Jaggard v Sawyer

A claimant who establishes a proprietary right and its threatened or continuing infringement is prima facie entitled to an injunction. The court may nevertheless award damages in substitution under section 50 of the Supreme Court Act 1981.

The relevant working rule asks whether the injury is small, measurable in money, adequately compensable by a small payment, and whether an injunction would be oppressive. Oppression is assessed in all the circumstances at the hearing. It is not a general balance of convenience test.

Substitute damages may compensate once and for all for future wrongs. They may be measured by the reasonable price for releasing the affected right, without assuming either an eager seller or a ransom demand. That measure is compensatory rather than restitutionary.

The plaintiff owned part of the roadway in a private residential avenue and held the benefit of a restrictive covenant affecting neighbouring land. The defendants built a new house and proposed to reach it through land subject to the covenant and over the private road. The County Court found that this involved a continuing trespass and breach of covenant.

Judge Jack QC nevertheless refused prohibitory injunctions and awarded the plaintiff £694.44, with interest, as her share of the reasonable price for a right of way and release of the covenant. His decision was reported at [1993] 1 EGLR 197.

The plaintiff appealed. The central questions were when damages may be awarded instead of an injunction and how those damages should be assessed.

1. Appeal dismissed unanimously. Sir Thomas Bingham MR delivered the leading judgment. Kennedy LJ agreed. Millett LJ agreed in a separate judgment. The County Court was entitled to refuse injunctions and award damages instead.

2. A claimant who proves a legal right and an actual or threatened infringement is prima facie entitled to an injunction. The discretion to permit an infringement to continue must be exercised cautiously. The working rule in Shelfer v City of London Electric Lighting Co Ltd [1895] 1 ChD 287 identifies four relevant requirements: the injury is small; it is measurable in money; a small payment can compensate it adequately; and an injunction would be oppressive.

3. All four requirements were satisfied. The additional traffic and maintenance burden were minimal, and neither the driveway nor the new house materially affected the plaintiff's amenity or property value. The reasonable value of the affected rights could be assessed in money and would provide adequate compensation.

4. Oppression must be assessed as circumstances stand at the hearing. The court must not substitute a general balance of convenience test. It may consider a completed development, the practical effect of rendering a house landlocked, the parties' conduct, the availability of earlier interlocutory proceedings, and whether the defendant acted in calculated disregard of known rights. The judge was entitled to find that an injunction would cause substantial inconvenience and loss without giving the plaintiff a practical benefit.

5. Damages awarded under section 50 of the Supreme Court Act 1981, derived from section 2 of the Chancery Amendment Act 1858, may compensate for future as well as past wrongs. An award in substitution for an injunction may therefore be made once and for all. Further proceedings for conduct already compensated would not be maintainable.

6. The compensatory measure adopted in Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 was applicable. The court may award the reasonable price which would have been demanded for release of the right. The claimant is not treated as eager to sell, but cannot demand a ransom price. Expected profits may inform the hypothetical bargain without converting the award into restitutionary relief.

7. Millett LJ added that jurisdiction depends on whether the court could have granted an injunction when proceedings began, whereas the choice of remedy is made by reference to circumstances at the hearing. He also explained that statements equating common-law and equitable measures of damages do not exclude compensation for future trespasses or continuing breaches, for which common law supplies no equivalent remedy.

1. Court of Appeal: The plaintiff's appeal was dismissed unanimously. The refusal of injunctions and the award of damages were upheld.

2. Weymouth County Court: Judge Jack QC refused injunctions restraining continuing trespass and breach of covenant. He awarded the plaintiff £694.44, with interest, as her share of the reasonable price for the affected rights. The judgment was reported at [1993] 1 EGLR 197.