England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
LIVERPOOL DISTRICT REGISTRY

		12/06/2009

MR JUSTICE DAVID RICHARDS:

1. In June 1986 the claimants in this action, Alan Campbell and his wife Maureen Campbell, purchased a property known as 16 Headbolt Lane (or 98a New Cut Lane). In August 1988 they purchased an adjoining property, 98 New Cut Lane. These properties lie on the eastern edge of Halsall, near Southport, Lancashire and are bordered to the south and the east by farmland. 98 New Cut Lane has an area of about 5.79 acres and had previously been used as a pig and cattle farm and for other agricultural and horticultural purposes. The Campbells bought the properties so that they could operate a stables business there. Following the purchase of 16 Headbolt Lane in 1986, they built a stable block and within a few months the business started trading under the name of The Alamo Stables. They built further stables and an all weather surface at 98 New Cut Lane following its purchase. Horses were ridden out down two tracks, known as Headbolt Lane and Carr Lane, which crossed the neighbouring farmland, owned by the first and second defendants, William Thomas Banks and his wife Enid Banks. This use of the tracks continued uninterrupted and without complaint for a number of years. Headbolt Lane runs down the eastern boundary of both properties and is the only means of vehicle access to New Cut Lane.
2. In 1998 Mr and Mrs Banks entered into a Country Stewardship Scheme with the Ministry of Agriculture (now DEFRA) under which Headbolt Lane and Carr Lane were registered as permissive footpaths. In about 1999 they erected a gate at the end of Carr Lane where it joins Heathfield Road, a public road. It was forcibly removed but soon replaced and it is common ground that it has since been kept closed and locked, with only Mr Banks and another farmer having keys. In about October 2002 Mr and Mrs Banks erected a gate in Headbolt Lane in a position which, if locked, would have prevented horses from the Campbells' yard being ridden out down the lanes. Mr and Mrs Campbell objected in correspondence with Mr Banks. From that time on, there was a clear dispute as to the existence of any right to ride out horses along the lanes south from the stables. In December 2003 Mr Campbell took out the gateposts.
3. In March 2008 Mr and Mrs Banks again erected a gate in the same position on Headbolt Lane. On 16 May 2008 Mr and Mrs Campbell issued the present proceedings and applied for an interim injunction for the removal of the gates on Headbolt and Carr Lanes. On 21 May 2008 Patten J, as Vice-Chancellor, made an order requiring the gates to be kept open and unlocked. The order was subsequently continued until after judgment in the action.
4. Mr and Mrs Campbell have throughout the proceedings acted in person, with Mr Campbell addressing the court on behalf of them both. The trial took place before me in Liverpool over 5 days from 26 to 30 January 2009 and included a site visit at the request of both parties. The central issue at the trial, as I understood it and as it was understood by the defendants and their counsel, was whether Mr and Mrs Campbell were entitled to use Headbolt Lane and Carr Lane as bridleways to ride out horses from their stables, either by reason of a private right of way acquired through use or by reason of a public right of way over the lanes.
5. I sent out my judgment in draft on 8 April 2009 ahead of my next sitting in Manchester and Liverpool in May 2009. A hearing to hand down the judgment and deal with consequential orders was fixed, for the convenience of the parties, for 22 May 2009. I received typographical amendments from counsel for the defendants on 21 April 2009. On 21 May 2009 I received a number of documents from Mr and Mrs Campbell. They asserted that the draft judgment addressed the wrong issue. They accepted that their case had originally been a claim to a right to use the lanes as a bridleway. But, Mr Campbell said, they realised that they did not have sufficient evidence to establish such right and, by a re-amendment permitted in October 2008, they abandoned that case and claimed instead a private or public pedestrian right of way over the lanes. This, they said, was the principal issue for determination at trial, together with a claim for damages for loss to the stables business caused by the defendants' harassment of clients riding out from the stables.
6. In order to examine this fundamental point made by Mr and Mrs Campbell, it is necessary to look at the course of proceedings. The claim form, issued on 16 May 2008 contained Particulars of Claim as follows:

"The Defendants have, in concert, deliberately and wilfully obstructed passage of the Claimants' and Liveried Horses and Vehicles along Headbolt Lane and Carr Lane without lawful authority causing damage and loss to the Claimants' business.

The Defendants have, in concert, deliberately and wilfully harassed and intimidated mounted Horse Riders in furtherance of attempting to prevent and preventing them from riding along Headbolt Lane and Carr Lane without lawful authority.

Both actions above stated having caused existing Liveries to leave the Claimants' Yard and prospective Liveries to avoid placing their Horses there. …"

7. On 21 May 2008, as I have mentioned, Patten J granted an injunction requiring the defendants to keep open the gates erected on Headbolt Lane and Carr Lane. The purpose was to enable horses to be ridden out from the stables and to enable the stables to remain in business without interference pending a trial of the action. As Mr Campbell accepted at the hearing on 22 May 2009, the injunction was not required to permit pedestrian use of the lanes because the gates had separate pedestrian side-gates which were not locked.
8. The claim was initially based on a private right of way, but researches conducted and commissioned by Mr Campbell had indicated to him that there might be public rights of way over the lanes and that Headbolt Lane might be owned by the local authority. Shortly after issue of the claim form, he amended the Particulars of Claim by adding the following:

"… A Declaration that Headbolt Lane rightfully belongs to the local Parish Council's surveyor of the highways or his/their successors and remains public property.

A Declaration that the term Occupation Lane used within the legal proviso stated within the several property transactions hitherto legally provides access to and egress from all the registered Farms situation on and bordered by Headbolt Lane in both directions.

A Declaration that despite the Defendants claims of signs and locked gates having been erected at divers times (which are denied) presumed dedication-re dedication or dedication at common law exists in respect of both Headbolt Lane and Carr Lane.

A Declaration that due to the fact these lanes were listed as being in the ownership of The Township of Halsall and in the occupation of The Surveyors of the Highways for the Township they were in fact Highways and the principle "Once a highway always a Highway applies."

9. On 14 July 2008 Mr and Mrs Campbell issued an application to re-amend their particulars of claim because, as stated in the application notice:

"We consider our initial claim to be deficient and not covering our claim sufficiently according to the evidence submitted during the recent injunction hearings and fresh evidence gathered from additional witnesses."

10. The proposed amendments were stated as follows:

"1. To Delete: A Declaration that Headbolt Lane rightfully belongs to the Local Parish Council's Surveyor of the highways or his/their successors and remains public property.

2. To add: "A Declaration that Headbolt Lane from the entry position New Cut Lane to and beyond the Dog's Leg bend to the entry of Carr Lane and or Carr Lane or both are Public Rights of Way as of right or by presumed dedication, re dedication or dedication at common law.

3. As to the first two paragraphs of the Claimant's Particulars of Claim the following amendment by complete substitution:

The Defendants have both individually and or acting in a joint enterprise with a common purpose attempted to prevent and or prevented the public and or horse riders from passing and or re passing along Headbolt Lane and or Carr Lane by harassing and or intimidating said persons without lawful justification and in particular the 1^st Defendant harassed and or intimidated Ann Ormerod whilst riding her horse along New Cut Lane in the full knowledge she was a livery customer of the Claimants and such action would in any reasonable person's mind impact, obstruct, restrain and or prevent the Claimants from enjoying the lawful and or peaceful running and or profitability of their business.

4. As to the third paragraph of the Claimants' Particulars of Claim the following amendment by complete substitution:

The actions above stated having caused loss and damage to the Claimants' business by causing existing Livery customers to leave the Claimants' yard and prospective customers to avoid placing their Horses there."

11. By an order made on 20 October 2008 by Mr Recorder Elleray QC, the claimants were given permission to re-amend their particulars of claim as requested by their application of 14 July 2009 and re-service was dispensed with. The injunction granted by Patten J was continued until 26 January 2009, fixed as the start of the trial. Directions to take the case to trial were given, including a direction that the claimants and the defendants should file and serve their written opening submissions by 12 January and 15 January 2009 respectively.
12. Among the documents provided to me by Mr and Mrs Campbell on 21 May 2009 was a copy of a document comprising the proposed re-amendments annexed to their application issued on 16 July 2008 with "Amended Statement of Claim" written in manuscript as a heading, the three new additions numbered 1, 2 and 3 and the remainder of the particulars of the claim crossed through. At the foot of the page, Mr Campbell has written "To the Court 22 October 2008". I did not see this particular document at the trial, although I did have the claimants' application notice of 16 July 2008, its annexure and the order of 20 October 2008. I was told by Mr Jackson, the defendants' counsel, that he had not seen this document until 22 May 2009.
13. The document does not accurately set out the particulars of claims, in accordance with the permission granted by the order of 20 October 2008. For the sake of completeness I set out the re-amended particulars of claims in a form which reflects the order:

"The Defendants have both individually and or acting in a joint enterprise with a common purpose attempted to prevent and or prevented the public and or horse riders from passing and or re passing along Headbolt Lane and or Carr Lane by harassing and or intimidating said persons without lawful justification and in particular the 1^st Defendant harassed and or intimidated Ann Ormerod whilst riding her horse along New Cut Lane in the full knowledge she was a livery customer of the Claimants and such action would in any reasonable person's mind impact, obstruct, restrain and or prevent the Claimants from enjoying the lawful and or peaceful running and or profitability of their business.

The actions above stated having caused loss and damage to the Claimants' business by causing existing Livery customers to leave the Claimants' yard and prospective customers to avoid placing their Horses there.

And the Claimants further claim damages in respect of the first and second Defendants' contribution towards the maintenance of Headbolt Lane to date at 80% of £11,000 paid by the claimants.

A Declaration that Headbolt Lane from the entry position New Cut Lane to and beyond the Dog's Leg bend to the entry of Carr Lane and or Carr Lane or both are Public Rights of Way as of right or by presumed dedication, re dedication or dedication at common law.

A Declaration that the term Occupation Lane used within the legal proviso stated within the several property transactions hitherto legally provides access to and egress from all the registered Farms situation on and bordered by Headbolt Lane in both directions.

A Declaration that despite the Defendants claims of signs and locked gates having been erected at divers times (which are denied) presumed dedication-re dedication or dedication at common law exists in respect of both Headbolt Lane and Carr Lane.

A Declaration that due to the fact these lanes were listed as being in the ownership of The Township of Halsall and in the occupation of The Surveyors of the Highways for the Township they were in fact Highways and the principle "Once a highway always a Highway" applies."

14. There is no doubt that before and during the trial the defendants and their counsel understood the basic issue in the case to be as it had been from the start, whether Mr and Mrs Campbell had rights to use the lanes as a bridleway. In his opening written submissions, dated 15 January 2009, Mr Jackson noted that the claimants had not filed any opening submissions and then stated:

"The Claimants claim private and/or public vehicular and equine easements over the whole length of Headbolt Lane and Carr Lane."

The submissions were directed principally at this issue. Mr Campbell told me that he did not receive these submissions until the first day of the trial and that he did not read them.

15. Mr Campbell also prepared written opening submissions, which are dated 12 January 2009 and two addenda, one undated with two pages and a second dated 25 January 2009. Nowhere in these submissions is it stated that Mr and Mrs Campbell have abandoned their claim to use the lanes for horses and are seeking to establish instead a pedestrian right of way. On the contrary, there are stated to be four issues: first, the lawful status of Headbolt Lane; secondly, the lawful status of Carr Lane; thirdly, "unlawful and wrongful blocking off and gating of both lanes by the first and or second defendants who were then assisted in part by the third and four defendants in a joint enterprise causing damage and financial loss to the claimants and their livery business"; fourthly, "damages and losses incurred by the claimants as a result of 3 above." As the "blocking and gating" of the lanes involved interference with use by vehicles and horses, but not pedestrian use, the third issue could reasonably only refer to an assertion of rights to take vehicles or horses down the lanes.
16. As regards Headbolt Lane, Mr and Mrs Campbell refer in their opening submissions to a good deal of historical material, including as the first point that in the 1700s it was only one of two routes available to reach all the villages in the northern direction of Liverpool and Liverpool itself and, as the second point, that it was "created for Horse Riders, Horse Carriages and Horse Drawn Carts for the obvious purposes of Peat Digging, Delivering Produce to the Liverpool Markets and Social Purposes". The third point refers to the record of the lane in the Tithe Map in the 1840s and to the subsequent construction of other roads suitable for cars, and continues:

"… The fact that Headbolt Lane became less fashionable as a result of these happenings does not detract from the maxim: "Once a Highway always a Highway." Certainly deserving of being declared a Bye Way let alone the very basic declaration of a Public Right of Way we currently seek. This shall be of course should the court decide that our rights shall extend to allow the passage of Horse Riders under our claim. That is after all what we seek and should it not provide this right then we shall be looking for the legal machinery to then perhaps request the court allow us to amend our claim to cater for such."

17. As regards Carr Lane, the main submissions refer to parish council minutes which show "councillors stating from memory that Carr Lane had always been used for vehicular traffic".
18. As regards both lanes, the main submission states:

"The first and second Claimants shall testify that never since their occupation of their properties in Headbolt Lane in 1986, have they been challenged by the Defendants or anyone in respect of their usage of both Headbolt Lane or Carr Lane until the erection of the gate across Carr Lane (even if we accept this date) 1998. We shall also testify that on the purchase of both our properties our solicitors made no mention of any such restriction the Defendants now assert i.e. that they have the right to dictate the usage of the lanes."

It later states:

".. We shall invite the court to find Headbolt Lane has always been a Highway. We shall then present a host of photographs taken by ourselves for the purpose of this action. These pictures shall show the obstructing gates the Defendants erected and guarded to the point of both restricting our business and causing us heavy financial losses."

19. In the second addendum, after referring to the provisions of two conveyances in 1932, it was stated:

"The Claimants shall establish that by a series of Deeds/Conveyances executed by divers Vendors and dated 1932, the Claimants, as successors in title, enjoyed the same rights as the Defendants over Headbolt Lane and Carr Lane. …

The Claimants shall therefore claim that the actions of the Defendants were unlawful because they have, and had at the time of the several blockage incidents, the very same rights over Headbolt Lane and Carr Lane inter alia. .. "

20. During the course of the trial, Mr and Mrs Campbell did not state that their case was no longer concerned with rights to use the lanes as bridleways. A good deal of evidence was given concerning use of the lanes with vehicles and horses. Their closing submissions stated that Mr Campbell was:

"…Convinced Lanes had full rights of way. Vehicles, horses and walkers, especially with our properties and business. Never, ever, myself stopped or challenged members of the public using lanes whatever they were doing. Thought they had the same rights."

21. Having re-considered the relevant material, I am satisfied that the defendants and indeed the court justifiably and reasonably understood Mr and Mrs Campbell's case to be that they were entitled by reason of private and/or public rights of way to ride out horses down the lanes and that the allegedly unlawful attempts by the defendants to prevent this had caused loss and damage to their stable business. There are a number of reasons for this. First, that was unquestionably the original basis of their case. Secondly, it was on that basis that Patten J granted the injunction on 20 May 2008. Thirdly, the re-amendments to the particulars of claim do not demonstrate that Mr and Mrs Campbell were abandoning their original claim and substituting a claim for a pedestrian right of way. On the contrary, the re-amended particulars plead that the defendants "attempted to prevent and or prevented the public and or horse riders from passing and or re-passing along Headbolt Lane and or Carr Lane". Mr Campbell suggested that the declaration, added in the re-amendment, that the lanes "are Public Rights of Way" showed that the case concerned pedestrian rights of way, but "public rights of way" may refer to pedestrian, equine or vehicular use. Fourthly, by the same order as permission to re-amend was given, the injunction granted by Patten J was continued until trial. There was, as already stated, no basis for the injunction unless Mr and Mrs Campbell were claiming an equine right of way. Fifthly, Mr and Mrs Campbell's opening submissions gave no indication that their case for an equine right of way had been abandoned, but on the contrary was consistent with such a case. Sixthly, at no stage during the trial did Mr Campbell indicate that their case had changed from an equine to a pedestrian right of way. If he had, the course of the trial would have been very different.
22. It is right to record not only that Mr and Mrs Campbell were acting in person, but also that Mr Campbell was not in good health, as he told me during the hearing. It appears now from documents which he has submitted that he was taking twice the recommended dose of a prescription drug which he obtained from a friend and which had not been prescribed for him. Mr Campbell did not however request an adjournment and he did not appear incapable of presenting his case.
23. In these circumstances, it is not open to Mr and Mrs Campbell to claim that their case for an equine right of way along the lanes had been abandoned and that the case they presented was for a pedestrian right of way. The defendants are entitled to a decision on the issue of an equine right of way, in accordance with the evidence and submissions put forward at the trial. It would not in my view be right to decide the issue on the basis that Mr and Mrs Campbell accept that there is insufficient evidence to establish their original case. Mr Campbell told me on 22 May 2009 that he abandoned the original case because he did not think he yet had sufficient evidence for it but he wanted to preserve the possibility of reviving the claim in future proceedings. In the circumstances, it is not a course open to him.
24. I turn therefore to consider the case for an equine right of way on its merits. Mr and Mrs Campbell contend that they are entitled to use Headbolt Lane and Carr Lane as bridleways either by reason of a private right of way acquired through use or by reason of a public right of way over the lanes. In the course of his submissions, Mr Campbell also developed a case based on an express right of way. Mr and Mrs Banks have not objected to the use of the lanes by the public as a footpath and, as required by the terms of the Country Stewardship Scheme, included pedestrian access features in the gates which they erected. They accept also that 98 New Cut Lane has the benefit of an express right of way for vehicles, horses and pedestrians over the stretch of Headbolt Lane running north from that property to New Cut Lane. They deny that Mr and Mrs Campbell otherwise have any equine or vehicular rights of way over the lanes.
25. I will first briefly describe the relevant features of the area and its conveyancing history.
26. New Cut Lane is a busy road which runs in a south easterly direction out of Halsall. Coming out of Halsall, the houses ending with 98 New Cut Lane are the last non-agricultural properties before the road becomes bounded by open country on both sides. The land to the north of New Cut Lane is agricultural but is not relevant to the issues in the case. 98 New Cut Lane comprises in part a house, where Mr and Mrs Campbell live. The remainder of the property, immediately to the south of the house, is the land previously used as a pig and cattle farm and now forming part of the Alamo Stables. Immediately to the south is 16 Headbolt Lane, which Mr and Mrs Campbell sold in 1996, but with an arrangement with the purchaser allowing them to continue to use the stables which they built there.
27. To the south and the east is open farmland. The eastern boundary of 98 New Cut Lane is about 270 metres long and adjoins Headbolt Lane which leads north into New Cut Lane. As mentioned above, Mr and Mrs Banks accept that 98 New Cut Lane has the benefit of an express right of way over this stretch of Headbolt Lane for vehicles, horses and pedestrians. Headbolt Lane continues south for about one kilometre until it reaches a water course known as the Old Canal which has the appearance of a substantial ditch. A section of Headbolt Lane leading to the ditch was ploughed up by Mr Banks in about 1975 and had been overgrown for some years before then. There used to be a bridge over the Old Canal, and Headbolt Lane ran in an easterly direction beside the ditch for a short distance before turning south and joining Segar's Lane, a public road. The bridge was destroyed some time before 1960 and without it access from the north is impossible. The short stretch of Headbolt Lane running beside the canal was ploughed up. Part of the stretch of Headbolt Lane leading north from Segar's Lane still exists, but the rest leading to the Old Canal has not existed since 1960 at the latest.
28. Carr Lane runs west from Headbolt Lane to join Heathfield Road, a public road at the eastern edge of Halsall. The junction with Headbolt Lane is about half a kilometre from the start of Headbolt Lane in the north.
29. There is open farmland on both sides of Carr Lane and Headbolt Lane. The land is notably flat, bisected by a number of canals and drains. Headbolt Lane and, for part of its way Carr Lane, are raised above the level of the surrounding land. They are at least one vehicle's width. They do not have a tarmac or similar surface but hard materials have been used to make the tracks. Carr Lane is very muddy in parts but it clearly has had a hard core surface.
30. This area once formed part of the estates belonging to the Scarisbrick family. In 1921 part of the Scarisbrick family estates comprising some 12,600 acres, and including as a small part all the relevant land now owned by the Campbells and the Banks, was sold for over £600,000 to trustees for a consortium of investors. By a conveyance dated 28 June 1932 the then trustees conveyed the freehold title to 98 New Cut Lane and two adjoining properties to one William Woodeson. At that time 98 New Cut Lane was just the house on a small plot. By a conveyance dated 26 January 1933 William Woodeson conveyed the freehold title to 98 New Cut Lane to one John William Porter. The freehold was subsequently conveyed to Elizabeth Hillier.
31. In 1953 part of the estates sold in 1921, comprising just over 3,500 acres, was offered for sale at auction. In default of its sale either as a whole or in large blocks, it was offered for sale in 142 lots, including, as separate lots, West Crantum Farm (125 acres), Boundary Farm (103 acres) and a plot of 1.78 acres sold as lot 116. Lot 116 was purchased and immediately sold on to Mrs Hillier. It was conveyed to her by a conveyance dated 31 July 1953. Lot 116 lay immediately to the south of the properties at 88-98 New Cut Lane, and it has since formed a single property with 98 New Cut Lane. Mrs Hillier had for some years been the tenant of lot 116 which she used as an agricultural smallholding. It is the land later used as a pig and cattle farm. The conveyance included an express right of way in the following terms:

"…all such rights of way as have hitherto been enjoyed by the owner and occupiers of the property hereby conveyed over and along Headbolt Lane Aforesaid the Purchaser paying 20 per cent of the cost of maintaining Headbolt Lane aforesaid so far as the same is co-extensive with the property hereby conveyed…"

The totality of the freehold property known as 98 New Cut Lane, including lot 116, was purchased by Mr and Mrs Campbell in June 1988.

32. West Crantum Farm lies to the east of the full length of Headbolt Lane from New Cut Lane to the Old Canal. It was sold in 1954 to one John Benson and by the terms of the conveyance dated 18 February 1954 the property conveyed included "one half in width" of Headbolt Lane and rights of way over Headbolt Lane. It also assigned the benefit of the covenant of Mrs Hillier contained in the conveyance dated 31 July 1953 to contribute to the maintenance of Headbolt Lane "so far as the same is co-extensive with the property included in that Conveyance".
33. Boundary Farm lies to the west of Headbolt Lane, south of what is now 16 Headbolt Lane and continuing to the Old Canal, which forms its southern boundary. It is bounded to the west by the properties along Heathfield Road. Carr Lane crosses approximately the centre of the property from Headbolt Lane in the east to Heathfield Road in the west. The earliest conveyance in evidence of Boundary Farm is dated 6 March 1981 from Peter Moores to Clybane Limited. It appears from other evidence that Peter Moores purchased it in about 1971 from Ivan Bennett who had farmed it since about 1956. The conveyance dated 6 March 1981 included one half of Headbolt Lane and express rights of way over Headbolt Lane and Carr Lane similar to those set out in the next paragraph. There had by then been excluded from Boundary Farm a field immediately to the south of the western section of Carr Lane. It was purchased in 1975, and is still owned, by Richard Swift.
34. Mr Banks became the tenant of both West Crantum Farm and Boundary Farm in 1971. In 1994 he and his wife purchased both farms. Following their purchase, both properties were registered under a single title number (LA 736870). The property register records the following rights of way contained in the conveyance dated 2 June 1994 from Clybane Limited to Mr and Mrs Banks:

"...the right of way for the Purchasers or the persons authorised by them (in common with all others have the like right) for all tenantly purposes over that part of Headbolt Lane marked "A" and "B" on the said plan such road to be maintained at the joint expense of those entitled to rights of way thereover so far as the Vendor can grant the same and over the pathway marked "X" and "Z" over the land coloured brown on the said plan such pathway to be maintained at the joint expense of the Purchasers and any others entitled to the like right to use the same..."

The filed plan shows the section of Headbolt Lane marked A and B as that part which runs north from 16 Headbolt Lane to New Cut Lane. "The pathway marked X and Y" is the western section of Carr Lane, with Mr and Mrs Banks' land to the north and Mr Swift's land to the south. Save for those sections, the whole of Carr Lane and the whole of Headbolt Lane to the Old Canal in the south are shown as lying within and forming part of Mr and Mrs Banks' title. The western section of Carr Lane is owned by Mr and Mrs Banks and by Mr Swift in equal parts to the centre of the lane. As the owners of what were the separate properties, West Crantum Farm and Boundary Farm, Mr and Mrs Banks would appear to own the entire length of Headbolt Lane from New Cut Lane to the Old Canal but ownership of half the northern section adjacent to 98 New Cut Lane is not entirely clear and has not been argued in this case.

35. There can in my judgment be no doubt that the express right of way enjoyed by 98 New Cut Lane over Headbolt Lane, which is contained in the conveyance dated 31 July 1953, is restricted to the northern section of the lane bounded by 98 New Cut Lane to the west. This is consistent with the rights enjoyed by West Crantum Farm as part of title number LA36870 over the same section marked A and B on the filed plan with that title. It is consistent with the obligation of the owner and occupiers of 98 New Cut Lane under the conveyance of lot 116 dated 31 July 1953 to pay "20 per cent of the cost of maintaining Headbolt Lane aforesaid so far as the same is co-extensive with the property hereby conveyed". It meets the need for the occupiers of lot 116 to have access to New Cut Lane. The easement granted was "all such rights of way as have hitherto been enjoyed by the owner and occupiers" of lot 116 but, despite Mr Campbell's suggestions to the contrary, there is no reliable evidence that Mrs Hillier or any other occupiers before the Campbells used anything but the northern section of Headbolt Lane.
36. In the course of his submissions Mr Campbell argued that 98 New Cut Lane has an express right of way over the entirety of Headbolt Lane and Carr Lane. He relied on the terms of the conveyance dated 31 July 1953 of lot 116 to Mrs Hillier. Clause 1 conveyed lot 116 together with the rights of way in the terms which I have already quoted and continued:

"subject to (a)...(b) (but with the benefit of) all the Vendor's liabilities and rights in any private or occupation road any watercourses, hedges, fences, wires and cables and other like matters leading to or adjoining the property hereby conveyed, (c)..."

Contrary to Mr Campbell's submission, this does not confer on the owner of lot 116 any right of way over any such private or occupation road. The provision is principally a reservation of rights to the vendor and the words "but with the benefit of" refer to the liabilities of the vendor. Similar reservations in a conveyance dated 18 February 1954 of West Crantum Farm likewise conferred no rights on the owners of lot 116 or 98 New Cut Lane.

37. I turn to the claim by Mr and Mrs Campbell to an equine right of way based on use. They accept that their use of the lanes has been contentious since October 2002 and that they must establish 20 years' use as of right and in right of 98 New Cut Lane from October 1982 at the latest, that is, nearly 4 years before their purchase of 16 Headbolt Lane and 6 years before their purchase of 98 New Cut Lane. They also accept that the gate at the exit of Carr Lane has been closed and locked since its installation by Mr Banks in 1999. This has therefore interrupted the use of any right of way since 1999, so requiring evidence of 20 years' use as of right from 1979. The difference between 1979 and 1982 is not, however, material on the evidence. Mr and Mrs Campbell did not commence proceedings within a year of the interruption of their use of the lanes and so cannot bring their claim under the Prescription Act 1832, but they can base their claim on the principle of lost modern grant. This is an issue which turns on the evidence of use put before the court.
38. The evidence on which Mr and Mrs Campbell rely to establish the requisite use of the lanes before their purchase of 16 Headbolt Lane comprises principally the evidence of Mark Donovan, Bernard Gittins, Peter Tinsley and Deborah Sale.
39. Mr Donovan has lived at 96 New Cut Lane, next to the Campbells' property at 98 New Cut Lane since 1972 or so. He is a sandblasting technician and most of his work is in Liverpool. He used also to be a competitive middle-distance runner and would use the lanes daily for practice. In his statement he said that if he was returning from work in Liverpool he would often drive along Carr Lane and Headbolt Lane up to New Cut Lane and that many times he would drive from his home down Headbolt and Carr Lanes. In oral evidence in chief he said that he frequently walked the lanes and at various stages he drove along the lanes to avoid the traffic on the roads. In cross-examination, he said that he would use the tracks when he fancied it. He had driven down Headbolt Lane "hundreds of times over quite a number of years".
40. Mr Donovan kept his car in the drive of his house. The easiest way of getting to Liverpool was to turn left on to New Cut Lane and left again at the traffic lights into Heathfield Road or further on into Liverpool Road. To go down the lanes would require turning right out of his drive across the traffic and then almost immediately right again, also across the traffic, into Headbolt Lane. Mr Donovan's evidence that he used this route to work in Liverpool hundreds of times was I consider, exaggerated to a significant extent. While he may well have used the lanes on some occasions, particularly in dry weather, I am not prepared to accept that it was anything like as regularly as he suggested. As will later appear, I also accept Mr Banks' evidence that he challenged anyone using a vehicle along the lanes. Any use by Mr Donovan would not of course assist in establishing a private right of way enjoyed by the Campbells as owners of 98 New Cut Lane.
41. Mr Donovan also said in his statement that he knew the Tinsleys when they owned 16 Headbolt Lane and the Ainscoughs when they owned 98 New Cut Lane and ran the piggery there. Both families, he said, used the lanes regularly both for their own vehicles and for delivery vehicles. In cross-examination, however, he accepted that Carr Lane, and therefore the stretch of Headbolt Lane in issue in this case, were used only infrequently. It would certainly be improbable that such vehicles would be driven along the lanes rather than the short distance up to New Cut Lane. Mr Donovan gave no evidence of any use of the lanes involving horses before the arrival of the Campbells.
42. Mr Gittins who is now 69 or 70 years old has lived all his life within 150 yards of the Carr Lane exit into Heathfield Road. For over 30 years he has walked his dog along the lanes. In his statement, he said that several times each week vehicles would pass him one way or the other. There were also constant meetings with horses. His oral evidence in chief, when asked how many times he saw vehicles and horses, was that he saw tractors on odd occasions and always to do with the farm, and horses on odd occasions. He said in cross-examination that he could not recall seeing any horses before the Campbells arrived in 1986 or any use by vehicles except tractors driven by Mr Banks and his workers.
43. Mr Tinsley purchased the property at 16 Headbolt Lane and built the house which now stands there, to which he moved with his family in 1974. He sold it in 1986 to Mr and Mrs Campbell. In his statement, he said that from day one in 1974 he frequently drove his vehicles along both the lanes to and from his property. He qualified this at the start of his oral evidence by saying that he drove down Headbolt Lane to New Cut Lane on a daily basis, but less frequently south down Headbolt Lane and along Carr Lane. He agreed in cross-examination that the former was by far the more common route that he took. He estimated that he took the latter route once or twice a month. There is a significant discrepancy between Mr Tinsley's written and oral evidence and I find that any driving down Headbolt Lane and along Carr Lane was very occasional. He did not give evidence of any use involving horses.
44. Mrs Sale lives at 94 New Cut Lane, two houses away from the Campbells. She lived there from her birth in 1965 until 1983 when she moved to Guildford Road before moving back to 94 New Cut Lane in 1990. She played along the lanes as a child and she has regularly walked along the lanes throughout her adult life. The evidence based on her direct knowledge is mainly of daily pedestrian use of the lanes by members of the public and farmers travelling between fields.
45. Mrs Sale also gave evidence of what she learned from her grandmother, Mrs Elizabeth Hillier who owned 98 New Cut Lane from 1932 to 1953. Mrs Hillier ran, she said, a market garden with livestock there. She took potatoes and other crops, and pigs, for sale at Preston market. Mrs Sale agreed that the obvious route for Preston was up Headbolt Lane to New Cut Lane. She gave evidence of photographs showing a tractor, horses and a trailer but I do not consider that this helps to establish any use of Headbolt Lane except at the north end. There was no suggestion of use by Mrs Hillier of Carr Lane. She remembers riding pillion as a child with her father on his motorbike down Headbolt Lane and along Carr Lane and turning round where there is now the gate. He did not go out on to the road because she was not wearing a crash helmet. This use would not establish a right of way because it was not use from one place to another nor was it, of course, in right of 98 New Cut Lane. There is no evidence that Mr Banks or his predecessors in title were aware of this, probably occasional, use of the lanes.
46. There are a number of other witnesses for the Campbells who give evidence in their statements of the use of the lanes in the years before 1986, but none mentions anything other than pedestrian use. None of these witnesses was required to give oral evidence. Mrs Rhona Houghton, who has lived at Guildford Road for 37 years, gives evidence that from her bedroom she can see the full length of Carr Lane and part of Headbolt Lane and that every day she has seen people walking there, 10 to 15 on weekdays and double the number at weekends. She gives no evidence of seeing horses or vehicles on the lanes. Linda Dewhurst lived close to Carr Lane from 1974 to 1985, regularly walked dogs along the lanes and was one of many using this walk, but she mentions no use by horses or vehicles. Lorraine Tinsley, Peter Tinsley's cousin, regularly walked along the lanes from 1972 to 1990 and passed many different people in both directions, but gives no evidence of use by horses or vehicles. Mrs Deborah Wilkins has regularly walked along the lanes since about 1976 but does not mention any horses or vehicles. For 35 years, Mrs Sandra Jackson has been walking the lanes daily, or more recently three or four times a week, and mentions only the Campbell's horses and vehicles.
47. Finally, I should mention that Mr Campbell gave evidence in a witness statement that in 1956 he and some friends bought a car and learned to drive along the lanes, but he agreed in cross-examination that this was no more than a couple of hours one day. He also agreed that his evidence that both lanes had been used by the public as rights of way for at least his lifetime was just supposition.
48. Mr and Mrs Banks called or provided statements from a number of witnesses who were able to give evidence of the use made of the lanes before 1971 when Mr Banks became the tenant of Boundary and West Crantum Farms.
49. Diane Fletcher lived with her mother and grandparents at West Crantum Farm from 1940 when she was born to 1957. She could remember only farm vehicles using Headbolt Lane. Edwin Brooksbank's father was the tenant of Boundary Farm from 1939 to 1948. For much of that time, Mr Brooksbank was away on active service in the army, but he remembers that there was a post and wire fence which ran down the westerly boundaries of the pastures, which were on the eastern side of the farm. The wire ran across Carr Lane and prevented any vehicles or horses from using the lane. Arnold Yates, whose evidence was not challenged, has lived at 1 Heathfield Road since 1953. He remembers that when Mr Beaumont farmed at Boundary Farm, there was a gate, not at the exit of Carr Lane to Heathfield Road but slightly further down the lane, which prevented any vehicles using the lane. It was an overgrown track and nobody walked down it. When Ivan Bennett took over Boundary Farm, he put a gate at the Carr Lane exit and, after one occasion when cattle escaped he made it more secure with barbed wire. Geoffrey Blundell, whose evidence was not challenged, lived as a boy in Guildford Road from the mid-1950s to the early 1970s and gives a similar account of a locked gate at the end of Carr Lane.
50. Mr Banks accepts that he did not keep the gate at the end of Carr Lane locked after he became the tenant of Boundary Farm in 1971, until he installed a new gate in 1999. The old gate had either fallen into a state of disrepair or had disappeared. As regards use of either lane, he rejected any suggestion that there was any use by horses until after the Campbells' stables opened. He always tried to deter anyone driving along the lanes. If he saw any unauthorised vehicle, he would, if he was able, tell the driver to get off the land. I accept this evidence.
51. Overall, the evidence is wholly insufficient to establish use of the lanes by vehicles or horses before 1986 and in particular between 1979 and 1986, such as to establish a right of way. Such use by vehicles as there may have been was occasional and sporadic and was never acquiesced in by Mr Banks. On the contrary, he objected whenever he could. Furthermore, there is no evidence of use before 1986 to establish a right of way in favour of the owners of 98 New Cut Lane, beyond the express right of way in the conveyance dated 31 July 1953.
52. A claim by Mr and Mrs Campbell to a private equine right of way based on 20 years' use must therefore fail.
53. Mr and Mrs Banks also gave evidence that Mrs Campbell, and perhaps Mr Campbell, had asked for permission to use the lanes. If this was the case, it would provide a further ground on which to reject the claim to a private way of right. While they did ask permission to go through the gate at the end of Carr Lane after it was locked and to ride on the stubble on the fields, I do not accept that they asked for permission to ride on the lanes and I think that Mr and Mrs Banks are confused on this. As Mr Campbell pointed out, his reaction to the erection of gates on Headbolt Lane was entirely inconsistent with any belief on the Campbells' part that they needed permission to ride out on the lanes.
54. Any claim to use Headbolt Lane or Carr Lane as a bridleway or carriageway based on dedication under s.31 of the Highways Act 1980 in the last 60 years or so is unsustainable in the light of the evidence of the witnesses of fact.
55. The claim of Mr and Mrs Campbell to a public equine right of way rests principally on three matters. First, in the Tithe Map for Halsall dated 1843, Headbolt Lane was shown as extending from its junction with New Cut Lane as far as what is now the Old Canal and then proceeding in a south-easterly direction. It is not shown as joining any other road or lane. It is numbered 57 and shown in the Apportionment dated 1844 as a lane owned by the Township of Halsall and occupied by the Surveyors of the Highways, as were a significant number of other roads and lanes. Carr Lane is also shown, in two parcels described as a lane and as pasture, both owned by Charles Scarisbrick and subject to a lease in the name of James Harrison who had sub-let to the farmer of the adjoining land. Mr and Mrs Campbell submit that the ownership and occupation of Headbolt Lane indicate that it, at any rate, was a public right of way.
56. Secondly, the minutes of the Halsall Parish Council between 1928 and 1944 record suggestions that Headbolt Lane and Carr Lane were or might be public rights of way. In 1928 a request was received from the West Lancashire Rural District Council for a list of all footpaths and rights of way in the parish. A list was prepared and sent to the District Council, which did not include either Headbolt Lane or Carr Lane. However, in 1937 it was resolved that pedestrian use of five lanes, including Headbolt Lane, be investigated with a view to showing that they were public rights of way. It later appears that some of these lanes, but not including Headbolt Lane, were put forward to the District Council as public rights of way. In 1944 the Parish Council resolved to send a letter to Lancashire County Council claiming a vehicular right of way over Carr Lane. It would appear that the County Council rejected the claim.
57. Thirdly, from 1950 steps were taken in relation to the preparation of the definitive map of public rights of way as at 1 January 1953, required by the National Parks and Access to the Countryside Act 1949 (the 1949 Act). County Councils were required to consult with district and parish councils and the official advice was to include in the draft map all paths likely to come forward for serious consideration. Both Headbolt Lane and Carr Lane were identified as footpaths on the parish survey map of Halsall. The draft map prepared by the County Council included Headbolt Lane from Segars Lane to New Cut Lane as a "footpath" (written in manuscript and replacing "road used as public path") but did not include Carr Lane. An objection was lodged to the inclusion of Headbolt Lane. It was upheld by the County Council and Headbolt Lane was removed from the draft map. In 1958 the Ramblers Association formally objected to the deletion of a number of footpaths, including Headbolt Lane. There are no further documents in evidence relating to this objection but it must have been abandoned or rejected because the Definitive Map and Statement for West Lancashire, when published in 1962, did not include Headbolt Lane (or Carr Lane). Neither lane was included in the first review of the Definitive Map published in 1975, and no subsequent application has been made for the inclusion of either lane.
58. The 1949 Act and its successors have provided a statutory procedure for establishing the existence of public rights of way not included in the Definitive Map and Statement. This involves the appointment of an inspector if there appears to be a reasonable basis for the claim, a public inquiry at which all interested parties including members of the public may give evidence and make representations, and a right of appeal to the High Court.
59. The existence of this statutory procedure does not appear to oust the jurisdiction of the court to determine whether an alleged public right of way exists. It does, however, serve to emphasise the need for all necessary parties to be before the court.
60. In my judgment, the claim of Mr and Mrs Campbell that there is a public right to use Headbolt Lane and Carr Lane as a bridleway must fail, for two reasons. First, parts of both lanes are owned by persons who are not parties to the action. Mr Swift owns half of the western section of Carr Lane. The section of Headbolt Lane south of the Old Canal runs across a farm of which David Wilkinson is the tenant. I do not know who owns the freehold title to the farm. A claim that Headbolt Lane is a public right of way must extend to its full length. The court could not properly make a declaration that either of the lanes is a public right of way without all the freehold, and probably leasehold, owners being joined to the action.
61. Secondly, the evidence on which Mr and Mrs Campbell rely comes nowhere near persuading me that there are public rights of way over either lane. The events relating to the preparation of the Definitive Map and Statement suggest strongly that there are no public rights of way. The inclusion of the lanes did not progress far and both were put forward only as footpaths, not as bridleways or carriageways.
62. The best point for Mr and Mrs Campbell is the record of ownership and occupation of Headbolt Lane in the Tithe Map and Apportionment. It is, however, insufficient for their purpose. First, care is needed in the use of old maps and records. Mr and Mrs Campbell hoped to be able to put forward an expert's report but in the event were able only to produce a report of the incomplete researches of a well qualified and experienced historical researcher who was unable to attend the trial to give evidence. The defendants produced a report by a well qualified expert who did give oral evidence. A pre-trial direction meant that his report was admissible as evidence of facts stated in it, but not expert opinion. Nonetheless, Mr Campbell cross-examined him and his evidence did not support the claimants' case.
63. Secondly, Headbolt Lane was shown as in the ownership of the Scarisbrick family by 1872, which calls into question whether the record of ownership and occupation in the Tithe Map and Apportionment can be relied on in support of a claim to a public right of way. If it was a public right of way, it is difficult to see why the local authority would have given up ownership.
64. Thirdly, there is no evidence that, if there was a public right of way along Headbolt Lane, it was anything more than a footpath. There is no evidence to support its use as a bridleway. The incomplete report produced by Mr and Mrs Campbell's expert suggested that Headbolt Lane may originally have led to communal turbaries and he continued, "this would require further investigation but I would think that here there may be potential evidence of use by vehicles, since carts and sleds could well have been used for the conveyance of the peat". This is clearly insufficient to establish a bridleway or carriageway, as is Mr Campbell's unsupported suggestion that it must have been used at least as a bridleway because before the construction of Liverpool Road it was the shortest route from Halsall to Liverpool.
65. It follows that the claim of Mr and Mrs Campbell to any equine (or vehicular) right of way over Headbolt Lane or Carr Lane, except as accepted by Mr and Mrs Banks over the northern section of Headbolt Lane, fails.
66. Mr and Mrs Campbell have also claimed damages in respect of loss to their stables business caused by the defendants' harassment of clients of the business. In the re-amended particulars of claim, quoted earlier in this judgment, the allegation is that the defendants "have both individually and or acting in a joint enterprise with a common purpose, attempted to prevent and or prevented the public and or horse riders from passing and or re-passing along Headbolt Lane and or Carr Lane by harassing and or intimidating said persons without lawful justification and in particular the First Defendant harassed and or intimidated Ann Ormerod while riding her horse along New Cut Lane in the full knowledge she was a livery customer of the Claimants." It is alleged that these actions have caused loss and damage to the stables business by causing existing customers to leave and deterring prospective customers from placing their horses with the stables.
67. Apart from the pleaded incident involving Ann Ormerod, to which I shall return, evidence was given of two incidents, both occurring on the lanes. In one, in 2002 Lesley Flannery, then aged 19, was riding her horse along Headbolt Lane towards the stables having been on a hack down the lane. In her statement she said that she saw a 4 x 4 vehicle approach from the direction of New Cut Lane. "The vehicle came right at me. My horse, who is a bit frisky anyway, reared up and almost threw me". The vehicle was driven by Andrea Baybutt, who leant out of the window and said, according to Lesley Flannery, "This is private property and you shouldn't be on here. If I catch you on here again I will knock you off that horse." Lesley Flannery's mother found her in tears at the stables shortly afterwards and, according to her mother "she advised me that she had been deliberately forced off the track by Mrs Baybutt."
68. In her oral evidence, it emerged that Lesley Flannery had taken her horse off the lane and down the bank to the edge of the field, and that she was there when Mrs Baybutt told her that she was on private property. The evidence of both witnesses is essentially the same on this point, and I accept the evidence of Mrs Baybutt that she did not drive down the embankment or come close behind Lesley Flannery's horse. I find that Mrs Baybutt was doing no more than quite properly asserting, no doubt in strong terms, that the fields were private property on which Lesley Flattery had no right to be. No harassment or intimidation was involved.
69. The other incident involved Katy Burgess-Cox, who was then still at school and kept her pony at the Alamo stables. In her statement, she says that after the gate was put up on Headbolt Lane but while it was still unlocked she continued to ride along the lanes. Some days later, Mrs Baybutt in her 4 x 4 vehicle stopped her while on her horse and told her to keep to the tracks and not to go on to the fields, "which I would not do anyway". Mrs Baybutt could not remember this incident but there is nothing in it which could amount to harassment or intimidation. A week or so later, she says, she was followed and stopped by Mr Banks in his 4 x 4 vehicle while riding along the lanes. He told her that she was trespassing, that he had called the police and that she was not allowed to use the lanes any more. Katy Burgess-Cox was unwittingly trespassing by riding along the lanes and Mr Banks was entitled to tell her so and to tell her that she could not do so in the future. There was again no harassment or intimidation in this.
70. This leaves the incident involving Ann Ormerod. Although she signed a witness statement as a witness for Mr and Mrs Campbell, she told them in late 2008 that she was not prepared to give evidence in court. Mr Campbell believed that she had been intimidated from giving evidence voluntarily. In fact she did give oral evidence. She was a straightforward and impressive witness and, having heard her evidence, I am satisfied that she was not the subject of threats or intimidation of any sort to deter her from giving evidence.
71. Mrs Ormerod said that she had signed her statement without reading it properly and parts of it were wrong. However, she confirmed those parts of the statement which gave an account of an occasion when riding on the lanes Mrs Banks drove her 4 x 4 vehicle very close to the back of her horse and there was a sharp exchange between them. She carried on into New Cut Lane where she was followed by Mr Banks in another 4 x 4 vehicle, which she found intimidating.
72. In her statement, Mrs Ormerod said that it was because of these incidents that she removed her horses from the Alamo stables. However, she rejected this in her oral evidence and said that they had nothing to do with her decision to leave the stables. She said that she left because the facilities were poor and she was able to rent six acres from the local authority. I accept this evidence. Whatever possible claim, if any, that Mrs Ormerod might have had against Mr and Mrs Banks in respect of these incidents, there is no basis for a claim by Mr and Mrs Campbell who, apart from any other consideration, cannot show any loss to themselves resulting from the incidents involving Mrs Ormerod.
73. The incidents involving Lesley Flannery and Katie Burgess-Cox provide no basis for a claim by Mr and Mrs Campbell against the defendants, whether for the tort of conspiracy or unlawful interference with their business or otherwise. The claim for damages is therefore dismissed.
74. There are two final matters to mention. First, I specifically reject the allegations of lying made against Mr and Mrs Banks by Mr Campbell in his closing speech.
75. Secondly, there was some, but largely inadequate, evidence of loss of profit to Mr and Mrs Campbell as proprietors of the Alamo Stables. Almost the entire trial was taken up with the issues relating to the rights of way. If I had held that Mr and Mrs Campbell established a right of way, I would have directed a further hearing on the question of financial loss. In the event, however, that is unnecessary.