MANDATORY INJUNCTION GRANTED TO PULL DOWN EXTENSION

Mortimer v Bailey [2004] EWCA Civ 1514

In Mortimer v Bailey [2004] EWCA Civ 1514, 29 October 2004, the Court of Appeal held that Judge Bowers had been entitled to grant to the claimants a mandatory injunction requiring the defendants to demolish an extension which had been built in breach of covenant or to alter the extension so as to prevent it affecting the free flow of light to the claimants’ house at all times of the day and to prevent any loss in value of that house. In sweeping aside the defendants’ objection that the claimants had been guilty of delay in seeking an interim injunction, the Court of Appeal put the onus on the party carrying out the works in breach of covenant to take steps in cases of doubt to clarify the position before commencing the works or continuing with them. A defendant who knows that there is doubt as to his or her entitlement to proceed with building works but decides to press on regardless is taking a gamble and, as the present case illustrates, the courts are prepared to conclude, in an appropriate case, that the gamble was a losing one and that the claimant is entitled to a mandatory injunction.