ON APPEAL FROM EXETER COUNTY COURT
(Mr. Recorder Hollington Q.C.)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
SIR HENRY BROOKE
| DIANA MARIAN THORNE
|- and -
|(1) CLIFFORD GEORGE COURTIER
(2) ENID MARY COURTIER
(3) JULIAN CLIFFORD COURTIER
Mr. Steven Ball (instructed by Clarke Willmott LLP) for the respondents
Hearing date : 30th March 2011
Crown Copyright ©
Lord Justice Moore-Bick :
. . .
3 The Defendants do pay the Claimant damages for trespass in relation to their unlawful occupation of Higher Gooseford limited to the period from 1 December 2006 until vacant possession is given up.
The date of 1 December 2006 is chosen because no payments have been made since Mrs. Warden [the claimant's mother and freehold owner of the land until her death in February 2007] was admitted to hospital in November 2006.
As to fixing the damages for trespass, that shall be determined by a rural chartered surveyor acting as an expert . . .
. . .
6 The Claimant and the Defendants shall bear their respective costs of the proceedings."
"(1) Questions as to the role of the expert, the ambit of his remit (or jurisdiction) and the character of his remit (whether exclusive or concurrent with a like jurisdiction vested in the Court) are to be determined as a matter of construction of the agreement.
(2) If the agreement confers upon the expert the exclusive remit to determine a question, (subject to (3) and (4) below) the jurisdiction of the Court to determine that question is excluded because (as a matter of substantive law) for the purposes of ascertaining the rights and duties of the parties under the agreement the determination of the expert alone is relevant and any determination by the Court is irrelevant. It is irrelevant whether the Court would have reached a different conclusion or whether the Court considers that the expert's decision is wrong, for the parties have in either event agreed to abide by the decision of the expert.
(3) If the expert in making his determination goes outside his remit e.g. by determining a different question from that remitted to him or in his determination fails to comply with any conditions which the agreement requires him to comply with in making his determination, the Court may intervene and set his decision aside. Such a determination by the expert as a matter of construction of the agreement is not a determination which the parties agreed should affect the rights and duties of the parties, and the Court will say so.
(4) Likewise the Court may set aside a decision of the expert where (as in this case) the agreement so provides if his determination discloses a manifest error.
(5) The Court has jurisdiction ahead of a determination by the expert to determine a question as to the limits of his remit or the conditions which the expert must comply with in making his determination, but (as a rule of procedural convenience) will (save in exceptional circumstances) decline to do so. This is because the question is ordinarily merely hypothetical, only proving live if, after seeing the decision of the expert, one party considers that the expert got it wrong. To apply to the Court in anticipation of his decision (and before it is clear that he has got it wrong) is likely to prove wasteful of time and costs, the saving of which may be presumed to have been the, or at least one of the, objectives of the parties in agreeing to the determination by the expert."
"The tenant, the defendant, has been in occupation of both the land and the buildings, and in the course of occupying the buildings has prevented a sale of the farmhouse because of its proximity, and that's why the claimant says there hasn't been an unconditional acceptance because there are substantial damages to be assessed which are vastly more than £50 an acre to include the use of the buildings and the damage that's been done to the claimant being able to sell the farmhouse on what I think is a . . . "
"The defendants are paying damages for trespass in relation to the unlawful occupation of Higher Gooseford from 1st December until vacant possession is given. I mean, doesn't that, and they've written a Calderbank type letter in relation to seeking to resolve that issue which you choose not to accept, as you're certainly entitled to, but there is a – in your original offer you contained, you set out a mechanism whereby that amount can be calculated, which would include, no doubt, such consequential losses as you may claim you have suffered."
Sir Henry Brooke:
Lady Justice Smith: