England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/02/2006

Mr Justice Nelson :

1. This is an application by the Claimant, Dr James Buxton, for an interim injunction against the Defendants requiring firstly that all building activities on the land which he asserts is his, and on the land over which he claims a pre-emptive right to buy, should cease, and secondly that all buildings and structures on or encroaching on his land should be removed. At the hearing before me on 16 February 2006 Dr Buxton informed me that the houses had now been effectively completed and that therefore this was no longer in any part an application for a prohibitory injunction, but now solely for a mandatory injunction requiring the demolition of the four houses which had been erected so as to encroach upon his land or the land over which he has an option to buy.
2. The boundary dispute which is at the heart of this matter has engaged the Courts over many years. Dr Buxton purchased Stanton High Cottage, Bradville, Milton Keynes by conveyance of 15 June 1976 from Milton Keynes Development Corporation. Dr Buxton who is, amongst other things, an economist, a corporate planner, an urban development planner and a management consultant, was an employee of the local authority at Milton Keynes for much of the time of this dispute.
3. The boundaries of the property were negotiated and agreed by the parties and that agreement was incorporated in the plan attached to both the contract of sale and the conveyance. Within two or three years of the sale however Dr Buxton states that staff of the Milton Keynes Development Corporation (MKDC) redrew the boundaries of Stanton High Cottage with a view to preparing the adjoining sites 1 and 2 for sale. Dr Buxton took proceedings, he tells me, in 1980 and obtained a High Court injunction against MKDC and staff between 1980 and 1981. The Court documents show that in 1981 Dr Buxton commenced proceedings against MKDC in the Chancery Division claiming a declaration as to his boundaries, restitution of his property, replacement of shrubs, plants and trees and specific performance of, amongst other things the conveying of the area of land, originally occupied by a television aerial, over which he had the right to buy. On 7 August 1981 the Defendants' application to strike out his claim was stayed until the costs awarded against Dr Buxton in the Bletchley and Leighton Buzzard County Court were paid. Further proceedings were commenced in the High Court in 1993 against the Commission for the New Towns and when those proceedings were adjourned on 14 December 1993 to a special appointment the Defendants undertook not to enter the Plaintiff's property or in any way interfere with or damage a wall thereon.
4. When the dispute came before Judge Connor at Milton Keynes County Court on Friday 24 June 1994 he set out in his judgment that he was trying, at the same time, two actions. The first one, commenced on 12 September 1980 by Dr Buxton against MKDC, alleged intrusion upon his land with a counterclaim by MKDC asserting that the land belonged to them and that Dr Buxton had by the erection of walls, fences and other structures upon it trespassed upon their land. That claim, and indeed the whole action, was struck out on 8 April 1981 but the counterclaim by the MKDC was reinstated on 2 July 1981. The second action was commenced by the Commission for New Towns who were the statutory successors of MKDC, on 23 June 1993 seeking very similar relief to that sought in the County Court clam in the first action with additional acts of trespass.

The hearing before His Honour Judge Connor on 24^th June 1994

5. The Judge found that the outcome of the pre-contract negotiations about boundaries in 1976 resulted in a plan which was annexed to the contract and in due course replicated on the conveyance. The Judge states in terms that the original of the plan annexed to the contract and conveyance was produced to him, which Dr Buxton told me was incorrect. The Judge found that the land which was conveyed was shown edged in red on the plan annexed to the conveyance and any question which arose as to the extent of the boundaries of the land conveyed had to be decided in relation to that plan, and 'that unless one is concerned with differences of an inch or two, such as may fall within the width of the lines drawn on this plan, there is no difficulty in deciding precisely where these boundaries are or ought to be.'
6. The Judge heard evidence from two witnesses on behalf of the Commission for New Towns, and from Dr Buxton. Mr Lloyd, a land surveyor employed by the Commission, surveyed the boundaries of the property in 1992, marking the position of the walls and fences which Dr Buxton had erected on the land on a 1 in 200 scale plan which was reduced to a 1 in 500 transparency. His Honour Judge Connor found that if the 1 in 500 transparency was laid over the conveyance plan one found that the chain link fence erected on the north side of the property was a substantial distance to the north of the boundary as shown on the conveyance plan, the wall on the south of the property was to the south of the land shown on the conveyance plan and the wall on the eastern boundary was on the land over which Dr Buxton had an option to buy but which he had not exercised as he had not completed the purchase by conveyance.
7. Dr Buxton asserted that the true boundaries were found on the plan which he produced at the court marked 'Original Contract Map' rather than the plan which the Commission had produced as that being attached to the conveyance. The reason for the difference in the boundaries which he alleged and those which the Commission alleged, was due to the fact that the employees of MKDC had redrawn the boundaries. The Judge however found that the plan produced by Dr Buxton differed in no material respect to the conveyance plan. It was not quite a perfect copy of the conveyance plan but it bore a close resemblance to it. He rejected Dr Buxton's case that the land he occupied and upon which the fences and walls had been erected was land which had been conveyed to him by MKDC. The Judge said:-

"I am sorry to say that I do not accept that. First of all, in as much as anything turns on it, I do not accept Dr Buxton as being a witness upon whom I ought to rely. His evidence appears to me to be devious and inconsistent. I do not accept Dr Buxton as a witness of truth.

But it seems to me also, with respect to him, that it matters not, because what, as I understand it, he has been seeking to persuade me is that the boundaries of the land are not those shown on the plan and that there are, in fact, different boundaries. He seeks, thereby, to urge me to find that the Development Corporation in effect agreed to convey, or did in effect convey more land than is shown on the plan.

I have already made clear what I find to be the proper construction of the conveyance. The plan on the conveyance is wholly conclusive as to the extent of the land conveyed. In as much as the Defendant admits that the walls and fences are outside the extent of that land, then they are trespassing. I find that to be the case."

8. The Judge rejected Dr Buxton's evidence that the northern boundary should run through the centre of a forty foot wide strip of hedge, which is where he had erected his fence. The Judge said that he did not accept that 'for one moment'. The Judge declared that the boundaries of the property were as shown on the 1 in 500 scale plan which was intended to be a replication of the plan on the conveyance. He also ordered Dr Buxton to remove the chain link fence to the northern side of the boundary and the wall on the southern side of the boundary. As to the land over which Dr Buxton had an option to buy and upon which there had formerly been a television mast, the Judge said that the only obstacle to the completion of that transaction was the failure of the parties to agree the extent of the land conveyed. He hoped that his declaration would resolve the issue and that the transaction could now be completed. Accordingly he ordered that in the event of Dr Buxton not acquiring the land within a period of three months he should within 28 days thereafter remove the walls he had erected on the land which, as the Judge had found was the Commission's land.
9. Dr Buxton was very aggrieved by this decision. He had asked for an adjournment at the outset of the trial in order to be able to marshal his papers and consider the other side's case fully but the Judge had declined that application. As a consequence, Dr Buxton says that he was very hesitant in giving some of his answers on, for example, the contents of letters written some eighteen years ago which he had not had an opportunity to reconsider, and the Judge wrongly considered that hesitancy to be an instance of deviousness. Dr Buxton told me that he considered the trial before His Honour Judge Connor to be not merely wrong in its conclusion, but unfair, hostile and racist. He told me that he felt during the proceedings that he was being mocked and insulted by the Claimants.
10. Dr Buxton appealed to the Court of Appeal against the decision of His Honour Judge Connor but the Court of Appeal dismissed that appeal on 16 November 1995. Dr Buxton has told me that the Court of Appeal only had the core bundle before them and did not therefore have all the documents they should have had to have fully understood the case. Dr Buxton sought to petition the House of Lords but his application for leave to present the petition was dismissed by the Appellate Committee of the House of Lords on 19 December 1996.

The development of the sites adjoining Dr Buxton's land.

11. The Second Defendant is a housing association. Planning permission was granted for the erection of twelve houses on the sites adjoining Dr Buxton's land on 23 December 2004. Dr Buxton objected to planning permission on grounds which included the assertion that part of the land upon which permission was being sought was his and that MKDC had redrawn the boundaries on a plan in order to usurp his land.
12. Dr Buxton wrote to the Lord Chief Justice about His Honour Judge Connor's decision and received a letter from the Lord Chief Justice's office which he told me suggested that he embark upon Judicial Review of the decision. He took that step on 7 January 2005. Shortly after that on 4 March 2005 site 1 to the north of his property was transferred by the Commission for New Towns trading as English Partnerships to Bedfordshire Pilgrims Housing Association, the Second Defendant. On 15 July 2005 site 2 to the south of Dr Buxton's property was transferred by the Commission for New Towns trading as English Partnerships to the Second Defendant.
13. On 2 September 2005, after building work had commenced, Dr Buxton applied for an order that English Partnerships and its associates should cease building as they had encroached on to his land. That application was dismissed by Mr Justice Tugendhat on 9 September 2005 and Dr Buxton was ordered to pay English Partnerships' costs. In October 2005 Dr Buxton's application for permission to seek Judicial Review was dismissed and on 12 December 2005 his application for permission to appeal the decision of Mr Justice Tugendhat was also dismissed. It should be noted that English Partnerships were neither the owners of nor had any interest in the land after it had been transferred to the Second Defendant.
14. Dr Buxton also sought the advice of his MP as to how to overturn His Honour Judge Connor's decision. He was given wrong advice about the time he had available to make an application to the European Court of Human Rights with the result that when he did make such an application it was dismissed because it was too late.

The present proceedings.

15. This application for an interim injunction was sought against M J Hillson and Associates (English Partnerships, Bedfordshire Pilgrims Housing Association, Avebury Company). M J Hillsons are the contractor undertaking the building of the houses, Bedfordshire Pilgrims Housing Association are the owners of the land developing it and Avebury the appointed consultants. I granted the application of Bedfordshire Pilgrims Housing Association to be joined as Second Defendants at the commencement of these proceedings.
16. Dr Buxton put before me a substantial volume of submissions in writing made for the purposes of these proceedings and other stages in the litigation he has pursued in relation to this matter. He made oral submission to me which were presented with clarity and courtesy throughout. Dr Buxton is an articulate and able man. He feels that a considerable injustice has been done. A fundamental mistake was made, he submits, by His Honour Judge Connor, which no appellate court has fully or properly considered and hence been able to remedy. Dr Buxton did not seek to disguise the fact that the heart of his complaint remains the same, namely that His Honour Judge Connor's decision was wrong and that he failed, as others have failed, to appreciate that the employees of MKDC sought by fraud and deception to redraw the boundaries of the property so as to usurp land which had already been sold to him.
17. The Second Defendant submits that Dr Buxton is bound by the declaration made by His Honour Judge Connor as to the boundaries, the judgment is unimpeachable and conclusive as between Dr Buxton and the Second Defendant, a subsequent purchaser from the party to the litigation before His Honour Judge Connor when the boundaries were declared. These proceedings are in the circumstances an abuse of process the Second Defendant submits.
18. I am conscious of the fact that Dr Buxton feels that his case has never been considered properly on the merits and that the degree of injustice done to him is such that whatever the procedural niceties, the matter should be reopened and fully explored. I have in these circumstances sought to consider the merits of Dr Buxton's case as he presented it to me and have, in spite of the dismissal by the Court of Appeal of Dr Buxton's appeal against it, considered the judgment of His Honour Judge Connor in detail. I have therefore considered the documents described by Dr Buxton as the 'Original Contract Map' as well as the 1 to 500 transparency created on 18 June 1994 by the Commission for New Towns as well as the plans produced during the course of the negotiations to purchase the property in 1976. I have compared these documents with those which are appended to His Honour Judge Connor's order following his judgment on 24 June 1994 namely two plans, firstly plan 'A' a replication of the plan on the conveyance which shows the boundaries as declared by the Judge and secondly the plan which was prepared on behalf of the Commission for New Towns and marks the position of the fences and walls erected by Dr Buxton in relation to the boundaries. The second plan was based on an ordinance survey.
19. During the course of his submissions Dr Buxton brought to my attention the various plans in the Judicial Review bundle at pages 32, 33, 34, 35, 36 and 37 (or in the Claimant's own numbering 17, 18,19,20, 21 and 22). These plans were all drawn up during the course of negotiations for the purchase of Stanton High Cottage save for the last at B2 37 which is an engineers drawing which Dr Buxton said shows the ditch in the centre of the hedge on the northern boundary. This was effectively the boundary marker and it was on his side of this ditch that he erected the fence. Dr Buxton points to a petition signed by local counsellors together with a letter from a local cleric who support his description of the positioning of his boundaries.
20. The clearest description of Dr Buxton's case is set out at paragraph 29 of the document he produced for the purposes of his Judicial Review application. This states that the conveyance contract was tampered with by staff of the Commission for New Towns and the solicitors of Denton Hall by:-

"(1) removing the map which defined the boundary with 'T' marks and substituted one which does not show them, thereby

(2) obliterating the 'T' marks,

(3) obliterating 'hedge and trees' which marked the boundary on the northern side of the Claimant's property,

(4) widened the boundary lines to reduce the size of the plot by measuring only to the inner perimeter of the boundary

(5) claiming by reducing the area of the Claimant's property through widening of the boundary lines, that the Claimant had encroached on CNT land, and the result of all these deceptions, lies and fraud was that CNT obtained judgment against the Claimant, and an order to knock down the Claimant's walls and to cut up the chain link fence inside the hedgerow on the northern side of the Claimant's property."

21. Dr Buxton told me in his submission during the course of this application that the vegetable garden which he had created along the northern boundary was within his land, that the widening of the line and then taking the measurements from the inner perimeter had deprived him of some ten to twelve feet width of land simply by that process. There were problems about the sharing of the drive. The kink on the south side was to be straightened out but there was difficulty in achieving this. As to the land with the television mast upon it he had purchased this land absolutely but was prevented from exercising his right to buy. He told His Honour Judge Connor that he thought his solicitor had told him that a conveyance had in fact been sent in relation to this particular piece of land but was unable to produce any document or evidence which indicated that this was the case. His Honour Judge Connor specifically rejected his evidence upon this issue.
22. Dr Buxton made it clear to me that the employees of MKDC or the Commission for New Towns had sought to dishonestly redraw the boundaries. There was no need for drawings to be produced in 1992/1993 and the only purpose of doing so was to create a fraud or deception. Mr Lloyd, the surveyor employed by the Commission, had told His Honour Judge Connor that he had produced his scale plan to show the position of the Claimant's fence and walls in relation to the boundaries shown on the conveyance. The Judge accepted his evidence.
23. At one stage, Dr Buxton submitted, the Commission was only alleging a very minor encroachment as can be seen marked in orange on a plan that Dr Buxton handed to me. In spite of that the Commission alleged much more substantial encroachment when the matter came to court. It was the Commission and their witnesses who were the liars not him. Lord Justice Kennedy and Mrs Justice Hale when giving him a stay of execution in the Court of Appeal recognised that he had a point yet he had not been able to obtain any legal representation as he had no funds.
24. I have examined the 'Original Contract Map' upon which Dr Buxton bases his case. This is the same plan as is shown as the plan attached to the contract in bundle 2 page 43 (the same as the plan on page 10 of the Claimant's original bundle). I have compared this with the plan which the Judge found was the conveyance plan and which he in his order marked as plan 'A'. The transparency which was put before me dated 18 June 1994 is an almost exact replication of the plan marked as plan 'A'. When the transparency is laid over the Original Contract Map it can be seen that the plans are the same, save in two respects; firstly the boundary lines are drawn wider and secondly the western boundary line is different, and shows the Claimant as having less land than on the Original Contract Map. The western boundary however of the Claimant's land in relation to the western boundary of the sites to the south of his land is the same on all the plans. There is in fact no dispute between the parties, nor was there before His Honour Judge Connor in relation to the western boundary. The northern, southern, and eastern boundaries, that is those in dispute, are all marked in the same position on each of the plans.
25. Whether one takes the Original Contract Map, or the conveyance map the fence and wall erected by the Claimant are clearly outside his own boundaries.
26. Having now considered the documents put before me I can see no proper basis upon which His Honour Judge Connor's declaration as to the boundaries can be challenged. He had the original conveyance plan before him, he compared it with the contract plan and the transparency and came to conclusions which cannot be challenged. It is a matter of considerable regret that Dr Buxton should have found the trial process unfair but the Judge heard the witnesses and credibility was a matter for him to determine. Those findings cannot now be challenged. He was satisfied that Dr Buxton had erected fences and walls on land which did not belong to him and this appears to be correct on the Claimant's case as presented to me even in this application. For example, the fence on the north side of the property is well to the north of the northern boundary of the Claimant's property whether that be judged by the Original Contract Map or plan 'A' or indeed any of the plans used in the course of negotiations.

Was the judgment of His Honour Judge Connor binding on Dr Buxton?

27. In order to establish that the judgment is not binding upon him the Claimant must establish that the judgment:-

i) Was not final or;

ii) It was not on the merits; or

iii) It was without jurisdiction; or

iv) It was obtained by fraud or collusion. (Phippson on Evidence 16^th edition chapter 44.04 to chapter 44.08)

28. There can be no doubt that this was a final judgment, that is one which could not be varied, reopened or set aside by the court that delivered it or any other court with the same jurisdiction apart from on appeal to a court of higher jurisdiction. The decision was appealed but the appeal dismissed and the petition to the House of Lords refused. Dr Buxton sought to contend that the judgment cannot be regarded as final because his application for an adjournment was improperly refused. Such a decision was however within the discretion of the Judge and the refusal of such an application, once unsuccessfully appealed, cannot prevent the decision from being final.
29. It is also clear that the court had jurisdiction to grant the declaration and make the other orders and that the matter was heard on the merits. Indeed the points which Dr Buxton made to His Honour Judge Connor were essentially the same as he made to me though it may be that over the years the assertion that the boundaries were redrawn may have gathered more vehemence.
30. The allegation of dishonest redrawing of the boundaries is at the heart of Dr Buxton's complaint. The judgment, he alleges, was obtained by fraud or collusion on the part of the Commission for New Towns and their employees. It is a well established principle that in civil cases a decision which would found an estoppel and amount to res judicata can be impugned if it was obtained by fraud. The unsuccessful party who has been sued to judgment is not however permitted to challenge that judgment on the ground that it was obtained by fraud 'unless he is able to prove that fraud by fresh evidence which was not available to him and could not have been discovered with reasonable diligence before the judgment was delivered.' (Owens Bank Ltd v Bracco [1992] 2 AC 443). Here, the Judge heard Dr Buxton's evidence that the boundaries had been redrawn by the Commission for New Towns or their employees or indeed their predecessors MKDC and rejected it. The appeal was dismissed and the petition to the House of Lords was refused. Dr Buxton has not sought to place any fresh evidence before the Court nor does he assert that he has any such evidence. He relies essentially upon his own evidence and that of the inferences which he said should be drawn from the documents. The difficulty facing him is that the Judge considered his evidence and rejected it. He preferred the evidence of the Commission's surveyor and considered that his evidence as to the position of the boundaries was correct. There is no proper basis upon which Dr Buxton can now reassert that this judgment was obtained by fraud nor has he produced any fresh evidence to claim that this is so.
31. This application concerns the same cause of action and involves the same points which were made or might have been made in front of His Honour Judge Connor. The same issues as to the position of the boundaries, the alleged encroachment, the walls and the position of the chain link fence which are challenged today were all dealt with in His Honour Judge Connor's judgment. I therefore conclude that the declaration as to boundaries made by His Honour Judge Connor is binding upon Dr Buxton.
32. The judgment is not only binding upon the parties to the litigation but also their privies. A privy includes a privy in estate or interest such as a vendor and purchaser. The title must be the same in both actions and the purchaser must have acquired the interest subsequent to the judgment in the earlier proceedings. Wiltshire v Powell & others [2004] EWCA Civ 534 at paras 14 and 18. Here, the title is the same and the Second Defendant acquired their interests after His Honour Judge Connor's judgment in March and July 2005. I conclude therefore that the Second Defendant is a privy of the Commission for New Towns and that Dr Buxton and the Second Defendant are bound by the declaration made by His Honour Judge Connor. The policy behind such a rule is to bring finality to proceedings. The consequence is that Dr Buxton cannot in this application challenge His Honour Judge Connor's finding as to the location of the boundaries as declared by the court in June 1994.

Abuse of process.

33. The Second Defendant submits that in these circumstances the bringing of these proceedings is an abuse of process. The present application is a collateral attack upon His Honour Judge Connor's decision, all avenues of appeal having been exhausted, and is therefore an abuse of process. The application should therefore be struck out under the inherent jurisdiction of the Court or under CPR 3.4 on the grounds that either it discloses no reasonable cause of action or alternatively it is an abuse of process.
34. Dr Buxton submitted to me that there was no abuse of process here as he had sought the advice of the Court on every stage of the proceedings he had brought. It is the Defendants who have abused the Court processes. I regret that I cannot accept Dr Buxton's submissions. The repeated re-litigation of the same issues before the Court because the litigant cannot accept the decision of the Court does amount to an abuse of process. This is so however strongly the litigant, as Dr Buxton does here, asserts a moral right to pursue his view of justice and hence the proper outcome of the proceedings.
35. It might be argued that separate considerations apply to the triangular section of land at the north east corner of the property over which Dr Buxton had an option to purchase. He told me during the course of his reply that he did not think that he needed to put in a conveyance in order to secure this property and relied upon the letter from MKDC of 16 June 1977 (B2 49) where the solicitor's department of the Corporation noted that the aerial had now been removed and that if Dr Buxton cared to submit a draft conveyance for the additional land they would be happy to approve it. The letter concluded by confirming that 'the land is included in the same title as the premises previously conveyed'. The letter made it clear however that a conveyance was required as the option itself stated. The option read as follows:-

"The vendor shall also sell to the purchaser all that piece or parcel of land edged blue on the said plan for the sum of £0.05p completion of such sale to take place within three months of the removal of the television aerial on the said land or within eighty years of the date hereof which ever shall be the earlier (the said period of eighty years being the perpetuity period). All the conditions of the contract shall relate to the said sale apart from special conditions 1, 2 and 7."

36. Dr Buxton also told me that his solicitor had thought of submitting a claim for specific performance but did not do so as Dr Buxton was still employed by Milton Keynes.
37. The option to purchase had not been exercised by Dr Buxton within the requisite period of three months from the date of the removal of the television mast but that point was not pursued in Milton Keynes County Court and His Honour Judge Connor ordered that he should have a period of three months in which to acquire the land by conveyance. As he was not content with the boundaries delineated by His Honour Judge Connor, Dr Buxton did not do so and thus the land remained in the ownership of the Commission for New Towns and its successors. In these circumstances Dr Buxton having chosen not to acquire the land by conveyance the option to purchase has lapsed and he has no further rights under it.
38. I conclude that the appropriate course of action for me to take in all the circumstances is to dismiss Dr Buxton's application and strike out his claim against all Defendants and associates for an injunction on the grounds that it is without merit and constitutes an abuse of the process of the Court by seeking to re-litigate matters already determined and unsuccessfully appealed against. I take this decision under the inherent powers of the Court, though were it necessary to do so I would grant the Second Defendant leave to make an application under CPR 3.4 and reach the same conclusion.

Mandatory injunction.

39. It is unnecessary for me in the circumstances to determine whether a mandatory injunction would be appropriate. However, in case this matter is pursued further by Dr Buxton I will in any event indicate my decision upon the matter. The houses have now been built. The Second Defendant is a housing association and a charity and the houses are affordable housing. The development of the houses to the north and south of the Claimant's land has cost approximately £500,000, and were the houses to be demolished substantial losses would be incurred by the Second Defendant. I have weighed in the balance the fact that Dr Buxton feels boxed in by the development but taking into account all the circumstances I would have come to the clear conclusion that damages would be an appropriate remedy and I would not, even had I accepted the Claimant's application, have ordered a mandatory injunction.
40. In any event an interim mandatory injunction would only be ordered in exceptional circumstances and where the Court feels a high degree of assurance that at the trial it would appear that the injunction was rightly granted. No such high degree of assurance can be found here as the merits strongly favour the Defendants not the Claimant.
41. It is regrettable that Dr Buxton has found his experience in the Courts over the years so painful but I have come to the clear conclusion that he is bound by the decision of His Honour Judge Connor, which he should not have sought to re-litigate and his application must therefore be dismissed and his claim struck out.