Key takeaways
Court rejects interim injunction in light dispute
Highlights strict approach to granting urgent relief.
Damages often preferred over restrictive orders
Judges consider proportionality and practicality when granting relief.
Developers should assess risk early in projects
Proactive planning helps avoid costly litigation later.
In Handston Investments Ltd -v- Abri Group Ltd, Mr Justice Trower recently dismissed an application for an interim injunction to restrain ongoing building works. This was even though (i) the works would admittedly amount to an infringement on the Waldram method; (ii) the building owner was not prepared to give an undertaking to stop works on those parts of the development that it was agreed would cause the infringement and (iii) the adjoining owner was prepared to give a cross-undertaking in damages.
The case concerned a 4-storey social housing development in Poole, Dorset to provide 33 units for social housing rent. The adjoining property is a fully let commercial office building, and the adjoining owner is an investor owner, who has owned the building since its construction in 2002. It was not disputed that window apertures in the building had acquired easements of light by prescription. Abri started work in January 2024 and Handston objected, insisting that it wished to preserve the passage of light enjoyed by the building and was not interested in money, and sought an undertaking for Abri not to build on the infringing parts. The technical analysis on the Waldram method showed losses to rooms on the ground and first floor of some EFZ 309 sq. ft. Handston demanded an undertaking to cease work which Abri refused. Handston therefore applied for an interim injunction, supported by a cross- undertaking in damages. By the time of the hearing the building works were already at first floor level.
The battle ground was therefore the correct approach adopting the established American Cyanamid principles. The parties were diametrically opposed, with Abri arguing that properly applying those principles the Court should dismiss the application.
The parties agreed that there was a “serious issue to be tried”. On that basis, it was for the court to consider “the balance of convenience”. Critically, Abri argued that damages would be an adequate remedy for Handston if it succeeded at trial in obtaining a permanent injunction and so interim injunctive relief should not be granted. Handston was an investor whose interest was purely financial. If it suffered any loss (which was debatable as the building was fully let on a rack rented lease and the tenants were not going anywhere) such losses could be adequately compensated by an award of damages. On the issue of the adequacy of damages, the Judge took particular note of the judgment of Peter Smith J in Midtown Ltd -v- City of London Real Property Co Ltd [2005] when he said, in that case, that the investor owner “was only interested in the Property from a money-making point of view. If the value of the Property has been diminished, it can be compensated and is capable of calculation”.
Abri also argued that the possible injustice to Abri (if Handston were granted an interim injunction, but subsequently failed at trial to obtain a permanent injunction) outweighed the possible injustice to Hanston. An interim injunction would give rise to delay costs of some £40,000 per week. Abri was a charitable housing association providing homes for those in housing need. In terms of the cross-undertaking, if an injunction was not granted at trial, Abri would not be adequately compensated by a payment of money. Money would not provide compensation for the delay and disruption to Abri’s desire to use the flats at the development to provide homes for families in need.
The Judge therefore refused to make an interim injunction. He found that the claimant would be adequately compensated in damages at trial if a permanent injunction were made for any loss in the interim period. However, the Judge recognised that time was of the essence, and so ordered a speedy trial. Costs were reserved – if the claimant succeeded in obtaining a permanent injunction they would get their costs of the application. If the defendant succeeded in arguing that damages in lieu was the appropriate remedy, then they would get their costs of the application.
An adjoining owner will often threaten to “go nuclear”, but interim injunction applications in rights of light cases are relatively rare because of a claimant’s unwillingness (and sometimes inability) to provide an adequate cross-undertaking in damages. However, even where an infringement on the Waldram method is admitted, an interim injunction is not as clear cut as people might think, particularly where the development in question is for the public benefit, and the adjoining owner is an investor whose interests are purely financial.
Abri were represented by Janine Cheema and Kevin Lee, instructing Tom Weekes KC Special mention also to the assistance provided by Jonny Lonergan at eb7.
