The Court of Appeal has granted limited permission to appeal on the question of whether a claim for mesne profits against a trespasser can be brought in subsequent proceedings or whether it merges in the judgment on the possession claim, applying King v Hoare (1844) 13 M & W 494.
While there may be few instances where it will be worthwhile bringing a claim for mesne profits in a possession claim against a trespasser, as there is little prospect of recovery against persons unknown, there may be other areas of property law where the decision might impact. For example, if a mortgagee has obtained a money judgment based on breach of contract, does the doctrine of merger then preclude a later claim for a shortfall, where the lender is suing for breach of the same contract?
Irwin LJ gave permission on the renewed oral application, after permission had been refused by Longmore LJ on the papers. The appeal is due to be heard in December 2017.