The true cost of trespass

November 1st, 2010 by Mark Withers

The blog “Trespass – how much might it cost” posted on 31 August 2010 highlighted that, in the vast majority of cases, damages awarded in cases concerning an act of trespass will reflect the sum which would have been paid for the use in question had it been negotiated.

An example of just how exceptional the circumstances need to be before the Court will award damages as a means of expressing disapproval of the conduct of the defendant (rather than seeking to merely compensate the claimant) has come in the case of Ramzan v Brookwide Limited.  The trespass in question involved the misappropriation of a storeroom and entailed demolishing a wall to gain access to the room and bricking up an existing doorway to exclude the lawful owner.  The High Court described the conduct of the defendant as “one of the worst examples of its kind”.  Punitive damages of £60,000 were awarded (being almost 15% of a total award of £428,812.29).

The circumstances of this case were extreme but the issues it gives rise to (having a clear understanding of a property’s extent) are commonly encountered.

Without an understanding of the location of the boundaries and the rights which benefit a property, there can be no certainty that a planning consent can be implemented or that a property can be used without a “ransom” situation arising. The other side of the coin, as emphasised by the Ramzan case, is that trespassing either knowingly, recklessly or in a manner which disregards the known property interests of others, may result in an award of both penal damages and compensation in favour of the injured party.

If you require any further information or wish to discuss any of the issues raised by this blog, please email mark.withers@parissmith.co.uk

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Trespass – How Much Might It Cost?

August 31st, 2010 by Mark Withers

Damages for trespass are generally calculated on a compensatory basis. The party bringing the claim is therefore entitled to recover damages only for loss actually suffered.

The law has for some while recognised that in certain instances this approach won’t produce an equitable outcome. In these cases damages are measured by reference to the benefit which the trespasser has gained by the use of the land in question.

In the recent case of Stadium Capital Holdings -v- St Marylebone Property Company the High Court appeared to have extended this exception by awarding damages equating to the total income earned by the defendant from unlawfully erecting a hoarding in air space over land owned by the claimant. The Court of Appeal has now decided that awarding such a high level of damages, without appropriate evidence, was wrong . The proper approach will ordinarily be to award damages equating to the “hypothetical licence fee” i.e. the amount the parties would have negotiated as a reasonable licence fee in order to permit the relevant activity.

A party accused of trespass should keep an eye on its potential liability, bearing in mind the comments made by the Court of Appeal, that where appropriate evidence is submitted, a higher level of damages than was ultimately awarded in the Stadium Capital Holdings case might be appropriate. A party considering pursuing an action for trespass will be well advised to gather as much “appropriate” evidence before bringing a claim.

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