Christopher Stoner QC explains why awarding damages in lieu of an injunction is the exception not the rule
That an appropriate mantra in circumstances in which a property right has been infringed is “think injunction” was emphatically reinforced by the recent decision of HHJ Langan QC sitting in the High Court in Leeds in HKRUK II (CHC) Limited v Heaney [2010] EWHC 2245 (Ch), [2010] All ER (D) 101 (Sep).
If faced with an actual or a potential infringement of a proprietary right, the starting point, aside from s 50 of the Senior Courts Act 1981 which confirms that the court has a discretionary jurisdiction to award damages in substitution of an injunction, is Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 which for over a century has stood as the leading authority on the power of the court to award damages in lieu.
Famously AL Smith LJ, stated what he described as a “good working rule” to determine whether damages in lieu are appropriate, namely “(1) If the injury to the plaintiff’s legal rights is small; (2) And
