How do the courts calculate damages for trespass?

Where a trespass does not cause any financial loss to the landowner, damages are usually measured by the value to the trespasser of the use of the land in question. In other words, the court must assess the price that a reasonable person would have paid for the right to use that land: Attorney General v Blake [2001] 1 AC 268. In Little v Matthew [1 March 2021] Nottingham County Court was asked to assess the damages payable to a landowner whose land had been used, without his permission, to facilitate construction to expand a medical practice. He claimed that the trespass had delayed a building project of his own. He had been unable to manoeuvre lorries down his driveway for several months, after which the builders had erected scaffolding, which had blocked his driveway for nine weeks (although he did have an alternative means of access to his property), following which some of the scaffolding had been dismantled, leaving room for pedestrian access with a wheelbarrow or pallet truck. Even so, it had been impossible for a car or anything bigger to use the driveway for another four and a half weeks. But the medical practice was offering little more than £1,000 in damages. The judge noted that the landowner was claiming damages of more than £98,000, but ruled that the trespass had had only a limited impact on his building project and that the owners of the medical practice had undertaken their project to provide better services for the benefit of NHS patients, as well as for financial gain. And he relied on Blake, among other authorities, for the following propositions. The court must first identify the acts of trespass, their purpose, their effect on the landowner’s land and the alternatives available to the trespassers – and must then assess the hypothetical licence fee that a reasonable person in the position of the trespassers would have negotiated and paid to the landowner for the use of the land. The court must assume that the negotiations were conducted before the trespass started, that the landowner was a willing grantor, who was not holding anyone to ransom, and that the trespassers were willing grantees. It must also presume that the hypothetical parties to the negotiations knew what real people in their position would have been able to discover and would put forward their best points. The negotiations would have been based on a split of the trespassers’ gain (although that gain would not have been obvious and would have been the subject of debate), and the valuation date was the date when the trespass began. Post-valuation events should generally be ignored. And, finally, the fee identified must feel right. The judge chose not to assess the damages payable by reference to the different incursions onto the adjoining land, preferring to award a flat fee instead, in the sum of £300 per week for a licence for the 31-week period in question, resulting in an award totalling £9,300. But that was not all. The judge accepted that the medical practice had consciously decided to trespass, calculating that the profit to be made from so doing might well exceed any compensation payable. So he awarded the landowner exemplary damages too, but limited the sum payable to £2,500 because the trespassers were not property developers; they were a public health service provider and would not be able to charge the NHS rent for the use of the new premises for 15 years.   Allyson Colby is a property law consultant