Thorne v Courtier and others

Damages for trespass – Expert – Chartered surveyor – Parties proposing terms of agreement to settle claim for possession of agricultural land — Dispute arising as to scope of damages in settlement agreement – Whether expert or court properly determining meaning of “damages for trespass” — Appeal dismissedIn 2008, the appellant brought proceedings in the county court to recover possession of two parcels of agricultural land and some associated buildings from the respondents, who claimed a right to occupy it under an agricultural tenancy.The appellant also sought damages for their use and occupation and made a Part 36 offer to settle the claim, on the basis that the respondents would pay “damages for trespass”, determined by a rural chartered surveyor acting as an expert. The respondents rejected the offer and made a counter-offer to pay £50 per acre in respect of the damages that they agreed to pay in order to obviate the need to instruct a surveyor. A dispute arose over whether the parties had entered into a binding agreement. The court concluded that they had, under the terms of the respondents’ offer. A second dispute emerged as to the meaning of “damages for trespass”. The appellant argued that, having rejected her offer, the respondents could not then accept it, and in any event they had not done so. However, even if that was wrong, the parties had agreed to pay damages for trespass at large, including, in particular, the loss suffered by the appellant from being unable to sell a neighbouring farmhouse while the respondents remained in occupation of the land and buildings. The respondents argued that the appellant’s Part 36 offer, not having been withdrawn, remained open for acceptance and they had accepted it and the expression “damages for trespass” meant damages for use and occupation only.A recorder decided that damages were limited to the use and occupation of the land and buildings. The appellant appealed, contending that: (i) on the true construction of the agreement, it was for the expert, not the court, to decide what was meant by the expression “damages for trespass”; (ii) alternatively, the recorder should not have determined the issue until the expert had undertaken his task; and (iii) the recorder’s decision on the meaning of “damages for trespass” was in any event wrong.Held: The appeal was dismissed. (1) In the absence of any clear indication that the expression “damages for trespass” was to be given a more restricted meaning that it might otherwise bear, it was difficult to believe that the parties had intended to entrust the resolution of the meaning of that expression to a surveyor, who would not have professional expertise in determining such matters. The court had jurisdiction to determine the meaning of the agreement and the scope of the expert’s instructions. (2) The question of whether to determine the scope of an expert’s instructions in advance of his determination was a matter of procedural convenience and, as such, the decision lay within the judge’s discretion. The court should do so only in exceptional circumstances but, in the instant case, it was clear that it would be in the parties’ interests to define the position before the expert began his task. Their respective positions were clear and a challenge to the expert’s determination could be expected because of its financial consequences for the parties. Moreover, an application to strike out or stay the proceedings on the ground that they were premature had not been made. Once the matter was before the court, it had been in both parties’ interests for the recorder to decide the question: Mercury Communications Ltd v Director General of Telecommunications [1994] CLC 1125 considered; National Grid Co plc v M25 Group Ltd [1999] 1 EGLR 65; [1999] 08 EG 169 applied.(3) The meaning of the words “damages for trespass” had to be considered in their context. The particulars of claim or correspondence had not suggested that the appellant had suffered any loss other than that loss of the use of the land and buildings. That represented the limit of her claim and such loss was suitable for expert determination by a rural surveyor. The recorder had been entitled to hold that the respondents’ case succeeded on the true construction of the agreement. Stephen Jourdan QC (instructed by Wilsons Solicitors LLP) appeared for the appellant; Steven Ball (instructed by Clarke Willmott LLP, of Birmingham) appeared for the respondents.Eileen O’Grady, barrister