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|Neutral Citation Number:  EWCA Civ 985
|Case No: A3/2010/2669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Chancery Division, Birmingham District Registry
Ms Geraldine Andrews QC, sitting as a Deputy High Court Judge
 EWHC 2453 (Ch)
|Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LLOYD
LORD JUSTICE TOMLINSON
| Ausman Ramzan
|- and -
Mr Mark Anderson QC & Mr David Mitchell (instructed by Bude Nathan Iwanier) for the Appellant
Mr Leslie Blohm QC & Mr John Stenhouse (instructed by Silks Solicitors) for the Respondent
Hearing date : 16 June 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lady Justice Arden :
- This is a remarkable case which involves the assessment of damages and interest resulting from the misappropriation by the appellant, Brookwide Ltd ("Brookwide"), of a room forming part of a property then owned by Mr Mohammed Ramzan, then a bankrupt. The property is now owned by his son, Mr Ausman Ramzan, who is the respondent to this appeal and the claimant in the relevant proceedings below. It not infrequently happens that land is removed from the possession of its owner by a trespasser by the process of adverse possession and initially without protest from the true owner. In this case, however, there was a straight expropriation of the property of Mr Mohammed Ramzan which was objected to from the moment it happened. Moreover, in this case, although the property was part of a building, it was not a normal kind of land since it was a first floor room. The room thus constituted a "flying freehold". That is an unusual form of tenure. Mr Mohammed Ramzan owned the freehold of a first floor room without owning either the ground floor of the building that supports it or the earth beneath it, though he did own the immediately adjacent property so his flying freehold was not entirely isolated. The room was used as part of a curry house, known as the Jewel in the Crown, which Mr Mohammed Ramzan ran from the neighbouring building, the freehold of which he owned. Since 2001, that business has been run by father and son in partnership. The Jewel in the Crown was a popular and successful restaurant.
- The acts of the appellant gave rise to no less than seven separate heads of damage, taking the claims of father and son together, exclusive of interest. Issues arise on this appeal on four out of the six heads of damages, and on the interest, awarded to Mr Ausman Ramzan. Before I deal with those issues, I need to explain the unusual background to this case more fully, as well as the judgments below. The judge gave two judgments in this matter, but only the second is the subject of this appeal. The amount of her awards of damages and interest totalled £588,517.43.
Background and judgments of the judge
- 29 April 1999 was the start of the events leading to Brookwide's misappropriation. Mr Mohammed Ramzan owned 125 Alcester Road, Moseley, Birmingham ("No 125"). The Jewel in the Crown occupied the ground and the first floor. The first floor was not a restaurant with tables but a function room used for special parties, weddings and so on. The property stood in a terrace of houses. The neighbouring property was 123 Alcester Road ("No 123"). A room on the first floor of No 123 opened off an office adjoining the first floor function room in No 125; it comprised a store room and, most importantly, provided access to a fire escape which ran back into the yard behind No 125, the property belonging to Mr Mohammed Ramzan. There was no access to the store room from any other part of No 123. Unless it otherwise appears, the expression "store room" in this judgment refers compendiously to the store room and the fire escape. Following the expropriation of the store room by Brookside, Mr Mohammed Ramzan could no longer use the first floor of No 125 for his restaurant business because of the absence of a fire escape, which was required by regulations for safety reasons.
- Mr Mohammed Ramzan had been declared bankrupt in 1997 for non-payment of a debt of £1,200. The fact of his bankruptcy meant that ownership of No 125 had vested in his trustee in bankruptcy. However, the trustee in bankruptcy allowed Mr Mohammed Ramzan to carry on his business. This may have been because it was clear that his creditors could be paid off. There is nothing to suggest that the cause of his bankruptcy had been that the restaurant business at No 125 was unprofitable.
- Added to his financial woes, Mr Mohammed Ramzan discovered on 20 April 1999 that the alarm for his restaurant had been set off by builders at No 123. Worse than that, they had broken into part of his premises. They then took down the wall separating the store room from the rest of No 123, bricked up the entrance to the store room from No 125, threw away Mr Mohammed Ramzan's tools and other property in the store room, destroyed the fire escape leaving only the part within the curtilage of No 125 and proceeded to incorporate the misappropriated space into No 123, which was, ultimately, converted into two residential flats and let for a commercial rent. These builders had been instructed by the new owner of No 123, Brookwide.
- How had this extraordinary state of affairs come about? In 1992 Mr Mohammed Ramzan had purchased No 125 from Agra Ltd ("Agra"), which also owned No 123. The judge found that the property sold to him by Agra included the store room. Agra was also the parent company to Brookwide, which acquired No 123 in 1994, after the sale of No 125 to Mr Mohammed Ramzan. After the date of the wrongful appropriation (but not before), it came to light that the plans filed at the Land Registry for both properties wrongly failed to show that the store room belonged to No 125.
- The store room represented a significant part of the first floor area in No 123. Sometimes there are voids in buildings which are odd places walled up or boxed in, for example to enclose an old fireplace or some unsightly feature. We do not have the precise dimensions but the plans show that, relative to the footprint of No 123, the store room accounted for about 10% of the first floor of No 123 and over 50% of the width of the property. The judge found that without the store room Brookwide would probably not have been able to create a viable flat in that location (second judgment, paragraph 5). No person entering the first floor of No 123 could have been unaware that an area was blocked off. Moreover, the judge found that a person breaking through the wall dividing the store room from the first floor of No 123, and discovering its use, could not have confused it with a void, not least because it contained tools and other possessions.
- It is certainly odd for No 125 to have a flying freehold like the store room but Mr Mohammed Ramzan was clearly using it for his restaurant business. The builders went on undeterred.
- Mr Mohammed Ramzan was no doubt horrified and distressed to discover that his property had been broken into and appropriated. He called the police but they declined to intervene on the grounds that it was a civil matter. We are not told why Mr Mohammed Ramzan did not immediately seek an injunction, but it may have been because the trustee could not be persuaded to act in time or it may be because Mr Mohammed Ramzan saw the registered plan. What we do know is that the builders blocked up the entrance to the store room at great speed. The trustee in bankruptcy of Mr Mohammed Ramzan is no longer involved as, in 2001, No 125 was transferred for a nominal sum of £1 to Mr Ausman Ramzan. Mr Mohammed Ramzan was discharged from bankruptcy in the same year.
- The failure to seek interim relief led inexorably to Brookwide completing its appropriation of the store room. Ignoring the complicating factor of his bankruptcy, Mr Mohammed Ramzan owned No 125, including the store room, but that part of his property was now incorporated into a first floor flat at No 123, which was let out to a third party. His restaurant business was therefore limited to the ground floor of No 125. The fire escape and store room had been lost. Profits of the restaurant business attributable to the first floor function room had been lost. Meanwhile, Brookwide, as trespasser, had the use of the store room as part of the flat which it had constructed, and had received rent for the flat.
- The legal consequences of this complex situation then had to be unravelled. Mr Mohammed Ramzan sued for the loss of his tools in the store room. Those tools were by law his, since notwithstanding his bankruptcy he remained entitled to them. The action brought by Mr Mohammed Ramzan was consolidated with Mr Ausman Ramzan's further, and more substantial, claim, which has given rise to this appeal. Mr Ausman Ramzan commenced his proceedings shortly before the limitation period expired and in them he claimed damages for (so far as material) the continuing misappropriation, the continuing loss of use of the store room, mesne profits and an account of profits. In addition he claimed aggravated and exemplary damages for the wrongful acts of Brookwide as continued against him after his acquisition of No 123 on 23 May 2001.
- Interim orders were made for liability and damages in the proceedings brought by Mr Ausman Ramzan to be tried separately. The proceedings then came before Miss Geraldine Andrews QC, sitting as a deputy judge of the Chancery Division in Birmingham. The claim by Mr Ausman Ramzan was treated as a claim brought by him in his own right. After the trial on liability, Mr Ausman Ramzan had sought permission to adduce evidence as to an assignment of claims by Mr Mohammed Ramzan to himself but the judge rejected that application and we are not concerned with any claims other than those brought by Mr Ausman Ramzan in his own right. This point assumed significance on this appeal. Neither Mr Mohammed Ramzan nor his trustee in bankruptcy has ever sought relief for the consequences of the wrongful appropriation of the store room.
- The judge gave judgment on liability on 4 April 2008. The judge concluded that the store room belonged to Mr Ausman Ramzan but in the exceptional circumstances of the case, especially taking into account that the store room now formed part of the first floor flat at No 123, she declined to order rectification of the Register to show this and declined to order a mandatory injunction returning the store room to Mr Mohammed Ramzan. She held that Brookwide's conduct had given rise to liability in tort and for breach of trust:
"127. Ausman Ramzan's claim for damages is based on the continuing (and continuous) infringement by Brookwide of his rights to enjoy the use of his property since he acquired the beneficial interest in the store room and the fire escape on 23rd May 2001. The second action was commenced within six years of that date, and accordingly Ausman Ramzan is entitled to damages from 23rd May 2001 onwards. It may not matter precisely how the cause of action is framed: Brookwide's behaviour was, and is, undoubtedly tortious. It was and is a breach of trust, a continuing trespass on land, and a denial of Ausman Ramzan's right in equity to have the freehold title conveyed to him. There was and is a derogation from the grant made under the 1992 Transfer by Agra."
- She refused to allow a claim by Mr Ausman Ramzan for aggravated damages. There might have been a stronger case if that claim had been brought by Mr Mohammed Ramzan, but that claim is now statute-barred. The judge contented herself with noting that, by the time of Mr Ausman Ramzan's acquisition of No 125 from his father's trustee in bankruptcy, the conversion of No 123 using the store room area had been completed. She held that the actions of Brookwide since that conversion did not merit an award of aggravated damages. The judge noted, however, that a claim for exemplary damages lay where a defendant's conduct had been calculated to give rise to a profit, which might exceed the compensatory damages available:
"133. Exemplary damages, by contrast, are awarded to teach the defendant that "tort does not pay" and to deter him and others from similar conduct in the future: see Broome v Cassell & Co Ltd  AC 1027 at 1072-1073. Such damages may be awarded only in certain limited categories of case. These include a case of trespass to land, where the defendant's conduct has been "calculated by him to make a profit for himself which may well exceed the compensation payable": Rookes v Barnard  AC 1129 per Lord Devlin at 1226."
- The judge held that, when the plans for developing No 123 were prepared, Brookside did not consciously appreciate that there was a void enclosing the store room which belonged to Mr Mohammed Ramzan. But, on the judge's findings, it was very likely that Mr Natanson, Brookwide's agent, appreciated when the void was broken into that it was a store room and did not belong to No 123. The incorporation of the store room into No 123 was completed with "alacrity", indicating that Brookwide, by its agent, intended to make it as difficult as possible for Mr Mohammed Ramzan to reverse the appropriation. The judge rejected Mr Natanson's protestations in evidence that he acted quickly merely to mitigate security risks on site. The judge found: "Once the store room was taken, Brookwide was never going to give it back." (first judgment, paragraph 142).
- The judge considered that Brookwide, through the actions and intentions of its agent, Mr Natanson, intended that No 123 should be augmented by the acquisition of the store room and that No 125 should be diminished accordingly. The judge concluded that the conduct of Brookwide in thus appropriating the store room had been totally unacceptable, describing for instance, the conduct of Mr Natanson as "highhanded", and that Brookwide condoned the actions of its agents. The judge held:
" 144. Appropriating property with reckless disregard of the rights of others, and then taking all available steps to ensure that it cannot be returned, all with a view to making a gain, is almost as bad as deliberately taking for oneself property which is known to belong to someone else. "
- On this basis the judge reached an in-principle conclusion that a claim for exemplary damages lay, though she added that she was not sure that this claim would add anything to the profits recoverable by Mr Ausman Ramzan as a result of the wrongful use of the store room.
- The order made by the judge on 4 April 2008 contained the following, provisionally defining the heads of claim for which damages would be quantified and awarded at the subsequent hearing:
"The Claimant is awarded damages as follows:
(a) damages for the past and continuing trespass, breach of trust and denial of title by Brookwide from 23 May 2001 and continuing;
(b) damages representing all profits obtained by Brookwide Limited from leasing out the Store Room as part of the property demised by Brookwide Limited at 123 Alcester Road, Moseley, to tenants for profits;
(c) exemplary damages for the wrongful and continuing appropriation of the Store Room by Brookwide Limited
for such period(s) as the Court may direct and subject to any further order that the Court may make transferring or vesting beneficial title in the Store Room to or in Brookwide Limited and awarding damages in lieu of re-instatement of the Store Room, together with interest on all such damages, to be assessed by the Court. (For the avoidance of doubt, it is agreed that the extent (if any) to which damages awarded under any head above shall be taken into account when quantifying damages under any other head(s) above is a matter left open for determining at the trial of the assessment of those damages.)"
- In my judgment, the words in brackets prevents it being said that by virtue of the order of 4 April 2008 the appellant has elected to accept any particular head of damage in preference to any other head, should it turn out that he has to exercise a choice. The doctrine of election between different remedies will need to be considered in the course of this judgment. There was no expectation at trial or on the hearing of this appeal that Mr Ausman Ramzan would be required to make a formal election at any point. The court has proceeded on the basis that, if an election is required between different awards of damages, he would be treated as having made an election for the higher award. At paragraph 36 of her second judgment, the judge recorded counsel as stating Mr Ramzan's position consistently with that.
- Following a further hearing to determine the damages to be paid to Mr Ausman Ramzan, the judge gave a second judgment dated 8 October 2010. In this judgment, the judge dealt first with damages for trespass, breach of trust and denial of title. As the claim for rectification of the Land Register had been refused, Brookwide was ordered to pay Mr Ausman Ramzan the diminution in value of his property due to the loss of the storeroom. The judge found that this valuation should take account of the fact that this area had enabled Brookwide to develop the first floor as a flat, but the judge did not have to apply this principle as the parties came to an agreement in the course of the hearing that the capital value of the store room, including the fire escape, was £55,000. The judge therefore awarded this sum. The judge did not have to determine what sum was attributable to the value of the fire escape.
- Mr Ausman Ramzan claimed mesne profits for Brookwide's wrongful occupation of the storeroom (or, strictly, the space it had occupied) before it was converted into the first floor flat at No 123, down to the date on which Brookwide was ordered to pay the capital value of the store room in lieu of reinstatement. The judge assessed mesne profits on the basis that, had the parties negotiated for the use of the store room by Brookwide, they would have agreed on a fee of 4.5% per annum of the capital value of the store room, agreed at £55,000, in order to provide a satisfactory return on capital for Mr Ausman Ramzan. The aggregate sum was £23,210.64. If the claim had been for damages for breach of trust for Brookwide's use of the store room, the sum recoverable would have been less, since the gross profit that Brookwide obtained from letting the first floor flat in the same period was only £19,741.60. The judge ruled that Brookwide should not have any credit for its property management expenses in view of the level of its culpability. The judge rejected the argument that damages should be based on the sum of £2,500, which was said to be the value of the store room without the fire escape. Once the value of the store room had been agreed at £55,000, this sum should, in the judge's judgment, be applied for all purposes.
- As to the fire escape, the judge held that this was an additional head of loss and that Brookwide should pay the costs of installing a new fire escape at No 125, assessed at £72,570 plus VAT. The judge rejected the argument that there would be double recovery given that the sum ordered to be paid on account of the capital value of the store room included the fire escape. The judge held:
" I reject Mr Mitchell's argument that in order to recover under this head, the claimant must prove that he would install a new fire escape. No authorities were cited to me in support of that proposition and, as Mr Stenhouse pointed out, the point was never even pleaded, though I would not have dismissed it on that technical ground alone if it had had any merit. As I stated earlier in this judgment, damages for tort are designed to put the injured party in the position in which he would have been if the wrong had not been committed. If the wrong had not been committed the claimant would still have had a fire escape. That item had a value, independent of the value of the land to which it was attached. The best measure of that value is the agreed cost of putting in a replacement. The claimant is therefore entitled to compensation for the loss of the fire escape, regardless of his intentions and regardless of whether he is able to effect reinstatement (this may depend on whether planning permission can be obtained). Occasionally in contract cases, the costs of replacing an item that was not delivered or repairing an item that was delivered in a damaged condition will not be awarded because on the facts it would have been unreasonable for the injured party to replace or repair it, as the case may be. However, this is a claim brought purely in tort, and in any event it would not be unreasonable to replace the fire escape. The nature of the loss falls within normal principles of causation and remoteness, and there is no issue as to mitigation. The costs of the installation of a new fire escape have been agreed by the experts at £72,570 plus value added tax (VAT) and that is the sum I shall award under this head."
- As to the claim for loss of profits, the judge substantially accepted the case put forward by Mr Ausman Ramzan and held that the profits from the function room would have been £24,000 per annum, making £225,073.50 over the nine years and 138 days of Mr Ausman Ramzan's occupation. The first floor could no longer be so used as a function room due to the lack of a fire escape (which had not been reinstated on the premises at No 125). The judge rejected the argument that the damages under this head should be reduced because Mr Ausman Ramzan carried on business in partnership with his father. The judge held that he was entitled to claim for all the loss due to Brookwide's wrongful conduct even if he had subsequently to account for half the profit to his father.
- The judge noted that, unusually, the wrongdoer held the property in trust and thus was liable to account for profits obtained by reason of its breach of trust. The judge's previous order had directed that Brookwide should disgorge the amount of the rent which it received from letting the flat as damages for breach of trust but since this would lead to double recovery in the light of the judge's award of mesne profits the judge ordered that this sum should be deducted from the amount of the mesne profits which she had ordered, leaving a balance of £3,469.04. She therefore awarded mesne profits of £3,469.04 and damages for breach of trust in the amount of £19,741.60.
- The judge also dealt with exemplary damages for wrongful and continuing appropriation of the store room. The judge took into account that Brookwide had substantial means and that it had shown no contrition. The judge held that there was little guidance as to the assessment of exemplary damages. She considered that, in all the circumstances of this case, the appropriate figure was £60,000.
- Finally, the judge dealt with interest on the damages which she had awarded down to the date of judgment. She considered that interest should be awarded on the mesne profits, lost profits and damages for breach of trust. She further held that the rate was discretionary but that over the period in question it would be reasonable to take a figure of 6% per annum on the basis that this reflected the average cost of borrowing in that period. At the date of judgment, the judge found this to be £139,705.14.
- The effect of the judge's second judgment can conveniently be summarised by setting out the material provisions of her order dated 3 December 2010 made in consequence:
"1. The damages payable by the Defendant to the Claimant pursuant to paragraph 11 of the Order made after the trial of this action and dated 21st April 2008 ("the Order") are assessed in the following amounts:
Under Paragraph 11a of the Order
a. £55,000 in respect of the capital value of the store room;
b. £23,210.64 in respect of mesne profits. However, in order to avoid double recovery the sum of £19,741.60 awarded under Paragraph 11b of the Order is to be set off against this sum.
c. £72,570 plus VAT (in total £85,269.75) in respect of the cost of restoring a fire escape on the first floor of No 125 Alcester Road.
d. £225,073.50 for the loss of profits from the first floor function room at No 125 Alcester Road from 23rd May 2001 up to and including 8th October 2010.
Under Paragraph 11b of the Order
Under Paragraph 11c of the Order
2. The Defendant shall pay simple interest on the aforesaid damages in respect of mesne profits and loss of profits from the function room, and on the sum of £19,741.60 awarded under Paragraph 11b of the Order, at the rate of 6% per annum for the period from 23rd May 2001 to 8th October 2010 amounting in total to £139,705.14. No other sum shall bear interest prior to judgment. Interest shall run on the total of the damages and pre-judgment interest at the judgment rate from 8th October 2010 until payment."
- I would pay tribute to the judge's careful and thorough judgments which dealt very fully with the issues before her.
Issues on this appeal
- The issues raised on this appeal relate to the determinations set out in paragraphs 1 (apart from the award in the agreed sum of £55,000) and 2 of the judge's order dated 3 December 2010. I take these issues in the order in which the issues were argued before us. The common theme of the appellant's challenges to the judge's awards under these heads is that they were excessive or duplicated recovery under other heads. The appellant submits, correctly, that double recovery cannot be allowed. Double recovery means that a claimant receives two awards for the same injury, though these may be in different amounts. In some circumstances the question whether there has been double recovery is a pure question of fact. In other circumstances it is a question of law whether the successful claimant is treated as having received more than that to which he is entitled because an award on one basis excludes the possibility of a cumulative remedy for loss on another basis. The appellant also submits that, as the claim was in trespass, Mr Ausman Ramzan had to elect to receive either compensatory damages for loss of the capital value and use of the store room, or an account of the profits made by Brookwide out of its appropriation of the store room, and that the result of the judge's order was that he received both. The tort of trespass involves the use of another's property. The claimant may, however, have a claim on the basis that he has suffered loss or injury to that property, and he may also have a claim for consequential loss (see Whitwam v Westminster Brymbo Coal Co  2 Ch 538).
- The appellant contends that the judge fell into error because she treated the various heads of damage separately rather than looking at them overall to check for duplication. I agree that, when there is a risk of double recovery, the court has to stand back, either at the end of the process or at some point in the course of dealing with the individual heads of damage, and check that there is in fact no double recovery. That does not, however, invalidate the judge's approach of analysing each head separately and that is the course I also intend to pursue.
- I have concluded that there was double recovery in the judge's various awards for mesne profits and reinstatement of the fire escape. I also consider that the judge's awards of exemplary damages and interest were excessive. However, in my judgment, her determination of the loss of profits claim raises issues of fact not law, and I do not consider that it is open to review in this court. I shall explain my reasons for these conclusions in the remainder of this judgment.
Issue 1: £225,073.50 for the loss of profit
- Mr Mark Anderson QC and Mr David Mitchell represent Brookwide on this appeal, Mr Mitchell having appeared for Brookwide at the trial. Mr Anderson challenges the size of the judge's award of £225,073.50 in respect of the loss of profits as a result of not being able to use the first floor of No 125 as a function room. He has to overcome two hurdles on this issue. First, as the amount of the lost profits was a question of fact, Mr Anderson has to show that the judge was plainly wrong in her determination of that amount. Secondly, as the loss of profits must necessarily be based on a projection as to what those profits would have been but for Brookwide's trespass, this is one of the situations in which the courts recognise that such claims are not capable of precise calculation and do the best they can to assess the amount of the loss:
"Where that involves a hypothetical exercise, the court does not apply the same balance of probability approach as it would to the proof of past facts. Rather, it estimates the loss by making the best attempt it can to evaluate the chances, great or small (unless those chances amount to no more than remote speculation), taking all significant factors into account: see Davies v Taylor  AC 207, 212, per Lord Reid, and Gregg v Scott  2 AC 176, para 17, per Lord Nicholls of Birkenhead, and paras 67-69, per Lord Hoffmann."
(per Toulson LJ in Parabola Investments Ltd v Browallia  QB 477 at )
- The judge thus had to make the best assessment that she could, provided that there was sufficient material before her to do that. That does mean that the judge had to be alert to the possibility that the circumstances may be such that she could not fairly assess the amount of the loss. In those circumstances, the judge has to reject the claim for damages under that head.
- In litigation parties often make strategic decisions as to which evidence to lead. In this case, Mr Ausman Ramzan with the permission of the court served on Brookwide in advance of the trial the report of Mr Neil Snedker ACA on the amount of the losses the business is likely to have suffered as a result of the appropriation of the store room but this had been prepared on the mistaken basis that the whole of the restaurant was closed, rather than just the first floor. In those circumstances Brookwide initially made a tactical decision not to adduce expert accountancy evidence of its own. A month before the trial on liability it had a change of heart and sought the permission of the court to serve an accountancy report. Those representing Mr Ausman Ramzan opposed this application. On 18 June 2010, District Judge Truman refused this application and, further, made an order debarring Brookwide from serving any further witness statement or expert report. Junior counsel for Mr Ausman Ramzan explained to this court that this was because there had been a series of procedural defaults by Brookwide in meeting timetables for the service of witness statements. Brookwide did not appeal the order of District Judge Truman. Brookwide therefore faced the trial on liability, in which Mr Ausman Ramzan claimed lost profits in excess of £500,000, without any expert accountancy evidence of its own. Sometimes tactical decisions of this kind pay off but this one left Brookwide, after the judge's second judgment, still facing a very substantial, even if reduced, award of damages against it.
- The judge observed that the loss of profits claim was not only the most substantial claim made by Mr Ausman Ramzan at trial: it was also the least well prepared. However, she accepted the evidence of Mr Mohammed Ramzan that The Jewel in the Crown was a popular and successful venue; that the booking fee was £200 for 6 hours and that the set meals varied from £10 to £15 per head depending on the menu chosen.
- There were no accounts showing the receipts for the function room. Mr Snedker's report was prepared on the basis of assumptions that the average number of bookings was only five per month and that the function room was on average about 95% utilised when let. However, one of the things that happened at the trial was that Mr Mohammed Ramzan produced a set of booking records for the function room, not previously made available to Brookwide by disclosure, for the years 1994, 1995, 1997 and 1998. Mr Snedker examined these records over the lunch adjournment. He then came back with an estimate of what, based on those records, the income of the first floor function room would have been and what the profits would have been. The newly-disclosed records showed that in 1998 the number of people using the room had risen from 8,343 to 10,902. Mr Snedker's revised figure for the annual net profit of the first floor function room was approximately £32,000. The judge was satisfied that the first floor function room was profitable prior to 29 April 1999 and that it would have continued to be profitable after that date but she thought that this figure was too high and she therefore reduced it by 25% bringing the annual figure down to £24,000. The judge calculated that the period of nine years and 138 days for which the function room had been closed while in Mr Ausman Ramzan's ownership meant that the loss of profits had been £225,073.50, which was the amount of damages that she awarded under this head.
- Mr Anderson sought to suggest that Mr Ausman Ramzan should recover no damages since the wrong was committed before he acquired No 125 and Mr Mohammed Ramzan had not assigned to him the cause of action for the trespass committed by Brookwide. The answer to that point is quite simply that the trespass was a continuing one. It did not cease until Mr Ausman Ramzan's interest in the store room was extinguished pursuant to the judge's order of 3 December 2010 that Brookwide pay him compensation for the loss of its capital value.
- Mr Anderson submits that the judge could not properly be satisfied as to the level of loss of profits on the basis of the evidence of Mr Snedker, which she should therefore have rejected. There were no proper accounting records or accounts in evidence. There was no support for the cost of sales figures and overheads. There was no evidence that the business was steady and that they achieved an even rate of return. Furthermore, Mr Snedker had assumed that the gross profit margin would have been 60% on the basis of his experience in the restaurant industry, though his professional experience did not extend to curry houses in particular. Moreover, Mr Mohammed Ramzan accepted that there was competition from other curry houses in the area. The fact that neither he nor Mr Ausman Ramzan had replaced the fire escape undermined their claim that the first floor function room business was profitable.
- The grounds of challenge do not in my judgment demonstrate that the judge was clearly wrong. The judge used the past receipts as the basis for extrapolating an estimate of profits in the lost years. Before doing this she made findings to the effect that the function room was profitable and that it was likely to continue to be so. In my judgment, the methodology was plainly open to her and she was clearly doing what a judge is directed by the authorities to do in these circumstances, namely to do the best she could on the available information. It was a methodology which the expert accountant called by Mr Ausman Ramzan considered that it was in order to use and it must, therefore, have been an approach to the estimation of profits which it was open to the judge to use. Moreover, she made provision for the possibility of error by making a substantial deduction of 25% from the figures which Mr Snedker had produced. I would, therefore, reject Brookwide's appeal on this ground.
- The judge also rejected the argument that a further deduction should be made for the fact that at the date Mr Ausman Ramzan acquired No 125, the first floor function room had been closed:
" Mr Mitchell submitted that the court should approach the matter as if Mr Ausman Ramzan were opening up the function room for business as a fresh business in 2001. In my judgment, that approach is misconceived. It is based on a false factual premise. Although this claimant's claim only relates to the profits that were lost during his period of ownership of the misappropriated land, and he acquired it two years after the expropriation, the question the court has to determine is what loss he suffered in consequence of the trespass and breach of trust. If the expropriation had not occurred, the fire escape would have remained functional, and the function room would have been trading continuously from 1999 onwards despite Mr Mohammed Ramzan's bankruptcy, so that when Mr Ausman Ramzan acquired the land in 2001 he would not have been faced with starting up a new venture on the first floor of the restaurant."
- In my judgment, the judge has fallen into error here. She has reasoned that, but for the misappropriation of the store room, Mr Ausman Ramzan would in 2001 have acquired No 125 with a flourishing first floor function room business. But the absence of a flourishing business at that time was a matter of which only Mr Mohammed Ramzan (or his trustee in bankruptcy) could complain. At the time Mr Ausman Ramzan acquired the premises there was no first floor function room business. The trespass was continuing and so he could sue in respect of it, but his only claim would be that the trespass had prevented him from re-establishing the earlier use of the first floor as a function room. That would take some time, and therefore some deduction should be made for this so that the profits are calculated from 23 November 2001. We have little material to go on but it seems to me, on a conservative estimate, that a deduction of six months' profits (£12,000) should be made. The judge accepted the evidence of Mr Mohammed Ramzan that the function room was the only one of its kind in Moseley and that it had previously had a late night drinks licence, which would have made it an attractive location for an event. In those circumstances, I consider that a larger deduction would be unwarranted.
- At trial, Mr Mitchell had made one further challenge to the judge's award for loss of profits. He contended that the damages payable to Mr Ausman Ramzan for loss of profit should be further reduced because he had, at all times, carried on the business in partnership with his father, Mr Mohammed Ramzan. The judge rejected this argument. Rightly the point was not pursued on this appeal. Mr Ausman Ramzan was entitled to be compensated for his inability to use the first floor of No 125 as a function room and to make profits thereby, and the fact that he had agreed with Mr Mohammed Ramzan to share the profits with him was a matter which did not concern Brookwide and which gave it no reason to seek to claim a reduction in the amount for which it was liable.
- In conclusion, I would hold that Mr Ausman Ramzan is entitled to recover £213,073.50 in respect of his loss of profits claim for the first floor function room.
Issue 2: £23,210.64 in respect of mesne profits
- I can take this point more shortly. Mesne profits are damages for the loss of use of land, in this case the loss of the use of the store room. A person entitled to land, usually a landlord where the lease or tenancy has terminated, can claim compensation for being deprived of possession by damages representing either the rent he actually lost or the rent that he could have obtained if he had let the premises. Under this issue I am solely concerned with the calculation of mesne profits for loss of the use of the store room.
- This issue is one of the points at which it becomes relevant on this appeal to consider whether there was any double recovery. The judge also awarded substantial damages for loss of profits from the use of the first floor room, which, as I have explained, I consider to be for the most part a justified award. To make these profits, Mr Ausman Ramzan would have to have had the use of the fire escape. On this basis, Mr Anderson submits that there should have been no award of mesne profits. It would amount to double recovery. However, he was constrained to accept that there could be some figure for the loss of the use of the store room, excluding the fire escape, though that use of course could not impede access to the fire escape. This may seem to be an unlikely letting proposition but, as Mr Anderson expressly stated in his opening that he did not press the point that this possibility was not proved at trial (and accordingly Mr Blohm did not address this point), I would accept this submission. It is necessary, at least, to reduce the figure for mesne profits to reflect the point that Mr Ausman Ramzan would have to have retained access to the fire escape.
- The judge calculated the mesne profits by reference to the amount of £55,000 agreed by the parties to be the capital value of the diminution in value of No 125 as a result of the misappropriation. She then assumed that the rent would represent a return of some 4.5% per annum on that amount. If the fire escape is excluded, both sides sensibly agreed, at the hearing of this appeal, that we could proceed on the basis that the sum of £2,500 represents the value of the store room without the fire escape. This figure should thus be used as the basis for an award of mesne profits. In addition, as neither party objected to the percentage chosen by the judge, I consider that the figure of 4.5% per annum would be a reasonable rate of return and that this should be applied to the figure of £2,500 for the relevant period. This would lead to an award of £1,055.03 for the nine years and 138 days of Mr Ausman Ramzan's ownership of the store room when it was wrongly occupied by Brookwide.
- The judge awarded Mr Ausman Ramzan the sum of £19,741.60, being the gross amount of the rent received for the newly converted flat at No 123, as damages for Brookwide's breach of trust in using the store room for its own purposes as a result of trespassing on, and misappropriating, it but she ordered that that sum should be deducted from mesne profits of £23,210.64, leaving a balance of £3,469.04. When the figure of £23,210.64 is reduced to £1,055.03, there will be a balance of £18,686.47 payable (under the judge's order) by way of damages for breach of trust. The next question is whether the judge was right in the circumstances to make any award of damages for breach of trust, and, if so, whether the balance in excess of the mesne profits should be deducted from the damages for loss of profits as to the balance not extinguished.
- As stated at the end of paragraph 44 above, this issue is concerned only with the calculation of mesne profits. There is a separate issue which I will need to address below as to whether mesne profits are payable in addition to damages for loss of profits.
Issue 3: £19,741.50 awarded as damages for breach of trust
- Mr Anderson submits that the damages for breach of trust awarded by the judge are inconsistent with the compensatory damages for loss of profits and accordingly that, to the extent that mesne profits are not available to reduce the damages for breach of trust, those damages should be set against the damages for loss of profits. Otherwise, on Mr Anderson's submission, Mr Ausman Ramzan would be compensated for loss of the use of the store room and, in addition, receive profits which could not have been made unless he had had the use of the room. This submission treats the mesne profits as inconsistent with the damages for breach of trust. The gain which Brookwide received as a result of the trespass was either the benefit of the use of the room or the profits received from letting it out.
- Mr Leslie Blohm QC appears for Mr Ausman Ramzan on this appeal, together with Mr John Stenhouse, who appeared for Mr Ausman Ramzan at the trial, as well as on the hearing before District Judge Truman. Mr Blohm submits that the judge was right to award damages for breach of trust as well as mesne profits and that damages for breach of trust should be payable without deduction. Mr Blohm referred to my judgment in the recent case of Devenish Nutrition Ltd v Sanofi- Aventis  EWCA Civ 1086,  Ch 390, with which Tuckey LJ agreed, for a discussion of compensatory and other forms of damages.
- There are at least four possible orders that a court could in theory make. The first two options are alternative ways of dealing with the mesne profits but, for the purposes of the third and fourth options, mesne profits are left on one side. First, the court could order that Brookwide should pay damages for breach of trust as well as mesne profits. Secondly, the court could order (as the judge did) that the damages for breach of trust should be set against mesne profits. But, as mesne profits have now been reduced to £1,055.03, this would leave a balance of the sum of £18,686.47 payable to the claimant. Thirdly, a court could order that the whole of the damages for breach of trust should be awarded in addition to damages for loss of profits. Fourthly, it could order that no damages for breach of trust should be payable if damages were awarded for loss of profits.
- I agree with Mr Anderson that to award damages for breach of trust as well as mesne profits (the first option) would give the claimant two remedies for the same injury derived from the same wrong, namely the misappropriation of the store room. It would be double-counting. Although the claim for mesne profits is nominally compensation for the rent which Mr Ausman Ramzan could have obtained by letting out the store room as such, ignoring the additional benefit conferred by the circumstance that it gave access to the fire escape, in reality of course it is improbable that he would have let out that room in this manner. The claim for mesne profits in fact, therefore, represents the market value of the benefit which Brookwide received by taking the store room. Damages for breach of trust also result in recovery of the benefit which Brookwide obtained by its misappropriation of the store room. The first option must, therefore, be rejected since it results in double recovery. This would lead to a preliminary conclusion that Brookwide should pay damages for breach of trust in the sum of £19,741.50, but not additionally be required to pay mesne profits.
- The second option would involve the reduction of this sum by the amount of the mesne profits, but that would not simply remove the double counting. On the contrary, it would make an unjustified deduction from the damages payable to Mr Ausman Ramzan. I would, however, make this caveat: if the damages for breach of trust cannot be awarded because Mr Ausman Ramzan elects (or is treated as electing) to take the larger remedy of damages for loss of profits in accordance with the doctrine of election to which I have already referred, then it will be necessary to revisit the question whether mesne profits can be claimed as well in the reduced sum of £1,055.03.
- The third option is predicated on the basis that Brookwide's actions caused two forms of loss: one to the claimant's right to use and enjoy the store room and one to his right to use and enjoy the first floor function room as a restaurant and that he should, therefore, obtain both an award of damages to cover the loss of profits and an award of damages in respect of the store room. In relation to the latter, the argument would therefore be that the claimant should receive the entirety of the damages for breach of trust and the entirety of the damages for loss of profits.
- The fourth option proceeds on the basis that the correct analysis is that the appellant has suffered a single wrong, that is, misappropriation of his store room. If his claims for damages are inconsistent, he must make an election between the two causes of action because they are for the same wrong and he can only recover once. The wrong is a single one even though it is a continuing one. In the present case, there are at least two available causes of action for the single wrong: one for trespass and one for breach of trust on the basis that, following the misappropriation of the store room, Brookwide holds the store room on trust (now) for Mr Ausman Ramzan and must account to him for all of the profits that it makes out of store room.
- The difficult issue is the choice between the third and fourth options. In my judgment, although the point is not an easy one, the fourth option is mandated by authority. Mr Anderson relies on Severn Trent Water v Barnes  EWCA Civ 570,  EGLR 95, where the defendant had laid a mains pipe on the claimant's land without his authority. The judge awarded him damages for his loss by reference to the amount he would have been able to exact as the price of giving his permission, and in addition a sum equating to the profit which defendant had made as a result of having the pipe on the claimant's land. On appeal, this court held that he had no right to an account of profits as well as a sum to compensate him for his loss.
- Likewise, in Tang Man Sit v Capacious Investments Ltd  AC 514 (which was not in fact cited to us and which was also not cited to this court in the Severn Trent case), the claimant, Capacious Investments Ltd, brought proceedings against Tang's estate for damages for the loss of use and occupation (Head A) and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with leases (Head B). It obtained an account of profits and an award of compensatory damages as a result of the same breach of trust. The Privy Council held that the claimant could elect to receive the higher award to which it was entitled but that it had to give credit against the damages for loss of use and occupation for the sums received pursuant to the account of profits. Moreover, there was nothing inconsistent between the claim for damage to the property and the claim for damages for loss of use. These were in effect cumulative remedies claimed on a basis which was consistent between themselves.
- Lord Nicholls helpfully explained the nature of the doctrine of election, and the time for making an election, with great clarity in these terms:
"The law frequently affords an injured person more than one remedy for the wrong he has suffered. Sometimes the two remedies are alternative and inconsistent. The classic example, indeed, is (1) an account of the profits made by a defendant in breach of his fiduciary obligations and (2) damages for the loss suffered by the plaintiff by reason of the same breach. The former is measured by the wrongdoer's gain, the latter by the injured party's loss.
Sometimes the two remedies are cumulative. Cumulative remedies may lie against one person. A person fraudulently induced to enter into a contract may have the contract set aside and also sue for damages. Or there may be cumulative remedies against more than one person. A plaintiff may have a cause of action in negligence against two persons in respect of the same loss.
Faced with alternative and inconsistent remedies a plaintiff must choose, or elect, between them. He cannot have both. The basic principle governing when a plaintiff must make his choice is simple and clear. He is required to choose when, but not before, judgment is given in his favour and the judge is asked to make orders against the defendant. A plaintiff is not required to make his choice when he launches his proceedings. He may claim one remedy initially, and then by amendment of his writ and his pleadings abandon that claim in favour of the other. He may claim both remedies, as alternatives. But he must make up his mind when judgment is being entered against the defendant. Court orders are intended to be obeyed. In the nature of things, therefore, the court should not make orders which would afford a plaintiff both of two alternative remedies.
In the ordinary course, by the time the trial is concluded a plaintiff will know which remedy is more advantageous to him. By then, if not before, he will know enough of the facts to assess where his best interests lie. There will be nothing unfair in requiring him to elect at that stage. Occasionally this may not be so. This is more likely to happen when the judgment is a default judgment or a summary judgment than at the conclusion of a trial. A plaintiff may not know how much money the defendant has made from the wrongful use of his property. It may be unreasonable to require the plaintiff to make his choice without further information. To meet this difficulty, the court may make discovery and other orders designed to give the plaintiff the information he needs, and which in fairness he ought to have, before deciding upon his remedy. A recent instance where this was done is the decision of Lightman J. in Island Records Ltd. v. Tring International Plc.  3 All E.R. 444. The court will take care to ensure that such an order is not oppressive to a defendant.
In the ordinary course the decision made when judgment is entered is made once and for all. That is the normal rule. The order is a final order, and the interests of the parties and the public interest alike dictate that there should be finality. The principle, however, is not rigid and unbending. Like all procedural principles, the established principles regarding election between alternative remedies are not fixed and unyielding rules. These principles are the means to an end, not the end in themselves. They are no more than practical applications of a general and overriding principle governing the conduct of legal proceedings, namely, that proceedings should be conducted in a manner which strikes a fair and reasonable balance between the interests of the parties, having proper regard also to the wider public interest in the conduct of court proceedings. Thus in Johnson v. Agnew  A.C. 367 the House of Lords held that when specific performance fails to be realised, an order for specific performance may subsequently be discharged and an inquiry as to damages ordered. Lord Wilberforce observed, at p. 398: "Election, though the subject of much learning and refinement, is in the end a doctrine based on simple considerations of common sense and equity."
The procedural principles applicable to cumulative remedies are necessarily different. Faced with alternative and inconsistent remedies a plaintiff must choose between them. Faced with cumulative remedies a plaintiff is not required to choose. He may have both remedies. He may pursue one remedy or the other remedy or both remedies, just as he wishes. It is a matter for him. He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people, he may sue both persons. He may do so concurrently, and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one, and take steps to enforce the judgment. This does not preclude him from then suing the other. There are limitations to this freedom. One limitation is the so called rule in Henderson v. Henderson (1843) 3 Hare 100. In the interests of fairness and finality a plaintiff is required to bring forward his whole case against a defendant in one action. Another limitation is that the court has power to ensure that, when fairness so requires, claims against more than one person shall all be tried and decided together. A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. This principle of full satisfaction prevents double recovery."
- Applying these principles, in my judgment, the claim for damages for breach of trust and the claim for loss of profit are not cumulative remedies but alternative and inconsistent remedies. To award both would award Mr Ausman Ramzan damages measured both by Brookwide's gain and by his own loss. He could not use the store room for the purposes of the first floor function room at the same time as Brookwide obtained a profit for renting out the first floor on No 123 using the store room. The two claims are not therefore cumulative in any relevant sense simply because they relate to different physical areas.
- The court must treat Mr Ausman Ramzan as having elected to receive the larger award. He should therefore receive the damages for loss of profits alone and not the damages for breach of trust.
- I note that Mr Ausman Ramzan did not claim damages for any increment in the capital value of No 123 as a result of the misappropriation. Such damages are unlikely to cause the damages for breach of trust to exceed the mesne profits and damages for loss of profits, and thus to alter the equation in the last paragraph. In addition, those profits may well be inconsistent with the award of damages for diminution in value of the reversion in the sum of £55,000.
- No one has suggested that Mr Ausman Ramzan made a binding election for any particular option when the judge's order of 4 April 2008 was made.
- Lord Nicholls' judgment demonstrates that the matter is not as complex as it might seem. The principle is that damages must be awarded on a consistent basis. Once the claimant has elected to receive compensatory damages for a particular wrong, he may not also claim an account of profits or vice-versa. If, however, there are, for instance, separate wrongs, the claimant may be able to make a different election for each wrong.
- In the present case, the proper course might well have been to require Mr Ausman Ramzan to make his election before the order following the second judgment was drawn up, but the appropriate offset of judgment on one claim against judgment on another would have the same result in practice.
- That leaves the question of the award of mesne profits in the sum of £1,055.03. As explained above, a claim for mesne profits can be on the basis of the amount that the claimant would have obtained if he had let the property. The claimant for mesne profits does not have to show that he would actually have let the premises in the relevant period. If he would not have let the property he is, in fact seeking restitution of the defendant's unjust enrichment. He would likewise be seeking restitution of the defendant's unjust enrichment if he sought to claim the profits which the defendant actually made, but that is not this case.
- The point whether a claim for mesne profits is compensatory is controversial in the authorities. It will be sufficient for me to quote what I said on this point in Devenish Nutrition:
"36 In general, the common golden thread that runs through each of these three categories of remedy mentioned above [tort, contract and restitution] is that the claimant has suffered loss. But that is not always the case: see, for example, user damages discussed below. Similarly, in an action for breach of fiduciary duty, an account of profits can be awarded in circumstances where the claimant has suffered no loss, as in Regal (Hastings) Ltd v Gulliver (Note)  2 AC 134 (and a claim for an account of profits consequent on a breach of duty could arise even though there is no misuse of a property right, as where a director uses a power to make calls on shares for a collateral purpose). Moreover, user damages are not always assessed by reference to the fair price for what has been taken from the claimant. They may be assessed by reference to the profit that the defendant has made: see, for example, Ministry of Defence v Ashman (1993) 66 P & CR 195. Wrotham Park damages likewise may be awarded even though there is no loss. But the user damages and Wrotham Park damages still have an element of compensation within them in this sense, that while there may be no actual loss they are clearly cases where the law takes the view as a matter of policy that the claimants if they prove their claims are entitled to substantial compensation for the mere invasion of their rights.
37 It follows that the categories of damages identified above are not mutually exclusive. User damages can be restitutionary: they can be awarded where the claimant has suffered no loss and on the basis that the defendant is ordered to pay a sum by reference to the gain he would otherwise make. Damages for trespass to property, for instance, are awarded on the basis of market rent even if the claimant would not have let the property if vacant: see Swordheath Properties Ltd v Tabet  1 WLR 285. At the same time they can be described as compensatory. The view that they combine elements of both compensatory and restitutionary awards is supported by the decision of the Privy Council in Inverugie Investments Ltd v Hackett  1 WLR 713, 718b. Damages for trespass to land, for instance, are intended to compensate the claimant for being kept out of his land on whatever basis they are assessed. I do not therefore agree with the judge that user damages or Wrotham Park damages are necessarily compensatory. Nor do I consider that Lord Nicholls so held in Attorney General v Blake  1 AC 268. Lord Nicholls considered, at p 279e, that user damages were probably best regarded as exceptions to the general rule that damages are assessed on the basis that they compensate the claimant for his loss or injury. He also regarded Wrotham Park damages as, at p 284a: "payment [by the defendant] in respect of the benefit he has gained." If user damages and Wrotham Park damages were purely compensatory, they would not have been stepping stones to the conclusion that the court could grant an account of profits for a breach of contract.
38 What, however, does distinguish user damages from other compensatory damages is the fact that they are in general awarded because the defendant has made improper use of an asset of the claimant. In economic terms, there has been a transfer of value for which the wrongdoer must account. But that is also a feature of the present case. Devenish seeks in economic terms, by means of its claim for an account of profits for breach of statutory duty, to recover the amount of the overcharge that it has paid to the defendants out of its assets and in diminution of its net worth. Not all non-proprietary torts share this feature: for example, this feature is not present in claims for damages for defamation or personal injury. It is, however, often present in claims for breach of contract and for invasion of a statutory right where rights of property in the broadest sense are invaded for the benefit of the wrongdoer. A contractual right is a form of property (though it lacks some of the qualities of a property right). If the law of remedies were to be required to be coherent in economic terms, and this were the critical factor, the same remedies ought to be provided in each of these situations. However, even so, they would under Blake's case be subject to strict judicial control through the requirement for exceptional circumstances."
- In the present case, there is no suggestion that Mr Ausman Ramzan would ever have let out the store room on its own. Mr Ausman Razman would have had to retain access to the fire escape (and could not have consented to the incorporation of the store room into No 123). The access would only have been through the first floor function room. In those circumstances, it is highly improbable that he could have let out the store room to Brookwide. It was used for storage by Mr Mohammed Ramzan while the function room was in use. In my judgment, when applying the principles of election we should look to the substance of the award and not its form. While no doubt an award of mesne profits has a compensatory element to it, in that it seeks to provide a remedy for the loss of the use of the room, and mesne profits may properly be used for the purpose of measuring the compensation to be given to a claimant for the loss of the use of his property (see per Lord Nicholls in Attorney General v Blake  1 AC 268, 279), in the circumstances of this case it seems to me that the element which predominates is the element of reversing the benefit which Brookwide obtained by having the use of the room. But for that element the claim for mesne profits would not have succeeded and it could not have succeeded as a pure claim for compensatory damages under the general law because there was no loss in this respect. While there is evidence that Mr Mohammed Ramzan used the store room as a store, after the misappropriation the first floor function room could have been used for that purpose. There is no evidence that the business needed to hire or use other space elsewhere to compensate for loss of the storage room on the first floor. The loss caused by the misappropriation of the store room was the inability to use the first floor function room for the purposes of the restaurant business. In my judgment, Mr Ausman Ramzan cannot establish any further actual loss and the award must therefore represent the amount of the benefit which Brookwide obtained. On that basis, in my judgment, the mesne profits should not have been awarded in addition to the damages for loss of profits (see, in addition to Tang Man, above, Minister of Defence v Ashman (1993) 66 P & CR 195 at 200-201 per Hoffmann LJ). I consider that Mr Anderson's submission must succeed on this point.
Issue 4: £85, 269.75 in respect of the cost of restoring the fire escape
- This is also a point about double recovery, and I can take it shortly. Mr Anderson challenges the judge's award on the simple ground that Mr Ausman Ramzan had already been compensated for loss of the fire escape by the agreed award of £55,000 for the diminution in value of the land. The parties had agreed that this included the loss of the fire escape. It was of no consequence that the costs of re-instatement would exceed this figure, since they had agreed it. In this case, Mr Ausman Ramzan had made his election by making that agreement.
- Moreover, the position was that Mr Ausman Ramzan had not replaced the fire escape. This (on Mr Anderson's submission) undermined his claim that he intended to do so. It would not be reasonable for him to replace the fire escape if he did not need to do so or if there was (as Brookwide contends) another less expensive means of routing the fire escape.
- Mr Blohm submits that the award of damages for loss of profits only covered the nine years and 138 days from the date of acquisition. Where a claimant suffers loss in the form of an injury to his property as a result of the defendant's wrong, he can recover the costs of reinstating his property even if those costs exceed the diminution in the value of his property where it is reasonable for him to re-instate his property: see The Maersk Colombo  Lloyd's Law Rep 275. On his submission, Mr Ausman Ramzan reasonably desires to re-instate the fire escape so that he too can let out the first floor function room. The re-instatement of the fire escape is necessary to enable him to continue to trade and to prevent the continuation of loss due to Brookwide's tortious acts. In effect the installation of the fire escape would enable him to mitigate his future loss.
- In my judgment, this line of argument is fallacious. Having decided that there should be no injunction to prevent the continuing trespass, the judge determined that Mr Ausman Ramzan should be awarded an amount equal to the diminution in value of No 125 due to the loss of the store room (including the fire escape), plus mesne profits for the period he had been unable to use his property. The judge held in paragraph 16 of her second judgment that the interest of Mr Ausman Razman in the store room was extinguished on payment of its value, and there is no appeal against this holding. In those circumstances, the continuing tort was terminated. Although the order was drawn up on 3 December 2010 (and sealed on 6 December 2010), it was treated as effective for this purpose as at 8 October 2010, the date on which the judge handed down her judgment, for example by providing that interest on the judgment at the judgment rate should run from 8 October 2010. From that date, therefore, Mr Ausman Ramzan no longer owned the store room and, not having reserved the right to recover any further losses, could not seek damages for trespass for any subsequent loss of profits. Furthermore, the sum of £55,000 awarded in respect of the diminution in the capital value of No 125 specifically covered the loss of the fire escape. Having chosen to agree to that figure, Mr Ausman Ramzan could no longer seek to recover damages for the loss of the fire escape in some other form.
- In the circumstances, the judge was in error in awarding damages for re-instatement of the fire escape and that part of her order should be set aside.
Issue 5: £60,000 as exemplary damages
- There is no appeal against the judge's decision that this was a case in which, in principle, it was appropriate to award exemplary damages. I have summarised her reasons for that conclusion in paragraphs 15 to 17 above. Brookwide is, therefore, fixed with the judge's findings about its agents' conduct.
- In her first judgment, the judge observed that she was:
"not sure to what extent an award of exemplary damages will, in practice, increase the amount recoverable by Ausman Ramzan." (first judgment, paragraph 145)
This suggested that the judge anticipated that the nature of the award of exemplary damages would be to strip Brookwide of any gain, which was not recoverable by the award of damages in the action. When, however, she came to assess exemplary damages she concluded that it would not be sufficient to require Brookwide to disgorge its profit. She considered that it was necessary to find a sum which would act as a deterrent "against repeating its objectionable behaviour in other properties", adding "£20,000 to Brookwide is a drop in the ocean." (second judgment, paragraph 70).
- The crux of the judge's reasoning on the quantification of exemplary damages was as follows:
" For some defendants it is possible that having to pay compensation which unexpectedly turns out to be in the order of £369,000 would give them serious pause for thought before doing it again, but I am far from persuaded that it would make any difference to Brookwide's attitude. Brookwide would probably regard the fact that the expropriation happened to preclude the claimant from earning such significant sums from the hire of the function room as a matter of chance, a scenario that was unlikely ever to be repeated. Even if it were, the chances that the aggrieved party would be willing to take on an opponent of Brookwide's size, financial backing, and acumen would be regarded as slender. It is very likely that Brookwide was surprised when Mohammed and Ausman Ramzan commenced proceedings against it and was even more surprised when they saw the litigation through to the end. My strong impression of Brookwide and the group to which it belongs, based on all the evidence in this case, is that they would not hesitate to do anything that would promote their own self-interest, even if occasionally it might mean having to pay someone significant compensation if they overstepped the line. The fact that they bricked up the dividing wall, cut through the fire alarm wires, and effectively made the expropriation of the store room a fait accompli before taking any steps to check the legal position with the Land Registry probably says everything that one needs to know about the attitude of the individuals behind Brookwide. The size of the compensation (and having to give up all its profits) would not in itself deter Brookwide from doing the same thing again if it felt it could get away with it. Having said that, I must bear in mind that the award of exemplary damages must be 'moderate', though that is to be assessed in the overall facts of the case and in the light of the conduct and the need to mark disapproval, as Peter Smith J said in Design Progression Ltd v Thurloe Properties Ltd  EWHC 324 (Ch),  1 EGLR 121,  1 WLR 1. Therefore the amount of exemplary damages should not exceed a sum which in my view would suffice, in addition to the compensation, to teach Brookwide the necessary lesson that conduct of this type will not be tolerated and does not pay.
 I have considered the level of awards made in other cases but they afford little guidance….
 Although I was at one time attracted by the idea of taking the approach of awarding a percentage of the compensatory damages, on reflection it seems to me that an award in the region of £100,000 or any figure above this would probably be excessive, particularly given the significant amount of the compensation before exemplary damages are awarded. Taking all the relevant considerations into account, it seems to me that the appropriate figure by way of exemplary damages in the present case, where the misconduct was so serious that a strong deterrent message is justified, should be £60,000. Although that figure is three times the actual profit made from the wrongdoing, on the evidence before the court it is only one week's average contribution by Brookwide to Agra's income. I also do not believe it to be out of line with the level of fine that might be imposed in a criminal case for theft by a trustee of the beneficiary's land."
- Mr Anderson challenges the quantification of exemplary damages in these paragraphs. He submits that the judge, in her first judgment, posited that the award might be nil and so he invites the court to substitute that amount. There should, he submits, be no award as the conduct took place before Mr Ausman Ramzan acquired the property. Alternatively, the exemplary damages should be reduced because the conduct towards Mr Ausman Ramzan was less deserving of punishment than that towards his father. On any basis the figure of £60,000 is hardly likely to be a deterrent to a company with the resources of Brookwide, and so the award was thus otiose and unnecessary. So far as stripping Brookwide's profit is concerned this could have been done through the breach of trust claim if Mr Ausman Ramzan had elected to take that route.
- Mr Blohm submits that the judge's award should be upheld. He accepts that exemplary damages should be proportionate to the wrong suffered.
- My starting point is this. Although the judge rejected the aggravated damages claim on the basis that Mr Ausman Ramzan had come to own the property subsequent to the completion of the conversion of No 123 into flats, she did not consider the impact of that point in relation to exemplary damages. I consider that the judge was in error here. The fact that the conversion of the store room into the flat was complete before Mr Ausman Ramzan acquired No 125 is clearly a relevant factor that the judge was wrong not to consider in relation to the quantification of exemplary damages. However, I do not consider that this consideration is a complete answer to the claim for exemplary damages for two reasons. First, Mr Mohammed Ramzan has not claimed exemplary damages and would now be statute-barred from doing so. If he had made a claim in time, the court might well have concluded that Mr Ausman Ramzan had no claim but that is not the position with which the court is faced. Secondly, in my judgment, it is not an answer to say that the blameworthy conduct for which exemplary damages were awarded took place before Mr Ausman Ramzan acquired the property because, in the circumstances of this case, Brookwide's conduct continued to have an effect after that date. On Mr Ausman Ramzan's acquisition of the property it fell to him to have dealings with Brookwide to seek redress. He had to take steps to obtain a remedy, and what Brookwide had done had a severe effect on the health of both him and his father.
- In his witness statement, Mr Mohammed Ramzan gave evidence of the effect of Brookwide's misappropriation of the store room on his health and that of his son. That evidence is not of course to be taken as the evidence of a medical expert but, at the least, it indicates the effect of the misappropriation as the Messrs Ramzan perceived it to be on their own lives, and there is no suggestion that they were especially sensitive or that their evidence was unreliable. Mr Mohammed Ramzan told the court:
"59. I would also like the Court to take into account the effect on myself and my son over the last 5 years of having to go through the courts to obtain justice and compensation and damages. This is a process that has been deliberately dragged out and made worse and more expensive by the Noe family [the ultimate owners or controllers of the Agra group] over more than 5 years, to a point where it has become almost unbearable. I believe that this has been done deliberately in an attempt to wear us out and make us give up. In the process of this over the last 5 years, I have developed high blood pressure from the stress, and I have had to go onto medication because of all this pressure and stress.
60. My son Ausman also suffers with "Bell's Syndrome" which is to do with too much thinking when a person worries too much and thinks a lot and gets stressed. The problems that have been suffered from the theft of the Room have affected him as well."
- Thus, Brookwide's misappropriation of the store room in 1999 had a continuing effect, not only on the property but on the life of Mr Ausman Ramzan as well as that of his father. In those circumstances, there can, in my judgment, be an award of exemplary damages in favour of Mr Ausman Ramzan. However, that award must take account of the fact that he did not experience the immediate events during his period of ownership as his father had done.
- I have next to consider whether it is an answer that, if Mr Ausman Ramzan had elected to take an account of profits for breach of trust, he could have stripped Brookwide of all its remaining profit and thus that there would have been no scope for exemplary damages. Mr Ausman Ramzan was entitled to elect to take compensatory damages, and Brookwide is not entitled to complain that he sought recovery for his loss. However, since he has damages on that basis, it would not in my judgment be right to award him exemplary damages to give him the benefit of the alternative, and inconsistent, claim which he elected not to take. That would undermine the effect of his election. The need to make an election is not dispensed with simply because the wrongdoer was a conscious wrongdoer whose conduct was culpable. To award exemplary damages by reference to the profits for which a claim could have been made would also set a precedent which might lead to a disproportionate remedy in a case where the profits were much larger.
- There is little guidance on the quantification of exemplary damages but clearly the sum must be principled and proportionate. In the light of the judge's unchallenged findings that some award of exemplary damages is necessary in order to deter Brookwide from similar conduct elsewhere, the principled basis is that of making a punitive award. Contrary to the submissions of Mr Anderson, this does not need to be a substantial sum to make its point. It is exceptional for a court to make an award of exemplary damages and, accordingly, the fact of making the award should largely be in itself sufficient. It follows that, in my judgment it is not a significant factor that, as the judge put it, "£20,000 to Brookwide is a drop in the ocean." She did not, in fact, make an award measured by reference to Brookwide's asset base.
- On this basis, I am content to use the sum awarded by the judge and her reasoning as my starting point and to make a deduction from that sum for the fact that Mr Ausman Ramzan only acquired the property at a later date. I bear in mind that the award must not be disproportionate, and that the judge's judgment expresses criticisms of Brookwide's conduct in very strong terms. I also bear in mind that Brookwide will, if my Lords agree, be liable to pay a very considerable sum by way of compensation to Mr Ausman Ramzan, namely £55,000 for the loss of the store room, £213,073.50 for the loss of profits and interest on both those sums. Taking account of those matters, in addition to those enumerated by the judge, I would reduce the award the award of exemplary damages of £60,000 by two thirds to £20,000. This is still a significant sum, which marks the judge's conclusion, and, on the basis of her findings, my own conclusion, that the conduct of Brookwide in misappropriating the store room in the manner it did was a totally unacceptable way of resolving the issues as to the ownership of property in a democratic society subject to the rule of law.
Issue 6: interest on damages
- This last point can also be taken shortly. The figure for interest on the basis of the judge's award was £139,705.14. It will be less than that if my Lords agree with the conclusions that I have reached, but it will nonetheless be substantial.
- Mr Anderson does not challenge the use of the rate of 6% but submits that this was only a starting point, and that the judge failed to take into account that interest was payable on sums which would accrue from time to time throughout the period since the date of the misappropriation.
- The judge certainly addressed this point but she took the view that there had been a concession by Mr Mitchell that a constant rate of interest using this figure would sufficiently take account of the fact that the losses were incurred over a period of time and did not all materialise on the same date. This appears from paragraph 79 of the judge's judgment:
" A typical commercial rate is 2% over base. In May 2001 the base rate was 5·25%, so 2% over base would have been 7·25%, but in March 2009 the base rate was only 0·5% so 2% over base would have been 2·5%. So far as the damages for mesne profits and breach of trust are concerned, strictly speaking it may be more appropriate to consider the rate that could have been achieved by investing the money rather than the rate it would have cost the claimant to borrow the money, but at the end of the day this is unlikely to make a significant difference. Moreover, some of the elements of damages would have been paid at different times within the relevant period—for example, the profits made by the defendants from renting out the flat were earned on a monthly basis and they obviously could not be disgorged until they were earned. In the light of this additional complication, Mr Mitchell's concession that he would accept an average rate of 6% per annum over the entire period seems to me to be not only sensible but fair."
- Mr Anderson's submission is that the judge misunderstood Mr Mitchell's point, which was simply that he agreed that 6% represented a reasonable figure for an award of interest over the entire period, but his concession went no further than this. His written submissions specifically stated it would be wrong to award interest for the whole period since 2001; and in addition that: "The usual way when you have a loss that occurs at the same rate every year over a period is to use the full interest rate on the whole sum for one-half of the period. The Defendant has no objection to the Claimant using a more accurate calculation (i.e. by monthly or yearly analysis), but to date such a calculation has not been forthcoming." The judge's order should, on Mr Anderson's submission, have provided, with respect to each element of the award, for a calculation of interest from the date on which such item was incurred. Alternatively, where the loss was incurred over the whole period and not just at the start of the trespass, the rate of interest should have been halved in accordance with the practice adopted for personal injury in Dexter v Courtaulds Ltd  WLR 372.
- There is no real answer to this point. Although the judge thought that she had made adequate provision in the rate of interest for the fact that the items on which interest accrued became payable on succeeding dates so that interest was not payable on the full amount for the entire period, she had not in fact achieved this and her award of interest must be set aside and replaced by an order on one of the bases suggested by Mr Anderson. There is no reason not to apply the practice in Dexter v Courtaulds Ltd to cases other than personal injury cases.
- For the reasons given above, I would allow the appeal to the extent indicated above. To summarise by reference to the parts of the judge's order which I have set out at paragraph 27 above, the position is as follows. With respect to the subparagraphs included under the part of the order headed "Under Paragraph 11a of the Order", the sum of £55,000 is payable for the capital value of the store room under subparagraph a (as there is no appeal against that sum), nothing is payable under subparagraphs b (mesne profits) or c (restoration of the fire escape) and the sum of £213,072.50 is payable under subparagraph d for loss of profits in place of the sum stated in the order of £225,073.50. No damages for breach of trust are payable and so the sum of £19,741.60 under the part of the order headed "Under Paragraph 11b of the Order" is not payable. The sum of £60,000 payable under the part of the order headed "Under Paragraph 11c of the Order" for exemplary damages is reduced to the sum of £20,000. As regards interest, Brookwide is to pay simple interest of 6% per annum on one half of the sum of £213,073.50 for the period from 23 November 2001 up to 8 October 2010, but it is not liable to pay interest on any other sum for the period before the date of the second judgment. The agreed figure for interest for this period on this basis is £56,759.01. The total amount awarded to the respondent is therefore reduced from £588,517.43 to £344,831.51.
Lord Justice Lloyd:
- I agree with Lady Justice Arden that the appeal should be allowed to the extent which she has set out. Her exposition of the rather unusual circumstances giving rise to these proceedings, of the course of the proceedings and of the issues arising enables the case to be seen in a clearer light than may have been possible earlier. As she has done, I would pay tribute to the judge for both her judgments. I would also express appreciation to Counsel on both sides. It seems to me that we may have been more fully and ably assisted than was possible at first instance, partly (as so often) because of the complication for the first instance judge of resolving disputes of fact on less than fully satisfactory evidence. I add a few observations of my own only because of the unusual features of the case and because we reach different conclusions from those of the judge on a number of points.
- The appeal turns, for the most part, on issues of duplication. Different parts of the claim are addressed to loss occurring over time and to loss occurring once and for all. The latter claims arose at the time when the judge awarded compensation to the respondent for the loss of the capital asset in October 2010, having refused to accede to his claim to recover the store room. The former claims related to the period up until that time, starting from the respondent's acquisition of the property in May 2001.
- In general, a claimant cannot recover damages for the same loss in more than one way from the same wrongdoer. The respondent's claim to be compensated for having been deprived (by the loss of access to the fire escape) of the ability to make profits from the first floor function room at No 125 is sound in principle but it is inconsistent with a different claim for continuing loss as regards deprivation of the use of the store room and fire escape.
- The judge's award of damages for loss of profit in carrying on the restaurant business because of inability to use the first floor function room is not, in my judgment, open to challenge on appeal except in respect of her having counted that loss of profits as starting from the moment when the respondent acquired the property. If Mr Mohammed Ausman had sued for damages in respect of loss caused to him by Brookwide, and had done so within six years after 29 April 1999, he could have recovered damages on this basis from that date onwards, because he had an existing business in this respect, of which he was deprived at once by the appellant's trespass. If he had parted with the property later for value, he could have claimed damages for the diminution in the value of the property because of the lack of access to the fire escape. This would be correct on the basis that a purchaser of the property would pay less for a property without a fire escape, and therefore without an active first floor function room business, because of the time and expense that would be involved in setting up and developing such a business. However, in effect Mr Mohammed Ramzan passed the property to his son, the respondent, by way of gift. The respondent was not able to show that he had the benefit of an assignment from his father of any cause of action. Otherwise (if the claim had been brought in time) he might have put forward a claim as assignee, such as his father could have advanced, for diminution in the value of the property due to the absence of a current special function business. As it is, his claim for damages has to be put on the basis that Brookwide's tort committed (on a continuing basis) against him, from 23 May 2001 onwards, prevented him from establishing and carrying on the special function business. Starting from a position in which there was no such business when he acquired the property, he must have taken some time to get the business going. I agree, therefore, with Arden LJ that the judge's award of damages in this respect is over-generous, and should be reduced as she has indicated. The period that would have been required was not the subject of any finding by the judge, and I dare say not of any evidence at the trial. Determining the amount of the deduction must therefore be somewhat arbitrary, but it would be altogether inappropriate and disproportionate to remit the case for a finding on the basis of further evidence. I agree, on this basis, that the amount of the damages awarded under this head should be reduced by £12,000.
- I also agree, for the reasons given by Arden LJ and those that I have indicated above, that the respondent cannot have both these damages for loss of profit and also either damages for trespass in respect of the loss of use of the store room and fire escape by way of mesne profits, or an account of the profits made by the appellant for the relevant period from the use of the store room, the latter by way of damages for breach of trust. The judge's award of compensation in this respect seems to me to involve double counting. The damages for loss of profit would compensate the respondent for being deprived of the use of the fire escape between May 2001 and October 2010. To award in addition damages for trespass against the appellant on the basis of the full capital value of the store room and fire escape, for that period, would give the respondent two different kinds of compensation for the same loss. Similarly, to require the appellant to pay over to the respondent the profits which the appellant had made from the use of the store room space during that period would also involve compensating the respondent in two different ways for the same loss. I therefore agree with Arden LJ that, having given the respondent damages for loss of profit in respect of the loss of the function room business, it was not open to the judge also to award either damages for trespass by reference to an annual percentage yield on the capital value of the store room and fire escape – the agreed figure of £55,000 – or an account of profits made by the appellant from the use of the space by way of damages for breach of trust.
- There was some debate during argument about the possibility of a more limited claim for damages for trespass in respect of the store room, assessed by reference to the use of the store room itself, such use being limited so as not to exclude the room being used for access to of the fire escape. Such an award would proceed on a basis which seems to me altogether artificial. If the store room was to continue to be available for use by way of access to the fire escape, any other use of that space would have had to have been subsidiary and subordinate (as it seems that it had been on the part of Mr Mohammed Ramzan). It is unrealistic to attribute a value to such a use of the store room on the part of Brookwide, or indeed any third party, for the purposes of a claim for damages for trespass, when the substantial loss which Brookwide caused to the respondent was to deprive him of the ability to make profits next door by using the first floor of No 125 as a function room. I therefore agree that no sum is properly payable as mesne profits or damages for trespass. The one amount of compensation which is due to the respondent in respect of the continuing trespass between 2001 and 2010 is the £213,074.50 award for loss of profits.
- Turning from compensation for loss suffered on a continuing basis over a period, from 2001 to 2010, to that suffered on a one off basis in 2010, it seems to me that to award both £55,000 as the capital value of the store room plus the fire escape, and £85,269.75 for the cost of reinstating the fire escape, involves making the appellant pay twice over for depriving the respondent of the one asset.
- The effect of the agreement between the expert valuers, recorded by the judge in paragraph 17 of her judgment and referred to by Arden LJ at paragraph 20 above, is that the capital value of what the respondent was deprived of, by the judge's refusal of relief which would have restored the store room to the same ownership as No 125, was to be taken as £55,000. If that sum is received by the respondent, how can he claim to have lost the cost of rebuilding a fire escape within No 125 as well? Beforehand he owned No 125, with the store room and the fire escape; afterwards he owned No 125, without the store room or the fire escape but with the agreed full value of those parts of which he had been deprived. It seems to me that the judge's error on this point is revealed by her observation, at paragraph 53, quoted by Arden LJ at paragraph 22 above, that the fire escape had a value independent of the value of the land to which it was attached. I do not think that this statement can stand with the agreed valuation at £55,000 of the difference between the value of No 125 with the store room and fire escape and its value without either of them.
- If this point had been foreseen, appreciated, or accepted, the respondent's claim by reference to the loss of the capital value might have been put in the alternative to the claim for the cost of replacement of the fire escape, but it was not, and the award of £55,000 is not in issue on the appeal. I therefore agree that the award of the cost of replacement cannot stand.
- I need say no more about the two remaining issues, exemplary damages and interest, than that I agree with Arden LJ on both of these points for the reasons she gives.
Lord Justice Tomlinson
- I agree with both judgments. There is a slight difference of approach between my Lady and my Lord as to the treatment of a possible claim in respect of mesne profits for a store room with shared access to the fire escape- see paragraphs 45 and 95 of their respective judgments. Since this difference is of no relevance to the ultimate outcome and arises simply out of the very unusual facts of this case and the manner in which it was argued at trial, I need express no view of my own. Although we have reduced the overall amount awarded by the judge, I too pay tribute to her handling of this action. The judge was presented with some unnecessary difficulties which, with more careful preparation of the case on both sides, could have been avoided. As Lord Justice Lloyd has already observed, it is by no means unusual for issues of the sort with which we are here concerned to come into sharper focus in an appellate court.
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