What are the criteria used for deciding whether damages should be granted in lieu of an injunction? The answer is that there are four principles (set out in Shelfer [1895]). The point to appreciate is that these four hurdles are cumulative – which means that a defendant has to meet all four of them to be able to convince a court that damages should be awarded instead of an injunction: 


the injury to the claimant’s rights must be small; and


it must be capable of being estimated in money; and


it must be capable of being adequately compensated by a small money payment; and 


it would be oppressive to grant an injunction.


The principle is well illustrated by a recent right of light case involving the development of an office block by the adding of two new floors. The developer appreciated there would be a right of light problem with the neighbour but did offer compensation. No action was taken by the neighbour until the redevelopment had been completed and one of the two new floors let. At that stage, the developer sought a declaration that there was no liability for the interference with the neighbour’s rights, but the court ordered an injunction against the developer. In his view the injury was not ‘small’; damages would have been assessed at £225,000 (not a ‘small’ sum of money). That would have been sufficient for there to have been an injunction (and no award of damages) since failure to comply with one of the four criteria in Shelfer [1895] means that there is no right to pay damages instead. But, to avoid doubt, the judge also made the point that in his view the claimant would not be adequately compensated by an award of damages. 


This case has served as yet another reminder to developers of the dangers of adopting a cavalier approach when dealing with right to light neighbours. The bottom line is that an injunction will be granted unless the developer can show that all four Shelfer [1895] criteria are met. HKRUK v Heaney [2010] EWHC 2245 (Ch), noted in [2010] SJ 7 December 11.