Articles

Humphrey v Rogers (2017)

15th December 2017

The Claimants had purchased a house and land from the Defendants in a rural setting. The Claimants had purchased their property in order to live in a secluded area, with few neighbours. Accordingly, they negotiated a restrictive covenant preventing the Defendants from building on the retained land without the Claimants’ licence or consent.

Despite the existence of the covenant, the Defendants twice commenced the conversion of barns into residential dwellings without consent. The Claimants sought an injunction requiring the Defendants to stop works.

At first instance, the judge held that, given the Defendants’ conduct, this was an exceptional case requiring the grant of an injunction preventing the Defendants from undertaking further building works and selling the completed residential dwellings.

The Defendants appealed the judge’s order on the basis that, given the decision in Coventry v Lawrence [2014] UKSC 13, the judge had wrongly applied and misinterpreted the test set out in Shelfer v City of London Electric Lighting Co (No.1) [1985] 1 Ch. 287 (the Shelfer principles). Had he properly considered the criteria, the judge would have granted damages in lieu of an injunction instead.

However, the decision was not overturned on appeal. It was held that the judge had properly considered both remedies, particularly the prejudice that would be caused to the Defendants if an injunction were granted, and the undesirability to both parties of leaving the works unfinished. Nevertheless, it was clear that the Claimants’ priority was to live in a rural idyll. The case for the grant of an injunction was clear; the Defendants’ conduct had been reprehensible and unneighbourly. The judge had not erred by considering the Claimants’ wealth as a factor tending towards the grant of an injunction – this was a relevant factor as the Claimants had not taken the covenant to extract money from any future development, rather they had sought to protect a quiet country life. The grant of an injunction was not oppressive to the Defendants – they had agreed to the restrictive covenant – all that they would lose was their profit from the development.

Team: Katie Gray
Expertise: Real Property

 

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