The traditional authority is Jaggard [1995] where the defendant built a new home on part of his garden (in breach of covenant). The claimant threatened to bring proceedings but did not actually seek an injunction until the building work was at an advanced stage. The CA decided it would be unduly oppressive to award an injunction, bearing in mind that the claimant could have applied at an earlier stage for an interim injunction. Accordingly, the claimant had to be satisfied with money damages only.

However, doubt has now been cast on that principle by a recent CA decision in which a neighbour started building an extension to his home, even though there was a restrictive covenant requiring him to get the consent of the adjoining landowner. The defendant had given prior notice of his intention to build the extension in February 2003, but the claimant made it clear he would not grant approval. Despite that, building works began in June 2003, with the claimant then telling the defendant that if the works did not stop he would apply to court. But, it was not until the end of July 2003 that the claimants applied for an interim injunction – which was refused because the extension was, by then, almost fully built. However, the CA took a different approach and held that the delay did not preclude a mandatory order. In the court’s view there could be good reason why a claimant would not wish to risk an interim injunction and, particularly, the risk of having to give an undertaking as to damages. Accordingly, delay was merely one of the factors to be taken into account in deciding whether a mandatory order should be made.

Perhaps the two can be distinguished because a mandatory injunction in Jaggard [1995] would have meant demolishing a whole new house, whereas in the recent case it was merely an extension? However, what is clear is that the general assumption that a covenant holder must act very speedily to enforce his legal rights (by actually applying for an interim injunction) is not correct – any delay in going to court is merely one of the factors to be taken into account. But, what does seem to be quite clear is that the onus is now squarely on the defendant to have the enforceability of any relevant restrictive covenant determined by the court before he embarks upon his building works. If he goes ahead and ignores the claimant’s prompt objection to the building works, then there is the real risk of a mandatory injunction, even if no interlocutory application is made, unless the defendant can then convince the court that to grant an injunction against him would be ‘oppressive and disproportionate’. As such, the balance of power in these disputes would now seem to have shifted to the restrictive covenant holder. See note on Mortimer v Bailey [2004] All ER (D) 436 in [2004] NLJ 1896. © Practical Lawyer