Regan v Paul Properties Ltd and others: CA 26 Oct 2006

The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a mandatory injunction should be granted requiring part of a building in the course of construction to be pulled down. ‘
The court rejected the trial judge’s view that, where the defendant’s building interfered with the claimant’s right to light, the onus was on the claimant to show that damages were not an adequate remedy.
Mummery LJ said: ‘Shelfer is the best known case. It is a decision of the Court of Appeal. It has never been overruled and it is binding on this court. The cause of action was nuisance, as in this case, though in the form of noise and vibration rather than interference with a right of light.
36 Shelfer has, for over a century, been the leading case on the power of the court to award damages instead of an injunction. It is authority for the following propositions which I derive from the judgments of Lord Halsbury and Lindley and A L Smith LJJ. (1) A claimant is prima facie entitled to an injunction against a person committing a wrongful act, such as continuing nuisance, which invades the claimant’s legal right. (2) The wrongdoer is not entitled to ask the court to sanction his wrongdoing by purchasing the claimant’s rights on payment of damages assessed by the court. (3) The court has jurisdiction to award damages instead of an injunction, even in cases of a continuing nuisance; but the jurisdiction does not mean that the court is ‘a tribunal for legalising wrongful acts’ by a defendant, who is able and willing to pay damages: per Lindley LJ at pp 315 and 316. (4) The judicial discretion to award damages in lieu should pay attention to well settled principles and should not be exercised to deprive a claimant of his prima facie right ‘except under very special circumstances’: per Lindley LJ at pp 315 and 316. (5) Although it is not possible to specify all the circumstances relevant to the exercise of the discretion or to lay down rules for its exercise, the judgments indicated that it was relevant to consider the following factors: whether the injury to the claimant’s legal rights was small; whether it could be adequately compensated by a small money payment; whether it would be oppressive to grant an injunction; whether the claimant had shown that he only wanted money; whether the conduct of the claimant rendered it unjust to grant him more than pecuniary relief; and whether there were any other circumstances which justified the refusal of an injunction: see A L Smith at pp 322 and 323, and Lindley LJ at p 317.
In my judgment, none of the above propositions has been overruled by later decisions of any higher court or of this court.’

Mummery, Tuckey, Wilson LJJ
[2007] Ch 135, [2006] EWCA Civ 1391, [2007] 4 All ER 48
England and Wales
Appeal fromRegan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
CitedShelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .

Cited by:
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
CitedHKRUK II (CHC) Ltd v Heaney ChD 3-Sep-2010
The claimant sought a declaration that its property was free of a suggested right of light in favour of its neighbour . .

Lists of cited by and citing cases may be incomplete.

Land, Nuisance, Litigation Practice

Leading Case

Updated: 01 November 2021; Ref: scu.270197