1908. May 2, 5. Supreme Court of Judicature. COURT OF APPEAL. DAVIS v. BROMLEY URBAN DISTRICT COUNCIL. Local authority - Trespass — Measure of damages. In an action against a local authority for damages for trespass committed under circumstances of aggravation it is a misdirection, in respect of which a new trial may be ordered, to tell the jury that the damages should be measured by the out of pocket expenses to which the plaintiff was put. APPLICATION by the plaintiff for new trial on appeal from a verdict and judgment entered for the defendant Council at the trial of the action before Ridley J. sitting with a jury. The action was brought to recover damages for trespass and for an injunction. The facts are stated in some detail in the judgment of Collins M.R. Shortly they were as follows:-The plaintiff, after giving notice to the defendants' surveyor of his intention, to which he received no reply, built a wall on the boundary of his land. The defendant Council caused the wall to be pulled down, and the plaintiff thereupon commenced the present action. The defendants refused to give any undertaking not to repeat the acts complained of pending the trial, and the plaintiff was consequently put to the expense of keeping a watchman on the premises at night to protect the property. By their defence the defendants admitted that the trespass had been committed, and that the plaintiff had suffered damage, and they paid £35 into Court. At the trial Ridley J. directed the jury that the measure of damages was the out-of-pocket expenses the plaintiff would be put to in rebuilding the wall and the wages of the watchman, and the jury assessed the damages on that footing at £20. The learned judge, as the defendants by their counsel offered to give an undertaking not to interfere with the wall again when rebuilt, held that an injunction was unnecessary. As the amount awarded by the jury was less than the amount paid into Court, he entered judgment for the defendants, with costs as between solicitor and client, holding that the provision of the Public Authorities Protection Act, 1893, s. I (c), applied. The plaintiff appealed on the ground of misdirection as to the measure of damages, and that in the circumstances he was entitled to an injunction. 1908. District Council. Hohler for the plaintiff. The facts show that the defendant Council acted in a high-handed manner, and in a way calculated to lead to a Davis v. breach of the peace. Therefore, the judge was wrong in directing Bromley Urban the jury that the measure of damages was the out-of-pocket expenses which the plaintiff sustained by the wrongful act complained of. Moreover, the judge was wrong in refusing to grant the injunction merely because the defendants expressed their readiness to give an undertaking. That undertaking was not offered until after the verdict. had been given, so that Jenkins v. Hope, 1896, 1 Ch. 278; 65 L. J. Ch. 249, does not apply. The plaintiff, having established his legal right, was entitled to his injunction, with costs, there being no special circumstances affording a reason why the injunction should not issue: Imperial Gas Light and Coke Company v. Broadbent (1859) 7 H. L. C. 600; 29 L. J. Ch. 377. Even if the defendants had not paid a greater amount into Court than the jury awarded, and therefore judgment on the claim for damages had carried costs, and no apparently useful purpose would have been served by the injunction being granted, he would nevertheless, subject to the discretion of the judge, have been entitled to the injunction. But here the judge had no such discretion, for the result of withholding the injunction was a miscarriage of justice. It was held in Goodman v. Richardson (1874) L. R. 9 Ch. 221; 43 L. J. Ch. 790, that an injunction could be claimed, although the motive for applying to the Court was not connected with the enjoyment of the land. An injunction may be granted although the mischief complained of comes to an end after the writ is issued and before the trial: Dean and Chapter of Chester v. Smelting Corporation (1901) W. N. 179. On both these grounds the plaintiff is entitled to a new trial. Lochnis for the defendant Council. The defendants by their defence admitted liability, and therefore the only question the jury had to try was the amount of damage the plaintiff had sustained. The Council were not actuated by any ill-feeling towards the plaintiff, and had done what they thought was in the best interest of the ratepayers. The evidence called by the plaintiff was not believed by the jury, and they took the view that the defendants had made a bonâ fide mistake, and that the damage was very trivial. In these circumstances the amount the plaintiff was entitled to was a pure question of fact, and your Lordships should be slow to interfere in a matter which was entirely for the consideration of the jury. Every fact was before the jury, except the amount the Council had paid into Court, which by Order XXII,, r. 22, was rightly not mentioned. The admission of liability entitled the plaintiff to judgment, and his proper course would have been to have taken out a summons and A A A 1908. Davis v. Bromley Urban District Council. asked for judgment on the pleadings. The amount awarded being less than the amount in Court, the defendants are entitled to their costs, and, the Public Authorities Protection Act, 1893, s. 1 (c), applying, to have those costs taxed between solicitor and client. Hohler replied. COLLINS M.R. In this case there must be a new trial, as in my opinion there has clearly been a miscarriage of justice. The plaintiff is the owner of land at Bromley, which was bounded by a bank with an old holly hedge and fence on the side on which it adjoined a highway. The plaintiff, who was a builder, desired to erect a house on this land, and it is now conceded, and rightly conceded, that the whole of the land down to the fence along the toe of the bank on the roadside belonged to him. Having begun to build, it became necessary for the plaintiff to erect a wall, and he commenced to do so upon what he conceived, and correctly conceived, to be his boundary line, and in order to get that line agreed to by the local authority, he wrote to their surveyor informing him of what he was about to do, and asking him to sanction the line, stating that he would place posts where the proposed wall would stand. The surveyor replied that he thought that the wall must be built on the top of the bank, but nothing definite was come to, although there was correspondence going on about another matter. The plaintiff then put in posts to mark out the line of the wall, and again wrote to the surveyor to the effect that the posts at the toe of the bank marked out what he assumed to be the boundary line of his property, and that he should build the wall there. To this letter he received no reply, and accordingly, hearing nothing to the contrary, he began to build the wall along the line he had marked out, which he thought had been agreed to, just inside the old fence at the bottom of the bank. The local authority thereupon, without giving him any notice, came early in the morning, so as to anticipate any action on the part of the plaintiff or his workmen, and pulled down his wall, and threw the bricks on to his land. On the 4th July, 1901, his solicitor wrote to the Council complaining, as the plaintiff was entitled to do, of their action, and pointing out that the defendants' servants had committed a trespass on the plaintiff's land, and put him to considerable expense and trouble, adding that unless there was a satisfactory explanation and redress, he was instructed to proceed against them in a court of law. No reply was vouchsafed to that letter by the Council, and on the 12th October the plaintiff wrote another letter, stating that the threatened action would be commenced for damages, and that an injunction to restrain them from again interfering with his wall when rebuilt on the 1903. District Council. same line would be claimed. Again the Council made no answer, and did not even send an acknowledgment of the receipt of this Davis v. letter. On the 19th October the writ was issued, and even then there Bromley Urban was no intimation of their attitude on the part of the defendants until they put in their defence to the statement of claim on the 27th December. Then they receded for the first time from the position of indifference they had taken up. By their defence they admitted that their servants had pulled down the wall, and that the acts complained of were wrongful, and that the plaintiff had suffered damage, and they paid £25 into Court, saying they did not intend to enter again upon the plaintiff's land. In my opinion, the local authority by their servants had not only trespassed on the plaintiff's land, but they had done it in such a way as to publicly insult him. They acted in a way which had the effect of branding him as a person who was interfering with public rights. This act of trespass they did without notice, and they persisted in that attitude, and refused an explanation and made no amends until after the statement of claim was delivered, and they were compelled to file a defence. In these circumstances the action was brought for an injunction and also for damages; and, in my opinion, the learned judge ought to have brought before the notice of the jury the fact that this was an arbitrary act done by a local authority, who had it in their power to injure the plaintiff, and that they had acted in a high-handed manner and without any real justification whatever. I do not think it was fair to treat the matter as the learned judge appears to have treated it as a mere question of out-of-pocket costs. On the contrary, it seems to me that the gist of the case was the aggravation by reason of the circumstances under which the act was done. The question we have to decide is whether that fact ought not to have been brought before the notice of the jury. Was it right to tell them that the amount which they had to consider was the actual out-of-pocket expenses the plaintiff had suffered and nothing more? The defendants paid £25 into Court, and the jury, on the direction of the judge, assessed the damages at £20. The result of this action, therefore, is that this plaintiff, who admittedly has suffered wrong, has by the exigencies of the statute become bound to pay the defendants their costs as between solicitor and client. The action was brought not only to recover damages for trespass, but also for an injunction. Yet the learned judge at the trial dealt with the action as if it had been brought for the recovery of out-of-pocket expenses, and I am bound to say that his dealing with it in that way has led to this miscarriage of justice. There are one or two passages in his summing up to the jury which I ought to refer to. In one of them he said the plaintiff took up the position 1908. Davis v. Bromley Urban of let me alone or pay damages," and he characterised him in another passage as a person "trying to mulct the defendants," and seemed to suggest that as the trouble arose from the plaintiff's own act of building the wall before he had made sure of his ground, and the Council, in his opinion, had only made a mistake, the plaintiff was himself to blame and not the local authority for all the trouble and inconvenience he had suffered. The local authority had no right to pull down the wall without first giving him notice to remove it. Further than that, there had been a dispute between the plaintiff and the defendants' surveyor with reference to certain house drains, and the learned judge invited the jury to ignore that fact. I do not think that that was a matter that the jury should have been told they might ignore. I think it was a matter for their consideration in view of the high-handed manner in which the defendants had treated the plaintiff, and that it was not competent for the defendants to decide the case in their own favour by paying merely out-of-pocket expenses into Court. It seems to me that the result of the summing up was to mislead the jury, and furthermore, I am not sure that in dealing with the question of the undertaking and the injunction the learned judge applied a judicial discretion to the question of costs. He seems to have treated it as following as a matter of course, because the damages awarded were less than the sum paid into Court, that the plaintiff must pay the defendants' costs. The result of the action is wholly unsatisfactory, and there must be a new trial. STIRLING L.J. I agree. MATHEW L.J. I am of the same opinion. Obviously the impression produced by the summing up on the minds of the jury would be that there had been a mistake on the part of the local authority, which could be put right by paying the plaintiff what it had cost him to rebuild the wall. The defendants were ill-advised in the action they took, which was calculated to lead to a breach of the peace. They were wrong, moreover, in treating the plaintiff's letters with contempt, and in not offering to make amends until the eleventh hour. In my opinion the material part of the plaintiff's case was the insult which he had suffered, and the learned judge, in view of the fact that the plaintiff was clearly entitled to an injunction, was wrong in dealing with the expenses the plaintiff was out of pocket as the proper measure of damages. Order for new trial accordingly. Solicitor for the plaintiff― L. W. Gregory. Solicitors for the defendants-Willett and Latter. |