Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) (27 August 2008)

Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) (27 August 2008)

The Council is liable for trespass on the Red Land for the relevant period, including trespasses by its tenants (except for certain units after FCL acquired the land), because the Council's actions in laying tarmac and facilitating access amounted to 'permitting' trespass. Damages are to be assessed on the basis of a hypothetical negotiation for a licence to use the land for the period 23 December 1998 to 7 November 2005. The continued presence of tarmac constitutes a continuing trespass. The Limitation Act 1980 restricts damages to the six years prior to the claim.

Citation
[2008] EWHC 2079 (Ch)
Parties
Claimant/part 20 Defendant: Field Common Limited; Defendant/part 20 Claimant: Elmbridge Borough Council
Jurisdiction
England and Wales
Judgment Date
27 August 2008
Procedural Posture
Chancery Division Civil Claim (trespass, Assessment of Damages) / Assessment of Damages Following Liability Judgment
Outcome
Damages awarded to the claimant on the hypothetical negotiation basis for the period 23 December 1998 to 7 November 2005; Council found liable for trespass by itself and its tenants (with exceptions for certain units after FCL's acquisition); continued presence of tarmac held to be a continuing trespass.
Legal Topics
Trespass to Land, Damages Assessment, Hypothetical Negotiation, Landlord Liability for Tenant Trespass, Limitation of Actions
Property Law Tort Law Trespass to Land Damages Assessment Hypothetical Negotiation Landlord Liability for Tenant Trespass Limitation of Actions

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Parties

Field Common Limited

Claimant/part 20 Defendant

Elmbridge Borough Council

Defendant/part 20 Claimant

Procedural Posture

Chancery Division Civil Claim (trespass, Assessment of Damages) / Assessment of Damages Following Liability Judgment

Legal Issues

  1. 1 What is the appropriate measure of damages for trespass to land where the trespasser and its tenants have used the land without consent?
  2. 2 Is the Council liable for trespasses committed by its tenants?
  3. 3 Does the continued presence of tarmac constitute a continuing trespass?

Ratio Decidendi

The Council is liable for trespass on the Red Land for the relevant period, including trespasses by its tenants (except for certain units after FCL acquired the land), because the Council's actions in laying tarmac and facilitating access amounted to 'permitting' trespass. Damages are to be assessed on the basis of a hypothetical negotiation for a licence to use the land for the period 23 December 1998 to 7 November 2005. The continued presence of tarmac constitutes a continuing trespass. The Limitation Act 1980 restricts damages to the six years prior to the claim.

Court Disposition

Damages awarded to the claimant on the hypothetical negotiation basis for the period 23 December 1998 to 7 November 2005; Council found liable for trespass by itself and its tenants (with exceptions for certain units after FCL's acquisition); continued presence of tarmac held to be a continuing trespass.

Orders

  • Assessment of damages in favour of Field Common Limited for trespass for the period 23 December 1998 to 7 November 2005, to be calculated on the hypothetical negotiation basis.
  • Council liable for trespass by itself and its tenants except for Units 13 and 14 after 7 March 2002.