Plaintiffs purchasing land with development potential – Charity owning neighbouring land – Development potential dependent on access to plaintiffs’ land – Charity not agreeing to plaintiffs’ planned access on plaintiffs’ terms – Whether plaintiffs had failed to mitigate damage – Plaintiffs entitled to nominal damages only
A subsidiary of United Biscuits acquired a piece of land (the UB land) near Girton Road, which runs out of Cambridge and crosses the dual carriageway A14. Access to the UB land from Girton Road was via a corridor of land. The Girton Charity Trustees owned land (GCT land) between the UB land and Girton Road. Under the current version of the development plan, the UB and GCT land was an area in which development could take place provided, inter alia, adequate access to the land could be arranged from Girton Road. Therefore it was of interest to both of the owners of the land to construct a combined access. On July 6 1989 UB’s subsidiary, GCT, and the developer made an agreement (the agreement) in relation to the development of access via the corridor of land which was subject to the consent of the commissioners of GCT. On July 19 the developer contracted to buy the UB land, which was subsequently transferred to the first plaintiff company.
The first plaintiff began to appreciate as the owner of the land that it might hold a ransom position against GCT. The ransom depended on the disputed ownership of a strip of land alongside the corridor of land. The defendant acted as the first plaintiff’s solicitor and the purchase was completed. In July 1990 the agreement expired without the commissioners having given consent. In December 1992 the plaintiffs were offered a new agreement for access which was held open until March 1994, however no agreement was reached. The plaintiffs then attempted to arrange access to their land via a different route. The plaintiffs issued proceedings and claimed that the defendant had been negligent in failing to make the contract for the purchase of the UB land conditional upon the commissioners’ consent to the agreement. The defendant did not deny negligence but claimed that the plaintiffs had failed to mitigate their losses and were therefore not entitled to damages.
Held The plaintiffs were entitled to nominal damages only.
1. The correct date for the assessment of damages was March 1994. Until then the plaintiffs had had sufficient opportunity to agree access with GCT at no extra cost and thereby mitigate the damage. However, the plaintiffs had not desisted from their ransom claim over the commissioners to which the commissioners had not consented. Therefore the defendant had proved that the plaintiffs had failed to mitigate the damage.
2. There would have been no difference between the price which the plaintiffs paid for the land and the reduced price because of the absence of a provision to extricate them in the event of the commissioners not giving consent, had the plaintiffs accepted GCT’s offer to agree access. That would have achieved restitutio in integrum and therefore the damages were nil.
Timothy Scott QC (instructed by Cumberland Ellis Piers) appeared for the plaintiffs; Bernard Livesey QC and James Butters (instructed by Reynolds Porter Chamberlain) appeared for the defendant.
