Stadium Capital Holdings Ltd v St Marylebone Property Company Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Smith,Lord Justice Sullivan,Lord Justice Patten |
| Judgment Date | 15 July 2009 |
| Neutral Citation | [2010] EWCA Civ 952 |
| Docket Number | Case No: A3/2009/2414 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 2009 |
[2010] EWCA Civ 952
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
Sir Donald Rattee
Before: Lord Justice Sullivan
Lord Justice Patten and
Mr Justice Peter Smith
Case No: A3/2009/2414
Ms Janet Bignell (instructed by Legal Department St Marylebone Property Co) appeared on behalf of the Appellant.
Mr John Fuber QC (instructed by Thring Townsend Lee and Pembertons) appeared on behalf of the Respondent.
Mr Justice Peter Smith:
This is an appeal against the decision of Sir Donald Rattee, sitting as a judge of the Chancery Division, when, on 15 October 2009, he ordered the first defendant to pay £313,972.70 as damages for trespass and costs. The first defendant initially sought permission to appeal on six grounds, but my Lord, Patten LJ on 18 March this year gave permission to appeal on two grounds only, namely 1) that it was properly arguable that the judge had been wrong to address the burden of proof in relation to the operation of Section 62 of the Law of Property Act 1925, and 2) that the judge's assessment for the damages was arguably excessive even on a restitutionary basis. The first defendant in supplemental skeleton argument has abandoned the first submission and the only issue before us is the question of damages.
The background is as follows. The respondent is the current freeholder of a cleared development site to the west side of Finchley Road known as the Midland Crescent site. The appellant has, since 1975, been the lessee of the premises immediately abutting the crescent known as 279A Finchley Road. It holds those premises under a lease for a term of 99 years from 10 July 1931. The appellant owns a wall on those premises which immediately abut the Midland Crescent site.
Until April 1994 the freehold of both properties had a common owner. In 1994, however, the freehold to 279A was transferred by the British Railways Board to Railtrack Plc. British Railways Board retained the freehold of the Crescent.
In 1976 an advertising hoarding was erected by the appellant's licensee in airspace that was part of the Midland Crescent site. The hoarding was secured to the appellant's wall on its land. In 1986 a platform was erected in front of the hoarding. From that date until the dispute arose the hoarding and the advertising had changed position over the years and was operated by various licences in favour of the appellant, and the latest occupier was most recently the second defendant. The claim against it has been stayed. The respondents claim that the hoarding was erected pursuant to permission granted in 1956 which was terminated in 2005. The defendant asserted various claims to challenge that entitlement, but none of those arise because it only appeals on the question of damages.
Damages were claimed by the respondent for the period 2005 to 2008 when the hoarding was removed. The judge at the trial assessed the damages in the precise figure which I have set out earlier in this judgment. That was based on the entire fee income obtained by the respondent for the period in question.
The trial took an unusual course of events. The most striking one is that after the judge had reserved judgment and was about to deliver it, counsel then instructed by the appellant (not Ms Bignell, who appears before us today) made an application to adjourn the question of quantum. The judge rejected that because, as he correctly summarised in the exchange asking for the adjournment, the defendants argued damages only in two bases: 1) that it should be reduced because it had a possessing title (it lost on that and there is no challenge); and 2) that the damages should be reduced because the judge should take into account the fact that the hoarding was fastened to the appellant's wall and therefore could not be based entirely on the income. The judge rejected that application for an adjournment and, in respect of the second basis for arguing damages, he said that he had already indicated what his view would be.
The appellants did not adduce any evidence to challenge the headline figure for damages for trespass claimed by the respondent, namely the entirety of the income earned by the appellants on operating the advertising hoarding.
The first matter to consider is the issue of the split trial in my view. We were referred by Ms Bignell, and Mr Furber QC who appears for the respondents, to parts of the transcript which address the issue as to a split trial. It is fair to say that the issue was raised initially by Mr Furber QC on day one but because of various difficulties, but it was not pursued; and during the course of the trial on differing days exchanges took place between the learned judge and counsel who then appeared for the appellants as to how he put his case on damages. Two things appeared from that on my reading of the transcript; the first was...
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