Arsenal consultant’s trespass damages claim returns to court

A trespass damages claim brought by a company owned by Antony Spencer, the man who masterplanned Arsenal’s stadium regeneration and acted as agent and developer for the club, has returned to court. Vos J is hearing the case following the decision of the July 2010 Court of Appeal to overturn a ruling that Spencer’s company Stadium Capital Holdings was entitled to £300,000 in damages for trespass. In October 2009, Stadium Capital, which owns a development site in Hampstead, won its trespass claim against a neighbour that had erected an advertising hoarding on an adjoining building at 279a Finchley Road, London NW3. In 1976, the leaseholder of the adjoining premises, St Marylebone Property Co (SMPC), with the benefit of planning permission, had erected an advertising hoarding on the boundary wall and had granted licences to companies to display advertisements on it. However, in 2004, Stadium Capital’s predecessor gave SMPC notice to remove the hoarding, which it considered to be trespassing into the airspace of the development site. The hoarding was removed, but Stadium Capital, which bought the development site in 2008, sought damages for trespass from the date of the expiry of the notice to remove and the day of removal, calculated by reference to the sums received by SMPC during that period. At the first trial, Sir Donald Rattee ordered that Stadium Capital should receive £313,972 in damages for the trespass by assessing the damages as being equivalent to 100% of the licence fee for the entire period. Overturning that decision, Patten LJ ruled that trespass cases required damages on a restitutionary basis, using the principle of a hypothetical licence fee, which, by definition, did not amount to 100% of profits, and the judge had been wrong in principle to have accepted the headline figure in the way that he had. Hearing the latest trial in the action, Vos J said that the answer in the case appeared to be “glaringly obvious… all I have to determine is the amount of a notional fee which would have been paid [to Stadium Capital].” John Furber QC, for Stadium Capital, agreed but said that in determining that fee regard had to be had to the fact that his client held a “trump card” in the hypothetical fee negotiations in that it could put up its own hoarding and thereby obtain all the profits for itself. The case continues.