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In Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch), Warren J offers a lengthy consideration of the nature of damages in a claim by a company alleging that in tarmac-ing over part of the company’s land, “the Council had trespassed on a strip of FCL's land to the north of the private road by (i) causing tarmac to be laid, (ii) continuing to maintain the tarmac and (iii) causing and permitting its servants, agents and/or licensees to pass on foot and with vehicles over the strip of FCL's land.” FCL claimed for the amount which the Council would have paid after a hypothetical negotiation. Blake, Wrotham Park, Ashman and WWF, amongst others, are considered, but the new feature of the case is explained at [78]:

The authorities which I have already considered at length all concern a claimant whose rights have been infringed by a defendant who has himself obtained the benefit of the wrong: indeed, in the trespass cases, it is the very act of trespass by the defendant which had provided him with the benefit. In the present case, the position is different because it is, principally, the tenants and their own visitors who have enjoyed the benefit of access over the Red Land. The Council may have used it from time to time, too, but the real use has been by tenants in connection with their own occupation of the various Units. Accordingly, it is tenants themselves who were the actual trespassers; FCL had a perfectly good cause of action against each tenant in respect of which it might well have been able to recover the alternative measure of damages relevant to that tenant by reference to a hypothetical negotiation with each tenant. Further, although the Council is liable for the trespasses of its tenants, it was not itself the actual trespasser. The Council has not, therefore, itself enjoyed the benefit of the trespass by the tenants in the way that it has enjoyed the benefit of the trespass by its servants and agents. In those circumstances, it might be thought that there is no need to hold the Council accountable on the alternative measure. The alternative measure was seen by Lord Nicholls in Attorney General v Blake as an exception to the general rule; to hold the Council liable on the hypothetical negotiation basis would represent an extension to the exception from that general rule.