Info on trespass to land and suing/being sued for it:
(initially written as advice (from someone with no legal qualifications) for a hunt sab group in north east England and passed to us for use on the website)
What is trespass to land?
Trespass to land involves the “unjustifiable interference with land which is in the immediate possession of another”. Possession doesn’t necessarily mean ownership, just the right to eject or exclude others from the land. It is not necessary to prove any physical damage or financial loss was caused in order to bring a claim against someone and one single incident of trespass is enough.
Who can make a claim?
Anyone with exclusive possession of the land (someone occupying that land or who is in “physical control” of it) could bring a claim against another for trespass. Landowners, tenants, even squatters in some cases can bring claims. Lodgers can’t bring claims as they are only licencees (they have permission to be there but not exclusive possession). It’s unclear if hunts could make a claim against hunt saboteurs (sabs) as they are presumably only licencees and they don’t have “exclusive possession” of the land. In this kind of case, landowners could get together to bring a claim against sabs for being on their land, but this appears unlikely.
How?
1. The trespasser would first need to be identified.* Unless someone was arrested for a criminal offence and the victims wanted to make an additional civil claim against them, I doubt the police would be within their rights to hand over someone’s personal details. Personal details could possibly be found out by vehicle number plates, etc. – finding out the person it’s registered to.
*Claim forms are supposed to state the full name of each party involved. If the claimant does not know the name of the trespasser, a description can be used if it is sufficient enough to identify who is and isn’t included. However, this would only work where an injunction was being sought and not compensation. To enforce a judgement for money, the trespassers would need to be identified.
2. Timeline of main events – set out the circumstances of the trespass including any footage or photos proving the trespass.
3. A claim form would need to be served on the defendants. If no address is known to the claimants, this could be done in person, usually by an official employed by the claimants’ solicitor.
4. Court.
Any defences?
– Dealing with an emergency
– Lawful authority (being a cop, social worker, from enviromental health or local authority)
– Necessity (to take action in emergency to deal with genuinely perceived danger)
– Consent (by owner or person in possession)
[Trespass or nuisance? Nuisance is caused indirectly. Most cases involve people on neighbouring pieces of land, when, for example, smoke from someone’s bonfire causes others to have to close their windows or bring in their washing…]
Possible outcomes – money vs injunction.
In most cases, the claimant would be looking to get an injunction to stop further trespass, not attempting to get money from the trespasser, unless damage had been caused to their property.
Injunction. This would be an order by the court prohibiting further trespass – this also allows the claimant to seek enforcement and “contempt of court” if the order is violated by the defendants. For ‘trivial’ trespass, this would probably be refused.
Damages (compensation). Where trespass is ‘trivial’ damages may be nominal. Where the trespass concerns some use of the land, without causing damage, compensation will be measured in relation to the defendants use of the land.* Compensation for trespass with damage will be measured by the reduction in value of the land and not the cost of restoration.
*Most case studies are of people who have gained financially from the trespass, not people who gain nothing personally from being on the land.
Types of compensation:
– Contemptuous: As low as 1p. While the court recognises that the claimant’s rights have been infringed, they don’t think the case should have been brought to court.
– Nominal: The claimant’s rights have been infringed, but little damage done. The claimant was reasonable in bringing the claim to court.
– Aggravated: Compensation for injury to feelings, distress, humiliation, insulting behaviour of the defendant.
– Exemplary: Money awarded by the court as a punishment and a deterrent to others. Less common these days as civil courts think punishment should be left for criminal courts.
Damages are usually only awarded instead of an injunction when the ‘damage’ caused to the claimant is small/capable of being estimated in money, when money will be adequate compensation or when an injunction is seen to be too oppressive to the defendant. In general, when compensation is paid to someone, the guidelines state that they should only be compensated for damage caused to them (this includes estimates to cover humiliation and so on) but they should not make a profit.
Costs: It is up to the judge to decide if the defendants will have to pay the claimant’s costs or whether both sides should cover their own expenses. In many cases, the amount the defendant will have to pay will be limited to a fixed amount. For example, in cases to evict squatters, the court cost is fixed at £150.