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Some time ago I wrote about a rights to light case concerning a new building in Vincent Square, central London, that faces on to an open space used as playing fields by Westminster School (AJ 19.10.06), writes Sue Lindsey. The defendant's neighbouring building is on the site of the old Rochester Row Magistrates' Court and Police Station. The claimant failed to persuade the court that it had a right to light through windows in an entrance lobby that had been obscured by panelling throughout the 20-year prescription period.

However, the court did agree that the claimant's right to light through two windows lighting the basement stairs had been infringed by the defendant's new building.

Having held that damages were appropriate recompense, rather than an injunction, the judge recently saw the parties again to assess the amount of damages to be paid (Tamares v Fairpoint, 08.02.07). So how much is light worth?

The parties agreed that the correct measure of damages was either damages for the claimant's loss of amenity, or damages to compensate the claimant for the loss of the right to get an injunction - whichever proved higher. As the loss of amenity was small, the judge had to use the latter measure, but to do this the court had to answer a rather strange hypothetical question.

If, at the date of the breach, the parties had negotiated a payment from the defendant to the claimant that bought off the claimant's right to seek an injunction to preserve its right to light, what settlement would they have reached?

The judge had to decide what would have been a fair result of a negotiation between hypothetical reasonable and commercial people. Expert evidence was available as to the profit the defendant would make on the part of the development that infringed the claimant's rights. The parties could have approached their hypothetical negotiation by the claimant being paid a fair percentage of that profit, but not enough to deter the defendant from building at all.

After all, the defendant would bear the risk of the development and wish to recover a substantial proportion of the profit for taking that risk.

The judge concluded that in this particular case the hypothetical negotiators would have split the difference between the experts' profit figures, and then paid one third of the agreed profit figure to the claimant. Taking into account the limited nature of the infringement, that one-third share would have been rounded down rather than up.

The judge thus arrived at the neat sum of £50,000.

He tested this sum by asking himself the question: 'Did the deal feel right?'. The judge concluded that it did.

In reaching his decision the judge considered the limited case law, and extracted from it a list of eight principles to apply when making an assessment of damages for infringement of a right to light.

This list is likely to be of interest to anyone actually engaging in a real negotiation, as well as those reconstructing one after the event. The full judgement containig this list can be seen at www. bailii. org (case citation [2007] EWHC 212 Ch).

Sue Lindsey is a barrister at Crown Office Chambers in London. Visit www. crownofficechambers.


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