In the original reserved judgment the judge found that the defendants were liable to the claimants for infringing a right to light to two windows which illuminated some stairs leading to the basement of the claimant’s building. However, the judge declined to grant an injunction and left the question of assessment of damages in lieu of an injunction to be determined.

There was no dispute between the parties that the correct measure of damages was the larger of:

  • (a) Damages for loss of amenity to the dominant owner, and
  • (b) Damages to compensate for loss of the ability to obtain an injunction. The issue was how such damages were to be assessed.