It will be recalled (or not, as the case may be) that, under a power going back to Lord Cairns’ Act 1858 (see now section 50 of the Supreme Court Act 1981), the courts can make a monetary award in lieu of an injunction that would otherwise have been obtainable. What was presumably not considered in 1858 was the proper basis for such an award where a breach of a restrictive covenant (or possibly an encroachment) poses little or no threat to the value of the land of the aggrieved party.
Given that the court is depriving the claimant of an instrument of legitimate extortion, there is no reason, in strict logic, why the compensatory award should be any less than the amount that the defendant would otherwise have eventually coughed up for a release from the injunction.
Not surprisingly perhaps, the law has adopted a more pragmatic approach. While not awarding a “reasonable ransom” as such, the courts have got pretty close to doing so, by basing the award upon what the judge considers to be a fair slice of the defendant’s development gain: see the leading case of Jaggard v Sawyer [1995] 1 EGLR 146 as considered in Gafford v Graham [1999] 3 EGLR 75.
Because the exercise is necessarily intuitive, there can be little certainty as to the outcome of any particular case. Nevertheless, increasing guidance is emerging from recent case law, which must now include the case of the unauthorised hotel extension considered in Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 07 EG 163. At the very least, you will find a handy phrase for possible use in difficult negotiations.
“At the end of the day”, said the judge, “The deal has to feel right”.
Related item:
Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] PLSCS 110
It will be recalled (or not, as the case may be) that, under a power going back to Lord Cairns’ Act 1858 (see now section 50 of the Supreme Court Act 1981), the courts can make a monetary award in lieu of an injunction that would otherwise have been obtainable. What was presumably not considered in 1858 was the proper basis for such an award where a breach of a restrictive covenant (or possibly an encroachment) poses little or no threat to the value of the land of the aggrieved party.
Given that the court is depriving the claimant of an instrument of legitimate extortion, there is no reason, in strict logic, why the compensatory award should be any less than the amount that the defendant would otherwise have eventually coughed up for a release from the injunction.
Not surprisingly perhaps, the law has adopted a more pragmatic approach. While not awarding a “reasonable ransom” as such, the courts have got pretty close to doing so, by basing the award upon what the judge considers to be a fair slice of the defendant’s development gain: see the leading case of Jaggard v Sawyer [1995] 1 EGLR 146 as considered in Gafford v Graham [1999] 3 EGLR 75.
Because the exercise is necessarily intuitive, there can be little certainty as to the outcome of any particular case. Nevertheless, increasing guidance is emerging from recent case law, which must now include the case of the unauthorised hotel extension considered in Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 07 EG 163. At the very least, you will find a handy phrase for possible use in difficult negotiations.
“At the end of the day”, said the judge, “The deal has to feel right”.
Related item:
Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] PLSCS 110
