a sum of money claimed or awarded in compensation for a loss or an injury. Verb 3rd person present: damages “inflict physical harm on (something) so as to impair its value, usefulness, or normal function.” [3] The Cambridge Dictionary (Cambridge University Press 2022) defines “damages” as “money that is paid to someone by a person or organization who was responsible for causing some injury or loss:” [4] Encyclopaedia Britannica (Online version) describes damages as follows: in law, money compensation for loss or injury caused by the wrongful act of another. Recovery of damages is the objective of most civil litigation. Originally redress of wrongs was direct—an eye for an eye, a tooth for a tooth. The introduction of monetary systems and dissatisfaction with the inequities of this vengeful redress led to settling disputes by awarding money damages. Today the concept is present in virtually every body of law. Although there was a developed system of monetary compensation for wrongs in Roman law and although the in law, money compensation February 16, 2022 4 for loss or injury caused by the wrongful act of another. Recovery of damages is the objective of most civil litigation. Originally redress of wrongs was direct - an eye for an eye, a tooth for a tooth. The introduction of monetary systems and dissatisfaction with the inequities of this vengeful redress led to settling disputes by awarding money damages. Today the concept is present in virtually every body of law. Although there was a developed system of monetary compensation for wrongs in Roman law and although the remedy appeared early in the development of English law and became the primary remedy of the common-law courts, the growth of the modern law of damages is a function in large part of the importance of the jury in Anglo-American legal procedure. In the United States particularly, a body of legal doctrine has developed around such issues as how evidence may be submitted to a jury, how a judge may instruct a jury on the law, and what damages a jury may award for particular wrongs. [5] In CLERK & LINDSELL ON TORTS (21st Edition), page 2009 paragraph 28-07, it is stated that the sum of money awarded as damages should put the party who has suffered in the same position as he would have been in if he had not sustained the wrong. “The general object of an award of damages is to compensate the plaintiff for the losses, pecuniary and non-pecuniary, sustained as a result of the defendant’s tort. The general principle is, in the off-quoted words of Lord Blackburn, that the court should award 'that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.” [6] In the recent Court of Appeal case of JOHANDRA REALTY SDN BHD DAN SATU LAGI V. KETUA PENGARAH JABATAN PENGAIRAN DAN SALIRAN MALAYSIA DAN SATU LAGI [2021] February 16, 2022 5 2 CLJ 485; [2021] 2 MLJ 738 at 750-751, held that the victim is entitled to recover a reasonable rent for the wrongful use of his property by the trespasser. “[21] Sementara itu, di dalam kes OTHMAN BIN ALI & 290 ORS V. BUKIT LENANG DEVELOPMENT SDN BHD [2016] 6 CLJ 508; [2016] 3 MLJ 708; [2016] 6 CLJ 508 Mahkamah ini ada buat pemerhatian dan seterusnya memutuskan seperti mana berikut: [31] It was undeniable that in a normal case where once a trespass to land or a deprivation of use of land had been established, the normal measure of damages to be applied would be the actual proof of ‘loss of rental’ or a reasonable estimation of such a ‘rental return’ that was directly attributable and flowing from a lawful use of the land but denied by that wrongful action. This was consistent with the two underlying basic principles in law which required that any damages awarded would, so far as money can, put the affected or deprived party in the same position as he would have been if the tort had not occurred subject to the further overriding consideration that such damages to be awarded was in any event not too remote or speculative in nature. [7] In INVERUGIE INVESTMENTS V. HACKETT [1995] 3 All ER 841, the Privy Council opined (in an appeal from the Bahamas Court of Appeal) that although the plaintiff might not have suffered any actual loss by being deprived of the use of property, he was still entitled to recover a reasonable rent for the wrongful use of his property by the trespasser, and similarly, even if the trespasser might not have derived any actual benefit from the use of the property, he was still obliged to pay a reasonable February 16, 2022 6 ‘rent’ for the benefit or use he enjoyed based on what has been termed as the ‘user principle’. [8] Lord Lloyd of Berwick delivering the advice said as follows: ...of the landlord of residential property, can recover damages from a trespasser who has wrongfully used his property whether or not he can show that he would have let the property to anybody else, and whether or not he would have used the property himself. [9] The point is well expressed by Lord Justice Megaw in SWORDHEATH PROPERTIES LTD V. TABET [1979] 1 All ER 240 at 242, [1979] 1 WLR 285 at 288 as follows: It appears to me to be clear, both as a matter of principle and of authority, that in a case of this sort of the plaintiff, when he has established that the defendant has remained on as a trespasser on residential property, is entitled, without bringing evidence that he could or would have let the property to someone else in the absence of the trespassing defendant, to have as damages for the trespass the value of the property as it would fairly be calculated; and, in the absence of anything special in the particular case it would be the ordinary letting value of the property that would determine the amount of damages. [10] It is sometimes said that these cases are an exception to the rule that damages in tort are compensatory. But this is not necessarily so. It depends how widely one defines the ‘loss’ which the plaintiff has suffered. As the Earl of Halsbury LC pointed out in MEDIANA (OWNER) V. COMET (OWNERS), THE MEDIANA [1900] AC 113 at 117, [1900-3] All ER Rep 126 at 129, it is no answer for a wrongdoer who has deprived the plaintiff of his chair to point out that February 16, 2022 7 he does not usually sit in it or that he has plenty of other chairs in the room. [11] In STOKE-ON-TRENT CITY COUNCIL V. W & J WASS LTD [1988] 3 All ER 394 at 402, [1988] 1 WLR 1406 at 1416 Lord Justice Nicholls called the underlying principle in these cases the ‘user principle’. “The plaintiff may not have suffered any actual loss by being deprived of the use of his property. But under the user principle he is entitled to recover a reasonable rent for the wrongful use of his property by the trespasser. Similarly, the trespasser may not have derived any actual benefit from the use of the property. But under the user principle he is obliged to pay a reasonable rent for the use which he has enjoyed. The principle need not be characterised as exclusively compensatory or exclusively restitutionary; it combines elements of both.” [12] In LEIGH V MICHELIN TYRE PLC [2003] EWCA Civ 1766, [2004] 1 W.L.R. 846 in which the court considered the relevance of costs estimates provided pursuant to paragraph 6.6 of the Costs Practice Direction. It held that where the costs claimed exceed the estimate and no satisfactory explanation is provided, the court may treat that as evidence that the excess was not reasonably incurred. However, it also held that unless the court had relied on the estimate in giving case management directions or the other party had relied on it in relation to its own conduct of the proceedings, the receiving party would not be deprived of costs to the extent that they were reasonable and proportionate. February 16, 2022 8 [13] In HOME OFFICE V LOWNDS [2002] EWCA Civ 365, the court should adopt a two-stage approach: Compare the total costs claimed against the total benefits gained by the successful party. If the total costs are proportionate to the total benefits: a) Perform an item by item test of reasonableness; if they are not proportionate. b) Perform an item by item test of necessity. [14] In SYLVIA HENRY v. NEWS GROUP NEWSPAPERS LTD [2013] EWCA Civ 19, the facts were that it was an appeal by Ms Sylvia Henry against a decision of Senior Costs Judge Hurst on a preliminary issue arising in the course of a detailed assessment of costs. Ms Henry, a senior social worker employed by Haringey Council, was the victim of a sustained and vitriolic campaign by the ‘The Sun’ newspaper following the death of the child known as “Baby P”. That campaign, the object of which was to force Ms Henry out of her job and to prevent her from obtaining any further employment in connection with children, led her to take proceedings for defamation against the publisher of the newspaper. They were eventually settled on payment of a substantial sum (the amount of which is undisclosed), a statement in open court and the publication of an apology in a prominent position in the paper. That apology acknowledged that there was no truth in any of the defamatory statements made by ‘The Sun’ and that its campaign against the appellant was entirely unjustified. As part of the settlement the respondent agreed to pay the appellant’s costs of the proceedings to be assessed on the standard basis if not agreed. A consent order in Tomlin form was made to give effect to the settlement, which included a term to that effect. Although they were able to settle the February 16, 2022 9 proceedings, the parties were unable to reach agreement on the amount of costs recoverable by the appellant, who therefore commenced detailed assessment proceedings. The respondent took objection to the appellant’s bill of costs on the grounds that it exceeded the budget that had been approved by Master Eastman. It is held, inter alia,