BIRMINGHAM DISTRICT REGISTRY
B e f o r e :
(sitting as a Deputy High Court Judge)
| MR AUSMAN RAMZAN
David Mitchell (instructed by Bude Nathan Iwanier) for the Defendant
Hearing Dates: Monday 19th and Wednesday 21st July 2010
Crown Copyright ©
Miss Geraldine Andrews Q.C.:
a. Damages for past and continuing trespass, breach of trust and denial of title by Brookwide from 23 May 2001 and continuing;
b. Damages representing all profits obtained by Brookwide from leasing out the Room as part of the property demised by Brookwide at 123 Alcester Road to tenants for profit; and
c. Exemplary damages for the wrongful and continuing appropriation of the Room by Brookwide.
DAMAGES FOR TRESPASS, BREACH OF TRUST AND DENIAL OF TITLE
A. THE VALUE OF THE LAND DAMAGES IN LIEU OF RECOVERY OF THE LAND
B. MESNE PROFITS
"Where the defendant has by trespass made use of the plaintiff's land the plaintiff is entitled to receive by way of damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact thereby impeded or prevented from himself using his own land either because he did not wish to do so or for any other reason".
At p.288E he set out the approach to be adopted by a court assessing damages for trespass as follows:
"The plaintiff, when he has established that the defendant has remained on as a trespasser in residential property, is entitled, without bringing evidence that he could nor would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and in the absence of anything special in the particular case, it would be the ordinary letting value of the property that would determine the amount of damages."
"It may be that the courts have now reached something of a hybrid solution, one which gives the claimant the best of both worlds. He will be able to claim full market value by way of damages in the normal case, or extract by way of restitution any greater benefit that the defendant may have achieved."
However, there may be limits to the ability of the claimant to extract the greater benefit. In the very recent case of Stadium Capital Holdings v St Marylebone Properties Co Plc. EWCA Civ 952 the Court of Appeal took the view that an award of 100% of the gross profits earned from the exploitation of the land by the trespasser is at the very top end of the range of awards of damages on a restitutionary basis, to be reserved for the most serious cases.
C. CONSEQUENTIAL LOSSES: COSTS OF REINSTATEMENT OF THE FIRE ESCAPE AND LOSS OF PROFITS FROM THE USE OF THE FUNCTION ROOM
D. DAMAGES FOR BREACH OF TRUST
"It follows that whatever they do award should only be a sum which has taken into account the award of damages already notionally allowed as compensation, including, where appropriate, the "aggravated" element required by a defendant's bad conduct, and should never exceed the amount by which the required penalty (if that is the right word) exceeds the required compensation".
Under Paragraph 11a of the Order
1. £55,000 in respect of the capital value of the store room;
2. Mesne profits in a sum representing a return of 4½% per annum on the capital value of £55,000 over the period of the trespass, ending with the date on which judgment is handed down; that is, £23,210.64. However, in order to avoid double recovery the sum of £19,741.60 awarded under Paragraph 11b of the Order is to be deducted from that sum.
3. £72,570 plus VAT (in total £85,269.75) in respect of the cost of restoring a fire escape on the first floor of No.125 Alcester Road;
4. £ 225,073.50 for the loss of profits from the function room during the relevant period, ending with the date on which judgment is handed down
Under Paragraph 11b of the Order
However that sum shall be offset against the figure for mesne profits awarded under Paragraph 11a so as to preclude double recovery.
Under Paragraph 11c of the Order
Exemplary damages in the sum of £60,000.