Advertising hoarding – Trespass – Damages – Respondent obtaining judgment for trespass to its airspace by erection of hoarding – Judge refusing split trial on quantum and awarding damages on entirety of licence fees earned by appellant from advertising – Whether judge using appropriate basis for award of damages — Appeal allowed
In 1976, the appellant obtained planning permission to erect an advertising hoarding on the wall that formed the boundary with the respondent’s land. Once the hoard was in place, the appellant granted licences to companies to display advertisements on it.
In 2004, the respondent’s predecessor served the appellant with a notice to remove the hoarding because it trespassing into its airspace. The hoarding was removed in 2008, but the respondent, which had bought the land in 2008, brought proceedings seeking damages for trespass from the date of the expiry of the notice to remove the hoarding and the date of its removal, calculated by reference to the sums received by the appellant during that period.
The judge rejected the appellant’s application to adjourn the question of quantum. Having dismissed the appellant’s claim that it had acquired the space by way of adverse possession, he found the appellant liable for trespass and ordered it to pay damages to the respondent in the sum of £313,972. The award was calculated on the basis of the totality of the licence fees earned by the appellant from the use of the hoarding for advertisements: [2009] EWHC 2942 (Ch).
The appellant appealed, arguing that the judge should have allowed its application for a split trial. Further, it contended that the judge had erred in failing to: (i) apportion damages by reference to the fact that the hoarding had been erected on its wall; (ii) deduct the expenses incurred by the appellant in operating the hoarding; and (iii) calculate the damages on the basis of a hypothetical reasonable licence fee negotiated between the parties.
Held: The appeal was allowed.
The judge had had insufficient material before him to make a proper assessment of damages for trespass. He should have considered adjourning that issue despite the lateness of the application, which had been made only after judgment had been reserved. The judge should have directed a split trial.
The award was at the top end for an award of damages on a restitutionary basis, which was reserved for the most serious cases. Trespass was an unusual tort in that it was actionable per se; the law had moved away from awarding damages on the basis of how the subject land could have been used by a claimant to consideration of how a defendant had actually used the land and the benefit thereby obtained. Thus, there was a flexible basis for assessing damages, and it would usually be appropriate to make an award based on the charging of a reasonable fee for the trespasser’s occupation of the land.
In those circumstances, the judge’s assessment would be set aside and, since it would not be appropriate for the Court of Appeal to determine the basis on which the damages due to the respondent should be assessed, the matter would be remitted for a further determination on quantum.
Per Patten LJ: The judge had been wrong in principle to accept the headline figure in the way that he had. He had awarded a sum equivalent to the amount he believed to comprise the totality of the appellant’s profit from the use of the respondent’s airspace, which was indistinguishable from an account of profits. That was an exceptional remedy, not appropriate at common law for an award of damages. Trespass cases required damages to be assessed on a restitutionary basis using the principle of a hypothetical licence fee, That, by definition, did not amount to 100% of profits.
Janet Bignell (instructed by St Marylebone Property Co plc), who did not appear below, appeared for the appellant; John Furber QC (instructed by Thring Townsend Lee & Pembertons LLP) appeared for the respondent.
Eileen O’Grady, barrister
