Cases - Tamares (Vincent Square) Ltd v Fairpoint (Vincent Square) Ltd

Record details

Name

Tamares (Vincent Square) Ltd v Fairpoint (Vincent Square) Ltd

Date

[2007]

Citation

EWHC 212 (Ch)

Keywords

Rights to light - interference - damages in substitution for injunction - whether damages should be assessed on the basis of a hypothetical negotiation - easements

Summary

The defendant developed a building on land adjacent to an office building owned by the claimant. The claimant succeeded in a claim against the defendant for interference with its right to light. The court refused to award a mandatory injunction requiring the demolition of the development but ordered damages in lieu. There was a further hearing to assess damages at which it was accepted that damages should be the greater of:

• damages for loss of amenity to the claimant; and
• damages to compensate for loss of the ability to obtain an injunction.

Damages for loss of amenity would be very small and could not be greater than the measure of damages in lieu of an injunction. As to that the judge derived the following principles from the relevant case law:

• the overall principle is that the court must attempt to find what would be a ‘fair’ result of a hypothetical negotiation between the parties;
• the context, including the nature and seriousness of the breach, must be kept in mind;
• the right to prevent a development (or part) gives the owner of the right a significant bargaining position;
• the owner of the right with such a bargaining position will normally be expected to receive some part of the likely profit from the development (or relevant part);
• if there is no evidence of the likely size of the profit, the court can do its best by awarding a suitable multiple of the damages for loss of amenity;
• if there is evidence of the likely size of the profit, the court should normally award a sum that takes into account a fair percentage of the profit;
• the size of the award should not, in any event, be so large that the development (or relevant part) would not have taken place had such a sum been payable;
• after arriving at a figure that takes into account all of the above and any other relevant factors, the court needs to consider whether the ‘deal feels right’.

Damages for infringement of a right to light will usually be negotiating basis compensating the injured party for past and future infringement.

The case sets out a helpful recent statement of the relevant principles to apply in calculating damages in lieu of an injunction. It also highlights the frequent advantages of a claim for negotiating damages rather than damages for loss of amenity. There is a practical element In considering the sum of negotiating damages likely to be awarded. In addition to the more objective criteria the figure arrived at must ‘feel right’.

Negotiating damages are usually assessed at the date of breach but that is not an absolute rule as it depends on all the circumstances of the case. So, for example, where there have been actual negotiations between the parties prior to the breach the sums negotiated could be taken into account in assessing quantum.