Published: Fri, 12 Oct 2018
Jaggard v Sawyer  1 W.LR. 269
LAND LAW – BREACH OF RESTRICTIVE COVENANT – REMEDY
The defendant was subject to a restrictive covenant requiring them to leave a private road clear for use. They breached this covenant by building a house and beginning to build access to that house partially on the road. The claimant sought an injunction for the cessation of the construction work and to bar the occupiers of the new house from using the road. The judge at first instance granted damages in lieu of an injunction.
The case of Shelfer v City of London Electric Lightingheld that damages in lieu of an injunction should be granted if four conditions are satisfied: the damage to the claimant is small, is capable of monetary valuation, can be compensated by a small money-payment, and it would be oppressive to impose an injunction on the defendant. This is sometimes referred to as the ‘working rule’.
The issue in this case was whether the working rule was satisfied and the meaning of ‘oppressive’.
The Court of Appeal upheld the grant of damages in lieu of an injunction.
The Court stressed that injunctions should be the normal remedy in a restrictive covenant case unless the four conditions are made out. They noted that the evaluation of whether an injunction would be oppressive to the defendant should not slip into a ‘balance of convenience’ style test: it is a higher threshold. Relevant factors to consider when evaluating the oppressiveness of an injunction include whether the claimant could have sought an injunction at an earlier, more convenient stage and whether the defendant acted with blatant and calculated disregard for the claimant’s rights.
In this case, all four conditions of the working rule were deemed to have been met.
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