidence had been filed and served on behalf for the plaintiff in support of the application for an interim injunction.  After hearing counsel for the parties, Her Ladyship adjourned the hearing of the summons to a further three-hour appointment and gave directions for the filing of evidence.  Her Ladyship further ordered that the plaintiff pay the defendants costs of the hearing summarily assessed at HK$24,000.

6.  The adjourned hearing of the application came on before Deputy High Court Judge Seagroatt on 13 June 2017.  The substantive evidence before His Lordship for that hearing consisted of:

(a) the affirmation of the plaintiff dated 7 April 2017 and filed on 10 April 2017;

(b) a joint affirmation on behalf of the defendants dated and filed on 15 May 2017.

As appears, the plaintiff did not avail himself of the opportunity provided by the Honourable Madam Justice Lisa Wong’s order of 7 April 2017 to file affirmation evidence in reply to that of the defendants.

7.  However, the adjourned hearing was once again further adjourned, this time generally with liberty to apply.  His Lordship appears to have considered that the state of the evidence was not adequate to assist the court with the issues he had to determine, in particular he was concerned that there was insufficient detail and particularisation of:

(a) the route of the claimed right of way, including whether there is any alternative means of access to Lot 814 without traversing any part of Lot 813;

(b) whether the barrier created by the two metal poles and metal bar extended across both Lot 813 and Lot 814; and

(c) the position as regards the state of the Hut and its claimed contents.

Accordingly, His Lordship directed that the parties arrange a joint inspection of the two lots and afterwards file and serve an agreed report of the inspection showing a plan and photographs and the alleged right of way, along with further photographs with an index and a detailed scale plan of the two lots showing the disputed features and that before any restored hearing of the application submit a list of agreed facts and chronology.  His Lordship reserved costs.

8.  Unfortunately, the order of His Lordship was not promptly drawn up by either party.  It appears that a draft order was submitted to the court for approval only some 6 months later, relatively shortly before the hearing before me.  The sealed order shows the date 17 January 2018.  This delay may, in part, explain (but does not justify) why the parties do not appear to have acted in accordance His Lordship’s order.

9.  By the time of the hearing before me the evidence consisted additionally of:

(a) the second affirmation of the plaintiff dated 17 January 2018 to which is exhibited a land surveyors report dealing with, amongst other matters, the position of the disputed barrier and the accessibility of the two lots by existing routes;

(b) an affirmation from a solicitor for the defendants dated 27 February 2018 to which is exhibited a land surveyors report, again, dealing with, amongst other matters, the potential accessibility of the two lots by a number of new routes.

10.  I view the process by which this further evidence of the parties was prepared and filed as far from satisfactory.  In particular, there appears to have been no meaningful attempt by the parties’ respective solicitors to agree the matters to be addressed in the evidence and the form of its presentation.  As a result, and as was likely inevitable, far from being agreed as His Lordship had directed, the evidence of the parties unhelpfully takes a different approach in some respects and in part addresses different questions. Nevertheless, I am satisfied that the totality of the evidence is sufficient for the purposes of the matters that I have to decide.  I gave leave to both parties to file and serve their respective further affirmations and the reports they exhibited.

Lot 813 and Lot 814

11.  As I have already observed, Lot 813 and Lot 814 are immediately adjacent to each other.  Their relative situation is shown by a Lot Index Plan appended as Appendix One to the Amended Statement of Claim.

12.  In short summary, the present dispute arises because for many years the two lots were in common occupation (I should note, not common registered ownership), first by the plaintiff’s ancestors and then, it is alleged, by the plaintiff.  No doubt as a consequence of that long period of common occupation, the use of the land, in particular the position of the structures constructed on it and the preferred route of access to them by, in particular, vehicles, took no account of the fact that the two lots are separate titles. The route of access which is the claimed right of way, follows a line that starts at the boundary between Lot 814 and a public access road, for a short distance crosses Lot 814 (in which the plaintiff now claims an interest by adverse possession), then enters onto Lot 813 (the registered owner of which are the defendants) before finally ending up back on Lot 814.  However, with the two lots now not being in common occupation (the plaintiff having been ejected from Lot 813 by the defendants), for the plaintiff to continue to enjoy the same route of access he needs to establish a right of way over Lot 813, something the defendants oppose.

The evidence of plaintiff’s occupation of the both lots

13.  The history of the common occupation of Lot 813 and Lot 814, originally by the plaintiff’s grandmother, is set out in the Amended Statement of Claim, paragraph 4 of which states that it dates back to the late 1930s.  This is denied by the defendants in their Defence dated and filed on 15 May 2017, though in paragraph 5 they admit that as regards Lot 813 the plaintiff’s grandmother began occupying the land, it is said under licence, from at least in or around 1965.  However, whatever be the start date, there appears no dispute between the parties that the plaintiff’s grandmother occupied both Lot 813 and Lot 814 for many years and that she had built a number of the various structures to be found on both pieces of land.  The evidence further shows that in the main part the structures are located on Lot 814 and again it does not appear to be disputed that this is where the plaintiff’s grandmother resided for many years.

14.  Of course, for the present purposes it is the occupation by the plaintiff of Lot 813 and Lot 814, which in paragraph 8 of the pleading and paragraph 10 of his affirmation dated 7 April 2017 he claims commenced in about 1979, that is directly material.  From this date he asserts that he and his family began continuously occupying, using and residing on both Lot 813 and Lot 814 and, in particular, making use of the claimed right of way across Lot 813 to access Lot 814.

15.  The plaintiff’s claim as to the start date of his occupation of Lot 814 is met, in paragraph 7 of the defendants pleading, with only a bare denial.  However, the defendants do not dispute that the plaintiff once also occupied Lot 813.  In paragraph 6 of their pleading it is stated “On a date unknown, the Plaintiff and his wife, …, entered the Defendants Land and took possession of the same without the consent of the Defendants”.  When the plaintiff took possession of Lot 813 is not separately dealt with by the defendants’ affirmation evidence for these proceedings.  The only affirmation evidence before me in this regard is that of the plaintiff who claims it was in or about 1979.

16.  As I have previously observed, the defendants pleaded case and also affirmation evidence is similarly silent as regards from what date the plaintiff occupied Lot 814.  The defendants only plead that the Tong is the registered owner of Lot 814 and deny the plaintiff’s claim of occupation. Therefore, again, the only affirmation evidence before me is that of the plaintiff who claims it was in or about 1979.

17.  The time period is significant for it is the plaintiff’s case that by his actions since 1979 he has acquired, by adverse possession, an interest in Lot 814, and pursuant to Section 17 of the Limitation Ordinance he is entitled to be registered as the owner in place of the Tong.  Further, the plaintiff claims that his ‘interest’, by adverse possession, in Lot 814 entitles him to bring the present proceedings seeking to establish a right of way over Lot 813 which he claims Lot 814 (and he in occupation of it) has enjoyed for the same long period.

18.  I should observe that the defendants’ evidence takes issue (paragraph 27 of the affirmation dated 12 May 2017) with aspects of the plaintiff’s evidence as regards his previous and also his continued occupation of Lot 814.  Reference is made to the electricity and water bills and demand for the government rates in respect of the land, noting variously their very recent dates (2016 and 2017), the low-level or lack of consumption of electricity and/or water at certain points and also the plaintiff’s apparent use of an alternative residential address where it is said that he actually resides.  The written submissions of counsel for the defendants also refers to what are said to be inconsistencies between the plaintiff’s position in the proceedings for adverse possession commenced by him in respect of Lot 814 and the present action.  However, whatever may be the position as regards these matters, in my view they do not significantly detract from the plaintiff’s evidence in support of his claim of adverse possession in respect of Lot 814.  In any event, for the purposes of the application before me I am not required to determine the outcome of that claim only whether it is sufficiently arguable to justify interim relief.

The defendants take back possession of Lot 813

19.  In January 2008 the defendants commenced proceedings in the District Court against the plaintiff and his wife seeking to obtain vacant possession of Lot 813.  Initially the claim was met with a defence and counterclaim claiming, into alia, adverse possession.  Of course, in the particular circumstances of land held through a Tso such claims rarely succeed.  In any event, for whatever reason, the proceedings were compromised in December 2009 by way of a consent summons whereby the plaintiff and his wife agreed to give up vacant possession.  I observe that the plaintiff in paragraph 6 of his Reply in these proceedings dated 26 May 2017 denies being informed of the consent summons signed on his behalf by his then solicitors, and states that he “…had no knowledge of about the Consent Summons at the time of its entering and filing.”, but it appears that nothing now turns on this.

20.  Despite the compromise of the possession proceedings, it appears that the plaintiff nevertheless continued in occupation of Lot 813 for several years, presumably in the same manner as previously, including making use of the claimed right of way to access Lot 814.  It was only in December 2015 the defendants applied for and were granted leave to issue a Writ of Possession, pursuant to which the court bailiff only finally obtained possession, according to the evidence of the plaintiff, in or about July 2016. This further delay in the defendants directly exercising any rights of exclusive ownership over Lot 813 appears to explain why the present dispute has only arisen relatively recently.

The route of the claimed right of way

21.  Significant time was spent at the hearing seeking to clarify the route of the right of way over Lot 813 claimed by the plaintiff.  I expressed concern to counsel for the plaintiff that if an interim injunction was to be granted it must be very clear to all parties what it prescribed.  However, having regard to the totality of the evidence, in my view, the route of the claimed right of way is clear.  I have previously referred to the Lot Index Plan appended as Appendix One to the Amended Statement of Claim.  That plan shows the position and orientation of the structures on Lot 814 to which the plaintiff seeks access via the claimed right of way.  When regard is had to the plan, the position and orientation of the structures on it and the photograph exhibited to the plaintiff’s evidence as Exhibit HKH-6 the route of the claimed right of way can clearly be traced.

The blocking of the claimed right of way

22.  The photograph exhibited as Exhibit HKH-6 also shows very clearly that which the plaintiff makes complaint of and seeks to have restrained. The barrier mounted on poles in the vicinity of the point of entry of the claimed right of way onto Lot 813, which I observe is clearly designed to restrict vehicle access, can easily be seen, as can the wire fencing apparently on or in the area of the boundary line between Lot 813 and Lot 814 which, even if a vehicle were able to pass by the barrier, would still prevent it exiting Lot 813 to enter Lot 814.

23.  The photograph also clearly evidences that the area concerned is surfaced with concrete or similar and in a manner and to an extent which shows that but for the barrier and wire fencing it would provide a ready means of access by vehicles across Lot 813 to Lot 814.  Therefore, the appearance is consistent with the evidence of the plaintiff regarding its past use for this purpose.

24.  As it is a matter raised in the defendants’ affirmation evidence, I would also observe that the plaintiff’s claim clearly seeks an order such that he and his family can drive their cars to and from Lot 814 and not just pass through Lot 813 on foot.  That the previously existing route of access was intended for use by vehicles I view as clear from the photographic evidence.  As I have said, the barrier installed by the defendants is also clearly designed specifically to prevent vehicle access.  Therefore, any injunction, if granted, for it to be effective to address the plaintiff’s concerns, would necessarily need to provide for passage by personal passenger vehicles.

Alternative means of accessing Lot 814

25.  Further significant time was spent at the hearing regarding the issue of whether there is an alternative means of accessing Lot 814 such that the right of way claimed across Lot 813 is not necessary.  As I have previously observed, the parties’ respective surveyors approached the issue of access from entirely different perspective.  The defendants’ surveyor sought to show that there are a number of potential alternative new means of access to Lot 814 that could be opened up and made use of because the land is not surrounded on all sides by other private land.  The plaintiff’s surveyor instead sought to show that there are no other pre-existing means of access to Lot 814.  I prefer the evidence of the plaintiff’s surveyor as I view it as more directly relevant to the issue that I have to decide.

26.  As I observed at the hearing, there is no dispute that Lot 814 directly borders the public access road which leads to the claimed right of way.  A vehicle following the desired route, at the point it leaves the public access road, first enters onto Lot 814.  Therefore, it might well be possible, even though it would require removing existing fencing, undergrowth and surfacing a new driveway, for the plaintiff to enter onto Lot 814 without ever entering Lot 813.  However, anyone accessing by this route would arrive at the back not the front of the structures on Lot 814, which understandably is not what the plaintiff desires.

27.  The defendants’ surveyor’s report sets out to show that there are also a number of other potential new routes of access to Lot 814 from different directions and by other routes.  For present purposes I am prepared to accept that this may well be the case.  However, the plaintiff’s claim is not for an easement of necessity but by way of prescription.  The doctrine of prescription is acknowledged as involving the fiction of a presumed grant, not a grant of necessity or one express or implied.  It arises as a result of the long use of a right of way for the benefit of the dominant tenement.  With all due respect to the defendant’s counsel, whether or not there may be other potential means of access to the plaintiff’s land is not relevant.  As I have observed, the plaintiffs’ evidence sets out to demonstrate the manner in which, dating back to when Lot 813 and Lot 814 were effectively occupied as one, access to the land and structures on Lot 814 was enjoyed, and it is claimed that it was by travelling across Lot 813.

Right of way by prescription

28.   That an easement in the form of a right of way may be acquired by prescription based on the doctrine of lost modern grant in Hong Kong, if previously in question, has been clear for a number of years.

29.  The issue was put beyond any doubt by the judgment of the Court of Final Appeal in in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 where Lord Millett NPJ variously observed:

“The acquisition of rights by prescription is based on the well settled principle that where there has been long enjoyment of a right, the right should be presumed to have a lawful origin … “

“People who openly and peaceably exercise a right over their neighbour’s land for more than 20 years without interruption surely expect to be allowed to continue to do so and may have made their arrangements accordingly.”

“I doubt whether either of the two rules under discussion would be upheld in England were they to be examined by the House of Lords. But that is not a question which we have to decide. We are called upon only to consider whether they represent or should continue to represent the law of Hong Kong. I am satisfied that they should not. A coherent system of prescription demands that, if an easement over land can be acquired by express or implied grant, it should be capable of being acquired by the fiction of lost modern grant.”

30.  Of course, it still remains for a plaintiff claiming such a right to establish the factual basis for it through evidence of the necessary long use.  However, as I have previously observed, the plaintiff’s evidence in the present case as regards the duration of the claimed use is not substantially challenged by evidence to the contrary from the defendants.

Right of way over land in common occupation

31.  During the course of the hearing, I raised with counsel for the plaintiff a concern that the use of the claimed right of way was by the plaintiff, or his ancestors, when they were in occupation of both Lot 813 and Lot 814.  Reverting to first principles, for an easement in the form of a right of way to arise there must be dominant and subservient tenements and an easement must be of benefit to the dominant land and appurtenant to it.  If a person owns and occupies both tenements, an easement cannot exist.  However, in the present case we are concerned with two separate land titles owned by two separate registered owners. In each case, the plaintiff claims to have been in occupation without authorisation from the registered owner.  Therefore, even if the plaintiff were the registered owner or an authorised occupier of Lot 814 his common occupation of both lots would not be a bar to him claiming a right of way across Lot 813 arising by prescription.

The plaintiff’s standing

32.  Counsel for the defendants submitted that the plaintiff does not have standing or locus to assert any right in relation to Lot 814 because it was said he does not have the necessary interest.  Reliance was placed on a line of authorities, entirely or primarily involving claims of nuisance, which it was said establish that mere occupation or even substantial occupation will not do.  However, in my view, these authorities, none of which were concerned with the equivalent right claimed in these proceedings, do not bear on the issue that I have to consider.

33.  Counsel for the defendants acknowledged that the plaintiff has commenced District Court proceedings claiming adverse possession against the Tong which is the registered owner of Lot 814 but submitted that in the absence of an order the plaintiff does not have the “… requisite locus to claim disturbance to any purported rights for the benefit of Lot 814 in which presently he holds no interest, if at all.”.  Counsel for the defendants further sought to take issue with the plaintiff’s efforts to progress the claim for adverse possession in respect of Lot 814 and cast doubt on whether he has “...genuine intentions to proceed with those claims.”.

34.  The matter of the plaintiff’s claim for adverse possession in respect of Lot 814 is not before me and I agree with counsel for the defendants that it will be a necessary element of the plaintiff’s claim in these proceedings at trial.  However, I am concerned with an application for an interlocutory injunction pending trial. That an occupier of land claiming an interest in that land by way of adverse possession can assert a right to an easement by prescription over adjoining land I view as well established. This is the case even if the claim for adverse possession has not yet been finally determined. 

35.  I have had regard to the judgment of The Court of Appeal in Chung Yeung Hung v Law Man Nga [1997] HKLRD 1022. All of the members of the court expressed concurring views and for present purposes it is sufficient that I refer to the judgment of Justice of Appeal Godfrey:

“The second issue: Can an owner whose title is not of lawful origin prescribe for an easement at all?

 As the defendants correctly submitted, an owner whose title is not of lawful origin cannot claim to have acquired an easement by way of an implied grant, since he cannot claim the benefit of any grant to support the implication: see Wilkes v. Greenway (1890) 6 TLR 449.  But it does not at all follow that an owner whose title is not of lawful origin cannot claim to have acquired an easement by prescription.  A title to an interest in land is usually acquired by conveyance; but it may be acquired by adverse possession, and after the appropriate period (in Hong Kong, 20 years) a title to such an interest acquired by adverse possession cannot be defeated by action brought by the person who would, before the expiration of that period, have been entitled to recover possession of the land.  Since one who had acquired such a title would clearly be entitled to the benefit of an express grant of an easement made to him over land other than that to which his title extended, notwithstanding that his title was not of lawful origin, it must be at least arguable that he, like any other owner, can claim the benefit of a presumed grant.  It must of course be possible, for this purpose, for the presumed grant to have been of lawful origin but the necessity for a presumed lawful origin of the grant has nothing to do with the origin, lawful or otherwise, of the title to the dominant tenement.  I would decide this issue, too, in favour of the plaintiffs.”

Res judicata

36.  Counsel for the defendants also submitted that the plaintiff is precluded from now commencing proceedings in respect of the claimed right of way as it was an issue that should have been raised by him in the proceedings commenced by the defendants in 2008 to recover possession of Lot 813.  I do not agree and can deal with this aspect shortly.  The possession proceedings were concluded without a decision on the merits, by consent.  The proceedings also concerned the occupation and ownership of Lot 813. At the time of the proceedings and it appears for several years thereafter the defendants had not sought to interfere with the right of way now being claimed for.  Indeed, it appears undisputed that it was only from late 2015 that the defendants first took steps to exercise any form of exclusive rights of ownership over Lot 813 and it is the plaintiff’s evidence that it was only from July 2016 that the claimed right of way was first blocked by a barrier.  Therefore, I do not give the defendants claim as regards res judicata any significant weight for present purposes though, of course, they may pursue it at trial.

Has the plaintiff shown sufficient of a case?

37.  For the reasons set out in this decision, I am of the view that at this interlocutory stage the plaintiff has shown that there is a serious issue to be tried both as regards the evidence and the law, sufficient, before considering other matters, to warrant the grant of an interim injunction.  While it is clear that the plaintiff has much to do as regards pursuing his claim for adverse possession in respect of Lot 814, I cannot conclude, as counsel for the defendants suggests, that he is no genuine intention to pursue the claim.  If he did not intend to do so the present proceedings would serve little purpose.

Would damages be an adequate remedy

38.   The question of whether damages would be an adequate potential remedy for the plaintiff was not argued before me.  Given the nature of the plaintiff’s claim I do not view damages as likely to be an adequate remedy given that there is no obvious basis on which damages could be calculated.

Delay

39.  That the plaintiff has not pursued his claim as regards the right of way and, even once commenced, these proceedings with all possible vigour and speed I view as unarguable.  The obstruction of the claimed right of way is said to have occurred in or about July 2016 yet these proceedings were only commenced in late March 2017.  As I outlined earlier in this decision, there were also two previous abortive attempts by the plaintiff to pursue his application for an interlocutory injunction. Clearly it is unsatisfactory that the matter should have been delayed in this manner.  It appears that the best that can be said on behalf of the plaintiff in this regard is that apparently he is of limited means.  I note that he seeks to explain the delay in obtaining a survey report on a lack of funds.  In any event, in all the circumstances of the matter, I do not consider that the plaintiff should be denied interim relief on the grounds of delay only.

Balance of convenience

40.  I likewise find that the balance of convenience lies in favour of granting injunctive relief.  As damages would not be an adequate remedy for the plaintiff no doubt equally they would not be an adequate remedy for the defendants.   In this respect both parties are in the same position.  However, preservation of the status quo, one that appears to have existed for many years, requires that interim relief be granted.  I also note that the defendants evidence is entirely silent as regards their present or future plans for use of Lot 813.  As I have observed, though the proceedings to recover possession of Lot 813 were settled in 2009, steps to have the plaintiff removed from Lot 813 were not begun until late 2015 and according to the plaintiff’s evidence possession was only finally obtained in or about July 2016.  The photographic evidence before the court also suggests that raising the barrier and providing for an opening in the wire fence at the location where there is an existing roadway traversing between Lot 813 and Lot 814 will likely cause the defendants minimal, if any, inconvenience.

41.  It, of course, will fall to the plaintiff to pursue these proceedings more diligently than he has done so to date.  In particular, he must advance and seek to make good his claim for adverse possession of Lot 814 as his claim in these proceedings is dependent upon it.

Injunction order

42.  I therefore grant an interim injunction until judgment or further order restraining the defendants whether acting by themselves or their servants or agents or any of them or otherwise howsoever from doing the following acts or any of them that is to say obstructing, impeding or otherwise howsoever interfering with the plaintiff’s, whether himself or his family members or his or their servants or agents or any of them whosoever, exercise of a right of way whether by foot or passenger motor vehicle over Lot No. 813 in Demarcation District No. 96, Yuen Long, New Territories for the purposes of accessing Lot No. 814 R.P. in Demarcation District No. 96 Yuen Long, New Territories.  Should there be any difficulty in giving effect to the court’s order, the parties may come back under the liberty to apply provision.

43.  For the reasons I have set out above, and given the nature of the claim, I do not consider that the plaintiff should be required to give a cross undertaking in damages.

Costs

44.  There will further be an order nisi that the costs of the plaintiff’s application, including the costs previously reserved by the Honourable Deputy Judge Seagroatt, be costs in the cause.  While the plaintiff has not prosecuted his claim for an interlocutory injunction as speedily as would be wished, equally the position taken by the defendants as regards the issues and the evidence is not entirely free of criticism.  In all the circumstances, I view an order that costs be in the cause as the most appropriate.  However, I give leave to any party that seeks a variation of the order nisi to make written submissions, setting out the grounds and varied order sought, within 14 days of the handing down of this decision.  Absent an application to vary within the time period the costs order nisi will become absolute.