England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
His Honour Judge Barham
Claim No: INR00241

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/03/2015

Sir Colin Rimer:

Introduction

1. On 12 November 2013, Ryder LJ and I, sitting as a two-judge court, heard an appeal in which the defendant/appellant was David Taylor and the claimants/respondents were Paul Burton and his wife Janette. We delivered our reserved judgments on 23 January 2014: [2014] EWCA Civ 21. On 6 February 2014, following further submissions, we delivered a short ruling on costs: [2014] EWCA Civ 63. That done, the court was asked to make an order in the form of what was said to be an agreed draft. The court, however, identified what it regarded as a potential problem in relation to the paragraph in the draft that purported to dispose on an agreed basis of ground 1 of the grounds of appeal. That was a ground upon which the court had not ruled in the January 2014 judgment because it had been told that the parties were likely to reach agreement about it. The court made a practical suggestion as to how the problem might be avoided. It then emerged that Mr Taylor disputed that ground 1 had been consensually disposed of, although Mr and Mrs Burton were of a different view.
2. In light of that impasse, no order was drawn up. It was not just the ground 1 point that stood in the way; the court's ruling on costs was materially influenced by what the court had understood to be the agreement reached in relation to ground 1: see [10] of our February 2014 judgment. What then happened is that the court directed that the appeal be restored for a hearing at which: (i) it would rule on whether or not ground 1 had been disposed by agreement; and (ii) if it had not, the court would decide ground 1 substantively. Mr Taylor later applied also to re-open grounds 2 and 7, upon which the court had ruled against him in its January 2014 judgments. His point was that the correct determination of ground 1 would shed new light on ground 2; and if the court were to view ground 2 differently, that would in turn require the court to reconsider ground 7, which went to the correctness of the judge's decision on costs.
3. Mr Taylor's appeal was against an order made by His Honour Judge Barham in Norwich County Court on 12 January 2012 following a trial held on 6, 7 and 8 December 2011. Mr Taylor represented himself at the trial. Mr Simon Butler, counsel instructed under the direct access scheme, subsequently represented him on a permission hearing before Davis LJ on 15 November 2012 and then at all stages of the appeal down to and including the events of February 2014. Mr Simon Redmayne, also instructed under the direct access scheme, represented Mr Taylor at the hearing before us on 28 January 2015. Mr Robert Darbyshire, instructed by Poole Alcock LLP, has represented the Burtons throughout the proceedings. His position is that ground 1 has been settled by agreement and that there is no justification for re-opening grounds 2 and/or 7.
4. Our prior judgments contain much of the background relevant to the issues we now have to decide. In order, however, for this judgment to be intelligible on a stand-alone basis, I shall cover some of the ground again.

The background

5. The proceedings are the result of a dispute between neighbours. The Burtons own a bungalow, outbuildings and land of about 3.75 acres at Cloverfield, Lopham Road, East Harling, Norwich ('Cloverfield'). They acquired Cloverfield from Harry Porter by a conveyance of 4 April 1990 which granted them an express right of way, with or without vehicles, over part of Mr Porter's retained land which, as before, I shall call 'the track' and which is described in the conveyance as 'the driveway shown coloured mauve on the [attached] plan …'. Following that conveyance, the Burtons' title to Cloverfield was registered under Title No. NK89341. Later, Mr Taylor became the owner of land adjoining Cloverfield's south-eastern boundary and the track forms part of his land. His title is registered under Title No NK342980. He uses his land for industrial purposes.
6. Following the trial, Judge Barham reserved his judgment and issued a draft of it to the parties on some date prior to a further hearing that took place on 12 January 2012. The purpose of that hearing was to enable the judge to rule on the form of the order, costs and an application by Mr Taylor for permission to appeal, which he refused. It was also the occasion upon which Mr Darbyshire raised with the court a problem that arose out of the judge's judgment.
7. The court has read a transcript of that hearing. The judge's ruling on the problem was, with respect, somewhat obscure, but neither party sought further clarification from him on it at the time and the court's order was then drawn up, paragraph 2 being in a form that the judge had approved at the January 2012 hearing. It is nevertheless agreed by the parties that paragraph 2 was mistakenly drawn, the mistake giving rise to ground 1 of Mr Taylor's appeal made by his appellant's notice of 8 February 2012. To explain the problem, I must outline the issues tried before the judge and his findings on them.

The issues and the judge's findings

8. Both the Burtons and Mr Taylor had obtained planning permission to build houses on their respective properties. The dispute between the parties related to the nature of the easement of way over the track to which the Burtons are entitled. In his judgment, the judge described the relevant land by reference to a plan attached to Mr Burton's witness statement of 5 October 2011. The judge described the track as running north from Lopham Road and then turning west for a short distance to a gate on the boundary of Cloverfield. He described the long south/north stretch of the track as running, at the point at which it turns west, to the boundary of the Burtons' land. The part of the Burtons' land to which he was there referring included a rectangle of land coloured red on the plan ('the red land') which the Burtons had used as a car parking area.
9. The judge described the red land as 'adjoining the track'. He also, however, referred to there being a piece of land adjoining the track at the south-east end of the red land, which is coloured black on Mr Burton's plan and which the judge called 'the black land'. The black land so described belongs to Mr Taylor. The bulk of it is triangular in shape and the plan shows such bulk as adjoining the eastern side of the northern end of the track. It does not, ostensibly, present any obstacle to the dominant owner exercising his right of driving up the track from Lopham Road and then turning west towards the gate and into Cloverfield. It does, however, as Mr Burton's plan shows, present an apparent obstacle to any use of the track for the purpose of obtaining direct vehicular access to the red land. That is because one side of the triangular piece of black land adjoins approximately half the southern boundary of the red land; and because a narrow tapering strip of black land that extends westwards from the western corner of the triangle adjoins the remainder of that boundary of the red land. Put simply, the black land lies between the southern boundary of the red land and the northern boundary of the track, so that, on the face of Mr Burton's plan, the track cannot be used to access the red land without traversing the black land. However, the 1990 conveyance granted an express right of way only over the track: it granted no right over the black land. When, therefore, in his judgment the judge described the red land as 'adjoining the track', he was being imprecise if by that choice of words he intended to convey that the red land abutted the track.
10. Whilst the Burtons were originally content to defer the permitted development of their land, Mr Taylor embarked upon his own permitted development; and in about September 2010 he began building a road along what he said was the line of the track. The Burtons asserted, but he denied, that the road did not follow the correct line of the original track and that the works interfered with their enjoyment of their easement. The Burtons' particular concern was to be able to use the track in order to enable heavy goods vehicles ('HGVs') to gain access to the red land.
11. As I summarised in [10] of our January 2014 judgments, the judge found that the right of way over the track granted by Mr Porter to the Burtons by the 1990 conveyance included a right of way for HGVs, a finding that Mr Taylor did not challenge on his appeal. The Burtons, however, also had what the judge described as an alternative claim that they had acquired a prescriptive right of vehicular access over the track for use by HGVs. In [12] and [13] of our January 2014 judgments, I said this about that claim:

'12. … The judge summarised the evidence, which was to the effect that from 1990 to 1994 Mr Burton was running a business driving two 44 tonne lorries. He also had trailers and a box van. He was using the track daily. From 1995 to 2010, he used the track infrequently, but would park HGVs and coaches on the red land whilst employed by others. He also allowed others to use the track in order to park HGVs on the red land. Between 1996 and 1998, Mr Alexander used to park his HGV on the red land overnight for four nights a week. From 1993 until recently, Mr Clark used the track to park his HGV on the red land, originally about seven or eight times a year, but less frequently more recently. From 1994 to 2010, Mr Holden used the track to store fuel on the red land, but apparently did so only occasionally. There was other corroborative evidence of such use but the judge did not identify it. The case was apparently supported by both experts, whose agreed evidence was that 'vehicles wheels have passed on a regular basis over the track'.

13. The judge accepted all this evidence and was satisfied also that Mr Taylor was aware that the Burtons had used the track for HGVs, even though there was less use by the time Mr Taylor purchased his property in 1998. The judge concluded that:

37. … [the Burtons] have proved 20 years user of the right of way for HGVs. Their property was conveyed to them on 14^th April 1990. [The Burtons] had HGVs from the outset and used the track at once to park them. Work on the path was done in the summer of 1990 according to Mr Holden. The interference with the right of way occurred in September 2010. [The Burtons] issued proceedings in April 2011.'

12. Whilst the judge did not say so expressly (nor did his order declare), I had, until the further hearing on 28 January 2015, assumed that it was implicit in his finding that the prescriptive right he had found proved was a right to use the track for the purpose of obtaining vehicular access to and from the red land; and that he must therefore have found that such right included a right of access over at least part of the black land shown on Mr Burton's plan as adjoining the red land. If so, it is however to be noted that the judge nowhere identified the precise part of the black land over which the right was exercisable; and Mr Redmayne submitted to us at the hearing on 28 January that there was in fact no justification for the assumption I had made. I add that, insofar as the judge's order said anything about the extent of the Burtons' right of way over the track, all it did (by paragraph 2) was to purport to identify the land over which they were entitled to the right 'conveyed … by the conveyance dated 14 April 1990 …', that is the Burtons' express right of way. The order said nothing about any right to which the Burtons may have become entitled by prescription.
13. The next matter the judge considered was the Burtons' specific claim to have acquired by prescription a right of way over the black land or part of it. The reason behind this part of their claim is that it was the practice for the large 44 tonne HGVs that were parked on the red land to be reversed on to it, a practice to which the judge referred in [6] of his judgment. In order to achieve this, the HGVs would be driven up the track from Lopham Road and would turn west at the top. They would then (i) reverse back along the east/west part of the track on to part of the black land, (ii) turn southwards down the track and stop, and (iii) then reverse on to the red land. The reason for this manoeuvre was that, whilst it would have been easy to drive the HGVs straight up the track and on to the red land, it would then have been very difficult to have reversed them out.
14. Having considered the evidence relating to this part of the Burtons' case, the judge rejected their claim to have acquired by prescription any easement of way over the black land. Key to his conclusion was his finding that Mr Taylor did not know that the black land was being used for the manoeuvring operations I have described, and he held that such ignorance was a bar to the obtaining of the claimed prescriptive right. In so ruling, the judge did not distinguish between different parts of the black land. He had himself earlier identified it by reference to Mr Burton's plan, which showed it as in part lying between the red land and the track. The Burtons have not, by way of cross-appeal, challenged the correctness of the judge's reason for rejecting their prescriptive claim in relation to the black land.
15. The judge then turned his attention to the Burtons' claim that Mr Taylor had interfered with their use of the track. This was based on the assertion that Mr Taylor's re-alignment of the track when building the road had made the manoeuvring of the largest 44 tonne HGVs more difficult than had been the case before. The judge found this claim established and awarded the Burtons damages of £500. He also awarded them nominal damages of £20 for two minor allegations of trespass that the Burtons had also made good.
16. Finally, the judge dealt with the Burtons' claim that he should make a declaration as to the limits of the track over which they had a right of way. He held that plan 8D accurately represented such limits, the plan showing 'the land over which a HGV wheels would have passed on a regular basis' but he then added this qualification, namely that:

'… if Plan 8D includes the black land it needs to be amended to delete it. Subject to that qualification [the Burtons] are entitled to a declaration that the right of way is shown shaded pink on plan 8D.'

The problem about Plan 8D

17. Plan 8D is the one referred to in paragraph 2 of the judge's sealed order, and its claimed purpose is to reflect the judge's declaration as to the boundaries of the track over which the easement of way granted by the 1990 conveyance was exercisable. Paragraph 2 identifies the relevant land as that shown 'shaded' on plan 8D, a reference to the land shaded pink on the plan. The problem with plan 8D is that whilst it does not identify the bulk of the black land (that is, the main triangular part of it lying to the east of the east/west section of the track), it manifestly does incorporate into the land shaded pink – but without separately identifying it – the tapering strip of black land running west from the westerly corner of the main triangular part of the black land and lying between the red land (the car park) and the track. If the judge had given careful consideration to plan 8D when preparing his judgment, he must have recognised that the pink land did so incorporate part of the black land.
18. At the time of the hearing on 12 January 2012, the order had of course not yet been drawn up. But the draft of it then before the court included a draft of paragraph 2 (including its reference to plan 8D) in the same form as that in which paragraph 2 later appeared in the order subsequently drawn. At the hearing, Mr Darbyshire also produced plan 9A to the judge, a plan which had been prepared by Mr Taylor since the trial and which (i) identified the limits of the pink land shown on plan 8D, and (ii) also showed shaded pink and black the strip of black land that plan 8D had incorporated into the pink land.
19. The problem was obvious and Mr Darbyshire was right to raise it. Had the judge found that the Burtons had a prescriptive right of way appurtenant to the red land over both the track and part of the black land? If so, what part of the black land was so affected? If, however, the judge had not so found, but had simply found that that they had no prescriptive right over any part of the black land (which is what, on one view of his judgment, he appears to have held), they would then have had no lawful access from the track to the red land; and plan 8D needed, in that event, to be amended to identify the strip of black land that separates the red land from the track.
20. Mr Darbyshire submitted to the judge that what he called a 'pedantic' view of the judge's judgment – which I understand to have been a reference to the finding that the Burtons had no right of way over any part of the black land – would mean that they could not exercise the right of way appurtenant to the red land that he said the judge had found established. The judge did not appear immediately to grasp Mr Darbyshire's point because he made clear that he 'certainly was saying you have not got a right of way over the black land.' That was also Mr Taylor's position, namely that the red land was separated from the track by the tapering strip of black land that ran along the whole of its frontage. Mr Darbyshire's submission was, however, that whilst the judge had clearly found that there was no prescriptive right to reverse HGVs on to the main triangular part of the black land as part of the manoeuvring process that I have described, he had found that there was a prescriptive right to gain access from the track to the red land – including over part of the black land adjoining the red land – and including for large 44 tonne HGVs that the judge had found could only access the red land by the unlawful manoeuvre involving the bulk of the black land, which the judge found they had no right to exercise.
21. The judge's interlocutory response to that submission was to ask how he could make a decision on the matter without 'opening up the case all over again and having another trial about it.' Mr Darbyshire's reply was that the judge had already heard the parties' submissions, that 'what we are debating now is the merit of [the] respective plans being produced' and that he was 'anxious to avoid … the black land being inflated to an area which does not reflect the meaning of the findings [the judge had] already reached.' He went on to submit that 'I'm not arguing for the triangle here, I'm arguing for the line at the very top of the track.' By that he meant that all that he was saying was that the declaration should make clear that there was a right of way appurtenant to the red land over the track and across that black line. He was not arguing for any right of way over any other part of the black land. The judge responded at one point in the argument by saying 'If plan 8D includes the black land it needs to be amended to delete it and what do you say about that?'
22. Mr Darbyshire submitted that the answer was to make the declaration by reference to plan 8D, which he said reflected the 'letter and spirit' of the judge's judgment. He accepted, as the judge suggested, that no one had considered the possibility of there being a strip of land belonging to Mr Taylor between the track and the red land and that 'there has never been an issue', which I presume means an issue about that strip. The judge then said that '… in terms of any decision I make is this the point, it has never been suggested that there was if you like that black line on the plan we have been looking at' (a reference to the black strip), to which Mr Darbyshire responded affirmatively. There followed this exchange:

'His Honour Judge Barham: That there was some separate piece of land which prevented access from the right of way to the car … it has never being [sic] suggested?

Mr Darbyshire: No it hasn't and the reason for that is that Your Honour's finding is to some extent inconsistent with both parties' cases.

His Honour Judge Barham: Mmm.

Mr Darbyshire: So in a sense it is a new analysis. It's [an] analysis which in part doesn't favour the claimant and significantly rejects the defendant's position.

His Honour Judge Barham: Yes.

Mr Darbyshire: So it is to an extent a half way house which is why neither party has considered it or advocated. It is a finding that is open to you, Your Honour, I don't dispute that at all but I am anxious that the decision that Your Honour … that the order Your Honour makes …

His Honour Judge Barham: Yes.

Mr Darbyshire: … reflects Your Honour's decision.

His Honour Judge Barham: Right.'

23. The thrust of Mr Taylor's responsive submissions was that the black land represented land on which there was grass and over which the judge had held that the Burtons had not established any prescriptive right of way.
24. The judge rose to consider the matter for a short while and he then gave the following oral ruling:

'A dispute has arisen between the parties over one part of my judgment. In my judgment I concluded that plan 8D represented the right of way to which the claimant was entitled. I said that this was subject to the qualification that it should not include what has been described as the black land. Now the defendant's case is that the black land includes a strip of grass between the track which is the subject of the claimants' right of way and the claimants' car parking area to the north. If the defendant's submission is correct it would mean that the claimant had no access from the track to the parking area he owns. I reject this submission although this is a matter of limited value it is contrary to the assumptions and basis of my decision. I accept the claimants' submission that plan 8D does not include any part of the black land.'

25. Mr Darbyshire thanked the judge for that and said it followed that there was no need to amend paragraph 2 of the proposed order, which was then included as drafted in the order as drawn and which reads:

'It is declared that the express right of way conveyed to the claimants by the conveyance dated 14 April, a copy of which is to be found at pages 34 and 39 of volume 1 of the trial bundle in this action, and which express right is more particularly referred to at Schedule 1 of that conveyance, runs across that part of the Defendant's land shown shaded on plan 8D attached to the parties experts joint report dated 21 November 2011, a copy of which report is to be found at pages 345 to 351 of volume 2 of the trial bundle in this action.'

The appeal

26. Mr Butler, Mr Taylor's previous counsel, recast his client's original grounds of appeal under seven heads in his skeleton argument dated 28 September 2012. Ground 1 read:

'The learned judge was wrong to make a declaration at the hearing on 12 January 2012, which included land shaded in black, having concluded that the claimants were only entitled to a declaration in accordance with the right of way shown pink on plan 8D.'

27. I interpret that as meaning that the judge was wrong to make a declaration that there was a right of way over any part of the black land, including the tapering strip lying between the red land and the track. Patten LJ refused permission to appeal on the papers, but Davis LJ gave permission to appeal on grounds 2, 5, 6 and 7 at a hearing on 15 November 2012 at which both Mr Butler and Mr Darbyshire were present. Both agreed at that hearing that paragraph 2 of Judge Barham's order wrongly identified the area of the servient land and the outcome of the hearing was that the parties were to agree a plan identifying the servient land that the parties agreed Judge Barham had intended to identify. The proposal was that Judge Barham's declaration in paragraph 2 of his order should be amended under CPR Part 40.12 (the slip rule). Davis LJ's order recorded that the application for permission to appeal on ground 1 'has been disposed of by correcting [the judge's] order'. In fact, it had not been so disposed of, nor had it been so disposed of by the time the appeal came before us on 12 November 2013. Mr Darbyshire dealt briefly with ground 1 in his skeleton argument, acknowledging that the plan attached to the order of 12 January 2012 was in incorrect form. In [4] of my January 2014 judgment, I said this:

'We heard various representations in relation to ground 1. The outcome was that at the end of the argument we adjourned any determination of that ground with a view to enabling the parties to agree its disposition in a way that they had not previously been able to agree. Counsel were confident that agreement could be reached, as it seemed to the court it should be. In the event, and following the hearing before us, the parties made rapid progress and notified the court of the essence of the terms that were proposed for the disposal of ground 1. The court responded with some suggestions as to how two particular aspects of the proposed terms might be improved upon, one of them being with a view to avoiding the arising of further dispute at a later stage. The court expects the parties to be able to dispose of ground 1 by agreement, but if not it will have to be referred back to the court for its determination.'

28. Our January 2014 judgment proceeded to explain the background and to discuss and rule upon grounds 2, 5, 6 and 7. Following the issue of that judgment in draft to counsel, the court received from Mr Butler a draft order which, save as to costs (upon which the parties were going to make submissions), was agreed between counsel. The draft included two recitals and then contained three paragraphs that were expressed to be orders by consent, to which it is unnecessary to refer. The draft then continued by saying 'AND IT IS ORDERED THAT', followed by four paragraphs directed at reflecting the court's decision in relation to grounds 2, 5, 6 and 7. Paragraph 5 purported to dispose of ground 1 in the following terms:

'Ground 1 shall be disposed of by agreement in accordance with the attached deed.'

29. The deed referred to was an unexecuted document to which the proposed parties were (i) Mr Taylor, (ii) the Burtons and (iii) Nigel and Linda Booth, who are chargees of Mr Taylor's land but not parties to the proceedings. The substantive object of the proposed deed was to recognise Mr Taylor's unencumbered ownership of the entirety of the black land but to give the Burtons a temporary right of access over part of it sufficient for them to enjoy vehicular access to the red land for the purpose of enabling the completion of the development of Cloverfield, whereupon the right would terminate.
30. Following the handing down of our ruling on costs, the court was in principle in a position to make a final order: it had the parties' agreed draft order on all other matters. The court did not, however, do so. It was concerned as to enforceability of an order drawn up in the suggested form and on 7 February 2014 my Clerk emailed this message from the court to counsel:

'The court has now handed down its judgment on costs and so, subject to what I say below, the order can be finalised by completing paragraph 10 to provide that "There shall be no order as to the costs of the appeal."

In ordinary circumstances, the court would itself make that amendment to the draft you have provided and then submit the draft to the Civil Appeals Associates for drawing up. In this case, however, the matter is complicated by the fact that the order is required to attach the deed of easement, whereas the deed includes an important coloured plan, of which at present the court only has uncoloured copies.

The court would anyway make this practical suggestion. It does not know whether the deed has yet been executed, but presumes that it has not. If so, there must be a question as to whether paragraph 5 of the order would, if necessary, enable the court to compel the parties to execute the deed. At least one problem is that the parties to the proposed deed include the Booths, who are not parties to the proceedings. The court would therefore suggest that the sensible course would be for the deed to be executed in advance of the finalisation and sealing of the order. If it is, the order could then be re-drafted so as simply to recite that ground 1 has been disposed of by the execution of the deed, and there would then be no need to attach it to the order.'

31. The outcome of that suggestion was, as I have said, that Mr Taylor then refused to execute the deed and the matter was restored for hearing. I can turn now to the issues we have to decide.

Has ground 1 been disposed of by agreement?

32. The essence of this issue turns on whether there was and is a binding agreement for the execution of the draft deed. It is necessary to summarise the correspondence relating to the negotiation of the deed. It commenced with a letter from Poole Alcock LLP to Mr Taylor dated 19 November 2013 and headed 'without prejudice save as to costs and subject to contract'. Both sides were agreed that, despite the 'without prejudice' provision, the court should see the correspondence, as it has. Mr Butler was instructed by Mr Taylor to act for him in relation to the proposed deed and on the same day Poole Alcock also sent him a draft of it by an email also marked 'subject to contract'. Further email exchanges followed, which it is unnecessary to detail, and on 3 December 2013 Poole Alcock sent another email to Mr Butler also marked 'subject to contract' and Mr Butler's email reply of the same day was similarly marked. Mr Taylor's email of 4 December 2013 to Poole Alcock was also marked 'subject to contract' as was Poole Alcock's letter to Mr Taylor of 5 December asking him whether he was no longer prepared to agree with the proposed deed. There followed further letters and emails on 19, 20 and 23 December 2013, 7 and 9 January 2014 which were not marked 'subject to contract'. They mainly reflected Poole Alcock's frustration that Mr Taylor was not being responsive with regard to progressing the draft deed.
33. The court issued to counsel a draft of its January 2014 judgment on about 16 January. The draft said that the judgment would be handed down on 23 January, as it was. On 20 January, Mr Taylor sent an email to Poole Alcock, with a copy to Mr Butler, which was not expressed to be 'subject to contract' and by which he made some points about the drafting of the deed. He wrote:

'The deed I have pragmatically agreed to over the small thin strip of land coloured both red and black must be only over this land and not relate to any other land. This is a temporary right. There must be a clear wording to show when it finishes. It must relate to a particular planning permission. Practically I would suggest this is when the base course for your clients own road is in place upto the area of plot 17 or when plot 17 has the roof on which ever comes first.

As you know I have now gravelled this area and in reality the only persons likely to use the thin strip (especially with heavy plant) are your clients and therefore the deed must require them to pay for the maintenance and repair of the surface. In particular I must have no liability to maintain it.'

34. On 21 January, Mr Butler emailed Mr Darbyshire and Poole Alcock in response to Mr Darbyshire's inquiry of him as to the Booths' willingness to sign the deed and said that he had just spoken to Mr Taylor 'and can confirm that the Booths will sign the deed. They are currently in America and will sign a copy on their return.' On the same day, Mr Butler sent Mr Darbyshire and my Clerk an email headed 'Taylor v. Burton – Agreed Order', the message reading 'Please find attached an agreed order for the approval of Rimer LJ, save that the parties will be making written submissions on the issue of costs.' Mr Darbyshire told us that the agreed order had been arrived at hurriedly in order to comply with the directions accompanying the draft judgment and relating to the submission (if possible) of an agreed form of order.
35. Against that background, it is agreed that as the negotiations were expressed from the outset to be 'subject to contract', it followed that neither side would be legally committed to the proposed transaction unless and until a formal contract to that effect was entered into. I add that in a negotiation of the nature under discussion, there was of course no contemplation that the parties would ever enter into such a formal contract: they would either proceed straight to the execution of the deed or else would abandon the transaction. But the 'subject to contract' principle nevertheless remained applicable, and it meant that it was open to either side, at any time before the entry into such a formal contract, to withdraw from the negotiations for the deed. There is, however, an important rider to the principle, namely that a 'subject to contract' qualification can be got rid of if both sides expressly agree that it should be expunged, or if an agreement to that effect is necessarily to be implied. The law on this subject is well trodden and is explained in Cohen v. Nessdale Ltd [1982] 2 All ER 97. I add, however, that it would appear to me that, in the circumstances of this case, any such express expunging would probably not, without more, result in a binding contract for the execution of the deed since, as the proposed transaction included the disposition of an interest in land, it would be necessary for any binding contract to comply with the formal requirements of section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. The argument to us did not, however, focus on the 1989 Act, upon which I shall therefore say no more.
36. Mr Redmayne's argument was that as the negotiations for the deed were 'subject to contract', Mr Taylor was never committed to executing the deed since no formal contract to do so was ever entered into. Mr Darbyshire's response was that Mr Butler's actions as counsel for Mr Taylor, in participating with Mr Darbyshire in submitting to the court the agreed draft order that included paragraph 5, manifested an agreed expunging by the parties of the 'subject to contract' qualification that resulted in their becoming committed to the terms of the deed. Thus, it was said, once the draft order was submitted, Mr Taylor lost his opportunity of withdrawing from the negotiations but became committed to executing the deed.
37. I do not accept that argument. I accept that Mr Butler had apparent authority on behalf of Mr Taylor to agree to the draft form of order, and I would expect him also to have had Mr Taylor's actual authority to do so: the contrary has not been suggested. If, therefore, an order had then been drawn up and perfected in the form that counsel had tendered, I have no doubt that both Mr Taylor and the Burtons would have been bound by it, including the provisions of paragraph 5. In the event, however, no order was drawn up and I have explained why. The court was not bound to draw it up. That is because the court does not, as a matter of course, 'rubber stamp' draft orders about which it has a concern. The court always wants and needs to be satisfied that the order it is being asked to make is in a form that it can and should make. In this case, for the reasons explained in its email to counsel of 7 February 2014, the court was not so satisfied. That is why the order was not drawn up.
38. As the order was not drawn up, Mr Butler's authority to agree a form of order in the form he did is not in point. The only question is whether counsel's agreed tendering of such a draft form of order on behalf of the parties evinced an intention on their part to expunge the 'subject to contract' qualification. I do not understand how it could have done so. Counsel's instructions, and intention, were to do no more than to commit their respective clients to an order that would include the provisions of paragraph 5. Had such an order been drawn up, questions might then have arisen as to the sense of paragraph 5: in particular, whether it amounted to an order requiring the parties to execute a deed in the form of the attached document, or whether it was merely purporting to direct them to agree to execute such a deed. With respect, the drafting of paragraph 5 was poor and I am far from clear what it was supposed to mean. But that question does not arise; and the position as between the parties remains the same as it was immediately before the tendering of the agreed draft order, namely that they were still negotiating on a 'subject to contract' basis and were, therefore, each free at any time to withdraw from their negotiation.
39. In the circumstances, I cannot see that it was or is other than open to Mr Taylor to say that he has withdrawn from the negotiations for the deed and that nothing done on his behalf by Mr Butler committed him to executing it. I would hold that ground 1 has not been disposed of by consent and that it was and is open to Mr Taylor to pursue that ground of appeal on its merits at the further hearing before us.

Ground 1: the merits

40. We had a thorough and careful argument from Mr Redmayne in relation to the merits of ground 1. The thrust of it was that a proper analysis of the judge's findings on the evidence that he had seen and heard pointed to the conclusion that the land shaded pink on plan 8D misidentified the land over which the Burtons had a right of way and that the servient land the judge in fact intended to identify included no part of the black land abutting the red land, whereas in fact the land shaded pink included part of such land. It was, in addition, said to be a mistake to assume that the judge's finding that the Burtons had established a prescriptive right to use the track for the purpose of driving of HGVs on it included a finding that the Burtons had thereby acquired a prescriptive right appurtenant to the red land over the track and part of the black land. The judge did not say so, and it is said that in that part of his judgment (running from [28] to [37]) all that he was considering was the Burtons' alternative argument that if, contrary to their primary case, the express grant did not include a right for vehicular use by HGVs, that right had been acquired by prescription. Mr Redmayne submitted that in all the circumstances we could and should now make a declaration in place of that in paragraph 2 of the judge's order as to the limits of the Burtons' right of way, namely a declaration excluding all the black land from the land over which the Burtons are entitled to exercise their right of way is enjoyed.
41. Mr Darbyshire in turn advanced submissions against this conclusion; and I was for some time somewhat resistant to it in light of the assumption that I had myself previously drawn from judge's finding as to the prescriptive right to use the track for HGVs, which depended in part on findings that the HGVs had been parked on the red land (see [12] above).
42. At the conclusion of the argument, I was still not persuaded that this court could, let alone should, go the full length of that for which Mr Redmayne contended (namely, to make the declaration he requested). But I was, however, persuaded that, for the reasons Mr Redmayne submitted, there is nevertheless at least a very real question as to what, if anything, the judge did intend to find and decide in relation to the use of the red land. The problem with the suggestion that the judge's findings as to use of the track by HGVs carried with them an implicit holding as to the establishment of a prescriptive right of way appurtenant to the red land is that it cannot easily be squared with the evidence as to how the large HGVs accessed the red land. The way they did so was by way of the reversing manoeuvre on to the black land which the judge unambiguously found they had no right to carry out. He did not attempt to identify the particular part or parts of the black land over which no such right had been acquired; and, on the face of it, there is no reason to infer that in his rejection of this prescriptive claim, he did not intend to refer to all the black land. If, as the judge found, the large HGVs could not lawfully access the red land in the way that in practice they did, how can he be said to have held that they had acquired a prescriptive right of access to the red land?
43. The judge's judgment is, if I may respectfully say so, less than fully detailed and its re-reading serves merely to underline my uncertainty as to what he was finding with regard to any claim by the Burtons to use the black land in order to access the red land. On one view, his judgment rejects such a claim. Yet the manner in which the closing part of his judgment described the limits of the track over which the Burtons had a right of way gave rise to an obvious problem as to what he was deciding in this respect.
44. The time for this problem to be sorted out was of course the hearing on 12 January 2012. A reading of the relevant part of the proceedings of that day gives me little confidence that the judge fully grasped the problem that his judgment had created; and his brief ruling on the problem provides in my view no comprehensive explanation of what he was deciding. With respect, I do not know what the judge meant when he said that he accepted the Burtons' submission 'that plan 8D does not include any part of the black land'. The parties appear to agree that it did and does. His statement that, if Mr Taylor's submission was correct, 'it would mean that the claimant had no access from the track to the parking area he owns' may be right, but on what basis is the judge saying that the Burtons were entitled to such access? He did not there say expressly that he had found that they had a prescriptive right of access over the strip of black land so as to entitle them to access; and what he was referring to in saying that Mr Taylor's submission was 'contrary to the assumptions and basis of my decision' is something that I do not understand. He ought, but did not, to have spelt out what he meant. With respect to the judge, it seems to me that the problem that Mr Darbyshire had identified was one that required much fuller consideration than the judge was prepared to give to it. As it is, his ruling merely added to the mystery created by his main judgment.
45. The judge's early reaction to the pointing out of the problem was that, in order to resolve the matter, he would or might need to have 'another trial about it'. Moreover, it also became apparent that no express thought had been given by either side at the trial to the fact that there existed the strip of black land between the track and the red land. Once he had learnt of the problem, it is far from clear to me that the judge could reasonably have regarded any part of the black land as included in the site of the track that was the subject of the grant in the 1990 conveyance; and all that paragraph 2 of his order was purporting to do was to identify the boundaries of that track. So, for myself, I find myself left in a state of complete uncertainty as to what the judge was purporting to decide in relation to the Burtons' rights (if any) over the black land (or part of it).
46. The net result is that the judge's decision in relation to a central part of the order he made, namely that in paragraph 2, is so unsatisfactory that in my view the question as to the identification of the servient land subject to the express right of way granted by the 1990 conveyance must be the subject of a re-trial in the county court, and I would so order.
47. Mr Redmayne submitted further that if Mr Taylor is right about the limits of the express right of way, and the Burtons are not entitled to any prescriptive right of way over the black land, there is also a real question as to whether the judge was right to find the interference he did with the Burtons' use of the right of way. The interference he found related to the use of the track by the large 44-tonne HGVs, whereas we were told that there was no evidence that HGVs of this size ever used the track for accessing Cloverfield via the gate: they were the vehicles that had accessed the red land by the unlawful reverse manoeuvring operation. It is said that the judge's findings that there was no right to use the black land for such operations provides a powerful indication that it was not open to the Burtons to complain of any interference with the ease by which such operations might be executed. Thus Mr Redmayne asked us to re-open ground 2 of Mr Taylor's appeal. Mr Darbyshire submitted in response that it was and is now too late for ground 2 to be re-opened by an argument of this nature: the argument now advanced could and should have been advanced to us when we first heard this appeal, whereas it was not.
48. I have much sympathy for Mr Darbyshire's view. However, as we have now heard the argument in relation to ground 1, and as I would favour the view that there needs to be a re-trial as to the identification of the nature and limits of the right of way to which the Burtons are entitled, I consider that it would be potentially unjust to leave the ground 2 issue decided as it was by our January 2014 judgment. No order giving effect to that judgment has been drawn up, and so it is of course open to the court to recall the orders it was then disposed to make. Mr Redmayne has said enough to satisfy me that the interference issue ought also to be re-determined at a fresh trial.
49. That conclusion also meets Mr Redmayne's point in relation to ground 7, which is as to the soundness of the judge's costs orders. If there is to be a re-trial, our order directing it will have to deal with what is to be done about the costs of the first trial, and the usual provision would be to reserve them to the judge hearing the re-trial. The court will hear counsel on what order it should make with regard to those costs. But I consider that it would be wrong simply to leave the judge's orders for costs undisturbed.
50. I have not mentioned ground 5 of Mr Taylor's appeal, which related to a discrete question of whether the judge was wrong not to hold that the Burtons should bear the costs of an amendment to their particulars of claim. We held that he was wrong. It was not suggested that our decision in that respect should be re-visited and I see no reason to do so. In my view, whatever order is to be made in relation to the costs of the first trial, our proposed order in that respect should stand.
51. I have also not mentioned ground 6 of Mr Taylor's appeal, which succeeded to the extent that we were disposed to set aside the judge's order that Mr Taylor should pay the Burtons' costs of their application for the interim injunction for which they applied on 9 March 2011. I would not preclude counsel from making any representations about that that they may wish, but my provisional view is that we should recall our proposed prior order in this respect: it will then be for the judge conducting the re-trial to decide what, in the light of his conclusions, would be the appropriate order to make in respects of the costs of the interim application.
52. There is also a small point that arises on paragraph 1 of the judge's order. That paragraph awarded the Burtons £520 damages, of which £500 was referable to the interference with the right of way (as to which there is to be a re-trial) and £20 nominal damages for two heads of trespass to the Burtons' property that the judge found established. The trespass findings have not been the subject of Mr Taylor's appeal and so I consider that the £20 award should stand.
53. I would therefore: (i) (subject to the qualification mentioned in [50]), recall the orders that this court was disposed to make as explained in our January 2014 and February 2014 judgments; (ii) set aside paragraph 1 of Judge Barham's order of 12 January 2012 to the extent of £500 of the damages award of £520; (iii) set aside paragraphs 2 and 5 of that order (there is, I presume, no need to set aside paragraph 4, nor is there any need to set aside paragraph 6); and (iii) direct a re-trial of this claim before a circuit judge other than Judge Barham. We were in fact informed that Judge Barham has now retired.
54. I should be grateful if counsel could endeavour to agree a form of order reflecting all this and also including provisions to the effect that any further directions necessary for the purposes of the re-trial can be the subject of applications to the county court. If the parties are unable to agree an order as regards the costs of the first trial and/or the costs of the appeal, the court would invite written submissions from counsel on such issues.

Lord Justice Ryder :

55. For the reasons given by my Lord I agree that the appeal should be allowed to the extent that paragraphs 1, 2 and 5 of Judge Barham's order are set aside as described at [53] and the claim is remitted to be re-heard by a circuit judge other than Judge Barham.