Cases - Mortimer v Bailey

Record details

Name

Mortimer v Bailey

Date

[2004]

Citation

EWCA Civ 1514

Legislation

Chancery Amendment Act 1858

Keywords

Party walls - interim injunction timing - late injunction can require removal of works - planning control - easements - rights of light

Summary

The respondents had the benefit of a restrictive covenant which provided that no alterations could be carried out on the appellants' neighbouring property without the respondents' consent, such consent not to be unreasonably withheld. The appellants informed the respondents of their intention to build an extension. The respondents refused consent on the grounds of light reduction, loss of winter sun, and loss of a view. Nevertheless, the appellants obtained planning permission and began work on the extension.

The claimant had put the defendant on notice that he would seek an injunction and set out his basis for doing so before building works commenced, but did not seek an interim injunction until a week before those works were completed.

The trial judge and then the Court of Appeal held that it was nevertheless appropriate for a final mandatory injunction (requiring an extension built in breach of a restrictive covenant to be pulled down) to be granted. The court decided that where a claimant does not seek an interim injunction, or delays in doing so, that is a factor which can be taken into account in weighing in the balance whether a final injunction should be granted, but there is no general rule that such a delay or failure should debar a claimant from seeking a final injunction.

It may, depending upon the circumstances, be entirely reasonable, having put the defendant on notice, to proceed to trial rather than seeking interim relief. In the Party Wall sphere it is quite common for expensive works to be in train when the adjoining owner wants to consider issuing proceedings for an injunction.

While it is generally preferable to seek an interim injunction as soon as possible (i.e. as soon as notifiable works undertaken without an award in place commence or are threatened), an adjoining owner is not necessarily prevented from obtaining a final injunction requiring the removal of such works by his failure to make such an interim application.

It was held that the refusal of consent to the extension was reasonable. A mandatory injunction was awarded requiring the removal of the extension, as damages would not adequately compensate the respondents for the loss of the benefit of the covenant.