England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE PELLING QC
5BL01209

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/07/2007

see: Wall v Collins & Anor [2007] EWCA Civ 444 (17 May 2007)

Lord Justice Carnwath :

1. Our main judgment was dated 17^th May, 2007. In paragraph 56 we suggested, subject to submissions by the parties, that the appropriate relief would be a declaration relating to the claimant's right over the passageway known as South Road. In paragraph 57 we noted that, as agreed, issues of costs would be deferred until after judgment and would be dealt with on written submissions.
2. On the form of relief, we have received submissions from both parties going beyond the specific issue relating to South Road, which was before the Court of Appeal, and raising points on rights over Back Street and other matters. Mr Foster refers to the difficulties caused by the relations between the parties, and the consequent need for precision. He proposes that the existing undertaking relating to Back Street, which forms part of the judge's order, should be extended to South Road, but subject to certain qualifications to define the precise nature of such use.
3. While it is clearly desirable to avoid further litigation, the court can only deal with the issues which are properly before it. In the absence of agreement to the form of the order or the terms of any undertaking, our task can only be to ensure that the order gives effect to the judgment. We cannot rule on other issues. Any other consequential issues arising from Judge Pelling's judgment will have to be referred back to the County Court.
4. Accordingly, we propose to adopt a declaration in the terms of paragraph 2 of Mr Foster's draft. We note that a slightly different wording is proposed in a draft Order prepared for Mr Wall but we do not think that there is any practical difference between the two.
5. As to costs, Mr Wall has substantially succeeded in the Court of Appeal and in principle he is entitle to an order for costs in his favour. Mr Foster draws our attention to an offer made by letter dated 21^st February 2006 which was rejected by Mr Wall. However, that was an offer of a right of way solely by foot. On the basis of our judgment Mr Wall was entitled to reject it. Accordingly it is not a reason for departing from the normal rule.
6. With regard to the costs before Judge Pelling, the Judge treated the issues as breaking down in effect into three parts: (a) the obstruction of Back Street in respect of which Mr Wall succeeded; (b) the passageway issue in respect of which Mr and Mrs Collins succeeded; and (c) the party wall and land registration issues in respect to which the Collins also succeeded. Following our decision, Mr Wall, has succeeded on issue (b), and therefore has succeeded on two out of the three issues. In his original skeleton Mr Foster pointed out the difficulties which their costs draftsman had had in apportioning costs between the various issues, and proposed that instead one-third of the overall cost be attributed to each issue. In our judgment we indicated provisionally that this seemed an appropriate cause. We do not understand Mr Wall to dissent.
7. There is however a further factor. Given the background of relations between the parties, it seems to us highly desirable to avoid any further litigation about costs. The balance of success before the judge has now shifted in Mr Wall's favour. How that will be reflected in financial terms will depend to some extent on the fact that Mr and Mrs Collins were represented whereas he was not. Rather than prolonging the area of potential dispute, and bearing in mind that this was a neighbour dispute in which both parties have emerged with some successes but with significant failures, it seems to us that the most appropriate order is simply to direct no orders as to costs below.
8. Accordingly our order will be:

i) Paragraph 2 of the Judge's declaration will be varied by substituting a declaration in the following terms:

The Claimant, as the owner of the property, 231 Leigh Road, aforesaid, and the parcel of land ("the Back Land") adjoining the same to the east and rear thereof, enjoys in the terms of grant contained in an assignment dated 25^th February 1911 and made between Ellen Dodd and others (1) Harold Hurst (2) and Robert Morris (3) a right of passage over and along the passageway ("the South Road") situate upon the Defendants' said property and lying to the south of the dwelling thereon and linking the Back Road to Leigh Road.

ii) The Respondents will pay the Appellants costs of the appeal, to be subject to detailed assessment if not agreed.

iii) The Order of the Judge in respect of costs below (paragraphs 2 and 3 of the Order) shall be varied by substituting an order that there will be no order for costs of the proceedings before the judge.

Lord Justice Hooper:

9. I agree.

Lord Justice Mummery:

10. I also agree.