England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BRISTOL
HH Judge McCahill QC
3BS30614

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 April 2017

Lord Justice Patten :

Introduction

1. This is an appeal by the defendants, Mr Grouby and Mr Barkham, from an order of Mr Recorder Jarvis QC made in the County Court at Bristol on 15 January 2016 in order to give effect to the judgment of HH Judge McCahill QC which was given on 21 July 2015. The Recorder made the order (by agreement with the parties) owing to the absence of the judge due to ill health.
2. The dispute between the parties concerns a private driveway which links the claimant's property at 76 Broome Manor Lane, Swindon ("No. 76") to the public highway and over which No. 76 enjoys a right of way under the terms of a transfer dated 3 September 1999. The freehold title to No. 76 is registered at HM Land Registry under title number WT185715. The driveway itself is owned by the defendants and is registered under title number WT168644.
3. The two main property issues on which the parties are divided are (1) whether the right of way grants access to every part of No. 76 which abuts the driveway or is limited to the point of access which existed at the date of the 1999 transfer; and (2) whether a brick wall which the claimant and her husband have now built around No. 76 involves an encroachment and therefore a trespass on the defendants' property. As part of this dispute the judge was required to resolve an issue as to whether the true boundary between No. 76 and the defendants' property lay along the line of a wooden fence and some stones which the defendants erected and put in place and which were replaced by the brick wall or whether the boundary was the edge of the metalled surface of the driveway. The significance of this dispute lies in the fact that there was a narrow grass verge between the line of the fence and stones and the surface of the driveway so that (assuming the right of way was co-extensive only with the width of the metalled road) it would have been impossible for the owners of No. 76 to open up and use an alternative point of access to that property without trespassing over at least part of the defendants' property. This would have rendered the dispute about the easement academic. But in the event the judge decided that the boundary followed the line of the edge of the road surface so that it remains a live issue.
4. Over and above these specific issues about title and the right of way, the defendants challenge the judge's conduct of the trial and the order for costs which he made. It is said that the judge's questions and interventions both during the factual and the expert evidence amounted to his entering the arena so as to throw into doubt his objectivity and impartiality and made a fair trial impossible. His order for costs is also said to have been disproportionate and wrong in principle in failing to recognise the amount of time and preparation expended in dealing with points which the claimant abandoned during the course of the trial.
5. I propose to turn first to the property issues which are ultimately questions of law. In order to put them in context and to explain how they arise I must begin by describing the history of the development as found by the judge. Although the defendants challenge the judge's conduct of the trial as a whole, there is no appeal against any particular findings based on lack of evidence or a misunderstanding by the judge of the material he had to consider. But if of course the judge's conduct of the trial was unfair for the reasons alleged then there will have to be a re-trial and I accept Mr Auld's submission that the question of whether there was a fair trial cannot be determined simply by the fact that the judge produced a coherent and reasoned judgment in which he resolved the factual issues in dispute between the parties. It requires one to consider the prior question of whether the judge's intervention prevented the witnesses from being able fairly to put their evidence before the Court and prevented the evidence which they did give from being fairly and properly adjudicated upon. Subject to that caveat I turn to the facts.
6. The defendants acquired the land at Broome Manor Lane in February 1998. The property included Broome Manor House, its garden, a lake and other land around it which originally formed part of the Broome Manor Estate. As mentioned earlier, Broome Manor House was connected to the public highway at Broome Manor Lane by a long drive. Broome Manor House together with part of its garden was sold to a Mr and Mrs Sutherland on 17 April 1998 but the defendants were able to obtain planning permission to develop the land adjoining Broome Manor House and the land between the lake and Broome Manor Lane into three plots on each of which they constructed a detached dwellinghouse. These became No. 72 Broome Manor Lane (Gloucester House); No. 74 (Salisbury House) and No. 76 (Hereford House) which were completed and sold to the first purchasers in September and October 1999. No. 76 was transferred to Mr and Mrs Leroy on 4 October 1999. It was acquired by Mr and Mrs Shaw in April 2005 and transferred into Mrs Shaw's sole name on 9 July 2010.
7. The defendants retained ownership of the driveway because it was thought that it might have some further development value. But this meant that access to the three newly constructed houses and to Broome Manor House itself was provided by the grant of rights of way along the drive to the public highway. The local planning authority was keen to preserve two large trees which stand in what is now part of the front garden of No. 76 and the defendants therefore adopted a layout for the development in which plots 2 and 3 (now Nos 74 and 76) were provided with an access point to the driveway via a spur from the main driveway constructed over what had been an old roadway leading to some farm buildings. This was upgraded and is shown on the transfer plan in the shape of what the judge described as a hammerhead.
8. The only original resident of the houses to give evidence at the trial was Mr Sutherland who still lives with his wife at Broome Manor House. He completed his purchase in April 1998 and told the judge that at the time of the development of the other plots the land was open grassland up to the edge of the asphalt driveway. Later the defendants erected a wooden post and rail fence around part of what is now No. 76 from its boundary with Broome Manor House. The fence stopped short of the entranceways to Nos. 74 and 76 leading from the hammerhead spur but the gap was filled by the line of large stones I referred to earlier.
9. The creation of the fence and the placing of the stones were part of a landscaping scheme submitted to the local planning authority in order to comply with one of the planning conditions attached to the planning permission for the development. Although very little documentation relating to the original development has survived (the solicitors' file, for example, no longer exists), the defendants were able to retrieve the planning documents which show that the landscaping scheme had to be approved prior to the commencement of the development and to be completed within 12 months of that date. Apart from the fence and stones, the scheme included the planting of a beech hedge along the length of the fence and the stones from the entrance to No 76 to the entrance to Broome Manor House. There is a letter on the file from the defendants to the local planning authority dated 3 December 1998 which states that the hedge was to be planted using a double row of beech whips at 600mm centres but the judge was told that the hedge (if so planted) had either died or ceased to exist by the time Mr and Mrs Shaw bought No. 76 in April 2005.
10. The other landscaping feature which needs to be mentioned is the grass verge between the fence and the edge of the roadway. The landscaping drawing (TD 9333/3) that was submitted to and approved by the planning authority indicates that the post and rail fence would be erected close to the edge of the driveway within an area of grass that extends along the whole of the boundary between No. 76 and the driveway and also across most of the frontage between the house and the fence except for the area taken up by the internal driveway and parking area in front of the house and its garages. The photographs show that the fence was erected along the grass area leaving a small strip of grass between the position of the fence and the edge of the asphalt of the driveway. This is the strip which was relied on by the defendants as belonging to them on the basis that the fence and stones marked the boundary between their and the claimant's property. The defendants' pleaded case was that the claimant had no rights of way over the grass verge and was not therefore entitled to open up any alternative point of access which would involve passing and re-passing over the verge. Mr Paul Haydon was instructed to provide an expert's report as to whether the new wall constructed by the Shaws to replace the fence and stones constituted a trespass on the basis that the fence and stones marked the true boundary between the two properties. He identified a small triangular shaped piece of land in the vicinity of the original access point to No. 76 which he said formed part of the defendants' land but which had been incorporated into the claimant's property by the building of the wall. I will refer to this for convenience as the triangle.
11. The judge said that it was not clear precisely when the wooden fence was erected but that it was probably not in place when contracts were exchanged with the Leroys and that the fences as erected were not shown on the transfer plan which was drawn up on 22 August 1999. The transfer plan uses conventional "T" marks to indicate the ownership of the fences which divide No. 76 from No. 74 and from Broome Manor House but the boundary adjacent to the driveway contains no such marks. All that the transfer records (in clause 3(d)) is that "the boundary walls hedges and fences which abut footpaths or driveways … shall belong to and be maintained by the buyers".
12. The judge rejected the defendants' case that the boundary was marked by the line of the fence and the stones. He said that the fence was merely part of the landscaping scheme I have described and was not in existence when the contracts for the new houses were exchanged. This had occurred when the properties were only partly built. The fence was not therefore in place when the sale took place in order to be used as a boundary. Instead the only existing physical or topographical feature that could be used to delineate the boundary was the driveway and he found that the defendants intended to transfer all the land up to the edge of the asphalt surface as it then existed.
13. A key document in the case is the plan attached to the transfer to Mr and Mrs Leroy. There is some suggestion that it was derived from an earlier plan prepared by or on behalf of Burmah Oil from whom the defendants purchased the land. But regardless of its original source the transfer plan itself was prepared by Mr Grouby whose handwriting appears in the boxes on the plan recording the date of its preparation and its scale. Mr Grouby does not deal with the preparation of the plan in his witness statement but the judge found that it was prepared and coloured by him before being sent to the defendants' then solicitors for incorporation into the transfer. The plan is on a small scale of 1:1250 and looks as if it is based, in part, on an Ordnance Survey sheet or something similar. But the position of the hammerhead spur was hand drawn and not derived from an Ordnance Survey or other survey of the area. Furthermore, the colouring of the driveway and of plot 3 (No. 76) largely obscures the line of the boundary and it is not even clear that the plan is to scale in relation to the hammerhead spur. What the judge found was that the marking of the boundary of plot 3 by the red line on the plan could not and did not include the subsequently created grass verge as part of the defendants' property. The outline of the hammerhead spur and the other parts of the driveway was intended to delineate the surface of the driveway and not the line of the fence. On that basis the green line marking the edge of the driveway and the red line marking the boundary of plot 3 are contiguous along the edge of the carriageway. Mr Grouby said in cross-examination that he had instructed his solicitors to retain ownership of the verges but the judge rejected that evidence. Certainly there is no provision in the transfer which purports to do that.
14. In April 2008 the Shaws obtained planning permission for the erection of the new brick wall which replaced the stones and the wooden fence. As part of these works they closed off the original access point leading from the hammerhead spur and replaced it with a continuous and straight section of brick wall. At the same time the owners of No. 74 took the opportunity to re-model the entrance to their property which seems to have involved bringing forward the gate and gateposts. In place of the original access point the Shaws opened up a new entrance to No. 76 leading through gates from the main part of the driveway closer to Broome Manor House. Between 2008 and 2012 there were negotiations between the defendants and house owners on the estate for the sale to them of the driveway. But when these eventually broke down the defendants challenged the right of the Shaws to open up the new gated entrance to their property at No. 76 and threatened proceedings for trespass. In September 2013 the defendants also deposited two large yellow plastic bins full of concrete and stone outside the new entrance thereby preventing any vehicular access to No. 76. Proceedings were commenced by the claimant for an injunction and undertakings were given to remove the bins. They were moved but not removed from the driveway and continued to cause problems of access for vehicles. The action therefore proceeded to trial with the claimant, Mrs Shaw, alleging that the defendants were continuing to cause a nuisance by obstructing her rights of way and the defendants counterclaiming for declarations that the claimant had no right to open up the new entrance and that the new wall constituted a trespass in respect of the triangle of land in the vicinity of the original access point.

The boundary

15. In relation to the boundary dispute, Mrs Shaw's position at the start of the trial was that the new wall had enclosed the triangle of land claimed by the defendants but that there was a defence to the counterclaim for trespass on the basis of acquiescence. Mr Shaw had stated in [9] of his witness statement that:

"When we built the wall, the front section replaced the existing wooden fence. The section of it which ran towards what is now Mr and Mrs Coe's house, at number 74, replaced a rather rough grouping of boulders and shrubs which ran from the corner of the boundary towards the houses. We, in agreement with our then neighbours, closed off the original entrance opening (there was no gate) with a wall. As a result a small triangle of land that was originally part of the access way and which is no more than 4.5 square metres has been enclosed behind the wall. This area of land was used only by people accessing our house. Neither the Coe's nor their predecessors have had any problem or difficulty with this slight reconfiguration. The triangle of land has been grassed/gravelled and incorporated into our garden."

16. There was also a possible encroachment at the point where the driveway curves round at the junction between the main driveway and the hammerhead spur but Mr Haydon, the defendants' expert, who based the drawings used in his report on photographs of the position of the original fence and stones, did not identify any significant encroachment at that point even assuming that the fence marked the position of the boundary and there is no appeal from the judge's finding that there was no trespass at that point.
17. The claimant's admission about the triangle seems to have been based on the fact that the shape of the hammerhead on the transfer plan indicates that there was a kink, equivalent to two sides of a triangle, in the line of the boundary immediately to the left (or west) of the original entrance to No. 76. The new wall at this point follows a straight line and therefore encloses the triangle of land if the boundary at this point was in truth shaped like the line on the plan. Both experts produced drawings which indicated the existence of the triangle. Mr Haydon, as I have mentioned, based his drawings on photographs and on the boundary being the line of the fence and stones. But the claimant's expert surveyor, Ms Julia Stolle, who produced drawings showing how the red line on the transfer plan would be transposed on to an accurate survey plan of the current position on the ground, also ended up with a triangular shaped boundary near the original point of access to No. 76 and therefore an area of encroachment created by the new wall. Her position, however, was that the transfer plan (and the Land Registry plan based upon it) contained too many errors and distortions to allow an accurate overlay on to the survey plan and cannot therefore provide a sound basis for the determination of the position of the boundary.
18. The position, however, changed on the third day of the trial when Mr Coe, the owner of No. 74 who had already given his evidence, produced another photograph of the section of the newly built wall which replaced the original access point to No. 76. What the photograph shows is that the wall, although constructed in a straight line, stands on the garden side of a concrete strip which appears to mark the limit of the asphalt driveway at the point where it joined the original entrance drive to No. 76. The wall is at a slight angle to the concrete strip but there is no encroachment of the footings on to the original asphalt surface of the defendants' driveway.
19. The judge indicated that Mr Coe and Mr Shaw should be recalled to deal with this new evidence and they both put in short witness statements confirming that the concrete strip shown in the photograph represented the limit of the driveway prior to the construction of the wall and the closing up of the original entrance drive. On this basis there had been no trespass and the claimant was permitted by the judge to withdraw the concession contained in Mr Shaw's first witness statement. This late change in the claimant's case is relied on by the defendants as part of their argument on the costs issue but for the moment I want to concentrate on the significance of what became photograph 300A for the boundary dispute.
20. The judge accepted, based on the evidence about photograph 300A, that the wall had not enclosed a triangle of land forming part of the defendants' driveway. Mr Coe said in his supplemental witness statement that he and his wife became interested in buying No. 74 in about October 2007 and visited the property. His recollection was that the position on the ground was as depicted in photograph 300A which was taken later in about April/May 2009. It was put to him in cross-examination that the driveway had been re-surfaced before then but that was not a matter on which he could really comment. The person who must have known whether any part of the original driveway had been enclosed by the wall and whether the concrete strip shown on the photograph represented the limit of that driveway up to that date was Mr Shaw. In his supplemental witness statement he said that the asphalt and the concrete curb line were original and had been unaltered by the construction of the wall. He was cross-examined by Mr Auld about the removal of the stones and it was put to him that one of the brick pillars in the new wall had been erected on part of the original asphalt which he denied. He accepted that the photograph was probably taken in 2009. But it was not suggested that the driveway as shown in the photograph had been completely altered by then from its position prior to the construction of the wall and there was no evidence that the hammerhead spur had been re-surfaced or materially altered since it was laid out as part of the access to Nos. 74 and 76 in accordance with the approved development plan. I do not therefore accept Mr Auld's submission that the judge had no direct evidence upon which to determine where the edge of the hammerhead spur lay at the date of the transfer in 1999.
21. The judge's findings that the brick wall did not in fact enclose part of the driveway have narrowed the issue about the boundary to a question of whether the transfer plan should prevail over the position on the ground at the date of the sale to the Leroys in 1999. As the judge recognised in [51] of his judgment, photograph 300A seems to confirm that the kink shown on the transfer plan was not reproduced on the ground. The defendants' appeal against the judge's finding that the triangle plotted on the survey plan (Appendix C) is not included in their title is therefore based not on what were the limits of the driveway in 1999 but on what is the position of the hammerhead (as drawn on the transfer plan) when transposed on to the survey plan. For this purpose it matters little whether one takes the line of the hammerhead indicated in Ms Stolle's report or that plotted by Mr Haydon. Both identify a triangular shaped piece of land within the brick wall in the vicinity of the original entrance to No. 76.
22. The appeal on this issue does not involve a challenge to the judge's finding that the lines drawn on the transfer plan were intended to identify the edge of the driveway and the hammerhead spur as the line of the boundary. Mr Auld simply relies on the expert evidence as establishing that the lines shown on the transfer plan when transposed to the Appendix C survey plan of the site results in the enclosure of the triangle by the wall. But given the basis of the judge's finding that Mr Grouby's hand drawn transfer plan was intended to identify the hammerhead spur as it existed in 1999, it seems a little odd that it should have the effect of establishing the boundary between the defendants' property and No. 76 in some different place. This is not, however, a claim for rectification and, as Mr Auld has stressed, the 1999 transfer identifies plot 3 as "the land edged red on the plan" without any indication that the plan is for identification purposes only. He relies on a passage in the judgment of Peter Gibson LJ in Beale v Harvey [2004] 2 P. & C.R. 18 at [28] where it is stated:

"The dominant description, that is to say the red edging on the plan, must be given its full weight. It is to be noted that (1) that red edging is the single straight line that I have described, (2) that straight line west of the building accords with the plan showing the line to be at right angles to the east and west sides of The Shippen and (3) that line accords with the plan showing that the straight line is parallel with the intended boundary between Plots 2 and 3. The fact that the retaining wall and the fence, although intended to be on the boundary line as the directions on the plan show, were built on a different line cannot be determinative of the true boundary. The erection of the retaining wall and fence on that different line seems to me to have been plainly an error, because it was inconsistent with what is shown as the straight red line on the plan. Further it would flout common sense to hold that, wherever Countrywide happened to build a retaining wall and fence, that must be the boundary regardless of the features of the plan to which I have drawn attention, even though at the time the plan was drawn the retaining wall and fence had not been erected and so the line of the red edging west of the buildings was not following existing features on the ground. Those accustomed to dealing with conveyancing problems know only too well how frequently instructions on a plan are incorrectly carried out and buildings or fences or walls are put up in the wrong place. The difficulties for workmen trying to carry out instructions on a site plan are the greater where, as here, a wall or fence is to be erected on a featureless agricultural field. It would be absurd to attribute to the parties the intention that what was erected, however erroneously, subsequently to the preparation of the plan, should define the boundary, when the immutable feature at all material times of the line of the sides of Phoenix Barn and The Shippen where they joined was shown on the plan as part of the straight boundary line from the estate road to the millstream."

23. That was a case where the plan used in the transfer was based on an architect's drawing which pre-dated the erection of a wall and fence along the boundary line. The plan indicated the boundary by a straight red line but this did not accord with the position of the wall and the fence which were erected prior to the date of the transfer. This gave rise to two possibilities: (1) that the wall was intended to follow the line shown on the plan but had been erected by error in the wrong place; or (2) that the actual position of the wall was intended to mark the boundary. The Court of Appeal preferred the first of these alternatives but rightly treated the question as one of construction of the parcels clause in the transfer. It was obviously possible to infer from the unequivocal representation of the boundary by a straight line on a plan which pre-dated the building of the wall that the position of the wall was an error and therefore not determinative of the boundary.
24. The resolution of differences between the transfer or conveyance plan and the position on the ground will depend upon the terms of the transfer construed in the light of the circumstances surrounding each individual case. In Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894 at page 896 Lord Hoffmann said:

"The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed."

25. In Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058 (Ch) Lewison J (as he then was) said:

"[43] The principles applicable to the interpretation of a transfer of real property are not open to serious doubt. A transfer, like any other contractual document, must be interpreted in the light of the background facts reasonably available to the parties. Although it has been said that extrinsic evidence is not admissible to contradict the words of a transfer where the language of the transfer is clear, this may need reconsideration in the light of the modern approach to the interpretation of contracts: Partridge v Lawrence [2003] EWCA Civ 1121, [2004] 1 P & CR 176 per Peter Gibson LJ But in any event, the transfer in the present case is far from clear. Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground. As Bridge LJ put it in Jackson v Bishop (1979) 48 P & CR 57:

"It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result."

[44] The question is one to be answered objectively: what would the reasonable layman think he was buying? Since the question must be answered objectively, it follows that evidence of the parties' subjective intentions, beliefs and assumptions are irrelevant; as are their negotiations."

26. The correctness of this approach has been confirmed by the decision of this Court in Pennock v Hodgson [2010] EWCA Civ 873 where Mummery LJ summarised the effect of the authorities beginning with the decision of the House of Lords in Alan Wibberley:

"9. Alan Wibberley supplies the solution. From it the following points can be distilled as pronouncements at the highest judicial level:—

(1) The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.

(2) An attached plan stated to be "for the purposes of identification" does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

(3) Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

(4) In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.

…..

12. Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R. 176 at 187; cf Beale v. Harvey [2003] EWCA Civ 1883; [2004] 2P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. Neilson v. Poole (1969) 20 P. & C.R 909; Wigginton & Milner v. Winster Engineering Ltd [1978] 1WLR 1462; Scarfe v. Adams [1981] 1 All ER 843; Woolls v. Powling [1999] All ER (D) 125; Chadwick v. Abbotswood Properties [2004] All ER (D) 213 and Ali v. Lane [2006] EWCA Civ 1532 were also cited on the construction points."

27. In my view this is not a case like Beale v Harvey where the plan must be taken to dominate and to prevail over the position on the ground. The material parts of the plan were hand drawn rather than based on an Ordnance Survey sheet or other accurate survey and the plan was intended to represent the position of the drive at the time of the transfer which, as the judge found, was the only topographical feature available to the parties to distinguish between plot 3 and the land retained by the defendants. Given the scale of the plan and the way in which it was prepared, inaccuracies were bound to exist and it matters not in my view that it was not in terms stated to be for identification purposes only. The surrounding circumstances point clearly to the parties having intended that the defendants should retain the surface of the driveway and that the Leroys should be limited to having a right of way over the driveway as marked in green. This is apparent from paragraph (c) of the First Schedule which grants to the transferees the right to pass and repass over and along "so much of the private driveway edged green on the said plan" as is necessary to obtain access to the property transferred. Although this gives rise to a separate question of construction as to what is or was "necessary", it indicates the boundary of the servient tenement in the form of the driveway which is also used as the line of the boundary of No. 76.
28. We are not therefore concerned with a case in which, by the date of the transfer, a significant boundary feature such as a wall had been erected as a possible indication of the intended position of the boundary. The wooden fence did not exist at the date of the contract and the plan was clearly intended to reserve to the defendants the area of the driveway and nothing else. In these circumstances, it would be little short of perverse to attribute to the parties an intention to include in the land retained by the defendants a triangle of land which never formed part of the driveway and which only exists as part of a surveyor's measurement due to the inaccuracy of the plan. As a matter of construction, I prefer the view that the defendants must be taken to have intended in the circumstances I have described to transfer to Mr and Mrs Leroy the totality of plot 3 up to the edge of the asphalted carriageway. On this basis there was no trespass by the wall on to the defendants' property. Subject therefore to the challenge to the fairness of the trial, I would dismiss the appeal against the judge's finding that the boundary was the line as shown on the plan attached to the order of 15 January 2016. In these circumstances it is not necessary to consider the interesting question whether the judge was right to suggest that had there been a trespass the appropriate remedy would be an award of nominal damages not exceeding £100 as opposed to an injunction or an order for possession. I would certainly wish to reserve until an occasion when the point does arise the question whether the decision of this Court in Harrow LBC v Donohue [1995] 1 EGLR has in any way been affected by the more recent decision of the Supreme Court in Coventry v Lawrence [2014] UKSC 13.

The right of way

29. This brings me to the second property issue which is whether Mrs Shaw has the right to access No. 76 via the new entrance on to the driveway. The rights granted to the Leroys under the 1999 transfer which now form part of the claimant's registered title are set out in the First Schedule to the transfer as follows:

"(c) To pass and repass at all times and for all purposes over and along so much of the private driveway edged green on the said plan as is necessary to obtain access to the Property subject to the proviso that the Buyers shall contribute a fair and reasonable proportion of the cost of maintaining the same in a good and sufficient state of repair according to the extent of the user of the driveway by the Buyers."

30. The third Schedule to the transfer contains various covenants by the purchasers of which the following are material:

"(b) The Buyers will not mutilate or remove any trees or shrubs or any other plants or grass which may be planted within the boundary of the Property in compliance with any tree planting or landscaping scheme referred to in the Second Schedule hereto and will as from the date of the planting of such trees shrubs or other plants or grass maintain the same in a neat and tidy condition and will forthwith replace any which due at their own expense.

…

(f) Not to obstruct or block the private driveway edged green on the plan or do any act or thing that would prejudice the rights of way over the said private driveway granted or to be granted to the buyers of other plots on the estate or referred to in the Charges Register of the said Title.

(g) To contribute a fair and reasonable proportion of the cost of maintaining the private driveway edged green on the plan in a good and sufficient state of repair according to the extent of the user of the driveway by the Buyers."

31. The Second Schedule reserves to the defendants as vendors the right:

"(c) To enter at all reasonable times upon the Property for the purpose of complying with any tree planting or landscaping scheme required by the Local or other competent Authority."

32. The 1999 transfer of No. 76 included the whole of the main driveway as far as Broome Manor House together with the hammerhead spur as part of the area marked green on the plan. The original transfer of No. 74 was the same but the Sutherlands were not granted rights of way over the hammerhead spur in the transfer to them of Broome Manor House and the rights of way granted to the owners of No. 72 do not extend beyond the point where the driveway passes the lake between No. 72 and No. 74.
33. It is common ground that the question whether a right of way gives access to every part of the dominant tenement is one of construction of the relevant conveyance or transfer: see Pettey v Parsons [1914] 2 Ch 653 at page 667. Mr Auld submits that, on its true construction, the right granted by paragraph (c) of the First Schedule was limited to what was physically necessary to obtain access to No. 76 at the date of the grant. Since there was an established entrance to the property at that time and, for that matter, at all times up to the building of the wall, it could not be said that any necessity existed which could justify the use of the driveway to obtain access to the new entrance way that was opened up in 2008. Alternatively "necessary" should be construed to denote a point of access which is the shortest distance from No. 76 to the public highway. This, it is said, would lead to the same result.
34. There is no evidence to indicate whether the distance between the new entrance to No. 76 and the public highway is longer or shorter than in relation to the original entrance but in terms of the language used I can see no justification for treating "necessary" as importing a requirement to use the shortest route possible. The owner of the servient tenement is protected by the obligation to contribute to repairs according to the extent of the use and there is nothing to suggest that the original entrance which was chosen by the defendants as part of their development plan was chosen by reference to what was the shortest distance. As indicated earlier, it was the result of the planning authority's requirement for the preservation of the trees.
35. The judge thought that Mr Auld's other construction of "necessary" was impossible to square with the fact that the totality of the driveway including the hammerhead spur had been shown edged in green on the plan. If necessity was to be judged by the state of affairs which existed at the date of the grant in 1999 then the inclusion of the driveway past the new entrance way and up to the gates of Broome Manor House served no useful purpose because it never would become necessary for it to be used so long as the original entrance way existed. Mr Auld says that this proves too much. The original transfer of No. 74 contains an identically coloured plan even though it will never be possible or necessary, geographically speaking, for the owners of No. 74 to make any use of the driveway up to the entrance of Broome Manor House. The purpose, he says, of the green colouring is simply to identify the relevant driveway: not to identify whether it is necessary or even possible to use any particular part of it in order to gain access to the relevant dominant tenement.
36. It seems to me that the primary purpose of the green edging is to identify the maximum possible extent of the driveway over which the grantee may be entitled to exercise a right of way without by itself determining whether and what part of that use is necessary. The colouring is a relevant feature not only of the grant of the right of way contained in paragraph (c) of the First Schedule but also of the covenant to contribute towards the cost of maintenance and repair in paragraph (g) of the Third Schedule. The reference in (g) to the obligation to contribute being geared to "extent of the user of the driveway by the buyers" must depend on which parts of the driveway are actually used and one would therefore expect the green edging to be co-extensive with the maximum use that could be legally possible under the grant. If it is permissible to test this against the terms of the transfers of the other properties then it is consistent with the plan attached to the transfer of No. 72 which, by the colouring used, grants no rights of way over the part of the driveway beyond the lake which the owners of No. 72 would have no need or occasion to use and limits their liability to contribute accordingly. The same goes for the exclusion from the transfer of Broome Manor House of any right of way over the hammerhead spur. The plan used in the transfer of No. 74 can be said to be an exception to this in not excluding any rights over the Broome Manor House end of the driveway. But I do not regard this as sufficient in itself to rebut the clear impression that the colouring of the plans was intended to reflect the maximum area of the driveway over which the rights of way could possibly be exercised.
37. The contribution provisions therefore suggest that the test of what is necessary is not to depend on or be measured by the position on the ground at the date of the grant. I can see no reason as a matter of ordinary language to construe the words "is necessary" by reference to a fixed point in time as opposed to what is necessary from time to time during the subsistence of the grant. The relevant phrase is "necessary to obtain access to the Property" subject to making a contribution to the costs of upkeep according to the extent of the user of the driveway. This seems to me to accommodate and permit the use of a different point of access from the property on to the driveway subject to the contribution to maintenance reflecting whatever user of the driveway that will involve. If the intention had been to limit the right of way to a particular and fixed point of access one would have expected the transfer to say so.
38. Mr Auld's alternative argument is that the scope of the grant of the right of way has to be determined as a matter of construction by reference to whether the opening up of a new access point is otherwise permissible under the terms of the transfer. For this purpose he relies in particular on the covenant contained in paragraph (b) of the Third Schedule not to remove any grass planted within the boundary of the property in compliance with a landscaping scheme. As explained earlier in this judgment, the grass area running along the boundary of No. 76 with the driveway was planted in accordance with such a scheme and the opening of the new access point must have involved the removal of part of this area. The defendants are not seeking to enforce the covenant as part of this action but they rely on the fact that any new entrance would involve a breach of that covenant as indicating that the grant of the right of way should be construed as limited to the use of the original entrance.
39. The judge was not persuaded by this argument and neither am I. It seems to me that if the terms of the grant permit as a matter of construction the use of alternative points of access on to the driveway to that originally provided there would need to be a clear indication in the transfer that the scope of that right should be limited to what was permitted under the covenant given that the transferor has a legal right based on the covenant itself by which he can restrain any anticipated breach. Although the land comprised in plot 3 was transferred "subject also to" the covenants in the Third Schedule, the rights granted by the First Schedule were not in terms expressed to be subject to those covenants and I can see no reason to imply such a limitation when, as I have said, the covenants in the Third Schedule can be enforced in their own right according to their terms. The only proviso to the grant of the right of way in paragraph (b) to the First Schedule is the obligation to contribute to repairs.
40. I would therefore dismiss this ground of appeal.

Procedural unfairness

41. I can now turn to the issue of whether there was a fair trial. Mr Auld does not allege bias but he says that the judge's excessive intervention during the examination of both witnesses of fact and the expert witnesses turned the trial into an inquisitorial rather than an adversarial process. There were constant interjections by the judge; he all but took over the cross-examination of the defendants, particularly in relation to their evidence about the yellow plastic bins which they placed on the driveway; he conducted a detailed examination of the experts with a view to getting them to agree to his views and at one point began to answer the questions which had been put to the expert by counsel in cross-examination. The result was that the defendants through Mr Auld were deprived of the opportunity properly to put forward their case.
42. Guidance on what can amount to procedural unfairness was given by this Court in Southwark LBC v Kofi-Adu [2006] EWCA Civ 281; [2006] HLR 33. In that case there were persistent interruptions by the judge including occasions when he told counsel that there was no point in cross-examining the witnesses or became involved in fairly heated exchanges with counsel about what evidence was relevant. At times the judge's interventions reached a point where the witness could, it was said, be forgiven for feeling that she was facing two simultaneous cross-examiners in the person of counsel and the judge. In his judgment Jonathan Parker LJ said:

"142. It is important to stress at the outset that, within the bounds set by the CPR , a first instance judge is entitled to a wide degree of latitude in the way in which he conducts proceedings in his court. However, that latitude is not unlimited. Ultimately, the process must always be the servant of the judicial function of dealing with cases justly (see the overriding objective expressed in CPR 1.1). In an adversarial system such as we have developed in this jurisdiction the discharge of that function requires the first instance judge (as Lord Denning M.R. put it in Jones v National Coal Board [1957] 2 QB 55 at 63):

"… to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large …."

…..

145. Nowadays, of course, first instance judges rightly tend to be very much more proactive and interventionist than their predecessors, and the above observations (made, in the case of Lord Denning M.R., almost 50 years ago, and, in the case of Lord Greene M.R., more than 60 years ago) must be read in that context. That said, however, it remains the case that interventions by the judge in the course of oral evidence (as opposed to interventions during counsel's submissions) must inevitably carry the risk so graphically described by Lord Greene M.R. The greater the frequency of the interventions, the greater the risk; and where the interventions take the form of lengthy interrogation of the witnesses, the risk becomes a serious one.

146. It is, we think, important to appreciate that the risk identified by Lord Greene M.R. in Yuill v Yuill does not depend on appearances, or on what an objective observer of the process might think of it. Rather, the risk is that the judge's descent into the arena (to adopt Lord Greene M.R.'s description) may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair.

147. In the instant case we are left in no doubt that the judge's constant (and frequently contentious) interventions during the oral evidence, examples of which we have given earlier in this judgment, served to cloud his vision and his judgment to the point where he was unable to subject the oral evidence to proper scrutiny and evaluation. This conclusion is confirmed by his irrational findings in relation to housing benefit and by his complete failure to address the credibility of Ms Kofi-Adu's evidence in his judgment or to explain why he rejected the evidence of Mrs Aitcheson's diary sheets. It is also supported by the fact that the references in his judgment to the evidence of the various witnesses are almost all derived from their witness statements, rather than from their oral evidence. Indeed, it is impossible to tell from his judgment what (if any) assistance he derived from the oral evidence which he heard, as opposed to the documentary evidence and the witness statements.

148. In our judgment, therefore, the manner in which the judge conducted the trial led to a failure on his part to discharge his judicial function. That is not to say, of course, that the decisions which he reached on the issues of nuisance and annoyance (including the issue of reasonableness in that context) might not have been reached following a proper evaluation and scrutiny of the evidence. Plainly, they might. The flaw in the instant case lies not so much in the decisions themselves as in the way in which the judge reached them, in that he allowed himself not merely to descend into the arena but, once there, to play a substantial part in the interrogation of the witnesses. In effect, he arrogated to himself a quasi-inquisitorial role which (as Lord Denning M.R. explained in Jones: see [142] above) is entirely at odds with the adversarial system."

43. The question therefore for us is whether Judge McCahill became so involved in the examination of the witnesses that he either made it impossible for Mr Auld properly to conduct his clients' case or lost the ability to reach balanced and objective conclusions on the evidence which he heard. The defendants have produced transcripts of the evidence in which the judge's interventions are shown highlighted in yellow. Some of these are exchanges with counsel rather than questions to the witnesses but there are a significant number of pages where virtually every line is highlighted. We were referred, for example, to the evidence of Ms Stolle where there are pages of questioning by the judge and at least one occasion where the judge interrupts and answers Mr Auld's question to the expert before she has had an opportunity to do so.
44. The judge understandably did not approve of the defendants' resort to self-help by obstructing the driveway with the plastic bins or the price which they demanded for the sale of the driveway to the residents. Mr Auld said that the judge became obsessed about this which manifested itself during the cross-examination of the defendants. Mr Auld has analysed the transcripts which disclose that the judge asked Mr Grouby about as many questions as he was asked by Mr Sahonte. The cross-examination on 30 June takes up 52 pages of transcript. On only 7 of those pages is there no question by the judge and on 6 pages virtually the entirety of the questioning is by the judge. At the end of the second day of Mr Grouby's evidence after his re-examination by Mr Auld the judge was asked whether he had any questions and he then proceeded to ask 52 consecutive questions of the witness.
45. I have to say at the outset that the judge's interventions, whilst always courteous, were in my opinion excessive and that he should have attempted to postpone his questioning, particularly of the witnesses of fact, until after counsel had conducted his cross-examination except when it was necessary to ask the witness to clarify an answer so that the judge could understand the evidence that was being given. To be fair to the judge, he regularly apologised for what he himself described as his over-eager desire to get to grips with the case but that does not alter the fact that his enthusiasm continually interrupted the examination of the witnesses.
46. That said, I have reached the conclusion that there was still a fair trial and a proper judicial determination of the main issues. The allegation of unfairness requires one to look carefully at what were the real issues in the case and how the judge's conduct impacted on them. I acknowledge that if the judge's treatment of the witnesses displays a hostility which gives an impression of bias or a complete lack of objectivity as in Kofi-Adu then the Court of Appeal has little option but to order a re-trial. But that would be an unfair description of how Judge McCahill conducted this case. It is true that he displayed understandable criticism and disapproval of the defendants' explanation as to why they put in place the plastic bins. But this was a side issue and, although the judge perhaps made more of it than it deserved, my own reading of the transcripts did not leave me with the impression that the judge approached the determination of the boundary and the scope of the right of way in a hostile or unfair manner.
47. Despite the judge' frequent questions during the examination of the factual witnesses, it remains the case that the defendants had no real evidence to give about the intended line of the boundary. Mr Grouby does not assert as part of his witness statement that the fence existed at the time when Nos. 74 and 76 were contracted to be sold or that he drew the plan in order to represent the line of the fence and stones. The Shaws could give no evidence about this and Mr Sutherland's evidence was that the fence post-dated the contracts. There was therefore very little in the way of factual dispute on this point. Mr Auld has certainly not been able to identify a significant line of questioning which the judge excluded. The transcript shows that, despite his interruptions, the judge did permit counsel to ask all the questions they wished.
48. The judge intervened in the examination of the experts and, it can be said, did push Ms Stolle to explain why the position of her red lines on the survey plan could not also have been drawn differently. I do not read any part of the transcript as the judge bullying the expert witnesses. The fact that he subjected them to prolonged periods of questioning is to be expected nowadays in the age of hot-tubbing although it obviously has its limits. In the end, however, none of this really mattered. Ms Stolle had said, understandably, that the transfer plan was too small and inaccurate to permit an accurate depiction of the boundary line on the survey plan and this became clear once photograph 300A had been produced. As explained earlier, the judge allowed the relevant witnesses of fact to be recalled and for Mr Auld to cross-examine Mr Coe and Mr Shaw on the new evidence. This seems to me an entirely proper way for the judge to have dealt with this aspect of the trial. At that point it was clear that the wall had not encroached on to the defendants' driveway and the judge was therefore left to resolve a question of law as to whether the plan should prevail over the position on the ground. I have explained why in my judgment he reached the correct conclusion on that issue. But the decision was not dependent on any findings of fact or concessions by the experts which could be said to have resulted from the judge's conduct of the trial.
49. The same goes for the issue about the right of way. This is a pure question of law and gives rise to no factual issues which were in dispute before the judge. Again, I can see no basis for finding that the judge's questions and other interventions had any bearing on what he had to decide. I have explained why I consider that his decision on this point was also correct.
50. Although I recognise that many of the judge's interventions may have been frustrating, I do not therefore consider that the judge's conduct made the trial unfair in the sense described in Kofi-Adu. He did not prevent Mr Auld from cross-examining the claimant's witnesses. The factual and expert evidence necessary for the determination of the two property issues was not seriously in dispute and the judge's decisions on the construction of the 1999 transfer were correct for the reasons given earlier. I would therefore dismiss this ground of appeal.

Costs

51. That leaves the appeal about costs. The defendants were ordered to pay 95% of the claimant's costs of the claim and counterclaim. Mr Auld submits that this fails to recognise those aspects of the claimant's case which were abandoned at the start of the trial such as the allegation of acquiescence and the fact that the claimant succeeded on the boundary issue on a different basis from the concession made in Mr Shaw's witness statement by reference to Ms Stolle's expert report.
52. The defendants submit that they should have their costs of the trespass issue up to the point when photograph 300A was produced on the third day and the judge allowed the concession about the triangle to be withdrawn. It is also said that the photograph could have been produced well before the start of the trial. As a separate matter Mr Auld says that the judge was also wrong not to make some allowance for an application by the claimant to amend her reply and defence to counterclaim in order to plead a tri-partite boundary agreement. Various draft amendments were produced but, in the end, the application was abandoned. Clearly these applications took up some (but not very much) court time.
53. The judge reserved his judgment at the end of the trial on 15 July 2015 and delivered it on 21 July. Mr Sahonte asked for the costs on an indemnity basis and Mr Auld raised the points about the claimant's change of position on the boundary issue; the abandonment of the plea of acquiescence and the amendment application. In his judgment on costs the judge said that the litigation was prompted by the placing of the bins on the driveway in response to the opening of the new entrance to No. 76 and that the boundary dispute was raised by the defendants as part of their response (based on the verge) to the claimant's case that she had a right to open up the new entrance as an alternative accessway.
54. The judge considered that the case had largely been about the scope of the right of way and that the defendants had lost on the issue of whether the verge formed part of their property. The concession about the triangle was a response to Ms Stolle's report showing how the transfer plan could be transposed on to the survey plan given the existence of the kink on the transfer plan but this was overtaken by the evidence of photograph 300A.
55. The judge took into account the concession and the points made by Mr Auld about the abandonment of the plea of acquiescence and the application to amend but was not persuaded that this justified an order that the defendants should have their costs of the trespass issue up to day 3:

"Now, it seems to me that starting from the proposition that the claimant should have their costs I do not regard any points which have been advanced by Mr Auld as justifying the form of order whereby, up to a certain point the claimant should have their costs, but thereafter they should not, or vice versa, based upon this change of material. The defendants' claim on the pleadings was clear. It has been an evolving case, starting off as a run of the mill two-day County Court case, as the parties themselves have given the time estimate, ending up with six days before me. That indicates how the issues have evolved, and cases have become more and more complicated.

…..

I have considered the arguments of twisting and turning, as it were, not in any improper way but the variations in the claimant's case over the course of time. It seems to me that the appropriate order is that the defendants shall pay 95 per cent of the claimant's costs on the standard basis, representing the balance which I strike between the various factors."

56. Under CPR 44.2(1) the Court has a discretion as to whether costs are payable by one party to another and the amount of those costs. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party but the Court may make a different order: see CPR 44.2(2). The judge was clearly right in my view to regard the claimant as the successful party in the litigation. She had succeeded on the issue about the right of way which had sparked off the dispute and also on the issue about the verge and the line of the boundary which the defendants had raised as part of their answer to the claim in nuisance. The claimant had been prepared to concede the issue about the triangle in the light of the expert evidence based on the plan. But Ms Stolle's opinion had always been that the transfer plan was not a satisfactory basis for establishing the position of the boundary which was confirmed when photograph 300A was produced.
57. The judge was asked to reflect the claimant's change of position on the issue of the triangle by what amounted to an issue based order. But the trespass or boundary issue to which the expert evidence was directed was much wider than whether a triangle of the driveway had been enclosed by the wall. It began with the question whether the fence or the edge of the roadway was the boundary line and on this issue the claimant succeeded. Mr Haydon's report had been based on the premise that the fence marked the boundary line so that his evidence was largely excluded by the judge's rejection of that. The issue about the triangle continued as one of law right up to this Court even in the face of the evidence of photograph 300A and the judge was entitled in my view to regard it as an issue which evolved during the trial and on which the claimant ultimately succeeded despite the defendants' continuing opposition.
58. In these circumstances the judge's decision to award the claimant the costs of the proceedings cannot be said to be wrong in principle. It would have been disproportionate for the judge to have deprived the claimant of her costs of the trespass issue up to day 3 and to have ordered her to pay the defendants' costs of that issue. Both parties were required to respond to the evidence of the photograph in relation to the triangle but on the main issue of what was intended to be the boundary line and whether the transfer plan should prevail over the position on the ground the claimant succeeded. It was therefore within the judge's discretion in my view not to make the issue based order requested and to reflect the costs thrown away by the abandonment of the acquiescence defence and the amendment application by reducing the percentage of costs awarded to the claimant. As to the amount of the reduction made to take account of these points, the assessment was a matter which the judge was best qualified to make and we have no material to justify an alternative percentage reduction. Again it is impossible to say that the judge's reasoning discloses an obvious error of principle or that the order was plainly wrong.

Conclusion

59. I would therefore dismiss the appeal.

The Chancellor of the High Court:

60. I agree with Patten LJ's judgment, and I too would dismiss this appeal.
61. Since, however, the appeal has raised a criticism of the way the judge handled the trial, I will add a few words of my own. As Jonathan Parker LJ said in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281: "the risk [of frequent judicial interventions during the evidence] is that the judge's descent into the arena … may so hamper his ability properly to evaluate and weigh the evidence before him as to impair his judgment, and may for that reason render the trial unfair". A judge may always intervene to clarify the evidence or to ensure that time is not wasted, but the trial process can be distorted if the judge intervenes too much.
62. Judicial self-restraint is required to avoid the consequences mentioned by Jonathan Parker LJ and, of course, to ensure that the parties leave the trial process feeling that they have had a fair hearing and that their evidence was heard and understood.
63. In this case, the judge did intervene too much as Patten LJ has explained. I would not wish to be over-critical in an environment where active trial management and a measure of judicial interventionism are acknowledged as appropriate tools to focus and streamline proceedings both interlocutory and at trial. It remains important, however, to allow relevant evidence to be presented and cross-examined without inappropriate interruptions.
64. Fortunately, the judge's conduct did not, in this case, have the effect of preventing the defendants from fully and properly presenting their evidence, nor did it, in my judgment, impair his decision-making. The judge was obviously exercised about the defendants' placing of the yellow bins and about the amount of money that the defendants may have been seeking for the sale of the roadway. I am not sure the judge descended in any relevant sense into the arena even on these points. He was entitled to raise a judicial eyebrow at what had occurred. As Patten LJ has also explained, he approached the issues that were relevant to the outcome in an appropriate and judicial manner.
65. I hope in future that judges will temper eagerness with restraint, because continuous interruptions during cross-examination can so often do more harm than good.
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