Trespassers will be prosecuted; a phrase familiar to all property owners. Often, the highest priority for a property owner is to regain possession as quickly as possible. Compensation for damages can be secondary to just getting the property back. A recent case has provided welcome clarification that property owners can prioritise the pursuit of repossession in the courts without compromising subsequent claims for damages.
In Farrar v Leongreen*, Leongreen had successfully pursued a claim for possession of a flat in London from Peter Farrar, who had been trespassing since his lease expired. At the time, Leongreen did not pursue a claim for damages for trespass called mesne profits (usually the ordinary letting value of the property).
Prioritised Repossession over Damages
When Leongreen brought the claim for possession, the trespass had not been going on for very long. Leongreen’s priority was to get Peter Farrar out of the property as quickly as possible. Adding a claim for mesne profits to the proceedings would have incurred additional costs and delay, which were not justified given the likely value of the mesne profits. Leongreen did, however, reserve the right to claim for mesne profits at a later date.
Subsequent Claim for Damages
The claim for possession was more complicated and took a lot longer than originally anticipated. By the time Leongreen’s claim had been successfully concluded, the amount of mesne profits had increased significantly. Leongreen subsequently brought a successful claim to recover mesne profits. Peter Farrar appealed. In his appeal, Peter Farrar stated that the subsequent claim for mesne profits was a breach of the principles of res judicata and, therefore, should be dismissed.
Res judicata is a term that covers a broad set of legal principles that, together, mean that a person cannot bring the same proceedings in court more than once. Peter Farrar’s argument on appeal was that the application of the principles of res judicata should mean that Leongreen could not bring an action for mesne profits. Farrar argued that this was because the cause of action for mesne profits was the same as the cause of action for possession, namely, trespass.
The Court of Appeal disagreed. The Court stated that although the wrongful act itself was the same, that is, Peter Farrar’s trespass, the act itself was not the cause of action. The Court said that the trespass gave rise to two distinct causes of action; that is, an action for the recovery of the land and an action for damages for trespass. The Court clarified that these two distinct actions do not have to be brought at the same time.
2-Step Approach Permitted
This case provides property owners with the confidence to prioritise getting back their property from trespassers as quickly and efficiently as possible without having to worry about losing the right to pursue damages for the illegal possession.
Words of Caution
A few words of caution, however. The fact that the Court has confirmed that two actions do not have to be pursued simultaneously, does not mean that they need not be considered at the same time. When pursuing a claim for possession, it is important to obtain expert advice and consider all remedies available. This will ensure that any subsequent claims made will not fall foul of the principles of res judicata.
It may be also advisable when pursuing a claim for possession to specifically reserve the right to subsequently claim mesne profits, as Leongreen did. This was remarked on by the Court.
*Peter Farrar v Leongreen Limited  EWCA Civ 2211
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.
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