Non-compensatory damages again

This is pretty interesting.

In Field Common Ltd v Elmbridge Borough Council [2008] All ER (D) 141 the local authority owned an industrial estate, and by resurfacing not only its right of way, but other land of the claimant without consent, had encouraged its tenants to trespass on that land, so as to have permitted that trespass and become liable for damages for it.

The point of interest is that the Court held that the claimant was entitled to compensation in respect of the benefits that the landlord had enjoyed as a result of the tenants' trespass, as if they were an enjoyment of the land itself. That was held to be a permissible extension to the exception to the general rule that damages in tort were compensatory (I am still not sure there is an exception, personally).

In this case, it meant that damages should be awarded on the basis of a hypothetical negotiation of a licence to encroach: that approach best reflected justice as between the parties.