Property damage: the limitations on rights of entry

The negligent exercise of rights of entry can amount to trespass and a lack of documentation is not a bar to a claim in damages. In Stephen James Kirby v Electricity North West Limited [2023] EWHC 75 (TCC) the claimant, a Fylde coast farmer, claimed a tenancy of Peel field and planned to grow a number of crops there, particularly potatoes, in the 2018 growing season. He was unable to do so because the defendant’s contractors caused serious damage to the field in November 2017 while undertaking works which they were entitled to carry out under deeds of grant, to replace a 33kV underground cable with a modern one. The damage had to be remedied before a crop could be grown and the claimant lost the opportunity to grow crops on the field. He sought damages for his losses. A key question was whether the claimant’s evidence should be accepted as essentially true and reasonably reliable despite an absence of documentation and inconsistencies between some of the documentation provided and the claimant’s case. The defendant had caused extensive damage to Peel field by continuing to work in very wet weather. Its own evidence confirmed that its contractors had driven outside the wayleave area, widening the trafficked area and tracking through the centre of the field causing very severe damage including to the field drainage system which meant the field had to be redrained. The court was satisfied that correspondence signed by both the claimant and a representative of the freehold owners of the land, which the judge described as “an informal but essentially business-like arrangement” created a tenancy of Peel field with exclusive possession. The claimant, as the person in possession of Peel field, was entitled to sue for trespass (Clerk & Lindsell on Torts 23rd edition 18-10). The court was also satisfied – despite the informality of the relationship – that the claimant had a “potato growing agreement” with a local company. The claimant would grow potatoes from seeds and using fertilisers supplied by the company which would have first option to purchase the crop at market value. The court was willing to accept the claimant’s evidence that he intended to plant potatoes on Peel field in 2018 and spring barley in 2019 despite a lack of documentary evidence to support this because it found, on the balance of probabilities, that he was an honest and reliable witness who had established the essential elements of his case. The defendant was awarded damages of £54,652.40. Louise Clark is a property law consultant and mediator