Damages for lost rents could go up without amending particulars of claim

The Court of Appeal dismissed an appeal from the High Court against an award of damages of £285,700 for the unlawful occupation of land for periods totalling 51 months between January 2009 and September 2014.

The case, Raymond Anthony Shepherd v Collect Investments Ltd, revolved around a 7.2-acre industrial site in County Durham. The Appellant went into occupation of the land in 2007. That licence to occupy was terminated in 2008 and a notice to quit was given. The Appellant did not comply with the notice and remained in occupation of the land as a trespasser. In breach of the licence terms and of planning controls, the Appellant used the land as a waste disposal site and caused or permitted very large quantities of waste to be dumped there. For these activities, the Appellant was prosecuted by the Environment Agency and convicted on eight counts of acting contrary to environment regulations, for which he was sentenced to a term of 18 months’ imprisonment (less time already served).

In the present proceedings, an order for immediate possession and damages for trespass were sought. A summary order for possession was made in September 2014.

Damages were claimed under two heads: the cost of removing the waste, estimated at about £500,000 (a claim which was ultimately abandoned); and loss of revenue “to the Claimant of leasing or licencing the Land from 1 January 2009 at the rate of £12,000 per annum to the date hereof, making a total of £78,000 and continuing at the rate of £2,000 per month until vacant possession is given or taken”.  According to an expert’s report, which the Appellant was given permission to question, total loss of revenue was actually £285,700. While the Judge noted that the Claimant had not applied to amend its particulars of claim to the higher figure, he regarded that as a formality. He took the view that, in the light of the expert report and a witness statement, it had been perfectly clear to the Appellant that the claim was for about £285,000 and the case had been opened on that basis. Based on the expert report, the Judge awarded damages of £285,700 and the Appellant subsequently appealed this sum.

The Court of Appeal held that Claimant was entitled to increase its claim for the loss of rent from £12,000 to £78,000 per annum without amending its particulars of claim, especially since the Appellant was not surprised by this increase as he had been served with the expert’s report over seven months before the trial and he had raised questions with the expert in March 2015.

The Appellant also raised issues about the expert’s report, including the fact that the valuer never visited the land. The Court of Appeal held that whether it is necessary for a valuer to visit the land in question depended on the circumstances. It may be perfectly possible to provide a reliable opinion on rental values without a visit. The expert was also entitled to ignore the impact of the waste disposal on the rental value of the land; and there was no need for the High Court Judge to take into account a previous lower value of the land of £10,000 per annum. The appeal was dismissed.

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