RDG] Danie Visser's book

------=_NextPart_001_000E_01C8F423.2B63E9A0-- ------=_NextPart_000_000D_01C8F423.2B63E9A0 Content-Type: text/x-vcard; name="Niall R Whitty.vcf" Content-Transfer-Encoding: 7bit Content-Disposition: attachment; filename="Niall R Whitty.vcf" BEGIN:VCARD VERSION:2.1 N:Whitty;Niall;R FN:Niall R Whitty EMAIL;PREF;INTERNET:nwhitty@globalnet.co.uk REV:20080801T210846Z END:VCARD ------=_NextPart_000_000D_01C8F423.2B63E9A0-- ========================================================================= Date: Thu, 28 Aug 2008 13:01:15 +0100 Reply-To: James Lee Sender: Enrichment - Restitution & Unjust Enrichment Legal Issues From: James Lee Subject: A "principled extension" of Blake? MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----_=_NextPart_001_01C90905.C5FE3BD2" ------_=_NextPart_001_01C90905.C5FE3BD2 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable Dear Colleagues, =20 In Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2008/2079.html, 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]: =20 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. =20 Warren J rejects two possible views: that the Council should be liable for trespass in exactly the same way as its tenants would be, and that the alternative measure of damages should be rejected altogether. He continues [84]:=20 =20 The Council is, I have held, liable for the acts of its tenants. It is right in principle that FCL should recover compensation in respect of the benefits which the Council has enjoyed as a result of the tenants' trespass; such benefit as the Council has enjoyed is to be treated as if it were an enjoyment of the land itself in respect of which FCL is entitled to recover damages. Although this has an even greater flavour of a restitutionary remedy than is found in Ashman, it is I consider a principled extension of the approach which Lord Nicholls explains and of which he approves: I consider that the exception to the general rule is to be extended. Accordingly, the Council should, in my judgment, be liable in respect of the benefit it has enjoyed as a result of its tenants' acts. =20 Warren J therefore goes on to assess damages on the basis of a hypothetical negotiation, drawing a (limited) analogy with loss of a bargaining opportunity cases. No academic literature is cited. =20 Best wishes, =20 James =20 =20 -- James Lee Lecturer Birmingham Law School=20 University of Birmingham Edgbaston Birmingham B15 2TT, United Kingdom Tel: +44 (0)121 414 3629 E-mail: j.s.f.lee@bham.ac.uk =20 =3D=3D=3D=3D This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to . To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to . The list is run by Lionel Smith of McGill University, . ------_=_NextPart_001_01C90905.C5FE3BD2 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

Dear Colleagues,

In Field Common = Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch) http://www= .bailii.org/ew/cases/EWHC/Ch/2008/2079.html, 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.

Warren J rejects two possible views: that the Council = should be liable for trespass in exactly the same way as its tenants would be, = and that the alternative measure of damages should be rejected altogether. = He continues [84]:

The = Council is, I have held, liable for the acts of its tenants. It is right in principle = that FCL should recover compensation in respect of the benefits which the = Council has enjoyed as a result of the tenants' trespass; such benefit as the = Council has enjoyed is to be treated as if it were an enjoyment of the land = itself in respect of which FCL is entitled to recover damages. Although this has = an even greater flavour of a restitutionary remedy than is found in Ashman, it is I consider a = principled extension of the approach which Lord Nicholls explains and of which he approves: I consider that the exception to the general rule is to be = extended. Accordingly, the Council should, in my judgment, be liable in respect of = the benefit it has enjoyed as a result of its tenants' = acts.

Warren J therefore goes on to assess damages on the = basis of a hypothetical negotiation, drawing a (limited) analogy with loss of a bargaining opportunity cases. No academic literature is = cited.

Best wishes,

James

James Lee

Lecturer

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk