The following story about when the court can decide the limit of an expert witness’s assessment of likely value of damages was featured on the website of Goodman Legal in December.

The case concerned the estate of an elderly woman. When she died her daughter – who was her personal representative – realised that some of her late mother’s land was occupied unlawfully by three people. She brought an action against them, seeking to recover possession of the land and claiming damages for ‘use and possession’ of it.

The defendants claimed that they occupied the land under an agricultural tenancy. Initially, they rejected an offer to settle the dispute by the payment of damages to be assessed by a chartered surveyor, but then decided to accept the offer without admitting liability. They subsequently offered the woman £50 per acre as damages for occupation in order to avoid the cost of instructing a chartered surveyor.

There was one further complexity. The woman claimed that a sale of adjoining land had fallen through because of the trespass and that this loss was to be assessed in the claim. The defendants claimed that ‘damages for trespass’ only meant a fair value for the occupation of the land. The County Court ruled that damages for trespass were limited to the damages for occupying the land.

The woman appealed, arguing that the judge was wrong in law and also that acceptance of the offer she had made meant that the damages payable were to be decided upon by the chartered surveyor. Even if the court had the jurisdiction to rule on the matter, she argued, it could not rule until the surveyor had reported his findings.

On appeal, the Court of Appeal concluded that it would not be interfering with the surveyor’s expert opinion for the court to set the parameters of that decision. Given the large difference in likely damages payable depending on which approach was taken, it was likely that the expert’s opinion would be challenged in any event. Therefore, it was appropriate for the court to set the limits of the claim.

Since there had been no intimation of damages relating to the failure to sell the adjoining land in the original claim – which was stated to be in respect of ‘use and occupation’ only – the court concluded that the alleged damages due to the abortive property sale were not part of the claim.