Stephen James Kirby v Electricity North West Limited

A person with exclusive possession of land, or sufficient control and a right of possession, may sue in trespass. A right of entry does not authorise conduct exceeding its scope or causing unauthorised damage. A defendant may be liable for damage caused by its contractor and for failing adequately to instruct or supervise it. Consequential crop losses may be recovered where physical damage foreseeably impairs agricultural use. Limited documentation does not by itself prevent proof of a claim. Loss should be assessed fairly, allowing for uncertainties in yield, quality, price and production risks.

The claimant, a farmer, claimed damages from an electricity distribution network operator for trespass and negligence. The defendant’s contractors entered agricultural land under rights granted by deeds and caused extensive damage while replacing an underground cable in wet conditions. The claimant alleged that the damage prevented him from growing potatoes in 2018 and reduced subsequent barley yields.

The issues were whether the claimant had sufficient possessory rights to sue, whether the works exceeded the rights of entry, whether the defendant was responsible for the contractors’ conduct, and the amount of consequential agricultural loss.

1. Result. Judgment was entered for the claimant in the principal sum of £54,652.40, comprising £48,470 for the lost 2018 potato crop and £6,182.40 for reduced spring barley yields in 2019 and 2020. Questions of interest and costs were reserved.
2. Standing. The claimant had exclusive possession under informal tenancy arrangements. Alternatively, the arrangements gave him sufficient control and a right of possession to maintain an action for trespass. The principles in Street v Mountford [1985] AC 809 were applied.
3. Liability. The contractors exceeded what the deeds contemplated or permitted by tracking outside the authorised strips and continuing work in conditions where serious damage was foreseeable. The defendant was liable for the resulting damage and was also in default for failing adequately to instruct the contractor. The claimant was not bound by limitations in deeds to which he was not a party.
4. Duty of care. The defendant owed a duty to take reasonable care to avoid physical damage to the field, or to repair unavoidable damage reasonably and promptly so as to minimise agricultural loss.
5. Damages. The court accepted that potatoes would probably have been grown and sold to Bradley, but discounted the valuation for uncertainty about yield, quality and price. It adopted 18 tonnes per acre over 37 acres at £175 per tonne, less growing costs of £1,840 per acre. The barley claim was also established.
6. Evidence. The claimant was honest and essentially reliable despite limited documentation. The observations in Ahuja Investments Limited v Victorygame Limited [2021] EWHC 2382 (Ch), including its discussion of Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) and Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, were kept in mind.

First instance decision. No prior appellate decision is stated in the judgment.