reasonable person would have paid for the right of user (Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch 538, Stoke-on-Trent City Council v W&J Wass Ltd [1988] 1 WLR 1406). It is no answer in such cases for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so (see The Mediana [1900] AC 113 at 117 per Earl of Halsbury LC – a defendant who has deprived the claimant of one of the chairs in his room for 12 months cannot diminish the damages by showing that the claimant does not usually sit on that particular chair or that there were plenty of other chairs in the room). Damages in lieu of an injunction 5.
In the types of case just mentioned the Courts have treated “user damages” as providing compensation for loss, albeit not loss of a conventional kind. However where an unlawful use is made of property and the right to control such use is a valuable asset, the owner suffers a loss of a different kind which calls for a different method of assessing damages. The wrongdoer prevents the owner from exercising his right to obtain the economic value of the use in question, and should therefore compensate him for the consequent loss. He takes something for nothing, for which the owner was entitled to require payment.
6.
An award of damages in lieu of an injunction under Lord Cairns’ Act (the Chancery Amendment Act 1858) enabled the Court of Chancery to grant damages, i.e. monetary relief for the breach of a common law obligation. In all cases in which the Court has jurisdiction to entertain an application for an injunction it can award damages to the claimant either in addition to or in substitution for the injunction, and damages are to be assessed in such manner as the Court directs (see now section 50 of the Senior Courts Act 1981).
7.
As Millett LJ explained in Jaggard v Sawyer [1995] 1 WLR 269 at 284:
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