Mortimer & Anor v Bailey & Anor [2004] EWCA Civ 1514 (29 October 2004)

Mortimer & Anor v Bailey & Anor [2004] EWCA Civ 1514 (29 October 2004)

The claimants' delay in seeking an interim injunction did not amount to acquiescence or laches; the injury to their rights was not small or adequately compensable by damages; the defendants knowingly breached the covenant and took the risk; therefore, the judge was entitled to grant a mandatory injunction requiring demolition or alteration of the extension.

Citation
[2004] EWCA Civ 1514
Parties
Claimant/respondent: Martin Mortimer; Claimant/respondent: Jocelyn Mortimer; Defendant/appellant: Colin Bailey; Defendant/appellant: Pamela Waterton-Bailey
Jurisdiction
England and Wales
Judgment Date
29 October 2004
Procedural Posture
Civil Appeal / Appeal From County Court Judgment
Outcome
Appeal dismissed
Legal Topics
Restrictive Covenants, Mandatory Injunctions, Damages in Lieu of Injunction, Delay and Interim Relief, Discretionary Remedies
Property Law Equity Restrictive Covenants Mandatory Injunctions Damages in Lieu of Injunction Delay and Interim Relief Discretionary Remedies

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Parties

Martin Mortimer

Claimant/respondent

Jocelyn Mortimer

Claimant/respondent

Colin Bailey

Defendant/appellant

Pamela Waterton-Bailey

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court Judgment

Legal Issues

  1. 1 Whether delay in seeking interim injunction should bar grant of final mandatory injunction
  2. 2 Whether damages are an adequate remedy for breach of restrictive covenant
  3. 3 Whether claimants acted unreasonably in withholding consent under covenant

Ratio Decidendi

The claimants' delay in seeking an interim injunction did not amount to acquiescence or laches; the injury to their rights was not small or adequately compensable by damages; the defendants knowingly breached the covenant and took the risk; therefore, the judge was entitled to grant a mandatory injunction requiring demolition or alteration of the extension.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs assessed summarily at £8,000
  • Mandatory injunction to be carried out within four months