What is interesting about this case is that the defendant then applied for summary judgment (a method of disposing of a claim summarily without having a trial) on the grounds that the claimant had no realistic prospect of obtaining a final injunction. The defendant referenced a right to light deed between the claimant tenant and its current and previous landlords (to which the defendant was not a party) setting out who, between them, would be entitled to negotiate a settlement/receive any settlement payment as a consequence of certain right to light infringements relating to the defendant’s building. The defendant argued that this deed was clear proof that the claim against it was about money and not the enforcement of the claimant’s right to light, and that, consequently, there was no realistic prospect of the claimant obtaining a final injunction if the matter went to trial.
The defendant’s summary judgment application did not succeed. The court held that the right to light deed, on consideration of its terms, did not did disentitle the tenant from seeking a final injunction. The claimant therefore had a right to pursue the matter to trial.
Although the specific terms of the right to light deed did not assist here, the case does reinforce the importance of carrying out due diligence on neighbouring properties when developing, to identify key deeds or documents that might in other circumstances stop an injunction claim at an early stage.
If you wish to discuss rights to light further, contact Carly Curtis at email@example.com