England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/1992/14.html
Cite as: [1992] 49 EG 103, [1992] EWCA Civ 14, [1992] EGCS 93, (1993) 65 P & CR 179

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		BAILII Citation Number: [1992] EWCA Civ 14
		Case No.:

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(SIR NICOLAS BROWNE-WILKINSON, VICE-CHANCELLOR)

Royal Courts of Justice

2nd July 1992

B e f o r e :

LORD JUSTICE NOURSE
LORD JUSTICE STOCKER
LORD JUSTICE BELDAM
____________________

Between:

	(1) THE IDC GROUP LIMITED (2) IDC PROPERTY INVESTMENTS LIMITED (3) FRIENDS' PROVIDENT LIFE OFFICE (formerly Friends' Provident and Century Life Office)	Plaintiffs
	-v-
	M.B. CLARK (female)	Defendant
	and
	(1) A.V.C. ASTLEY (a firm) (2) BLISSFIELD CORPORATION N.V.	Third Parties

____________________

(Transcript of the Shorthand Notes of the Association of
Official Shorthandwriters Limited,
Room 392, Royal Courts of Justice,
and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)

____________________

MR JOHN LINDSAY, Q.C., and MR JOHN RANDALL, instructed by Messrs Needham & James (Birmingham),
appeared for the Appellants (Plaintiffs).
MR JOHN GRAHAM BOGGIS, instructed by Messrs Jaques & Lewis,
appeared for the Respondent (Defendant).
MR PETER CRAMPIN, instructed by Messrs Reynolds Porter Chamberlain,
appeared for the First Third Party.
____________________

HTML VERSION OF JUDGMENT
____________________

(Revised)

LORD JUSTICE NOURSE: Shortly stated, the question in this case is whether a deed made between adjoining owners and expressed to "grant licence" to the owners and occupiers for the time being of one property to pass over parts of the other in case of fire operated as the grant of an easement or merely as the grant of a licence.

The adjoining properties are Nos. 22 and 23 St James's Square, London, SW1. On 28th March 1969, when the deed was executed, the freehold owners of No. 22 and the properties behind it in Pall Mall, Nos. 30 to 35, were the trustees of the Junior Carlton Club ("the trustees") and the lessee thereof for a term of 150 years from 25th December 1963 was Pall Mall Developments Limited ("Pall Mall"). On the same date the freehold owners of No. 23 were Friends' Provident and Century Life Office ("Friends' Provident") and the lessees thereof for a term of 35 years from 25th March 1963 were the three partners in the firm of Herring Daw & Manners ("Herring"). The deed, which I will call "the 1969 deed", was made between those four parties.

The first five recitals in the 1969 deed recited the titles of the respective parties. I need only add that in recital (1) the whole of the property of which the trustees were the freehold owners, including No. 22 St James's Square, was defined as "Nos. 30-35". The sixth and last recital was in these terms:

"Herring has requested Pall Mall to make an opening in the party wall between the Nos. 30-35 and No. 23 at the level of the Fifth Floor of Nos. 30-35 so as to provide No. 23 with the fire escape routes hereinafter mentioned and with the approval and consent of the Trustees and of Friends' Provident Pall Mall have carried out such works as the parties hereto acknowledge."

Clauses 1 and 2(a) of the operative part of the 1969 deed were in these terms:

"1. THE Trustees hereby grant their licence and consent to Pall Mall having made the opening in the wall dividing Nos. 30-35 and No. 23 at the position indicated in red on the attached plan Numbered 531/1 and to the erection of the doorway now erected in the said opening.

2. THE Trustees and Pall Mall do hereby each of them grant Licence to Friends' Provident and to Herring and other the occupiers for the time being of No. 23

(a) to pass through the said opening and doorway in case of fire only and in such case to enter into Nos. 30-35 by such means and to pass along its passages corridors and stairway and through its entrance doorway to the public street".

That is the right with which we are concerned. Another right of fire escape was granted by clause 2(b). Clause 3 contained a covenant by each of the parties with the others to use their best endeavours to ensure that no obstruction was made so as to prevent free access to the fire escape routes. Clause 4 was in these terms:

"THE expressions 'the Trustees' 'Pall Mall' 'Friends' Provident' and 'Herring' shall include their respective successors in title and assigns."

Clause 5 provided for the payment of costs and stamp duty. Since 1969 there have been alterations in the titles to both properties. For the purposes of this appeal it is unnecessary to go into them. It is enough to say that the plaintiffs are the owners of various estates in, and the occupiers of various parts of, office premises on several floors of No. 23 and also of No. 29 Pall Mall. It is accepted that the plaintiffs are entitled to the benefit of the right granted by clause 2(a) of the 1969 deed, so far as it still subsists and is capable of being enforced against the defendant, Mary Black Lang Clark, who, since 29th March 1985, has been the underlessee of Flat 35, No. 22 St James's Square, for a term of 72 years from 25th December 1979. That flat is on the fifth floor of NO. 22, being separated by a party wall from the fourth floor of the plaintiffs' premises on almost the same level.

The doorway to which clauses 1 and 2(a) of the 1969 deed related was a doorway in what is now the party wall between the plaintiffs' premises and Mrs Clark's flat. It is common ground that at some time prior to April 1987 the doorway was blocked up on Mrs Clark's side of the wall, although Mrs Clark says that it was not she who did it. However, she has refused to reopen it, claiming that the 1969 deed did not create any rights capable in law of binding her. The plaintiffs assert the contrary. By the writ in the action issued at the beginning of April 1987 they sought a mandatory injunction requiring Mrs Clark to unblock and restore the doorway. In the meantime they have had to provide themselves with an alternative fire escape at what they claim is a substantial cost. So the action may prove to be one principally for damages. Mrs Clark has joined as third parties to the proceedings the firm of solicitors who acted for her on the acquisition of her flat and also the underlessor of her underlease.

It will by now have become apparent that the plaintiffs' success in the action depends on their being able to establish that the 1969 deed created a right capable in law of binding Mrs Clark? in other words, a legal easement over Mrs Clark's flat and not a licence binding only on the licensors. Accordingly, on 25th May 1990 Master Gowers made a consent order for the determination of three preliminary issues, of which the first was expressed in these terms:

"Whether the Deed dated 28th March 1969 referred to in paragraph 3 of the Amended Statement of Claim created any rights capable in law of binding the Defendant."

That and the second issue came before Sir Nicolas Browne-Wilkinson, Vice-chancellor, who, on 25th June 1991, answered the first of them in the negative and in favour of Mrs Clark. Since that was enough to enable Mrs Clark to succeed in the action, he did not go on to decide the second issue. He dismissed the action and ordered the plaintiffs to pay the costs of Mrs Clark and the third parties. The plaintiffs now appeal to this court.

Before the Vice-chancellor the plaintiffs advanced four different arguments in support of their contention that the 1969 deed created an easement which now binds Mrs Clark. Three of them are no longer relied on. Now they rely only on what they contend is the effect of the 1969 deed construed against the admissible factual background, as to which two matters are not in dispute. First, the right granted by clause 2(a) of the 1969 deed is capable of being the subject matter of an easement. Secondly, if all that was granted was a licence properly so called, it would have come to an end either on reasonable notice given by the licensor to the licensee or when the licensor parted with the land in respect of which the right subsisted.

The principal submissions made on behalf of the plaintiffs by Mr Lindsay were these. He submitted that the 1969 deed, by joining in not only lessees for 144 years and 29 years respectively but also the two freeholders, had about it an appearance of longevity. He said that recital (6), by referring to the provision of fire escape routes for "No. 23", was couched in terms appropriate to the grant of a right intended to enure in perpetuity for the benefit of the property. Then he placed great reliance on the wording of clause 4, which he rightly said is expressed in mandatory terms and requires that the definitions of the respective parties shall include their respective successors in title and assigns. Thus the beginning of clause 2, if written out in full, would read as follows:

"THE Trustees and their successors in title and assigns and Pall Mall and its successors in title and assigns do hereby grant licence".

He submits that if clause 2 is spelled out in that way, it is seen to be appropriate to the grant of a right which will bind not only the assigns of the trustees and Pall Mall but also, and more significantly, their successors in title. So expanded the grant is plainly not merely personal, but is intended to impose a burden running with No. 22.

Next, Mr Lindsay relied on clause 3 of the 1969 deed and section 79(1) of the Law of Property Act 1925. He says, I think correctly, that the covenant in clause 3 is in substance a negative one. He also says, I assume correctly, that it is a covenant relating to "any land of a covenantor" within section 79(1). I say "assume" because we have not called on Mr Boggis or Mr Crampin to answer the appeal and it may be that they would have argued to the contrary. However, the effect of section 79(1) would be that the covenant in clause 3 was deemed to have been made by each of the parties on behalf not only of himself, but also of his successors in title and the persons deriving title under him or them. Mr Lindsay says that that gives clause 3 a contemporaneous existence with and a similar effect to clause 2 as interpreted by him.

Mr Lindsay also submits that the word "licence" is not one which must necessarily be understood in its proper legal sense. He has referred us to Addiscombe Garden Estates Ltd v. Crabbe [1958] 1 Q.B. 513 and Street v. Mountford [1985] AC 809 as authorities for the proposition that a transaction which is described as a licence may in reality be a tenancy. He relies in particular on a passage in the judgment of Lord Justice

Jenkins [1958] 1 Q.B., at page 522, where he said that the whole document must be looked at in order to see whether the label which has been attached to it correctly describes its substance.

Next, Mr Lindsay made a submission based on the common sense of the matter. He said, correctly, that a right to use somebody else's property as a fire escape is a right of the very greatest importance to the person entitled to exercise it, both as a matter of safety and as a matter of commercial good sense. The parties to a deed such as the 1969 deed cannot have intended to grant and accept a mere licence revocable either on reasonable notice or when the licensor parted with the property in respect of which the right subsisted. Finally, Mr Lindsay submitted that if the parties intended that the right should be capable of determination on reasonable notice, it is most extraordinary that they did not make express provision for it in the 1969 deed. That is, I hope, a fair summary of Mr Lindsay's principal arguments.

Although the 1969 deed is not in all respects elegantly drawn, it is clear and accepted on both sides that it was professionally drawn. In deciding what this professional draftsman intended in 1969 by the use of the expression "grant licence" we must start from the position that for over 300 years it had been well known to lawyers in general and to conveyancers in particular that a licence properly so called is a permission to do something on or over land which creates no interest in it.

Thus in Thomas v. Sorrell (1674) Vaughan 351 Chief Justice Vaughan said:

"A dispensation or licence properly passeth no interest, nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful."

We must start with the proper legal meaning of "licence" which, even if it is no longer a term of art, is certainly the next best thing. That is something which Mr Lindsay's submissions have at every point failed to recognise. He says that words must be construed according to their ordinary meaning, but where a word has a proper legal meaning it is that meaning which must ordinarily be given to it in a legal document. Moreover, the proper legal meaning of "licence" cannot in the present context be taken to have been eroded by cases such as Addiscombe Garden Estates Ltd v. Crabbe and Street v. Mountford, where an agreement expressed to be a licence has been held to create a tenancy. Those cases depend mainly on the exclusive possession given to the licensee, a state of affairs which cannot arise where all that is given is a right to pass and repass over another's land.

Next, we ought to ask ourselves what form of wording this professional draftsman would have been likely to use in 1969 if he had intended that the trustees and Pall Mall should grant an easement over No. 22. Although since 1925 it has been unnecessary, in order to create an easement, to use the word "grant" or to use words of limitation, the simple expression "grant licence" is not one which would have been used by a conveyancer of any experience as the means of creating an easement; see The Encyclopaedia of Forms and Precedents, Fourth Edition (1966), Volume 7, page 663, where there is a precedent for a deed granting an easement of way by one landowner in favour of an adjoining landowner. If that precedent had been adapted to clause 2(a) of the 1969 deed, it would have read something like this:

"The Trustees and Pall Mall as beneficial owners hereby grant unto Friends' Provident and Herring full right and liberty for them and their respective successors in title the owners and occupiers for the time being of No. 23 or any part thereof to pass and repass etc."

Then there would have been a habendum in these terms:

"... to hold the said right unto Friends' Provident and Herring in fee simple."

In all the circumstances, attributing the presumed intention of the professional draftsman to the parties, I am of the opinion that we must approach the construction of the 1969 deed in the expectation that when they used the expression "grant licence" they intended to grant a licence properly so called and no more. Then we must ask ourselves whether that expectation is defeated by the submissions which Mr Lindsay has made to us.

The Vice-chancellor thought that much the strongest was that based on clause 4. For my part, I am not at all sure that that is the case. That clause cannot on any footing be made to fit easily with other provisions of the 1969 deed to which it is, on its face, expressed to apply. Thus you would, on a literal application of clause 4, find clause 1 of the deed being spelled out as follows:

"The Trustees and their successors in title and assigns hereby grant their licence and consent to Pall Mall and its successors in title and assigns having made the opening in the wall etc."

The reference to the successors in title and assigns of Pall Mall is clearly a nonsense in that context. The same can probably be said of the reference to the successors in title and assigns of the trustees, since a continuing permission for the doing of a single act was unnecessary. It might have been thought that the real purpose of clause 4 was to include the successors in title and assigns of Friends' Provident and Herring within the permission granted by clause 2. But even that seems unnecessary in the light of the express reference to "and other the occupiers for the time being of No. 23".

Although I see the force of Mr Lindsay's argument based on clause 4, I think that it would be very dangerous to attach to it the weight which he would have us attach to it. I simply would not expect the professional draftsman of the 1969 deed, supposing that he had intended to grant an easement, to have granted it in the terms of clause 2, even with the assistance that Mr Lindsay says that it ought to receive from clause 4.

In my view much the strongest of Mr Lindsay's arguments are those based on the importance of the right to the parties, the indefinite terms in which it is expressed and the omission of any express power to determine it on reasonable notice. He is entitled to say that the combination of those factors is a demonstration that the parties intended that the right should have an indefinite existence. At the end of the day I have not found that to be a decisive consideration. Those factors are still capable of being explained by a contemplation on the part of the parties that a right of this importance, which could only be exercised in extreme and unusual circumstances, would in practice be likely to have an indefinite existence.

Although, as is inevitable in treating a question of this kind, I have attached different levels of emphasis to some of the features of the 1969 deed, my view of this case is perfectly expressed in the conclusion at which the Vice-chancellor arrived at page 10 D-E of the transcript:

"The indications being far from clear as to what the parties intended, I think that one has to take this as being a professionally drawn deed in which the draftsman has deliberately chosen to use the word 'licence' and not the ordinary words associated with the grant of an easement. Therefore, since there is nothing sufficiently clearly pointing in any other direction, I reach the conclusion that the deed did only create a personal licence."

I would dismiss this appeal.

LORD JUSTICE STOCKER: I agree for the reasons given by my Lord.

LORD JUSTICE BELDAM: I also agree.

Order: Appeal dismissed with costs; application for leave to appeal to the House of Lords refused.