PP 2008/39

Forsyth-Grant v Allen [2008] EWCA Civ 505; [2008] 15 EG 172 (CS) concerned an interference with rights of light enjoyed by a hotel. The hotelier issued proceedings for the infringement, and asked the court to assess damages by reference to the profits that the builder had made from the scheme. The county court judge refused to do so, and awarded the hotelier compensatory damages of £1,850 for the loss of light suffered. The hotelier appealed to the Court of Appeal, who upheld the decision. The court ruled that an award of damages for loss of light should ordinarily compensate a claimant for the loss of light actually suffered. However, in appropriate cases it could include a share of the profits derived from the infringement of the claimant’s rights of light, calculated by reference to what the claimant would have secured in negotiations for the relaxation of the rights infringed (Wrotham Park damages). On the basis of the figures supplied, the amount of damages would have been very similar if the county court judge had awarded Wrotham Park damages, instead of damages assessed on the more traditional basis. Consequently, on appeal, the claimant held the builder to account for all the profits derived from the scheme. The claim was unsuccessful. The court refused to order the builder to account for the profits made from the project on the grounds that: (i) an account of profits is a distinct and different remedy from an award of damages; (ii) the courts have not previously awarded an account of profits in an action for nuisance; and (iii) such awards are available only in exceptional cases. It is interesting to compare the damages awarded in this case with those awarded in Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWHC 212 (Ch); [2007] 1 EGLR 26; [2007] 14 EG 106. In Tamares, the High Court awarded Wrotham Park damages of £50,000 for loss of light on a staircase. The sum paid in Forsyth-Grant for loss of light to a storeroom was £1,850. So when will a Wrotham Park award be made? The Court of Appeal did not explain when it would be appropriate to award such damages, as opposed to damages assessed on the more traditional basis. However, the county court judge indicated that the claimant’ behaviour had been unreasonable. As a result, it would not have been equitable for a court to have granted an injunction in respect of her loss of light. The county court judge ruled that this meant that Wrotham Park damages were also inappropriate. The Court of Appeal neither agreed nor disagreed with this finding. However, it appears from the outcome in this, and other, cases that the jurisdiction to award Wrotham Park damages is flexible and they will be awarded to achieve justice as between the parties on the merits of each individual case. Allyson Colby is a property law consultant