Whether injunction and/or damages appropriate remedy — Whether damages award for future acts of trespass — Determination of damages — High Court refusing injunction but awarding damages — Court of Appeal dismissing appeal
In 1987 the defendants bought 5 Ashleigh Avenue, Maiden Newton, Dorset, a semi-detached house at the end of a cul-de-sac. In December 1988 the defendants bought an area of land adjoining no 5. Following the grant of planning permission in 1988, the defendants constructed a dwelling-house on the additional land, no 5A. Following correspondence with the county surveyor the defendants believed that Ashleigh Avenue was a public highway, but were aware of a restrictive covenant affecting no 5 that no part of the land which was unbuilt upon should be used otherwise than as a private garden. In June 1989 the plaintiff, the owner of 1 Ashleigh Avenue and of a part of the land over which the avenue ran, contended that the defendants did not have any rights of way over the avenue for the benefit of no 5A.
The plaintiffs commenced proceedings in August 1989 by which time the walls and roof of no 5A were well advanced: the plaintiff did not apply for interlocutory relief. The defendants sold no 5, less the access drive to no 5A, and following the completion of no 5A moved into the house and lived there until December 1991 when they let it. The plaintiff sought an injunction restraining the defendants from trespassing on the plaintiff’s part of Ashleigh Avenue; alternatively damages in lieu of an injunction. The judge declined to grant the injunctions sought, but awarded damages. He held that the defendants should have been prepared to pay not less than £6,250 for a right of way and the release of the covenant. That was £694.44 per resident. He awarded that sum to the plaintiff: see [1993] 1 EGLR 197. She appealed.
Held The appeal was dismissed.
1. When a plaintiff claimed an injunction and the defendant asked the court to award damages instead, the proper approach for the court to adopt was not in doubt. The plaintiff must first establish a case for equitable relief, not only by proving his legal right and an actual or threatened infringement by the defendant, but also by overcoming all equitable defences such as laches, acquiescence or estoppel. If he succeeded he was prima facie entitled to an injunction. The court might nevertheless in its discretion withhold injunctive relief and award damages instead.
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, damages in substitution for an injunction might be given: see Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287.
3. In the present case the plaintiff sought a prohibitory injunction to restrain the use of a road giving access to the defendants’ house. If an injunction was granted the house would be rendered landlocked and incapable of beneficial enjoyment.
4. The judge took into account all the relevant considerations, both for and against the granting of an injunction, and in the exercise of his discretion he decided to refuse it. His conclusion could not be faulted.
5. There was no reason why such damages should not be measured by the amount which the plaintiff could reasonably have expected to receive for the release of the covenant.
6. The judge’s approach to the assessment of damages was correct on the facts and in accordance with principle.
Mark Treneer (instructed by Milne & Lyall, of Bridport) appeared for the plaintiff; Jeremy Griggs (instructed by Clarke Willmott & Clarke, of Crewkerne) appeared for the defendants; Richard Drabble appeared as amicus curiae.
