Forsyth-Grant v Allen & Anor

In a nuisance claim for infringement of rights of light, the ordinary remedy is compensatory damages, measured by the claimant’s loss or, where appropriate, the cost of reasonable remedial works. A user-principle or hypothetical-bargain award may sometimes be available, but it remains damages. It reflects a reasonable price for relaxing the right, not the defendant’s whole development profit. An account of profits is a distinct equitable remedy, generally associated with fiduciary or quasi-fiduciary obligations and certain proprietary-right infringements. It is not generally available as of course for nuisance. The court left open whether particular circumstances might justify restitutionary relief in a future nuisance case, but held that this case did not. The claimant had refused an opportunity to negotiate and had suffered a real, calculable loss.

The claimant, owner of the Hotel Picardie, appealed from a Southampton County Court judgment arising from the construction of two houses on adjoining land. The claims concerned trespass, nuisance caused by infringement of rights of light, an account of the defendants’ profits, and the removal of steps partly constructed on the claimant’s land.

The judge awarded £5 for trespass and £1,848.63 for the rights-of-light nuisance. He rejected an account of profits, refused injunctive relief, and held that proprietary estoppel prevented removal of the steps. The appeal concerned the availability of an account of profits for nuisance, the consequential profit calculation, and the judge’s jurisdiction concerning the steps.

Patten J gave the leading judgment. Toulson LJ agreed with the dismissal of the appeal, giving additional reasons on restitutionary relief. Mummery LJ agreed with Patten J.

1. Account of profits. The appeal was dismissed. An account of profits is distinct from damages. It requires disgorgement of the profits attributable to the wrong, whereas profit-based damages award only a reasonable sum for use of the claimant’s property or relaxation of the claimant’s rights.
2. Remedy for nuisance. Infringement of a right to light is nuisance. The ordinary remedy is compensatory damages, measured by the loss required to place the claimant in the position she would have occupied had the nuisance not occurred. In an appropriate case, damages may be assessed by the user principle or a hypothetical bargain. That does not convert the award into an account of profits.
3. Application to this case. The claimant had refused the defendants’ opportunity to negotiate and had prevented access needed to assess the light loss. On the judge’s findings, the defendants would probably have designed the property so as to avoid the infringement had the claimant co-operated. Toulson LJ held that justice did not require more than the claimant’s real and calculable loss. The court rejected the proposition that restitutionary relief was generally available as of course in nuisance. It left open whether particular features of a future case might justify such relief, but this was not such a case. Attorney General v Blake supported, at least, the exceptional nature of an account of profits.
4. Steps and estoppel. The judge had not made an injunction restraining the claimant from removing the steps, so there was no injunction order to appeal. In any event, proprietary estoppel could establish the rights necessary to give effect to conduct which the claimant had agreed to or encouraged, including an irrevocable licence or other proprietary right.
5. Other applications. Permission to appeal on costs was refused. The application to adduce further evidence and amend the Notice of Appeal was refused. Order: application refused; appeal dismissed.

• Court of Appeal (Civil Division): appeal dismissed; application refused. [2008] EWCA Civ 505
• Southampton County Court: HHJ Harvey-Clark QC awarded damages for trespass and nuisance, rejected an account of profits, refused injunctive relief, and held that proprietary estoppel applied.