Earlier this summer, on the hottest July day on record, a Chancery judge took a trip to the seaside, writes Sue Lindsey.
It was not a recreational outing, but a visit to the Brighton home of Mr Regan, who was asking for an injunction to stop the development opposite from blocking his daylight. Perhaps unsurprisingly, the judge found that morning sun shining into Mr Regan's east-facing living room window was 'very bright'.
But his judgment (Regan v Paul Properties Ltd (Judgment 27.07.06)) clearly sets out the technical methods used in such cases over the last 80 years or so that mean we do not have to rely on such subjective assessments. The barristers who appeared for Mr Regan and for the developer, Paul Properties, are joint authors of Rights of Light, The Modern Law.
Doubtless their expertise was an important contributing factor to a judgment that is a useful read for anyone interested in rights of light.
Paul Properties said there was no actionable interference.
They did not challenge the technical assessment of what is adequate light, but they did call into question what is known as 'the 50:50 rule'.
This rule of thumb is that when an interference reduces the adequately lit area of a room to less than 50 per cent of its oor area, that interference amounts to nuisance and is actionable.
The experts were broadly agreed that the areas of Mr Regan's living room that were adequately lit before and after the development were roughly 66 per cent and 43 per cent respectively, so Paul Properties argued that the 50:50 rule is not a generally applicable principle.
The judge traced the emergence of the 50:50 rule through a line of cases dating back to 1904, including a 1935 case in which it was referred to, rather charmingly, as 'the so-called grumble line'. He concluded that although the 50:50 rule is not a rule of law, and so need not be followed in extraordinary circumstances, it is a very useful guide that will apply to the majority of cases of light infringement, in particular to living rooms in dwellings. So, against the protestations of the defendant, the judge looked at the statistics of the adequately lit area and concluded that there was an actionable nuisance. In reaching that conclusion he also took into account that it was the centre of the room that suffered from reduced light.
To read, or do similar tasks, the Regans would be obliged to either switch on the light or move towards the window, with a consequential loss of privacy.
But, sadly for Mr Regan, the judge declined to grant him an injunction, awarding damages instead. Of the numerous rights of light cases cited to the judge, in only two of them had injunctions been granted - the rather extreme facts of one of those being that the defendants had built a twostorey extension over a bankholiday weekend despite their own surveyor advising them that it would interfere with the claimant's light. So it seems that damages are now the norm in such cases, and the onus is on a claimant to persuade the court that he should not be left to a remedy in damages.
Sue Lindsey is a barrister at Crown Office Chambers in London. Visit www.crownofficechambers. com Sue Lindsey also wrote last week's legal column, which was wrongly credited to Kim Franklin