Damages for trespass and nuisance during development · · 2014-10-23Damages for trespass and...
Transcript of Damages for trespass and nuisance during development · · 2014-10-23Damages for trespass and...
Damages for trespass and
nuisance during development
Damian Falkowski
Thirty Nine Essex Street
26 November 2013
What constitutes a trespass
bull Trespass to land any unjustifiable intrusion by
one person upon land in the possession of
another
bull ldquoIf the defendant place a part of his foot on the
claimants land unlawfully it is in law as much a
trespass as if he had walked half a mile on itrdquo
bull Ellis v Loftus Iron Co (1874) LR 10 C amp P 10
at 12 per Coleridge CJ
What constitutes a trespass
Even trial acts
bull placing rubbish against a neighbourrsquos wall
bull entering land below the surface by mining
or otherwise
bull growing a creeper up his wall
bull propping a ladder against his wall
Trespass to airspace
Crane - Anchor Brewhouse Developments Ltd v Berkley
House (Docklands Developments) Ltd (1987) 2 EGLR
173
bull The boom of developerrsquos crane oversailing Anchorrsquos land
amounted to trespass - injunction granted It is was not
necessary to show damage to obtain an injunction for
trespass Anchor succeeded in obtaining the injunction
they were looking for as the Court found no ldquospecial
circumstancesrdquo to prevent the injunction
Trespass v nuisance
bull Trespass direct injury - nuisance is a consequential
injury
bull Trespass actionable without proof of damage - damage
must be proved for nuisance
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
What constitutes a trespass
bull Trespass to land any unjustifiable intrusion by
one person upon land in the possession of
another
bull ldquoIf the defendant place a part of his foot on the
claimants land unlawfully it is in law as much a
trespass as if he had walked half a mile on itrdquo
bull Ellis v Loftus Iron Co (1874) LR 10 C amp P 10
at 12 per Coleridge CJ
What constitutes a trespass
Even trial acts
bull placing rubbish against a neighbourrsquos wall
bull entering land below the surface by mining
or otherwise
bull growing a creeper up his wall
bull propping a ladder against his wall
Trespass to airspace
Crane - Anchor Brewhouse Developments Ltd v Berkley
House (Docklands Developments) Ltd (1987) 2 EGLR
173
bull The boom of developerrsquos crane oversailing Anchorrsquos land
amounted to trespass - injunction granted It is was not
necessary to show damage to obtain an injunction for
trespass Anchor succeeded in obtaining the injunction
they were looking for as the Court found no ldquospecial
circumstancesrdquo to prevent the injunction
Trespass v nuisance
bull Trespass direct injury - nuisance is a consequential
injury
bull Trespass actionable without proof of damage - damage
must be proved for nuisance
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
What constitutes a trespass
Even trial acts
bull placing rubbish against a neighbourrsquos wall
bull entering land below the surface by mining
or otherwise
bull growing a creeper up his wall
bull propping a ladder against his wall
Trespass to airspace
Crane - Anchor Brewhouse Developments Ltd v Berkley
House (Docklands Developments) Ltd (1987) 2 EGLR
173
bull The boom of developerrsquos crane oversailing Anchorrsquos land
amounted to trespass - injunction granted It is was not
necessary to show damage to obtain an injunction for
trespass Anchor succeeded in obtaining the injunction
they were looking for as the Court found no ldquospecial
circumstancesrdquo to prevent the injunction
Trespass v nuisance
bull Trespass direct injury - nuisance is a consequential
injury
bull Trespass actionable without proof of damage - damage
must be proved for nuisance
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Trespass to airspace
Crane - Anchor Brewhouse Developments Ltd v Berkley
House (Docklands Developments) Ltd (1987) 2 EGLR
173
bull The boom of developerrsquos crane oversailing Anchorrsquos land
amounted to trespass - injunction granted It is was not
necessary to show damage to obtain an injunction for
trespass Anchor succeeded in obtaining the injunction
they were looking for as the Court found no ldquospecial
circumstancesrdquo to prevent the injunction
Trespass v nuisance
bull Trespass direct injury - nuisance is a consequential
injury
bull Trespass actionable without proof of damage - damage
must be proved for nuisance
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Trespass v nuisance
bull Trespass direct injury - nuisance is a consequential
injury
bull Trespass actionable without proof of damage - damage
must be proved for nuisance
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Damages where the development has taken place
- the price to the paid by the trespasser
Prima facie measure of damages
bull Compensatory for loss or injury
bull Damages to put injured party in the position had he not
suffered the wrong Livingstone v Rawyards Coal Co
(1880) 5 AppCas 25 39
bull Plaintiffrsquos loss ndash not defendantrsquos gain
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
ldquo[T]he common law pragmatic as ever has long
recognised that there are many commonplace situations
where a strict application of this principle would not do
justice between the partiesrdquo
Attorney-General v Blake [2001] 1 AC 268
bull Trespasser enters plaintiffrsquos land - causes no loss
bull use of anothers land for depositing waste
bull using a path across the land
bull using passages in an underground mine
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Damages price a reasonable person would pay for the
right of user
bull Whitwham v Westminster Brymbo Coal and Coke Co
[1896] 2 Ch 538
bull Wayleave cases Martin v Porter (1839) 5 M amp W 351
and Jegon v Vivian (1871) LR 6 ChApp 742
bull Non-removal of a floating dock Penarth Dock
Engineering Co Ltd v Pounds [1963] 1 Lloyds Rep 359
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Eaton Mansions (Westminster) Ltd v Stinger Compania De
Inversion SA [2013] EWCA Civ 1308
Facts
bull Eaton head lessee of block of mansion flats
bull Stinger owned long leases of two flats
bull Eatonrsquos lease - covenant with Grosvenor Estate not to make
external alterations without consent but air conditioning equipment
already on the roof for the benefit of the tenants of individual flats
(presumably with the consent of the Grosvenor Estate) and Easton
had not charged its tenants for the use of the roof space
bull 1980 Stinger places 3 air con units and pipework and converts two
flats to one unit
bull 1988 6 units in place
bull 2006 Eaton carrying out roof repairs and all tenants told to relocate
units from roof
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Trespass by Stinger
June 2007 Two condenser units were placed on the roof
and linked to the chimney flues down Stinger flats by
breaking into the external brickwork of the chimney stack
Units so large required a crane to hoist them into place and
were then still visible from the street (Stinger converting
back to one flat)
bull In breach of planning control
bull Would never have been consented to by the Grosvenor
Estate
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
The Grosvenor Estate had expressly excluded the
installation of air conditioning from the consent which it
gave in 2006 to the refurbishment work to the flats
Trial on liability finds
bull Stinger installed in flagrant disregard of the need to obtain the
consent of the Grosvenor Estate
bull Eaton would have agreed to same size units as before but not larger
units (no PP and no consent from Grosvenor)
bull February 2008 2007 units (but not pipework) removed
bull December 2008 Negotiations having broken down Stinger
instructed contractors to enter onto roof and connect two new units
to June 2007 condensers - each flat had a functioning air con
system Wyn Williams J considered this high handed and
unreasonable
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Application for summary judgment for
damages to be assessed [2010] EWHC
1725 (Ch) Stingers appeal against
judgment on liability dismissed by the Court
of Appeal [2011] EWCA Civ 607
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Assessment of damages - Negotiating
damages
Key dates and assumptions
bull Refurbishment complete - let for one year
bull Injunction and damages sought
bull Flats sold
bull Rents and sale price not affected by air con
dispute
bull Post 2010 planning permission and Grosvenor
consent for air con
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Mr Edward Bartley Jones QC (Sitting as Deputy High Court
Judge) [2012] EWHC 3354 (Ch) assesses
bull pound6000 for trespass
bull pound1716 cost of removing air con apparatus from roof
bull [Costs 1 March 2009 to 19 May 2010 pound614755
estimate to exchange of expert evidence a further
pound201605]
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Eatonrsquos appeal(1)
No direct loss from trespass (except pound1716 cost of removal)
But damages should be substantial damages for trespass 6 figures
What Stinger would have agreed to pay at the commencement of the period of
trespass for permission to place the air conditioning equipment on the roof
ie
bull Whether in the hypothetical negotiations for a licence fee the parties are to
be assumed to have been negotiating in respect of the limited period of
trespass up to 11th March 2010 which in fact occurred
or
bull for some more substantial grant of permission unrelated to this finite period
1 - Permission was refused to argue a claim for restitutionary damages in an amount equal to the increase in value of
the flats attributable to use of the roof space Patten LJ
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
When will the court on the
alternative basisStarting point
Lord Nicholls in Attorney-General v Blake [2001] 1 AC 268
ldquoGeorge Blake is a notorious self-confessed traitorrdquo
Claim concerned unpaid amounts in respect of his book ldquoNo Other Choicerdquo
bull No direct loss suffered by A-G so damages sought on alternative basis for
an account of profits made by the Blake from his breach of confidence
bull Lord Cairnrsquos Act may award damages in lieu of an injunction ndash in practice
gives an equivalent for what was lost by the refusal of an injunction
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Sinclair v Gavaghan [2007] EWHC
2256 (Ch)
Distinguished cases where damages in lieu are for
bull Permanent loss (eg loss or restrictive covenant
or boundary dispute)
bull Use of land as access to enable development
bull Wrotham Park Estate Co Ltd v Parkside Homes
Ltd [1974] 1 WLR 798 damages under Lord
Cairnsrsquos Act - 5 of developerrsquos anticipated
profit (restrictive covenant)
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Valuation of limited time trespass
bull What are the acts of trespass
bull What were their purpose and effect in relation to the
development and
bull What alternatives did the defendants have to using the
trespass land in order to carry out those works
(Patten LJ in Sinclair)
C contended for pound103000 minimum
Patten LJ awared pound5000 ldquo[defendants] would not have
paid or been asked by any reasonable land owner in the
Claimants position to pay more than a relatively modest
sum for that privilege
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Eatonrsquos argument
bull Stinger put up air con units permanently
bull So hypothetical negotiation would have been on that
basis
bull no account is to be taken of post-valuation events eg
Lunn Poly Ltd v Liverpool and Lancashire Properties Ltd
[2006] EWCA Civ 430
Patten LJ rejects this following Pell Frischmann
Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370
Appeal dismissed
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Conclusions The key is identifying the correct question
Trespass ceased in 2010 and purchasers negotiated their own
permission so
bull Not whether a post-valuation event should be taken into account
(ie something which is assumed to be known to the parties in the
hypothetical negotiations for the licence fee)
bull Real question what is to be taken to be the subject matter of those
negotiations
ndash If Eaton were right Stinger would be required to pay for rights
which their trespass never gave them and for a loss which Eaton
never suffered
bull The valuation construct is that the parties must be treated as having
negotiated for a licence which covered the acts of trespass that
actually occurred The defendant is not required to pay damages for
anything else
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Aggravated damages
bull Aggravated damages available when Drsquos conduct has
been highhanded insulting or oppressive see Horsford
v Bird [2006] UKPC 3
bull Needs to be some subjective feelings on the part of the
C which have been injured by Drsquos conduct
bull Messenger Newspapers Group Ltd v National Graphical
Association (1982) [1984] IRLR 397 ndash company awarded
aggravated damages overruled
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT
Thirty Nine Essex Street LLP is a governance and holding entity and a limited liability partnership registered in England and Wales (registered number0C360005) with
its registered office at 39 Essex Street London WC2R 3AT Thirty Nine Essex Streets members provide legal and advocacy services as independent self-employed barristers
and no entity connected with Thirty Nine Essex Street provides any legal services Thirty Nine Essex Street (Services) Limited manages the administrative operational and
support functions of Chambers and is a company incorporated in England and Wales (company number 7385894) with its registered office at 39 Essex Street London WC2R 3AT