Cases - Gafford v Graham

Record details

Name

Gafford v Graham

Date

(1999)

Citation

77 P&CR 73

Legislation

Chancery Amendment Act 1858

Keywords

Easements - rights of light

Summary

The defendant converted a bungalow on his land to a 2-storey house, extended a barn and built a riding school in breach of covenants with the plaintiff. In answer to the plaintiff's action for breach of covenant, the defendant argued that the plaintiff had acquiesced in the work and that, as a result, he was entitled to no remedy at all (whether an injunction or damages); alternatively, that the acquiescence meant that he was entitled only to damages.

The Court of Appeal held that the plaintiff had acquiesced in the work to the bungalow and the barn, by making no complaint until three years afterwards. His claim for an injunction and damages therefore failed altogether. In relation to the riding school, the plaintiff had complained promptly. However, he had made no application for an interim injunction. The Court of Appeal found that this was an important factor to be taken into account in deciding whether a mandatory injunction to demolish the building should be granted at trial. It held that, as a general rule, someone who, with the knowledge that he has enforceable rights and the ability to enforce them, stands by whilst a permanent and substantial structure is unlawfully erected, ought not to be granted an injunction to have it pulled down. The Court of Appeal thought, in this case, that the failure to apply for an interim injunction might not have been enough, but a further factor tipped the balance in favour of the award of damages. That factor was that the claimant had agreed in correspondence that he was prepared to accept a cash settlement. Together with the fact that an injunction would be oppressive to the defendant, this was sufficient to mean that the plaintiff was only entitled to damages and not a mandatory injunction.

It would be unwise to assume that a failure to apply for an interim injunction will always be fatal.