England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(MR RECORDER BARNARD)

		Royal Courts of Justice Strand London WC2 Monday, 29th October 2001

Monday, 29th October 2001

1. LORD JUSTICE SCHIEMANN: Before the court is an application by a defendant for permission to appeal a judgment delivered in the Central London County Court by Mr Recorder Barnard. The claimants in that case were the executors of a lady who owns some premises at 110 Byron Road, Wembley. The defendants lived in those premises initially with the permission of the deceased, but the time came when she indicated that her permission was no longer extant, and the judge held that as from 15th May 1997 the defendants were in wrongful possession. Nobody now challenges or seek to challenge that decision of the learned judge. The defendants sought to advance a counterclaim in relation to improvements they had done on the premises. That also failed before the judge, and again there is no challenge to that conclusion. The judge ended his judgment as follows:

"I reject the claim as set out in the counterclaim. I will order that the Defendants give possession of the property to Mr Colin Palmer as executor. There will be an order for mesne profits from..."

- the judge says 15th May 1999, but Mr Reid accepts that should be 1997.

"Based on the report of Mr Wiggs"

- he was an expert instructed by both sides -

"it seems to me the right rate will be..."

- he then sets out the rates suggested by Mr Wiggs. Then the judge concludes:

"I will certainly hear counsels' arguments on that matter and any other consequential directions."

2. So far as we know there was no argument on the principle that mesne profits were to be payable.
3. The argument which Mr Reid seeks to advance in front of this court is one that was not advanced in the court below. It was not one that was foreshadowed in the pleadings, nor, so far as we can tell, was the evidence specifically directed towards it. It is an ingenious argument that I confess would not have occurred to me. Mr Reid accepts the general rule in relation to measure of damages in cases where trespass is productive of benefit to a defendant without damaging the claimant is that the defendant has to pay for his user of the claimant's land even though there is no damage to the claimant. Some of the relevant cases in any event are gathered together in Clerk & Lindsell on Torts, paragraph 18-66.
4. Mr Reid, while accepting the force of those cases, says that this is not merely a case where there was no damage to the claimant, as in those cases. In this case the claimant has actually benefited from the wrongful residence of the defendants in the claimant's property. The background to that assertion which he wishes to put forward is essentially this. During the time of their occupation house prices were rising. There is some indication that the claimant wished to sell and was prevented from so doing by the defendants, and, as it happens, says Mr Reid, this delay which was caused by the defendants has been productive of benefit to the claimant. In very round figures for illustrative purposes only, he said the claimant was probably ready to sell for £75,000. Had she sold in 1997 and had there been interest awarded at 8 per cent the total amount would have risen to £100,000, whereas by the time she was actually able to sell, in short the time when the defendants had gone out of the building, the value of the house was £155,000, therefore that exceeded by a significant margin the mesne profits which the judge ordered the defendants to pay to the claimant, those mesne profits amounting to £32,000.
5. Mr Reid wishes to advance the argument that in circumstances where a claimant has benefited from the trespass, then that benefit, as it were, must be set off against the mesne profits, and if the benefit exceeds the mesne profits then the claimant must go away empty-handed. That is a proposition for which he was unable to cite any authority and, for my part, it is not a proposition which attracts me. But I am content at this stage on a short application for permission to say it is possible that judges might be found or possibly in their Lordships' House, who did find that proposition attractive. His difficulty is that he says: "I accept we did not argue this below. If we win in the Court of Appeal then I could not possibly ask for more than that the question of damages, the actual factual matters, should be remitted to the county court judge with precise findings as to what intentions were at relevant times, what would have been done with the money if it had been available", and so on.
6. I confess that I do not regard it as just that at this stage the defendants should be allowed to raise that argument. It is a general principle of our law that a party must raise all the points they wish to raise at the beginning of litigation in the first instance, and not produce new points out of a hat after they have lost one case and then start again. The reason for that rule is that everybody finds litigation harassing and irritating and taking their minds off things which they would much rather do. Litigation cannot be avoided, but we can have rules that it is as little harassing as possible, and one of those rules is that you bring forward all your points at the beginning.
7. In my judgment it would not be just to permit this case now to go to appeal, and I would refuse this application.
8. LORD JUSTICE RIX: I agree.
(Application refused; no order for costs).