#6656 - Stroke On Trent City Council V. Wass - Commercial Remedies BCL

Stroke-on-Trent City Council v. Wass

Facts

In the first week of November 1982 the defendants, W. & J. Wass Ltd. (“the company”), started to operate a Thursday market at Adderley Green, Longton, which, with Tunstall, Burslem, Hanley, Stoke-on-Trent and Fenton (the six of Arnold Bennett's five towns), is within the area of the plaintiffs, Stoke-on-Trent City Council. At all those places except Fenton the council have for very many years, under statutory authority, operated markets on Wednesdays, Fridays and Saturdays. Accordingly, when the company advertised its intended market during the same month the town clerk responded with a letter of protest, warning it of possible proceedings to prevent the council's market rights being infringed.

Undeterred by that protest and without planning permission, the company went ahead with the operation of its market on the Adderley Green site, where it was held every Thursday until 1986.

Evasion of the injunction by the company, moving the market: Enforcement and stop notices were duly served on the company, which appealed to the Secretary of State. On 8 June 1983, after a planning inquiry, the appeal was rejected. The company then appealed to the Divisional Court of the Queen's Bench Division, but on 30 January 1984 that appeal was dismissed and leave to appeal to this court was refused. The company failed to comply with the enforcement notice. It was prosecuted in the magistrates' court and eventually convicted on 11 October 1985. It gave notice of appeal, but abandoned the appeal in December of that year.

The company then decided to move its market to a new site slightly to the north-west of the original. From 13 February 1986 its market has been held on the new site with part of the original site being used as a car park

The company is currently operating its market on Tuesdays. So far nothing short of an injunction has deterred it from holding its market on one or other site on one or other day.

On 4 March 1986, shortly after the company commenced operating on its new site, the writ in this action was issued. The council alleged that the company was infringing their right to operate their own market at Fenton on Thursdays.

Question

But suppose a case where there has been no loss. Is the market owner kept to his nominal damages or can he recover substantial damages on the footing that if his leave and licence had been sought he could have required a fee to be paid to him? That is the novel and somewhat surprising question with which we are confronted on this appeal.

Holding

Exceptions to the general rule that “loss” must be proved

The general rule is that a successful plaintiff in an action in tort recovers damages equivalent to the loss which he has suffered, no more and no less. If he has suffered no loss, the most he can recover are nominal damages. A second general rule is that where the plaintiff has suffered loss to his property or some proprietary right, he recovers damages equivalent to the diminution in value of the property or right. The authorities establish that both these rules are subject to exceptions.

Trespass to Land: The first and best established exception is in trespass to land. It originated in the way-leave cases, where the defendant trespassed by carrying coals along an underground way through the plaintiff's mine. Although the value of his land had not been diminished by the trespass, the plaintiff recovered damages equivalent to what he would have received if he had been paid for a way-leave: see Martin v. Porter (1839) 5 M. & W. 351; Jegon v. Vivian (1871) L.R. 6 Ch. App. 742 and Phillips v. Homfray (1871) L.R. 6 Ch. App. 770.

Detinue: The second exception is in detinue. In Strand Electric and Engineering Co. Ltd. v. Brisford Entertainments Ltd. [1952] 2 Q.B. 246 the defendants, wrongfully and in furtherance of their own ends, detained some portable electric switchboards which were owned by the plaintiffs and were normally hired out by them in the course of their business. It was held by this court that the plaintiffs were entitled to recover as damages the full market rate of hire for the switchboards during the period of their wrongful detention.

Infringement of Patents: The third exception is in infringement of patents: see Meters Ltd. v. Metropolitan Gas Meters Ltd. (1911) 28 R.P.C. 157; Watson, Laidlaw & Co. Ltd. v. Pott, Cassels & Williamson (1914) 31 R.P.C. 104 and General Tire & Rubber Co. v. Firestone Tyre & Rubber Co. Ltd. [1975] 1 W.L.R. 819.

Wrotham Park: To these exceptions to the general rules in tort must be added the decision of Brightman J. in Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 W.L.R. 798.

Distinguishing Tresspass and Detinue cases from the present case

On a superficial view, the trespass cases present a greater difficulty. In trespass the defendant makes an unlawful use of the plaintiff's land. Similarly, it can be said that in levying an unlawful rival market the defendant makes an unlawful use of the plaintiff's right to hold his own market, which, at any rate in the case of a franchise market, is an incorporeal hereditament. Ought it to make all the difference that in the first case the unlawful use is a physical one? This is a formidable line of argument, but I think that it is unsound. If the way-leave cases are put on one side, it seems to me that the trespass cases really depend on the fact that the defendant's use of the plaintiff's land deprives the plaintiff of any opportunity of using it himself. And even on the assumption, which may be correct, that the broad view of Denning L.J. in the Strand Electric case [1952] 2 Q.B. 246 is a correct view of the law, the same can be said of an unlawful detention of the plaintiff's chattel. On the other hand, an unlawful use of the plaintiff's right to hold his own market does not deprive him of the opportunity of holding one himself. Such indeed has been the state of affairs in the present case. If of course the plaintiff can show that he has thereby suffered loss, nobody would suggest that he ought not to receive substantial damages. But why should he receive them when he has been able to hold his own market and has suffered no loss from the defendant's?

Slippery Slope argument

Although I would accept that there may be a logical difficulty in making a distinction between the present case and the way-leave cases, I think that if the user principle were to be applied here there would be an equal difficulty in distinguishing other cases of more common occurrence, particularly in nuisance. Suppose a case were a right to light or a right of way had been obstructed to the profit of the servient owner but at no loss to the dominant owner. It would be difficult, in the application of the user principle, to make a logical distinction between such an obstruction and the infringement of a right to hold a market. And yet the application of that principle to such cases would not only give a right to substantial damages where no loss had been suffered but would revolutionise the tort of nuisance by making it unnecessary to prove loss. Moreover, if the principle were to be applied in nuisance, why not in other torts where the defendant's wrong can work to his own profit, for example in defamation?

Conclusion

These considerations have led me to conclude that the user principle ought not to be applied to the infringement of a right to hold a market where no loss has been suffered by the market owner. If loss caused by the diversion of custom from one market to the other had been proved, I would have agreed with Nicholls L.J. that the general rule ought to apply, so that...