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Calculating damages for trespass (Dec 2013)

The case of Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308 provides useful guidance in relation to calculating damages for trespass to land.

Eaton Mansions (Westminster) Ltd v Stinger Compania De Inversion SA [2013] EWCA Civ 1308

C, the head lessee of a block of mansion flats, granted a lease of two flats to D. In breach of covenant, and without planning permission, D placed two condenser units on the roof, thereby trespassing onto premises not included in D’s demise. It was common ground between the parties that the trespass had lasted some 33 months from June 2007 to March 2010.

C accepted it had suffered no direct loss, save for the cost of removing the trespassing equipment from the roof (less than £2,000); however, it sought substantial damages for trespass, including aggravated damages.

The trial judge (1) awarded £6,000 by way of “negotiating damages”, the price D would have paid had it negotiated a licence fee for the same duration as the trespass, and (2) held that a company was not entitled to aggravated damages. C appealed.

The two issues before the Court of Appeal were (1) whether when assessing damages on the basis of a hypothetical negotiation, the damages should be based on the licence fee for the duration of the actual trespass, or on a more extensive period, in this case, the residue of the lease, and (2) whether the court can (or should) make an award of aggravated damages in favour of a company.

In dismissing the appeal, the Court of Appeal’s findings were as follows:

(1) Assessing damages

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.  Damages were limited to recovering what D would have paid for the rights which it illegally obtained.

(2) Damages in favour of a company

Aggravated damages may be awarded in cases of trespass where D’s conduct had been high handed, insulting or oppressive.  However, aggravated damages could not be awarded absent some subjective feelings on the part of C which had been injured by D’s conduct.  The focus on the effect of D’s conduct on C’s feelings excludes a claim by a company. The case of Messenger Newspaper Group Ltd v National Graphical Association (1982) [1984] IRLR 397 in which aggravated damages had been awarded to a company, had been wrongly decided.

Philippa Seal / 1st Dec 2013


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