Ausman Ramzan and his father operated a curry house at 125 Alcester Road in Birmingham, with a restaurant on the ground floor and a private room for functions upstairs. Adjoining the private room but in the neighbouring premises at no. 123 was a storeroom. The owners of 123 Alcester Road had conveyed the storeroom to Ramzan senior in 1992, retaining the rest of the property. In 1999, the owners of no. 123 sent in builders who bricked up the doorway connecting the storeroom to no. 125 and proceeded to covert it into flats. They also removed a fire escape which prevented continued use of the function room. Ramzan was awarded damages for trespass, breach of trust and denial of the equitable right to the transfer of the freehold of the storeroom, as well as an amount for repairing the fire escape, damages representing the defendant’s profits and exemplary damages. The defendant appealed most of the awards made against it: Ramzan v Brookwide Ltd, [2011] EWCA Civ 985 [Link available here].

The English Court of Appeal observed that while the trial judge had considered the possibility of double recovery and was not wrong to examine various heads of damage separately rather than globally, she had fallen into error on a number of points. Her calculation of lost profits based on past receipts less a discount factor was largely reasonable but adjusted downwards a bit. There was more serious error in the awards for mesne profits (damages for loss of use of land) and breach of trust, which essentially compensated the claimants for the same injury arising from the same wrong: this was double recovery. Sometimes remedies may be cumulative, for example having a fraudulently-induced contract set aside and also suing for damages. But remedies may also be alternative and inconsistent, the classic example being damages for loss occasioned by breach and an accounting of profits derived from that breach, in which case the plaintiff must elect which of the two remedies to pursue. This was clearly a case of alternative remedies; Ramzan couldn’t get damages for breach of trust and lost profits, so was treated as having elected for the latter as the larger measure (although the court reduced the award to equal the value of the benefit received by the defendant). Damages for the cost of restoring the fire escape were also duplicative, in light of an agreed award (not under appeal) for loss of use of the land. The exemplary damages were adjusted down from ₤60,000 to ₤20,000.