ON APPEAL FROM THE MANCHESTER COUNTY
COURT CHANCERY BUSINESS
HH Judge Hodge QC
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK DBE
MR JUSTICE MANN
|- and -
|MORGAN & ors
Mr Bernard Weatherill QC and Mr Philip Walling (instructed by Swinburne Maddison) for the Respondent
Hearing date: Tuesday 6th December 2011
Crown Copyright ©
Mr Justice Mann :
Outline of dispute
"It is further declared that the right of way referred to in the order made by this court on 11th June 2004 (hereinafter referred to as 'the Right of Way') extends as far as is shown on the plan annexed to such order and that the width of the Right of Way is not restricted to the track area of the same."
However, while the judge seems to have been provisionally prepared to make an order in those terms it was never finalised because the judge required the parties to approve it. A letter from the court to the claimant's solicitors dated 15th July 2005 recorded that:
"The order has been referred to the learned Judge but unfortunately, as feelings in this case are very strong he is not prepared to authorise the sealing of any order unless it is approved in writing by both sides or there is a hearing on notice to all parties.
I look forward to receiving a signed copy of the order in due course."
"That the matter be listed for a hearing to determine which is the appropriate plan to bind the parties because there is a confusion as to which is the correct plan. The claimant believes that the plan attached hereto and marked Plan 1 is the correct plan to which the parties should be bound and seeks for an order in those terms."
By way of evidence relied on it was said:
" … There has been confusion in previous court hearings as to which is the correct plan upon which is marked the right of way … The Claimant believes that the Plan attached hereto and marked Plan 1 is the correct plan to which the parties should be bound and seeks for an order in those terms."
The judgment below
"23. In those circumstances, it seems to me that all that I can do is to say that the right of way that was found and declared by Judge Howarth is that shown and coloured brown on the plan that was attached to the particulars of claim, and to leave it to the parties, or their respective surveyors, to attempt to extrapolate from that poorly coloured plan the full width of the right of way, bearing in mind Judge Howarth's later 2005 order that it is not confined to the track area of the right of way.
"24. I was invited to attempt to resolve this dispute once and for all, but I do not feel able to do more than I have. Any difficulty seems to be entirely of the parties' making. The claimant's solicitors failed properly to colour the plan attached to the particulars of claim, and failed to secure agreement from the defendants' solicitors to any substitute plan; and the solicitors failed to take up Judge Howarth's suggestion that, if they could not resolve the matter, there should be a hearing before him that was set out in the Court Service's letter in July 2005.
"26. So what I propose to do is simply to say that the extent of the right of way is as defined by Judge Howarth's 2004 order by reference to the plan attached to the particulars of claim, but in a form that would clarify the precise extent of the brown colouring. It may be well that Miss Harrison is right in saying that, by reference to the conveyance and the statutory declaration, that should extend to all of the land coloured brown on the plan at page 45; but equally that does seem to me on its face to extend a little beyond the area that was shown by the colouring on the plan that was attached to the original particulars of claim. Hopefully the parties will be able, by reference to physical features on the ground, to resolve the matter, although it does not seem that they have been able to resolve anything so far; but I do not feel able to provide any further guidance beyond that which I have already indicated.
"30. I have decided the appropriate plan is that which was originally annexed to the particulars of claim although it may require some interpretation. …"
"The extent of the right of way found by HHJ Howarth on 11th June 2004 is as shown coloured brown on the plan annexed to the Particulars of Claim".
It is unfortunate that, in a situation in which it was unclear which plan should be treated as annexed to the Particulars of Claim, the order should merely repeat that rubric, but the judgment makes clear which plan that was - it was the original unclear plan.
Grounds of appeal
(i) That the judge erred in finding that the plan to be annexed to the order of 11th June 2004 should be the original plan attached to the particulars of claim.
(ii) The judge erred in finding the form of plan which Judge Howarth intended to refer to in concluding that the right of way as found by Judge Howarth was that coloured on the original plan to the particulars of claim.
(iii) That the judge erred in concluding that as Judge Howarth had refused to allow the sealing of the 2005 order he (Judge Hodge) was obliged to find that the extent of the right of way found by Judge Howarth was that coloured on the original Particulars of Claim plan.
An analysis of the effect of the previous hearings
"There is coloured brown on the Plan a roadway ('the Roadway') leading from the Claimant's property to the public highway known as Briers Row which runs through the Defendant's Property."
Paragraphs 4 and 5 claim long usage of a right of way over the Roadway, and paragraph 6 claims that:
"Accordingly the Claimant claims the aforesaid right as a legal easement …"
1. Save that no admission is made as to the precise position of the colouring upon the plan accompanying the Particulars of Claim; paragraphs 1 to 3 of the Particulars of Claim are admitted.
2. As to paragraphs 4 to 8 it is admitted that at all material times before 1970 or thereabouts the Claimant's property was benefitted by an easement in the manner alleged."
The effect of that analysis on the judgment below
(i) As the judge seems to have appreciated earlier in his judgment, Judge Howarth was working to the substituted plan (see paragraph 11) even though there is no indication that he formally approved a substitution (or amendment). So it would probably not be right to treat the original as being the one referred to in the order.
(ii) The 2004 order said nothing about extent, and cannot be taken to have intended to have done so for the reasons set out above. The judge seems to have recognised this himself in saying that the plan required some clarification as to "the precise extent of the brown colouring".
(iii) It is not a satisfactory answer to say that the extent is as defined in the original plan but the parties will have to clarify that plan (see paragraph 26). That formulation actually describes a plan which does not exist because elements of it fall to be clarified or agreed. And the exercise he contemplates is not a worthwhile one. If he meant that one should carry out a detailed study of the original plan to try to see where the brown shading was, it would not yield an answer; and if he meant (as the rest of paragraph 26 suggests) that there were areas where it was not determinative and the parties would have to try to sort out the plan by reference to physical features on the ground, then he was not determining anything particularly useful.
(i) That a single joint expert be appointed to draw a plan of the current physical state on the ground of the roadway and the area which abuts the claimant's land at its southern end.
(ii) Each party shall mark on that plan where it says the physical boundary of the right of way lies.
(iii) Once that is done, each party shall sequentially (starting with the claimant) plead its case in favour of its boundary where its boundary differs from its opponent's.
(iv) Those differences will then be tried. Any incidental directions for getting the matter tried (disclosure, witness statements and so on) can be dealt with by a district judge or circuit judge.
Lady Justice Black
The Master of the Rolls
I also agree.