Leeds Industrial Co-operative Society Ltd v Slack
| Jurisdiction | UK Non-devolved |
| Judge | Viscount Finaly,Lord Dunedin,Lord Sumner,Lord Carson |
| Judgment Date | 30 May 1924 |
| Judgment citation (vLex) | [1924] UKHL J0530-2 |
| Date | 30 May 1924 |
| Court | House of Lords |
[1924] UKHL J0530-2
Earl of Birkenhead.
Viscount Finlay.
Lord Dunedin.
Lord Sumner.
Lord Carson.
House of Lords
After hearing Counsel, as well on Tuesday the 11th, as Thursday the 13th, Friday the 14th, Monday the 17th and Tuesday the 18th, days of March last, upon the Petition and Appeal of the Leeds Industrial Co-operative Society, Limited, whose Registered Office is at 10, Albion Street, in the City of Leeds, in the County of York, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 26th of March 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of Charles Henry Slack, lodged in answer to the said Appeal; and due consideration had as well on Friday last as this day of what was offered on either side in this Cause.
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 26th day of March 1923, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, Remitted back to the Court of Appeal, with a Declaration that there is jurisdiction to award damages, and a Direction to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
This action was brought on the 15th May 1922 by Slack, the Respondent in the present Appeal, against the Appellant Society. The claim was (1) for an injunction restraining the further erection of certain buildings by the Society so as to obstruct the Plaintiff's ancient windows in numbers 2, 3 and 4, Albion Square, Leeds; (2) for an order on the Defendants to pull down so much of the building as caused such an obstruction, and (3) for damages. The case was tried by Romer, J., who found that the Defendants' buildings when completed according to the plan would cause an actionable obstruction of the Plaintiff's lights, but that no such obstruction had yet taken place. He further said that in his opinion the interference with the Plaintiff's legal rights when the building was completed would be small and capable of being estimated in money, and that the Plaintiff could be adequately compensated by damages. He said, however, that he considered he ought to act upon the opinion expressed by the members of the Court of Appeal in ( Dreyfus v. The Peruvian Guano Company 1889, 43 Chancery Division, 383), that there was no jurisdiction to give damages in a case in which no injury had accrued, and therefore he granted an injunction restraining the Defendants from the prosecution of the building so as to cause illegal obstruction to the Plaintiff's windows.
The Court of Appeal by a majority, Lord Sterndale, M.R., and Warrington, L.J., dismissed an appeal by the Society, Younger, L.J., dissenting. The Society now appeal to your Lordships' House, asking that it may be held that the Court has jurisdiction to give damages, that the order for an injunction should be reversed and the case remitted to the Chancery Division to make the proper order under the circumstances. Your Lordships are asked on this Appeal to deal solely with the question of jurisdiction to award damages in such a case as the present.
Until Lord Cairns' Act of 1858 damages could be obtained only in a Court of Common Law. Such damages were given only in respect of a cause of action which had accrued at the date of the commencement of the action. No damages could be recovered for injury which was merely threatened, but, of course, the damages might include compensation for consequences of the injury already committed which it was proved would occur in the future.
In 1858 Lord Cairns' Act was passed (21 & 22 Vict., Cap. 27). Section 2 is as follows:—
"In all Cases in which the Court of Chancery has Jurisdiction to entertain an Application for an Injunction against a Breach of any Covenant, Contract, or Agreement, or against the Commission or Continuance of any wrongful Act, or for the specific Performance of any Covenant, Contract, or Agreement, it shall be lawful for the same Court, if it shall think fit, to award Damages to the Party injured, either in addition to or in substitution for such Injunction or specific Performance, and such Damages may be assessed in such Manner as the Court shall direct."
Learned and elaborate arguments have been addressed to your Lordships' House upon the construction of this enactment—does it empower the Court to award damages in lieu of an injunction when injury is threatened but has not yet been done?
In my opinion this question must be answered in the affirmative. The power given is to award damages to the party injured, either in addition to or in substitution for an injunction. If the damages are given in addition to the injunction they are to compensate for the injury which has been done and the injunction will prevent its continuance or repetition. But if damages are given in substitution for an injunction they must necessarily cover not only injury already sustained but also injury that would be inflicted in the future by the commission of the act threatened. If no injury has yet been sustained the damages will be solely in respect of the damage to be sustained in the future by injuries which the injunction, if granted, would have prevented.
The power conferred on a Court of Chancery by Lord Cairns' Act included power to give damages in respect of a past injury. This in itself was a useful extension of jurisdiction, as it would prevent the hardship involved by the necessity of going to another Court to get such relief. But the enactment did not stop there. In terms it gave power to substitute damages for an injunction. Such a substitution in the very nature of things involves that the damages are to deal with what would have been prevented by the injunction if granted. In the present case the building has not proceeded far enough to constitute an actionable wrong in respect of the Plaintiff's lights, and an injunction would prevent the commission of that wrong in the future. On what principle can it be said that, until there has been some interference with the Plaintiff's windows, the Court cannot give damages in lieu of an injunction against obstruction? Such a construction would impose a purely arbitrary and meaningless restriction on the relief to be given under the Act. To say that the power to give damages under Lord Cairns' Act applies only to what has already been done, would be at least logical, and this was the proposition put forward by Mr. Hughes in his most admirable argument for the Respondent, but it seems to me that it is inconsistent with the terms of the Act and that it would in practice nullify the provision that damages may be given in substitution for an injunction.
It is, however, the fact that in the case of ( Dreyfus v. The Peruvian Guano Company 1889, 43 Chancery Division, 316) an opinion was expressed by Bowen, L.J., with the concurrence of Cotton, L.J., and Fry, L.J., that Lord Cairns' Act did not confer on the Court of Chancery any jurisdiction to award damages in a case in which no wrongful act had been committed by the person against whom an injunction is sought. This view was not necessary for the conclusion at which the majority of the Court arrived, but it appears to have been carefully considered. It has always been treated, and always must be treated, with the utmost respect, but even if there had been an actual decision of the Court of Appeal it would, of course, not be binding upon your Lordships' House. It has been discussed on many occasions, and it is now your Lordships' duty to consider whether the opinion was well founded.
Attempts have been made on behalf of the Appellants in the present case to explain away what was said in Dreyfus' case. These attempts have, in my opinion, entirely failed. Whether right or wrong, what was said by Bowen, L.J., and assented to by the other members of the Court, is perfectly clear. Sir Horace Davey had asserted that though it might be assumed that there had been no tortious act in law at all, damages might be given because Lord Cairns' Act had clothed the Court of Chancery with jurisdiction to give them on a threat of injury which would give rise to the jurisdiction for injunction. Bowen, L.J., said in terms that the Act did not clothe the Court of Chancery with any such jurisdiction:
"It is true," he said, "the section applies in all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction, but the only weapon with which the Court is armed by virtue of the section is to award damages to a party injured, which must, I think, mean damages where damages have arisen, and in a case where no damages have arisen in the ordinary sense of the term as known to lawyers, I am of opinion that the Court has no power to give damages."
I am unable to take this view of the Act. It appears to me that such a view must proceed upon the basis that the power of giving damages for torts which Lord Cairns' Act confers upon the Court of Chancery was only to give damages according to the rules which had prevailed in the Courts of Common Law and in respect of wrongs...
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