Claim for damages for continuing trespass – Delay – Defendant applying to strike out – Judge striking out action on basis that fluctuation in land values might benefit defendant – Whether judge entitled to take difference in land values into account
The plaintiff company was a builder and developer who developed its site at Taff-Ely, Glamorgan, in the 1970s. It constructed roads on the site, dedicating them as public highways, and, by agreement, those roads were adopted by the highway authority, the second defendants, Mid Glamorgan County Council, pursuant to section 40 of the Highways Act 1959. The plaintiff claimed to have retained deliberately, at the extremity of the development, a ransom strip of its own freehold land over which no highway was constructed, dedicated or adopted. Later the first defendant wished to develop the adjacent land and, by an agreement made in November 1987 between the first defendant and the second defendants, the first defendant purported to dedicate and the second defendants purported to adopt the disputed strip of land as a public highway, subsequently building a road upon it. The plaintiff claimed that the building and use made of the road amounted to a continuing trespass on the strip of land. The defendants alleged that prior to their construction of the road, it had already been dedicated as a public highway by the plaintiff, or alternatively that the plaintiff was estopped from alleging to the contrary. The plaintiff issued a writ in May 1992 and the action proceeded in a desultory way.
In April 1996 the plaintiff gave notice of intention to proceed and the defendants took out a summons to dismiss the proceedings for want of prosecution. The district judge dismissed the action and the plaintiff appealed. The judge concluded that there had been inordinate and inexcusable delay and that there was serious prejudice to the defendants as a result of that delay. He also found that, as the amount of damages claimed by the plaintiff might have fluctuated with a change in land values in favour of the defendants, there might be benefit to the defendants in striking out. The plaintiff appealed contending that the judge had failed to exercise his discretion judicially in that he had no primary evidence of the value, or any change in the value, of the land in dispute between the parties, from which to infer that a change of value in the land since the commencement of the proceedings did or might represent a benefit to the defendant which would be lost if the appeal were struck out.
Held The appeal was dismissed.
The plaintiff’s claim was for damages for trespass and a fresh cause of action accrued on each day the trespass continued. The measure of damage was the price the first defendant would have been prepared to pay for the use of the land. If the claim was struck out the plaintiff could issue fresh proceedings, but only for that trespass which was not statute barred, i.e.within six years of the issue of a new writ. In reaching his conclusions the judge had not needed primary evidence as to the change in land values from 1986 to 1990, and had been entitled to infer that land values had changed, and that that could result in a benefit to the defendants. He had not erred in concluding that the action be struck out: see Birkett v James [1978] AC 297 and Barclays Bank plc v Miller [1990] 1 WLR 343.
Adam Oyebaji (instructed by George Green & Co) appeared for the plaintiffs; Neil Moody (instructed by Kennedys) appeared for the first defendant; Lloyd Williams (instructed by Dolmans, of Cardiff) appeared for the second defendants, Mid Glamorgan County Council.