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Enforcing covenants

This page deals with injunctions (interim and final) and damages in cases where one party is seeking to enforce a restrictive covenant. See also damages in lieu of an injunction.


Interim injunction

Gregory v Court Royal Ltd
[2002] EWHC 936 (Ch).

The claimants failed to obtain an interim injunction to prevent building works that were allegedly in breach of a restrictive covenant. Principles in American Cyanamid applied. The balance of convenience lay in favour of refusing the injunction. C's did not discover the existence of the covenant until Ds had spent £2m on the development and the works were substantially well advanced.

Final injunction - damages in lieu

Bailey v Mortimer
[2004] EWCA Civ 1514

Final injunction granted to remove an extension built in breach of a restrictive covenant even though an interim injunction had been refused. The key dates were as follows:
  • Work on the extension started at the beginning of June 2003

  • 5 June - Neighbours wrote to the land owners demanding that the work cease and threatening legal action

  • End of July - proceedings commenced

  • 7 August - interim injunction hearing - works nearly finished

  • 14 November - trial of main action
The judge rejected an argument by the owners (based on Gafford v Graham [1999] 41 EG 159) that the final injunction should be refused because the neighbours (who had the benefit of the covenant) had stood by and allowed the works to continue. It was true that the neighbours had delayed in seeking an interim injunction until the works were well under way. However, they had warned at a very early stage that proceedings might be taken. Nevertheless the owners took the risk and carried on building the extension. Damages in lieu would not be an adequate remedy because the damage was not small. The judge had estimated them at £40,000. Jacob LJ at para 41:
    "Where there is doubt as to whether a restrictive covenant applies or whether consent under a restrictive covenant is being unreasonably w ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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