Trespass — Damages in lieu of injunction — Basis for assessment — Whether aggravated damages appropriate — Value of expropriated land to respondent — Mesne profits — Appeal allowed
The appellant and the first respondent owned adjoining parcels of land in Antigua. The appellant’s land was undeveloped. The respondent hired contractors to construct a house with a swimming pool on his land, and to erect a boundary wall, which was positioned so as to allow space for vehicular access and a garden area between the pool and the wall.
The appellant brought a claim against the contractors and the first respondent for trespass, complaining of incursions onto, and damage to, his land in the course of the building works, and alleging that the boundary wall encroached upon his land. The contractors agreed to make a payment in settlement of the claim relating to the building works. The claim in respect of the boundary wall was allowed by a judge, who awarded damages in lieu of granting a mandatory injunction for the removal of the wall. The sum awarded included a substantial, although unspecified, amount of aggravated damages. The judge justified the award by reference to the first respondent’s conduct of the litigation, including his statement purporting not to know that the appellant owned the adjoining land, his unsustainable plea that the damages paid by the contractors included a sum in respect of the wall, and the fact that he had not replied to letters from the appellant.
The judge’s award was overturned on an appeal by the respondents. The appeal court held that the case for aggravated damages had not been made out, and awarded a sum reflecting the value per square foot of the land lost to the wall. The appellant appealed.
Held: The appeal was allowed.
The matters cited by the judge did not justify an award of aggravated damages. Such matters, which had their counterpart in a great deal of litigation, might at most be relevant to costs. However, an award of damages limited to the bare value of the expropriated land did not represent due compensation to the appellant. The respondent, by building the wall on the appellant’s land and incorporating a piece of the appellant’s land into his garden, had given the expropriated land a value to himself that was considerably in excess of its value as square footage of an undeveloped plot. It was appropriate to take that value into account when assessing damages: Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1973) 229 EG 617 applied. In addition, the appellant was entitled to mesne profits for the use that had been made of his land up to the date of the first instance judgment (but excluding any period more than six years prior to the commencement of proceedings, in respect of which the claim was time-barred). These should be assessed on a yearly basis as a percentage of the capital value of the piece of land in question, plus interest.
Sally Dobson, barrister
