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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mortimer & Anor v Bailey & Anor  EWCA Civ 1514 (29 October 2004)
Cite as:  1 EGLR 75,  2 P & CR 9,  EWCA Civ 1514,  BLR 85
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TEESSIDE COUNTY COURT
(HIS HONOUR JUDGE BOWERS)
B e f o r e :
LORD JUSTICE JACOB
|(1) MARTIN MORTIMER|
|(2) JOCELYN MORTIMER||Claimants/Respondents|
|(1) COLIN BAILEY|
|(2) PAMELA WATERTON-BAILEY||Defendants/Appellants|
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MR IAN PENNOCK (instructed by Messrs Appleby, Hope & Co, Sunderland SR1 1HU) appeared on behalf of the Appellants
MR RICHARD MERRITT (instructed by Messrs Higgott's Solicitors, Billingham TS23 1EU) appeared on behalf of the Respondents
Crown Copyright ©
"I profoundly disagree. It is apparent from the photographs that there was a view of the sky and the tops of trees from the kitchen window which gave a sense of openness. That sense is removed completely by the wall, roof and velux window of the new extension. It is oppressive, reduces the available light and severely alters the aspect or view from the window. Furthermore, I consider that the loss of direct sunlight during winter afternoons is a significant matter and one which alone justified the Claimants' refusal."
"The Defendants cannot have any sense of injustice with such an order because they chose to proceed in the full knowledge of the covenant and of the Claimants' lack of consent. They took an enormous and costly gamble. They have lost and must return the building to its former state."
He required that to be done by 31st March 2004.
"As a general rule, someone who, with the knowledge that he has clearly enforceable rights and the ability to enforce them, stands by while a permanent and substantial structure is unlawfully erected, ought not to be granted an injunction to have it pulled down."
"Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently."
"Why should he not be held to that position and granted damages in lieu of an injunction?"
"... the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict."
"(1) If the injury to the [claimant's] legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the defendant to grant an injunction --
then damages in substitution for an injunction may be given."
"The essential prerequisite of an award of damages is that it should be oppressive to the defendant to grant an injunction. Here that prerequisite is satisfied. It would be oppressive and therefore unfair to the defendant to allow the judge's injunctions to stand. The plaintiff should receive an award of damages instead. It would be unfair to him for them not adequately to compensate him for the injury to his legal rights."
ORDER: Appeal dismissed with costs assessed summarily at £8,000; within four months of today the mandatory injunction should be carried out.