Trespass

Citation

Lee, R. (2007), "Trespass", Property Management, Vol. 25 No. 3. https://doi.org/10.1108/pm.2007.11325cab.002

Trespass

Horsford v. Bird (2006) UKPC 3 (2006) 15 EG 136

In this case the question was how damages should be assessed in a clear case of trespass. The claimant and the defendant owned adjoining plots of land in Antigua. The defendant, the Prime Minister at the time, decided to build a house and swimming pool on this land. In 1989-1990 the contractors built a boundary wall on the claimant’s land that enclosed some 455 sq. ft of the claimant’s property. This was done to make room on the defendant’s property for a driveway and a border between the new wall and the swimming pool. The claimant objected but he received no replies to his letters of protest. He began an action for trespass in November 2000 in which he sought a mandatory injunction requiring the defendant to remove the wall. The trial judge refused to grant the injunction and assessed damages for the trespass at EC$75,000. This figure was based on the face value of the land encroached upon, the special value of the land to the defendant and an element of “aggravated” damages to reflect the “highhanded and cynical way in which the defendant had acted.”

The defendant appealed against the award. The Court of Appeal in Antigua was unanimous in deciding that this was not an appropriate case for an award of aggravated damages because the high handed conduct of the defendant had occurred during litigation rather than at the time the trespass was committed. The Court of Appeal decided that the total amount of damages should be EC$13,650 based on the value of the land taken (455 sq. ft at EC$30 per sq. ft). The case was appealed to the Privy Council.

The issue for the Privy Council was how to assess the value of the land taken. They agreed that the land was worth more to the defendant than its value as 455 sq. ft of an undeveloped plot. Their Lordships asked what price might the claimant have got from the defendant in a properly negotiated sale? They decided that figure would be EC$27,300 i.e. twice its bare face value as assessed by the Court of Appeal in Antigua. The Privy Council also added that the defendant had been in illegal occupation of the land between the time that the wall was built and the refusal of the trial judge to grant an injunction at which time the land in question effectively came into the defendant’s ownership. Thus the defendant was liable to pay the claimant damages in the form of “mesne profits” for that occupation. As a claim for any period of occupation before November 1994 was statute bared by limitation the period of illegal occupation was eight years and three months. Taking 7.5 percent annual rate on the capital value of EC$27,500 mesne profits were EC$16,892. The total award of damages was therefore EC$44,192.