Adjoining properties — Access to property — Wrongful interference — Court ordering reconstruction of original pathway — Damages also awarded — Court of Appeal discharging permanent injunction — Substitution of damages award
The respondents were the freehold owners of a dwelling-house at 3 The Banks, Long Buckby, Northamptonshire. The appellant owned adjoining land to the south west which also fronted on to The Banks. A dispute arose because the respondents claimed that in the course of a development which involved building three blocks of flats on his land with access on to The Banks, the appellant trespassed on their land by building on it a manhole, drains and a wall and wrongfully interfered with the access to their property. The titles to the two properties were registered.
The county court ordered the appellant to remove, within three months, the manhole, drains and wall and reconstruct the pathway and original access way as it was. The judge further awarded £ 1,500 damages, including £750 aggravated damages and interest. The appellant submitted that he was entitled to carry out the works, and that even if he were not, the relief should have been in damages and not by way of mandatory injunction.
Held The appeal was allowed in part; substitution of damages award.
1. A land owner was prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate: see Patel v WH Smith (Eziot) Ltd [1987] 1 WLR 853.
2. If the injury to the plaintiff’s legal right was small; was capable of being estimated in money; could be adequately compensated by a small money payment; and the case was one in which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction might be given: see Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287.
3. However, that test was only a working rule and did not purport to be an exhaustive statement to the circumstances in which damages ought to be awarded instead of an injunction: see Jaggard v Sawyer [1995] 1 WLR 269.
4. In considering whether the grant of an injunction would be oppressive to the defendant, all the circumstances of the case had to be considered. At one extreme, the defendant might have acted openly and in good faith and in ignorance of the plaintiff’s rights. At the other extreme, the defendant might have acted with his eyes open and in full knowledge that he was invading the plaintiff’s rights and hoped that, by presenting the court with a fait accompli, he could compel the plaintiff to accept monetary compensation. Most cases fell somewhere in between: see Jaggard v Sawyer.
5. In this case the judge had not taken into account the delay in seeking relief, which was an important factor. Nor could it be said that, despite countervailing factors, a mandatory injunction had to be granted where there had been a reckless disregard of the plaintiff’s rights.
6. In all the circumstances the mandatory injunction should not have been granted. On the judge’s findings an award of aggravated damages could not be criticised, whereas exemplary damages were not appropriate. However, the overall sum of £6,650 stated by the judge was an appropriate overall award of damages against the appellant
Andrew de la Rosa (instructed by Johns Gilbert & Frankton, of Rugby) appeared for the appellant; Alexander Hill-Smith (instructed by Dennis Faulkner & Alsop, of Northampton) appeared for the respondents.
