Regan v Paul Properties Ltd & Ors

A claimant whose legal right is invaded by a continuing nuisance is prima facie entitled to an injunction. The court retains a discretion to award damages instead, but the Shelfer factors are a flexible working guide, not an exhaustive code, and there is no onus on the claimant to show why damages are inadequate. The court must assess all the circumstances, including the extent of the injury, the light left, monetary adequacy, the defendant’s loss and the parties’ conduct. A room need not be uninhabitable for the injury to be substantial. A developer who proceeds after notice, relying on incorrect advice, cannot use the resulting cost of an injunction to force the claimant to accept compensation.

This was an appeal by Dennis Regan concerning obstruction of the right to light enjoyed by his maisonette. The respondents were developing properties opposite it. The deputy judge held that the development constituted an actionable nuisance, but refused a mandatory injunction requiring part of the development to be removed. He awarded damages in substitution and ordered Mr Regan to pay half the respondents’ costs.

The appeal concerned remedy only. Mr Regan argued that the deputy judge had misdirected himself by treating damages in lieu as the normal remedy in right-to-light cases and by placing the burden on him to show why an injunction should be granted. The central issue was the proper approach to the discretion between damages and a mandatory injunction.

1. Disposition. Lord Justice Mummery gave the reasons for the court. The appeal was unanimously allowed and a mandatory injunction was granted. The parties were directed to attempt to agree its wording.
2. Applicable principles. The principles in Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 remained binding. A claimant whose legal right was invaded by a continuing nuisance was prima facie entitled to an injunction. The court had jurisdiction under section 50 of the Supreme Court Act 1981 to award damages instead, but that discretion had to be exercised according to settled principles. The Shelfer factors were a useful working rule, not an exhaustive or statutory code. They did not place an onus on the claimant to persuade the court that damages were inadequate.
3. Authorities. Colls v Home and Colonial Stores Limited [1904] AC 179 had not altered Shelfer. Lord Macnaghten’s practical observations were obiter and were not a different test. Fishenden v Higgs and Hill Limited (1935) 153 LT 128 was decided on the narrower basis that the amount of damages was not itself determinative. Pugh v Howells (1984) 48 P & CR 298 and Jaggard v Sawyer [1995] 1 WLR 269 likewise treated the factors as a working guide requiring consideration of all the circumstances.
4. Application. The reduction in adequately lit floor area from about 67% to 42–45% was not a small injury. The proper focus was the light remaining and its effect on ordinary use, not whether the room was uninhabitable. The diminution in value of the maisonette was not a small payment, and the respondents’ greater financial loss did not by itself make an injunction oppressive. Their continued construction after notice, while relying on incorrect advice, was a material circumstance. They had taken a calculated risk and had to bear its consequences.

1. Court of Appeal (Civil Division) — On 26 October 2006, in [2006] EWCA Civ 1391, unanimously allowed the appeal and granted a mandatory injunction.
2. High Court, Chancery Division — The deputy judge found an actionable nuisance but refused an injunction, awarded damages in substitution and ordered the claimant to pay half the respondents’ costs.