#6623 - Radford V. De Froberville - Commercial Remedies BCL

Radford v. De Froberville

Facts

The plaintiff, Brigadier Radford, lives in Dorset but is the owner of a substantial house in London at 89, Holland Park. This is divided into six flats which, at all material times, were let to tenants holding under leases for terms varying between four and six years. The house had, for a London house, a large garden which had the unusual and advantageous feature that, on the south-east side, it contained an area of about 23 feet in width by about 140 feet in depth which was unbuilt on and which fronted on the highway. It was, therefore, ideally suited for development as a building site and I will refer to it as “the plot”.

In 1965 the plaintiff had some plans prepared for a new house to be erected on the plot and obtained a planning permission to that end. He then offered it for sale and it was bought by the defendant for a price of 6,500 and on terms that she was going to build the proposed house. The sale was completed by a transfer dated December 10, 1965, in which the defendant covenanted with the plaintiff (inter alia) that once a wall had been erected to divide the plot from the plaintiff's land she would thereafter maintain it in good and substantial repair.

It is the fourth of those covenants that has given rise to the question which I am called on to decide. It is quite an elaborate covenant, which specifies in some detail what has to be done and I had, I think, better read it in full:

“That the purchaser shall forthwith erect on the said land a brick wall separating the said land from the remainder of the garden of no. 89 Holland Park the said wall to be of a minimum height of seven feet above ground level and to be of a minimum thickness of…”

Transfer to third party: the defendant notified the plaintiff that she was not able to carry out the development and that she had contracted to sell the plot (as she was now able to do as a result of the concessionary abrogation of the plaintiff's right of pre-emption). That sale was completed by a transfer to a Miss Lange, the third party, dated January 15, 1969, at a very considerable advance in price and Miss Lange was registered as the proprietor of the plot on February 6, 1969. In the transfer to her, Miss Lange covenanted with the defendant — but by way of indemnity only — to observe and perform the covenants in the transfer to the defendant and in the two supplementary agreements, so far as they were still subsisting and capable of taking effect.

A defence was served admitting all the allegations, except that any damage had been sustained. After an amendment of the statement of claim on February 4, 1975, to claim specifically damages for the non-erection of the dividing wall between the plot and the plaintiff's property, judgment was entered for the plaintiff on the admissions in the defence on February 28, 1975.

Holding

The first question for the court was whether the claimant was entitled to the cost of erecting the wall himself or whether he was merely entitled to the decrease in the market value of his land as a consequence of the defendant not performing the covenant to erect the wall. On this question, the court held:

In the circumstances of this case, therefore, the correct measure of damages is, in my judgment, the cost to the plaintiff of carrying out the work on his own land.

Date of assessment of damages

In Wroth v. Tyler [1974] Ch. 30, damages under Lord Cairns' Act were assessed at the date of the hearing but the position with regard to damages at common law was left open. It is sometimes said that the ordinary rule is that damages for breach of contract fall to be assessed at the date of the breach. That, however, is not a universal principle and the rationale behind it appears to me to lie in the inquiry — at what date could the plaintiff reasonably have been expected to mitigate the damages by seeking an alternative to performance of the contractual obligation? In contracts for the sale of goods, for instance, where there is an available market, the date of non-delivery is generally the appropriate date because it is open to the plaintiff to mitigate by going into the market immediately. Where there is no readily available market a later date may be appropriate (see, for instance, Lesters Leather & Skin Co. Ltd. v. Home & Overseas Brokers Ltd. 64 T.L.R. 569, already referred to). Again, in the case of damages for tort, there may be special circumstances justifying the plaintiff in rejecting the earlier and readily available mitigation: see Moore v. DER Ltd. [1971] 1 W.L.R. 1476. In the instant case, I have to remember that I am strictly concerned only with the position between the plaintiff and the defendant and not in the position between the defendant and the third party. The sale by the defendant was a clear anticipatory breach but the plaintiff was clearly entitled to wait until the final date for performance in January 1970 to see whether she would procure the performance of her obligation. The real question is, how much longer was he justified in waiting?

Wroth. v. Tyler establishes that, at least where damages are awarded in lieu of specific performance, an appropriate date of assessment may be the date of judgment, but if the function of an award is to put the...