Mortimer & Anor v Bailey & Anor

Delay in seeking an interim injunction is a relevant factor when deciding whether to grant a final mandatory injunction, but it does not generally bar relief. The court must exercise its discretion on the facts of the particular case. A party who knowingly builds in breach of a restrictive covenant cannot ordinarily rely on the risk that the claimant chose to proceed to trial rather than seek interlocutory relief. The distinction between interim and final injunctions remains important. Where the claimant has promptly objected, has not accepted damages as an adequate remedy, and the defendant proceeded with knowledge of the covenant and objection, the delay may not make it oppressive or unconscionable to order removal of the offending structure.

The defendants appealed from an order of His Honour Judge Bowers in the Teesside County Court. The judge found that the defendants had built a single-storey extension in breach of a covenant requiring the claimants’ prior written approval, and that the claimants’ refusal to approve the development was reasonable.

He granted a mandatory injunction requiring demolition or alteration of the extension so that it no longer affected the free flow of light or caused loss in value to the claimants’ house. An interim injunction had earlier been refused because damages appeared to be an adequate remedy, with delay also mentioned. The central issue was whether the claimants’ delay in seeking interim relief justified withholding the final mandatory injunction.

1. Appeal dismissed. The mandatory injunction was upheld, with costs assessed summarily at £8,000 and compliance required within four months.
2. The discretion to grant a final mandatory injunction for breach of a restrictive covenant must remain adaptable to the facts of the particular case. Delay in applying for an interim injunction is relevant, but it is not an automatic bar to final relief. A claimant may reasonably choose to proceed to trial rather than incur the risks of satisfying the American Cyanamid test and giving an undertaking in damages.
3. Gafford v Graham was distinguishable. In that case the claimant had been willing to accept damages in settlement. Here, the claimants had never indicated that damages would be sufficient. The discretion to grant an injunction or damages in lieu remains adaptable to the facts of each case, as explained in Jaggard v Sawyer.
4. The claimants had objected shortly after construction began, while completion was still about two months away, and had warned that proceedings would follow if the work continued. Their conduct was not unconscionable. The defendants knew of the covenant, chose to proceed on legal advice, and took the risk that the refusal of consent was unreasonable. They lost that gamble.
5. The refusal of the interim injunction did not determine whether a final mandatory injunction should be granted. The considerations governing interim and final injunctions were different, and Judge Armstrong’s comments on delay were obiter. The trial judge was entitled to conclude that a mandatory injunction was just and proper and was not required to reconsider his judgment because Gafford was raised only after judgment had been handed down.

• Court of Appeal (Civil Division): [2004] EWCA Civ 1514. Appeal from the order of His Honour Judge Bowers dated 12 December 2003. Appeal dismissed with costs; the mandatory injunction was to be carried out within four months.
• Teesside County Court: Judgment for the claimants on the breach of covenant claim. A mandatory injunction required demolition or alteration of the extension.
• Interim application: His Honour Judge Armstrong refused an interim injunction on 7 August 2003, applying American Cyanamid and considering damages adequate; his comments on delay were later treated as obiter.