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Ministry Of Defence V. Ashman Notes

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MINISTRY

OF

DEFENCE V. ASHMAN

FACTS The second defendant was at all material times a Flight Sergeant in the Royal Air Force and the first defendant was his wife. After they separated she stayed on in the married quarters which they had occupied together. The issue raised by this appeal is the way in which, in such a situation, mesne profits should be calculated. Should they be calculated by reference to the market rent, by reference to the subsidised rent paid by the serviceman so long as he and his family remained in lawful occupation or in some other way?
The property owned by the Ministry of Defence was at 15 Perch Meadow, Halton, about half a mile from RAF Halton. On going into occupation in June 1989, the second defendant signed the certificate by which he acknowledged, firstly, that he was entitled to occupy the property only so long as he remained a serving member of the Royal Air Force, living with his spouse. Secondly, that he would be required to remove his family from the accommodation if he ceased to live with his spouse. On March 14, 1991, Mrs. Ashman and her husband were given the appropriate notice to vacate the accommodation by May 16, 1991; that notice being given by Mr. Ashman's Commanding Officer in accordance with the certificate which he, the second defendant, had co-signed. The first defendant and the two children did not vacate because they had nowhere to go. On May 17, 1991, the day after possession should have been given pursuant to the Commanding Officer's notice, a new seven day notice was served on Mrs. Ashman alone. In this notice the Ministry for the first time asserted the right to claim damages for trespass at £108.93 per week. By then Mrs. Ashman had written to the local authority seeking alternative accommodation, but she had no priority. On September 30, 1991, the Ministry commenced these proceedings seeking possession and mesne profits from March 14, 1991, at £108.93 per weeks plus interest. HOLDING KENNEDY LJ But where, as in the present case, the property is not normally let on the open market, and the trespasser only remains in possession because she is in no position to move anywhere else, it seems to me that more assistance as to the proper value to Mrs. Ashman of the use of the property might be gained by looking at what she would have had to pay for suitable local authority accommodation, had any been available, than by focusing on evidence given on behalf of the Ministry as to market rent.

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