| Damages — Measure of damages — Damages in lieu of injunction — Actionable infringement of easement — Defendant liable for infringement of claimant’s right to light — Principles applicable when assessing damages for loss of ability to prevent infringement
Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWHC 212 (Ch)
Ch D: Gabriel Moss QC, sitting as a deputy High Court judge: 8 February 2007
The main principle when calculating damages in lieu of an injunction to prevent an infringement of a right to light, at the point just before any infringement took place, was that the court had to attempt to find what would be a fair result of a hypothetical negotiation between the parties, and should consider whether the result ‘felt right’.
Gabriel Moss QC, sitting as a deputy Chancery Division judge, so held when determining that the defendant, Fairpoint Properties (Vincent Square) Ltd, should pay damages of £50,000 to the claimant, Tamares (Vincent Square) Ltd, in lieu of an injunction as a remedy for the defendant’s liability for infringing the claimant’s right to light.
The claimant owner of the dominant land sued the defendant owner of adjoining, servient land, for infringement of its right to light caused by the defendant’s redevelopment of the adjoining building. The judge found the defendant liable but declined to grant an injunction, leaving over the question of the assessment of damages in lieu. Experts from both sides prepared reports in relation to the changes that needed to be made to the defendant’s development if the right to light was not to be infringed. The estimates of profits on the relevant part of the development were £163,000 on the claimant’s expert evidence, and £186,000 on the defendant’s.
GABRIEL MOSS QC said, awarding damages of £50,000, that the following principles could be deduced from the various authorities in relation to the assessment of damages for loss of the ability to prevent an infringement of a right to light at the point just before any infringement took place: (i) The court had to attempt to find what would be a ‘fair’ result of a hypothetical negotiation between the parties: see Bracewell v Appleby [1975] Ch 408; (ii) the context, including the nature and seriousness of the breach should be kept in mind: see Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798; (iii) the right to prevent a development (or part) gave the owner of the right a significant bargaining position: see Carr-Saunders v Dick McNeil Associates Ltd [1986] 1 WLR 922; (iv) the owner of the right with such a bargaining position would normally be expected to receive some part of the likely profit from the development, or relevant part; (v) if there was no evidence of the likely size of profit, the court could do its best by awarding a suitable multiple of the damages for loss of amenity; (vi) if there was evidence of the likely size of the profit, the court should normally award a sum which took into account a fair percentage of the profit; (vii) the size of the award should not be so large that the development, or relevant part, would not have taken place had such a sum been payable; and (viii) after arriving at a figure which took into consideration all the above and any other relevant factors, the court had to consider whether the ‘deal feels right’: see Amec Developments Ltd v Jury’s Hotel Management (UK) Ltd [2001] 1 EGLR 81. In a case such as the instant, where the amount of the likely profit had been the subject of expert evidence, the correct approach was to start with the approximate figures suggested for loss of amenity as the context, but then to take sufficient account of the expert evidence relating to the value, in terms of a share of the potential profit, of the bargaining position.
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