Trustees of Stokes Pension Fund v Western Power Distribution (South West) Plc

JurisdictionEngland & Wales
Judgment Date11 July 2005
Neutral Citation[2005] EWCA Civ 854,[2005] EWCA Civ 1020,[2005] EWCA Civ 424
Docket NumberCase No: B2/2005/0091,B2/2005/0091,B2/2005/0091(Z)
CourtCourt of Appeal (Civil Division)
Date11 July 2005

[2005] EWCA Civ 1020





Royal Courts of Justice


London, WC2


Lord Justice Auld

Lord Justice Dyson


The Trustees of Stokes Pension Fund
Western Power Distribution (South West) Plc

MR MARK SIMPSON (instructed by Messrs Osborne Clarke, Bristol) appeared on behalf of the Appellants

MR LESLIE BLOHM (instructed by Messrs Davis Wood, Bristol) appeared on behalf of the Respondent



We consider that the appellants should have their costs on an indemnity basis incurred after the expiry of 21 days from 26th February 2002. We say that, because this is a case in which the claimants' costs were not only unjustified, they were not only grossly unjustified, but they were recklessly unjustified. It appears to us that they set the tone for what was to follow, notwithstanding subsequent changes of stance by the claimants, not least of which was the proliferation of experts that were instructed on each side, on what became at the end a claim of some £125,000 instead of £750,000. It is quite clear that if the case had started on a proper footing within a proper range of each other, neither the claimants, nor in consequence the defendants, would have contemplated the instruction of three experts for the resolution of such a comparatively minor sum.

( Further submissions)


We refuse permission to appeal to the House of Lords. We consider that if their Lordships wish to consider this issue, which is essentially one of discretion in the exercise of costs and as to the possible fit or lack of fit of parts of the Civil Procedure Rules, their Lordships can call for the case, if permission is sought.

[2005] EWCA Civ 424





Royal Courts of Justice


London, WC2


Lord Justice Gage


The Trustees of Stokes Pension Fund
Western Power Distribution (South West) Plc

MR MARK SIMPSON (instructed by Messrs Osborne Clarke, Bristol BS1 6EG) appeared on behalf of the Applicant

The Respondent did not appear and was not represented


This is an application for permission to appeal a judgment of His Honour Judge Roach. The judge assessed damages in respect of the respondent to this application's claim for trespass in the sum of £20,000 plus interest. That was the sum which he awarded by way of judgment on 21st December 2004. At trial the sole issue was damages, liability having been admitted.


The central facts were shortly stated by the judge at paragraph 1 of what I take to be a reserved judgment. He said:

"1. The claimant's case lies in trespass. The claimant alleges that on a date in October 2000 the defendant entered the claimant's land without permission and felled a significant number of trees. At the material time the claimant was cultivating a large part of the land as woodland. A number of the defendant's electricity lines crossed that land and, in order to maintain the safety of those power lines, contractors employed by the defendant entered the land without permission and without recourse to the claimant felled, it is said, approximately 400 trees belonging to the claimant."

And in paragraph 2, the first sentence:

"As a result of these wrongful acts of the defendant, the claimant claims that a significant proportion of the woodland was lost."


The claim was put on two alternative bases. First, the cost of reinstatement and, secondly and alternatively, the diminution in the value of land. The judge awarded damages on the second basis. He found that reinstatement had not been carried out (indeed that was admitted), and that by their actions the applicant had diminished the value of the land as at October 2000 in the sum of £20,000.


A large part of the evidence at trial was taken up with an issue relating to the risk of the local planning authority taking enforcement proceedings in respect of what were said to be breaches of planning conditions.


The alleged breaches arose in two ways. First, at the time of the trespass there was an issue as to whether there was already a breach of a planning condition to landscape the land, the condition being made on the grant of permission to develop the land in 1995 or 1996. If there was such a breach, would the local authority have enforced the breach of the condition?


The second way in which an alleged breach of planning condition arose was as to whether the trespass by the applicant would in fact cause the local authority to take enforcement proceedings against the occupier.


It was agreed that the resolution of these issues affected the assessment of the diminution of the value of the land, and it is submitted by Mr Simpson on behalf of the applicant in his skeleton argument that it also affected the question of damages for reinstatement. As to that, that really plays no part in this matter because the real issue is whether or not there is a real prospect of success in an appeal against the award of damages in respect of diminution of value.


So far as the cost of reinstatement is concerned, the judge found this to be either £8,620 or £8,640, depending upon whether or not there is a typographical error in the figure set out in his judgment. That is not material. In arriving at this figure he did not take into account the risk of enforcement proceedings. He said in his judgment at paragraph 34 that the risk was not relevant in respect of the assessment of damages for reinstatement. As I have already indicated, nothing turns on that.


The diminution of the value of the land was dealt with by the judge on the basis of the risks of enforcement of planning conditions. Having considered the expert evidence, he found that the risk was very small in respect of both aspects of breach of conditions. At paragraph 69 of his judgment, he said:

"For the above reasons therefore I conclude that the prospect of the planning authority enforcing conditions 3 and 4 as against this claimant is not in fact high nor has it been so since 2000."


He went on to express his approach to the assessment of diminution of value. He put it in this way at paragraphs 70 and 71 of the judgment:

"70. That conclusion [a reference back to paragraph 69 to which I have already referred] is not an end of the matter however. I recognise that my view as to the risk of enforcement is not determinative of the issue before me; namely the diminution of the claimant's land in 2000 as a result of the defendant's admitted trespass. I of course have had the benefit of expert evidence and skilled argument from counsel on the issue, strong features which a purchaser would not have had available to him in 2000.

71. In my judgment the correct approach in assessing the loss in value of this land if any is to ask myself this question: what price in 2000 would a purchaser have paid for this land having regard to both the planning conditions which affected this land and the defendant's admitted acts of trespass?"


Having weighed the various factors, including a buoyant property market in 2000, he assessed the value on the basis of the claimant's expert's valuation. He said, and I turn now to paragraph 76 of the judgment:

"76. Adopting Mr Jones' approach I am of the view that a purchaser in 2000 would have considered a percentage reduction of the purchase price. However I am disinclined to think that the percentage reduction would have amounted to as much as 5–7%. In my view the reduction would have been limited to 2.5% to 5% to reflect the relatively small risk of enforcement which I have set out above. This achieves a price reduction range of broadly £14,000 to £28,000. The midpoint of that range is broadly £20,000. In my view that figure should represent the diminution in value of this land caused by the defendant's acts of trespass."


Mr Simpson, on behalf of the applicant, submits that in adopting that approach the judge fell into error. Essentially, his submission is that it was agreed between the respective experts concerned in this exercise that the diminution in value was the actual sum which the judge assessed as the cost of reinstatement. Accordingly, it is submitted by Mr Simpson that the maximum possible sum of diminution in value that the judge could have properly assessed was the sum of £8,620. He submits that it was agreed between the expert valuers that the diminution in value should be assessed upon that basis. Accordingly, it is submitted, that it was not open to the judge to assess the diminution of value in any other way. Further, it is submitted that there was no logical reason for the judge going outside the parameters of the expert evidence.


To my mind, this is to misunderstand the exercise which the judge had to carry out. He had to assess damages on the basis of the diminution in value at October 2000. It is common ground that that was the correct date to be taken. What he did, as it seems to me is clear from his judgment, was to assess a range of factors. Mr Simpson submits that he failed to take into account a factor relating to the claimant, the vendor, who would have received expert advice that the prospect of...

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