Sinclair & Anor v Gavaghan & Ors

Damages for trespass may reflect the value of the use obtained by the trespasser, even where the claimant suffers no measurable physical loss. The appropriate measure is ordinarily the reasonable value of the unauthorised use. For temporary use, the court may adapt the hypothetical-release or licence-fee approach used in restrictive-covenant cases. The assessment must identify the trespasses, their purpose and effect, and the realistic alternatives available to the trespasser. The sum should reflect the financial advantage actually obtained, excluding costs which would have been incurred in any event. A substantial award requires proof that the trespass produced a corresponding financial benefit, such as saved delay or expense.

The claimants owned a triangular area of land adjoining the defendants’ property and development site. The trial judge found that part of the defendants’ access drive encroached on the claimants’ land, granted an injunction and directed an inquiry into damages. There was no appeal from that decision.

The inquiry concerned the defendants’ limited use of the land between approximately late September and 16 December 2005, principally for vehicle access while a development access road was being constructed. The central issue was whether that use produced a financial benefit warranting substantial damages, and, if so, the proper measure.

1. The defendants’ use of the claimants’ land constituted trespass, but caused no detectable physical damage or diminution in value. The issue was therefore the value of the benefit obtained by the defendants.

2. The court applied the approach identified in Ministry of Defence v Ashmore (1993) 66 P & C R 195, as approved in Attorney General v Blake [2001] 1 AC 268. Damages could exceed nominal compensation where they represented the value to the trespasser of using the claimant’s land.

3. The hypothetical licence-fee method in Wrotham Park Estate Co. Ltd v Parkside Homes Ltd [1974] 1 WLR 798 could be adapted to temporary trespass. The court had to identify the acts of trespass, their purpose and effect, and the alternatives available to the defendants. It then had to assess what reasonable parties would have agreed for the limited use.

4. The alternatives were decisive. The defendants could use a 3.1-metre access gap without trespassing, although that was less convenient. They could also obtain revised planning permission and relocate the access road. The hypothetical licence would not have avoided the costs of permanently altering the drive and demolishing part of No. 21, because those works were necessary in any event.

5. The claimants did not establish that the trespass accelerated completion, avoided material delay, or reduced development costs. The expert valuation based on a sixteen-week delay and the costs of permanent alterations was therefore rejected as unrealistic.

6. The limited use provided a more convenient means of servicing the development, but no more. Damages were assessed at £5,000.

The trial judge granted a permanent injunction, rejected the defendants’ claims based on adverse possession and easement, and ordered an inquiry into damages. No appeal was brought against that decision. This judgment determined the damages inquiry.