Ottercroft Ltd – v – Scandia Care Ltd; Ottercroft Ltd – v – Rahimian
In this recent case, which should act as a reminder to developers not to act in a heavy handed manner, the Court of Appeal unanimously upheld an injunction awarded at first instance requiring the removal of the offending staircase rather than awarding damages.
This may seem a strange result in light of the decision of the Supreme Court in Lawrence and another – v – Coventry which made it clear that injunctions should not be awarded automatically and where it was agreed between the parties that the value of the loss of light for the claimant was “minor” (amounting to £886). However the judge was highly critical of the developer’s conduct and it was this which swayed the decision.
The claim related to a development of a café with residential flats above including a fire escape which was the cause of the infringement of the right to light. The defendants (a company and one director of that company) had commenced the works without notice to the claimant as required by the Party Wall etc Act 1996 and then continued to build despite proceedings by the claimant to restrain the works. The defendants gave undertakings in relation to those proceedings which they breached by progressing the works.
The judge at first instance granted an injunction despite finding that the infringement was minor, no significant damage had occurred, and that the damage could be measured in money. He held that the breach of undertakings was an overwhelming reason to grant the injunction despite failing these usual tests for an award in damages.
The Court of Appeal held that the judge at first instance was right to consider the defendants conduct and to award an injunction even where damages could be an adequate remedy. Expert evidence indicated that there was a feasible alternative scheme which would have overcome the infringement at minimal (likely to be less than £6,000) cost to the defendants and as such the injunction was not oppressive to them.
Clearly the judgment in this instance, as is often the case, is highly fact specific and as such it should not be read as blocking the clear direction of travel of the Supreme Court in relation to the granting of injunctions in such situations.
However developers would be wise to be mindful that their conduct will be scrutinised and taken into account as part of the Courts decision making process. Developers should endeavour to work with adjoining owners and ensure they are advised of development plans; kept informed of progress; told about relevant time-scales; and that any objections or concerns are dealt with appropriately.