top of page

RIGHTS OF LIGHT:
INTERIM INJUNCTION REFUSED

In Handston Investments Limited v Abry Group Limited, the judge dismissed an application for an interim injunction to stop a developer's building works even though the new building would cause an interference based upon the traditional Waldram method for analysing rights of light, the neighbour had been prepared to give a cross-undertaking in damages and the developer was not prepared to stop work. 

  • Abry Group were building a four-storey social housing scheme in Poole, Dorset which would cause a rights of light injury to the neighbouring office building owned by Handston Investments an investor/owner. 

  • The rights of light analysis using the Waldram method showed losses to the ground and first floor of Handston’s building of 309 sq ft. 

  • Handston demanded that Abry give an undertaking to stop their building work. Abry refused. Handston applied for an interim injunction together with a cross-undertaking in damages; by the time the case was heard Abry’s building works had extended to 1st floor level.

  • Abry argued that the correct approach was to follow the American Cyanamid principles for how courts should deal with the grant of interim injunctions. These are:
     

    1. It is not the courts’ role to consider conflicting evidence in respect of an interim application. This is a matter for trial.
       

    2. All that was necessary at this stage was that the claimant should show that there is a real issue to be tried. 
       

    3. The court should consider whether damages were an adequate remedy for a claimant if an injunction was not granted. If so, an injunction would not be available.
       

    4. If damages were not an adequate remedy, the court should then ask whether the claimant would be able to give an undertaking in damages to the defendant.
       

    5. If it was considered that there was any difficulty regarding the availability of damages on either side, the court should consider the balance of convenience between the parties.
       

    6. If these factors were evenly balanced, the court should consider maintaining the status quo.

  • Abry's view was that damages would be a suitable remedy for Handston if it was successful in being granted a permanent injunction at trial and therefore an interim injunction should not be granted. This was largely because Handston is an investor and their interest was purely financial. The judge noted the judgement of Peter Smith J in the Midtown case where he stated 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’.

  • Abry argued that the injustice to them of an interim injunction being granted balanced the impact on Handston as an interim injunction would result in delay costs to them of circa £40,000 per week. As a housing association which provides homes for those in need, money would not be an adequate compensation for the delay to Abry's intention to use the flats to provide homes for families. 

  • The judge declined to make an interim injunction finding that the claimant would be adequately compensated by damages at trial. 

This case is a good example of needing to treat each matter individually and on its merits. The fact that the development was clearly for public benefit and the claimant is an investor whose interests are, by definition, largely financial, means that there were sound ethical grounds for the judge's decision. This does not mean that an interim injunction would not be granted in other cases concerning entirely commercial interests but does provide a useful guide.

Our thanks go to Kevin Lee and Janine Cheema of Hill Dickinson who represented Abry and were kind enough to send us their update on this case which we have cribbed for this bulletin.

© 2023 Consil Limited

bottom of page