Trespass in UK Law

Conversion of goods can occur in so many different circumstances that framing a precise definition of universal application is well nigh impossible. First, the defendant's conduct was inconsistent with the rights of the owner (or other person entitled to possession). Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods.

In the light of these authorities, it seems to me that, in a trespass case of this kind, "hypothetical negotiation damages" of the kind described in these cases are obviously appropriate. The fact that one party might have refused to agree is irrelevant. In other words, the price which a reasonable person would pay for the right of user, or the sum of money which might reasonably have been demanded as a quid pro quo for permitting the trespass.

The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass.

If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action to-day in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care.

A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. But it is essential to realise that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles one person to obtain from the Court a remedy against another person.

However, while it will generally be appropriate for the judge in such cases to 'pay attention' to the profits made by the defendants as a result of their trespass (see per Sir Thomas Bingham MR as quoted at paragraph 30 above) he is not obliged to do so and there may well be cases where such an approach is inappropriate, for instance where the profits made are negligible or are impossible to assess.

However, the defendant may put in evidence to seek to establish that he has a right to do what would otherwise be a trespass. Then the court must consider the application of the principles set out in American Cyanamid v. Ethicon Ltd. [1975] A.C.396 in relation to the grant or refusal of an interlocutory injunction.