Shepherd v Collect Investments Ltd

A claimant may proceed with an increased damages claim without formally amending the pleadings where the defendant had clear notice of the increased case and suffered no unfairness or prejudice. Expert valuation evidence is not automatically inadmissible because the valuer did not inspect the land. Objections concerning comparables, methodology, regional averages or factual assumptions should be supported by evidence and put to the expert at trial. A party cannot rely on appeal on matters not properly raised below. A trespasser cannot reduce lost-rent damages by relying on waste for which he was responsible. Damages may reflect unlawful possession which continues to prevent the owner from letting the property, even where the trespasser claims not to have been physically operating there.

Collect Investments Limited claimed possession of an industrial site and damages for unlawful occupation. The High Court awarded £285,700, accepting expert evidence of the rental income lost during the relevant period. The appellant challenged the award on the grounds that the pleaded claim had not been amended, the expert had not inspected the land, the valuation lacked adequate comparables, and relevant factual matters had been disregarded. He also sought to reopen an earlier refusal of permission to appeal on an additional ground. The central issues were whether the increased claim caused procedural unfairness, whether the valuation evidence could properly be accepted, and whether the further grounds could be raised for the first time on appeal.

1. Appeal dismissed. The court unanimously upheld the award of £285,700.
2. The increased rental claim was sufficiently clear from the expert report, witness evidence and conduct of the proceedings. The appellant had questioned the expert about the figure several months before trial. There was therefore no surprise or prejudice, and the judge was entitled to allow the claim to proceed without a formal amendment.
3. The absence of a site inspection was not, by itself, fatal to valuation evidence. Whether an inspection is necessary depends on the circumstances. Although substantial waste may depress rental value and may require physical inspection, the appellant was bound by the earlier finding that he had caused or permitted the waste. He could not rely on it to reduce damages. Any case based on pre-existing waste required evidence proving both its existence and its effect on value.
4. Objections to the expert’s use of regional industrial-land figures, lack of comparable evidence, historical inconsistency or failure to address particular factors had not been properly pursued at trial. The appellant had the opportunity to question the expert, cross-examine him and adduce opposing evidence. It was consequently too late to rely on those matters on appeal. The court nevertheless did not endorse the trial judge’s view that a valuation report ordinarily need provide no information about the comparables supporting its opinion.
5. A valuation prepared on materially different assumptions, including remediation, unlawful occupation and absence of vacant possession, did not undermine a rental valuation for vacant possession without damage caused by the appellant.
6. The appellant’s assertion that he had not physically operated on the land during parts of the period did not displace the finding that he unlawfully retained possession and continued to prevent the owner from letting it.
7. The court refused to extend time to reconsider permission on an additional ground. Re-evaluating the importance of the ground after other proceedings, together with limited funds, did not justify the substantial delay. The proposed ground also raised factual and legal issues which should have been pleaded, evidenced and determined at trial.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court also refused to extend time for reconsideration of permission on an additional ground. [2018] EWCA Civ 162
2. High Court of Justice, Chancery Division: HH Judge Raeside QC awarded Collect Investments Limited £285,700 damages for unlawful occupation of the land.