ACTION No.517 OF 1997

APPEARANCES:
Mr. Oscar Sabido, S. C. for the Plaintiff
Mr. Elrington, S.C. for the Defendant

JUDGMENT

1. I heard submissions from Mr. Sabido and Mr. Elrington on i3 April 2000 on the question of remedies in this case following my judgment on liability dated 5 April, 2000 which was delivered in writing to the parties.

2. Mr. Elrington for the Defendant submits that I should not grant an Injunction or declaration in this case as a matter of discretion but that I should order damages to be paid on the basis of an assessment of the value of the land by a valuer appointed by the parties or the Registrar as was ordered by Sir George Brown in a matter of discretion but that I should order damages to be paid on the basis of an assessment of the value of the land by a valuer appointed by the parties or the Registrar as was ordered by Sir George Brown in a recent Belizean Case, Moody V. Jones (1 63194).

3. Mr. Sabido for the Plaintiffs says that it would be inappropriate to make such an order here because the 13 -foot strip is now quite valuable and the Plaintiffs cannot be compensated with a small money payment and because It would not be oppressive to the Defendant if she had to remove the fence, which can be done quite easily. In Moody v. Jones Sir George Brown ordered that damages be paid rather than an injunction granted in a case where, as far as I can judge, the land in question was of significant value, but it is true that in that case the judge found that there would have been a large degree of hardship for Ms. Jones in having to remove herself from a long-established residence. Nothing like that applies here and I would not therefore refuse an injunction on the ground of oppression to the Defendants. Nor would I refuse an injunction on the basis that the Plaintiffs have not come to equity with clean hands.

4. Nevertheless, I believe I still have a wide discretion not to grant an injunction but to grant damages instead in circumstances where the Plaintiff has to some degree acquiesced in the invasion of his legal rights (see, eg, Sayers v. Collyer (1884) 28 Ch.D 103). Given the views I have already expressed in paragraph 11 of my earlier judgment, I would propose to refuse an injunction (and a declaration) as a matter of discretion on the grounds there indicated and to order the payment of damages in lieu. The logical basis of assessment is the price that the Defendant would have had to pay for acquiring the legal right as at the date of the invasion of the right (see cases referred to at Halsbury's Laws Vol.24, Paragraph 941). I shall therefore order that an assessment of the value of the 13-foot strip as at 1991 be made by a valuer appointed by the panics or the Registrar and that the value be paid by the Defendant to the Plaintiff. In all the circumstances, it would not be appropriate for any interest to be paid on that award save in so far as there is delay caused by the Defendant hereafter.

Shanks, J.

Dated this 19th day of April, 2000