Johnson v Shaw

Friday, 6th June 2003

J U D G M E N T

1. LORD JUSTICE PETER GIBSON: This is an appeal by the defendants, Walter Shaw and his sons Gerald and Stephen, from the order made by His Honour Judge Maddocks sitting as a High Court judge. By his order on 18th November 2002 the judge resolved in favour of the claimant, Carmen Johnson, certain disputes which had arisen between her and the defendants as to the ownership of a piece of land on the boundaries of their respective properties and as to whether the defendants had interfered with a right of way which she had over a strip of land owned by Walter Shaw, and whether the defendants had trespassed on her land. The appeal is brought with the permission of the judge.

2. The conveyancing history of the relevant land is a little complicated, nor has the court's understanding of the background been assisted by the disappearance of a number of the conveyancing documents after the judge gave judgment but before the bundles were returned to the solicitors who had lodged them. In essence on this appeal we are concerned with two properties: (1) land forming part of a farm at Dunham-on-the-Hill near Chester, which is known as Cornhill Farm and has been owned by Walter Shaw since 1982 and is farmed by the defendants, and (2) a neighbouring parcel of land which was a garage site and has since 1998 been owned by the claimant and developed by her.

3. I start with the conveyance dated 23rd July 1920 ("the 1920 Conveyance") of which only an abstract has been put before us. Cornhill Farm, totalling 105.508 acres, and two fields bearing Ordnance Survey numbers 327 and 328, were thereby conveyed to Robert Fowles. The conveyed property was shown on a small-scale plan for the purposes of identification only. It is apparent from this that the farm was divided by a railway line. The evidence is that there is access to the fields to the west of the railway line from the fields to the east of the line only by a fairly narrow and low underpass beneath the line. In addition, there is access to those western fields, including numbers 327 and 328, from a road, the old Chester to Warrington road, the A56, at a single point at the farm's most south westerly point where a strip of land (called by the judge "the side land") connects with field number 328. The acreages of fields numbers 327 and 328 were given in the 1920 Conveyance as being 9.022 and 7.665 acres respectively, together a total of 16.687 acres.

4. To the east of the side land and fronting the road was a property of 6.623 acres (which the judge called "the cottage lot" by reference to the cottage on that property, Morley Bridge Cottage). That part of the cottage lot which adjoins the side land was to become the garage site. On 29th August 1921 the cottage lot was conveyed on sale to Albert Wilson. On 10th July 1928 he sold a parcel of 665 square yards, part of the cottage lot, to a Mr Hume, and on 1st September 1992, after Mr Wilson's death, his personal representative, Minnie Wilson, sold a further parcel of 645 square yards to Mr Hume. These two parcels were conveyed on 21st September 1939 by Mr Hume to Spur Filling Stations Ltd ("Spur") and became the garage site.

5. In the meantime on 28th February 1935 Minnie Kelly, whom I assume to have been the former Minnie Wilson, sold part of the cottage lot, including Morley Bridge Cottage, to Egbert Morris and his wife Hilda.

6. By a conveyance dated 9th June 1945 ("the 1945 Conveyance") Robert Fowles, the then owner of Cornhill Farm, conveyed to Egbert Morris a piece of land "containing in the whole one acre or thereabouts". That land the judge called "the back land". Again, for the purposes of identification only, the land was shown on a plan. From that plan it is apparent that the back land was a long and fairly narrow parcel of land extending from the railway fence at its east end 668 feet westwards over the southern parts of fields numbers 327 and 328 immediately to the north of the cottage lot but stopping short of the westerly end of field number 328. That part of field number 328 which adjoins the western edge of the back land but was retained by Robert Fowles has, by reason of its shape, been referred to by the judge as "the axe head". We are told that its area is about 650 square yards, or about one eighth of an acre. In addition to conveying the back land, Robert Fowles, by the 1945 Conveyance, granted a vehicular and pedestrian right of way to Egbert Morris and his successors in title over the side land and a small spur connecting it with the back land. The site of the right of way was shown coloured brown on the plan. What is plain is that the freehold of the land subject to the right of way was not conveyed to Egbert Morris.

7. By a conveyance dated 12th March 1946 Spur conveyed the garage site to Joseph Lofthouse. The parcels were described by reference to the areas conveyed in 1939 to Spur. The plan annexed to that conveyance, on which was delineated the land conveyed, showed the western boundary of the garage site as an open ditch.

8. Joseph Lofthouse died in 1965 and a company, Lofty's Tours Ltd ("Lofty's"), was incorporated in 1966. Egbert Morris died intestate on 18th December 1954. By a conveyance dated 2nd December 1971 ("the 1971 Conveyance") his widow, Hilda Morris, as owner of the back land, sold to Lofty's a parcel of land, being the western end of the back land lying to the north of the garage site. By a conveyance dated 18th December 1972 the garage site was conveyed to Lofty's.

9. To revert to the history of Cornhill Farm, Robert Fowles died in December 1945 and the farm was conveyed to RB Fowles on 25th April 1947.

10. By a conveyance dated 19th November 1968 ("the 1968 Conveyance") RB Fowles sold Cornhill Farm to Stanley Bourne. What was thereby conveyed was:

" ALL THAT farmhouse land and hereditaments ... known as Cornhill Farm All which said premises are more particularly described in the First Schedule hereto and are for the purpose of identification only delineated and edged red on the plan annexed hereto."

11. The First Schedule gives the Ordnance Survey number of each field conveyed, its description and its area. To field number 327 was added "(part)", the description "pasture" and the area "8.500" acres, with the qualification "(Est)", short for estimated. Similarly, to field 328 was added "(part)", the designation "pasture" and the estimated area "7.165" acres. Thus, the total acreage of the two fields conveyed was 15.665 acres. The total acreage conveyed by the 1968 Conveyance was given as 104.486 acres. The plan does not show that the land thereby conveyed included the axe head. The plan also shows the side land as a somewhat narrower strip than the earlier documents had shown.

12. On 10th April 1981 Stanley Bourne conveyed Cornhill Farm to RS Bourne by way of gift. The parcels are described by reference to the First Schedule to the 1968 Conveyance.

13. By a conveyance dated 30th September 1982 ("the 1982 Conveyance") RS Bourne sold Cornhill Farm to Walter Shaw. The parcels were expressed in terms virtually identical to those in the 1968 Conveyance, including, in particular, the same description of fields numbers 327 and 328, and the same plan was attached. The title to Cornhill Farm was registered on 10th November 1982 with Walter Shaw as the proprietor. The registered plan largely follows the plan of the 1982 Conveyance and so excludes the axe head, but it shows the side land as being an even narrower strip than on the plan to the 1982 Conveyance. On 6th December 1996 administrative receivers were appointed to Lofty's.

14. On 1st May 1998 Lofty's, acting by the administrative receivers, sold to the claimant the garage site and "all that the estate and interest of the Seller in the land shown hatched blue on the plan annexed hereto". That land was the side land. The title to the land purchased by the claimant was registered on 26th May 1998. The filed plan excluded the whole of the side land and the axe head as well as a small, irregular shaped parcel of land between the garage site and the side land. How the axe head and that parcel were included in the filed plan of the claimant's registered title in September 2000 I shall come to shortly.

15. I turn next to the use made by the owners of Cornhill Farm and the owners of the garage site respectively of the axe head over the years and to the events which followed the claimant's acquisition of the garage site.

16. The garage site, as the judge found, including from 1971 the additional land acquired by the 1971 Conveyance, was used for a motor coach business from 1946 until Lofty's went into administrative receivership. The open ditch which marked the western boundary to the garage site was culverted in the 1950s. There are three inspection chambers in a line roughly running north/south, which show the line of the former ditch. The side land came to be used in conjunction with the forecourt of the garage site for the parking and turning of coaches. This was done with the consent of the owners for the time being of Cornhill Farm, who were not prevented thereby from obtaining access to their fields from the road. Relations between the farm owners and the Lofthouses running the motor coach business were good; and when the Lofthouses, in the late 1970s or early 1980s, asked Mr Bourne if they could concrete over the whole of the side land and the axe head, Mr Bourne agreed. This was plainly for the mutual convenience of the farm and the garage. The judge records that George Lofthouse, who joined the motor coach business in 1966 and remained with it until 1987, latterly as managing director of Lofty's, gave evidence as to the user by the business of the side land and the axe head. But the judge fails to record that Mr Lofthouse gave evidence that he was well aware that, throughout, the axe head belonged to Mr Bourne and then, after him, to Walter Shaw. There can be no question of adverse possession of the axe head or the side land being obtained by the owners of the garage site.

17. The side land was used by Mr Bourne and the defendants for access to their fields. The judge records Stephen Shaw's evidence that the farm changed from dairy to beef cattle in 1986 and that this led to an increased use of the side land for the collection of hay and silage. That would be put in polythene bags or bales and sometimes stacked for collection on the westerly site of the side land. The judge also found that the side land was also used for the delivery of chemical fertilisers and for a slurry wagon delivering slurry. He also referred to sewage slurry being delivered by tankers from a water undertaker's treatment works. The judge fails to record Stephen Shaw's written and oral evidence of the use by the defendants of the axe head, to which I must return later.

18. When Lofty's was put into administrative receivership the conveyancing history was forgotten or ignored by those advising the administrative receivers. They issued particulars of sale of the garage site which stated that it was the defendants, not Lofty's, who had only a right of way over the side land. On 22nd April 1997 travellers invaded the whole garage site and the side land and obstructed the defendants' access to their fields. On 19th May 1997 the travellers were removed. The defendants were so alarmed about being unable to gain access to their fields that they decided to try to prevent a recurrence while the garage site was unoccupied. They hastily erected a motorway type fence along the whole length of the side land along the line of the former ditch but extending to the north across the axe head to the hedge on the south side of field number 328. They also erected gates at the road end.

19. When the claimant first became interested in acquiring the garage site for development the fence was still in place. She, like the administrative receivers, thought that the garage site extended across the whole of the concreted area of the side land and the axe head, and that the defendants only had a right of way over the side land. When the claimant completed her purchase on 1st May 1998, she caused the fence to be dismantled. The defendants protested through their then solicitors, Mason and Moore Dutton ("Mason Moores"), that the claimant had thereby committed a trespass. The claimant then applied to the Land Registry to extend her original registration to the whole of the side land other than that which was on Walter Shaw's registered title and to the axe head. The correspondence between the claimant's solicitors, Mason Moores, and the Land Registry was extensive, neither set of solicitors showing great understanding of the conveyancing position. The claimant's solicitors continued to assert that the defendants only had a right of way over the side land, and they claimed adverse possession of the axe head. Mason Moores appeared to accept that the axe head had not been conveyed in 1968 and that title to it remained with Mr Fowles, though it was made clear in the correspondence with the claimant's solicitors as early as July 1999 that Walter Shaw claimed to own the axe head and had occupied it since 1982. Further, in a letter of 26th May 2000 addressed to the Land Registry, which the Land Registry copied to the claimant's solicitors, Mason Moores set out the defendants' case on the axe head:

"Although Mr Shaw now appreciates that the [axe head] does not form part of his registered title, Mr Shaw understood from his predecessor, Mr Bourne, that this land was his and was included in the sale. This land evidently belonged to Mr Bourne's predecessor, Mr Fowles, as the right of way which he granted in the 1945 Conveyance passes over this land. Mr Shaw has used this land throughout his ownership for parking and turning vehicles and for temporary storage of bags of fertiliser, but whilst the garage was operational he tried not to impede the right of way. Once the garage ceased operating Mr Shaw stored bales of silage on this land. Miss Johnson requested him to move the silage. He did not move it but when it had all been used he found that rubble had been piled on the land."

The solicitors also said in that letter that it seemed unlikely that Mr Fowles actually intended to retain ownership of the axe head. Mason Moores did say that Walter Shaw understood from RS Bourne that the boundary was the ditch now culverted between the side land and the garage site and that the ditch was now evidenced by the inspection chambers.

20. On 5th July 2000 the Land Registry wrote to both the claimant's solicitors and Mason Moores to say that there was a clear dispute of fact which could not be dealt with by administrative action but would require determination at a hearing by the Registrar or by court proceedings. However, on 18th August 2000 the claimant's solicitors wrote to the Land Registry enclosing several plans. On one of them the claimant had marked the position of the drain. This was shown as extending not only between the three inspection chambers running north to south in a straight line, but also as proceeding further north, not entirely in a straight line, to the southern edge of field number 328.

21. The Land Registry plainly thought that, with the evidence of where the culverted drain ran and with the defendants' acceptance that the boundary was along that line, it would be possible uncontroversially to grant the claimant's application to include in the registration of her title the land to the east of that apparently agreed boundary. By letters dated 25th August and 1st September 2000 the Land Registry wrote to the defendants' then solicitors to explain what the Land Registry was minded to do. In the latter letter they enclosed a plan upon which they had plotted the line shown on the claimant's plan. They continued:

"The result is that there is an area of land coloured blue on the print which falls outside the current registered extent of Miss Johnson's title but her side of the drain. This is the land which, on the basis indicated in my letter of 25 August, I believe should now be registered in her name. I will, however, hold the matter in abeyance for a further 14 days to enable you to take instructions."

22. Unhappily Mason Moores neither showed that letter to the defendants, nor did they respond to the Land Registry's letter. The incorporation of the land east of the claimant's line of the drain as shown on her plan, including the axe head, into the claimant's registered title was then effected by the Land Registry after the indicated period had expired.

23. On 18th May 2001 the claimant commenced these proceedings. In her amended particulars of claim she claimed a right of way over the whole of the side land both by reason of the 1945 Conveyance and by prescription. She claimed that the defendants had interfered with that right of way from 17th August 2000 onwards, that they had committed trespass and that she had suffered loss from that interference and that trespass. The relief she sought was a declaration as to her right of way, an injunction and damages. The defendants resisted these claims, save for the right of way conferred by the 1945 Conveyance. By their counterclaim they sought an order for rectification of the Register pursuant to section 82 of the Land Registration Act 1925 ("the Act") and the removal of the axe head from the claimant's registered title. On 13th February 2002 Walter Shaw registered a caution against the claimant's title, and on 23rd May 2002 he gave a cross-undertaking as to damages in relation to that caution.

24. The action was tried by the judge, who heard oral evidence from a number of witnesses including the claimant and Stephen Shaw. The judge noted acceptance by the defendants that the claimant could establish an extension to the express right of way to the back land over and along the axe head and the adjacent part of the side land for the benefit of the whole of the garage site. A dispute as to the claimant's drainage rights was also resolved in her favour. That left the dispute as to the title to the axe head, including the claim for rectification of the Register to include in Walter Shaw's title the axe head and the full extent of the side land. It also left the question of damages.

25. The judge considered title first. He accurately set out the conveyancing history. He then recited what appeared to him to be the history of the actual use and occupation of the properties and the events leading to the present disputes. The judge commented on the objections made by the defendants to the claimant's registration of the axe head as part of her land. He rejected an objection relating to the plan which had been produced by the claimant and showed the ditch line, saying that it followed the fence line which Walter Shaw had asserted as the boundary line beyond which Walter Shaw had not at that point made any claim. On the point that the Land Registry's letter of 1st September 2000 was not shown or communicated to the defendants, the judge said that that was a matter between Walter Shaw and his solicitors and that the correspondence indicated that he would have accepted that line.

26. The judge referred to the fact that between 17th August and 9th September 2000 the defendants had stacked up to 300 bags of silage on the axe head. The judge expressed himself as satisfied that up to this time there had been no use of the axe head by the defendants "save perhaps occasional turning of vehicles".

27. The judge then turned to the claim for rectification. After setting out the most relevant provisions of sections 70 and 82 of the Act, he expressed his findings and conclusion in this way:

"(1) Upon the paper title

(a) the true boundary of the front land, as shown by the plan to the 1946 conveyance, was the ditch line as now established and adopted by the claimant's registered title;

(b) the back land did not extend to the ditch line, the axe head having been retained by the 1945 conveyance;

(2) The evidence before me does not establish a title in Miss Johnson's predecessors to the axe head by adverse possession, boundary agreement or estoppel;

(3) However, it does show that, in the course of time, the axe head came to be seen as forming part of the back land, hence its exclusion from the plans to the 1968 and 1982 deed plans;

(4) Having regard to the situation of the land at the time, I do not construe the parcels to the 1968 and 1982 conveyances as including the axe head;

(5) At the time of the purchase by Miss Johnson and the transfer to her, the first defendant was not in actual occupation of the axe head. He had fenced off the land by the motorway type fencing.

Turning to Section 82, I think it must follow that no case is made out for rectification. So far as the front land is concerned, the boundary line is correct. In relation to the axe head, the claim fails as to the paper title being in the first defendant. However, if I am wrong in my construction of the deeds, the claim would still be one for rectification against an owner in possession."

28. The judge then considered whether Walter Shaw had an overriding interest. He said that actual occupation for the purposes of section 70 might be established at the time of registration by the presence of the silage bags, but he said that that would not suffice if it had not existed at the time when the claimant had acquired her interest. He referred to the defendants fencing themselves off from the axe head at the time. He did not see that the claimant contributed to the error in registration by lack of proper care, and certainly not by fraud. He said that she always believed she was purchasing the whole area. He did not consider that it would be unjust not to rectify as against her. He continued:

"Miss Johnson clearly purchased the property expecting, at least, that all the land on the garage side of the motorway style fence was included. The defendants were then making no claim to it and appeared to have accepted the ditch line as the correct boundary from front to back. They were afforded ample opportunity to contest that line by HM Land Registry. I do not think it would be right to disturb the registration, made with some care by the Land Registry after the lengthy process of consultation with both parties."

It is not apparent on what evidence the judge said what he did in the second sentence of that passage.

29. The judge finally addressed the claim for damages. He noted that the claimant had prepared a long list of incidents leading to the proceedings and that they were supported by photographs and by her evidence. He also noted that, apart from the presence of the bales on, but not beyond, the axe head, there were no incidents recorded between September 2000 and February 2001, that further incidents then occurred and that in April 2001, above foot and mouth notices erected on the gates, were notices reading: "Very Private. This land belongs to Cornhill Farm". The judge concluded that the defendants were engaged in a campaign to frustrate or impede the claimant's development of the garage site and that the actions constituted an actionable interference with the claimant's right of way and, after September 2000, trespass upon the area of land of which she had become the registered proprietor. He acknowledged that the question of damages was more difficult; her claim was based on the loss of rental income through the delay in completion of the development and the letting of nine of the developed units, but the claim was complicated by the fact that difficulties with the development arose because the building which the claimant had built was said by the Council to exceed planning permission. The judge expressed himself as satisfied that what the defendants did had some effect in delaying completion and letting and that it resulted in some loss of rental. He directed an inquiry as to damages, and he ordered a payment on account of the damages for interference with right of way and trespass of £7,500, the units being on offer for letting at £500 per month. The judge also directed an inquiry as to damages on the cross-undertaking relating to the caution insofar as that could be said to have caused damage. He dismissed the counterclaim.

30. On this appeal Mr Thomas for the defendants challenges the judge's conclusion that the axe head was excluded from the 1968 and 1982 Conveyances. He further submits that the judge was wrong to have refused rectification, which he says should have followed from Walter Shaw both having the paper title and being in actual possession of the axe head at the time of the registration of the claimant's title in September 2000 and so having an overriding interest within section 70(1)(g). He concedes that the defendants cannot challenge either the judge's finding that there was an actionable interference with the claimant's right of way, or the judge's direction that there be inquiry as to damages, but he challenges the award of a payment on account of damages in the absence, as he put it, of any evidence of loss.

31. Mr Porter, for the claimant, supports the judge's conclusion on each point. He further submits that so far as Walter Shaw claims that he had an overriding interest, that was defeated by the fact that the Land Registry, by the letter of 1st September 2000 to Mason Moores, had invited comments on the proposed registration, but there had been no reply asserting Walter Shaw's rights.

32. The questions which arise on this appeal are the following:

(1) Was the axe head excluded from the land conveyed to Walter Shaw by the 1982 Conveyance?

(2) Did the judge err in refusing rectification?

(3) If he did, should this court order rectification?

(4) Did the judge err in ordering a payment of £7,500 on account of damages?

(1) Title

33. The reasoning of the judge on this point is expressed very briefly and, with all respect to him, in an imprecise and generalised fashion. He lumps together the 1968 and the 1982 Conveyances, not adverting to the very different situation existing on the ground in 1968 when compared with 1982. In 1968 the 1971 Conveyance of part of the back land to Lofty's had not occurred. Nor had the agreed concreting of the side land and the back land, which did not occur until the late 1970s or early 1980s. The judge omits any mention of George Lofthouse's important evidence that he always regarded the owners of Cornhill Farm as owning the axe head. Yet the judge finds not only that the axe head in the course of time came to be seen as forming part of the back land, but that this was the reason why it was excluded from the plan to the 1968 Conveyance as well as the plan to the 1982 Conveyance. Further, he looks to "the situation of the land", presumably referring to what he had said about the axe head forming part of the back land, to construe the two conveyances as excluding the axe head. Mr Porter acknowledged that there was no evidence to support the judge's view of the position in 1968.

34. The true position seems to me to admit of no doubt and to differ from that found by the judge. The parcels of the 1982 Conveyance are essentially identical to those of the 1968 Conveyance, and it cannot be doubted that what RS Bourne conveyed in 1982 to Walter Shaw was what RB Fowles had conveyed in 1968 Stanley Bourne, no more and no less. The 1968 Conveyance is therefore the crucial conveyance.

35. It is well established that where the parties to a conveyance have used a verbal description of the parcels as well as a plan on which the property conveyed is delineated, they can specify whether the verbal description or the plan is to prevail in case of an inconsistency between them. If the delineation on the plan of the property to be conveyed is expressed to be for the purpose of identification only, the verbal description will prevail, though if that description is insufficient or leaves any uncertainty, the plan can be looked at for whatever assistance it can provide: see Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 at pages 1473,4 per Buckley LJ, and Scott v Martin [1987] 1 WLR 841 at page 849 per Nourse LJ.

36. In the case of the 1968 Conveyance the verbal description plainly prevails over the delineation on the plan, which is described as being for identification only. If one compares the description of what was conveyed by the 1920 Conveyance totalling 105.508 acres (including fields numbers 307 and 308 totalling 16.687 acres) with what was conveyed by the 1968 conveyance totalling 104.486 acres (including parts of fields numbers 327 and 328 totalling 15.665 acres), the difference of 1.022 acres is readily referable to the 1945 Conveyance of the back land, being parts of fields numbers 327 and 328 of "one acre or thereabouts". Add to that the absurdity that Mr Fowles would have wanted in 1968 to retain any part of Cornhill Farm, particularly a landlocked part like the axe head to which he would have no right of access, and it is clear beyond doubt that the axe head must have been conveyed by the 1968 Conveyance. It follows that the axe head must have been conveyed to Walter Shaw by the 1982 Conveyance. The fact that the plans are inconsistent with that conclusion is irrelevant. It follows that, although not included in his registered title, Walter Shaw has since 1982 had the paper title to the axe head.

(2) Rectification - did the judge err?

37. Section 82 of the 1925 Act allows the rectification of the Register, any person suffering loss by reason of the rectification being entitled to be indemnified pursuant to section 83.

38. The relevant provisions of section 82 are these:

"(1) The register may be rectified pursuant to an order of the court or by the registrar, subject to an appeal to the court, in any of the following cases, but subject to the provisions of this section:-

(a) subject to any express provisions of this Act to the contrary, where a court of competent jurisdiction has decided that any person is entitled to any estate right or interest in or to any registered land or charge, and as a consequence of such decision such court is of opinion that a rectification of the register is required, and makes an order to that effect;

...

(g) Where a legal estate has been registered in the name of a person who if the land had not been registered would not have been the estate owner;

...

(2) The register may be rectified under this section, notwithstanding that the rectification may affect any estates, rights, charges, or interests acquired or protected by registration, or by any entry on the register, or otherwise.

(3) The register shall not be rectified, except for the purpose of giving effect to an overriding interest [or an order of the court] so as to affect the title of the proprietor who is in possession-

(a) unless the proprietor has caused or substantially contributed to the error or omission by fraud or lack of proper care; or

...

(c) unless for any other reason, in any particular case, it is considered that it would be unjust not to rectify the register against him."

39. Subsection (3) is in its form as amended by the Administration of Justice Act 1977. The reference in the words of exception to an overriding interest take one to section 70(1)(g), which is in this form:

"All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say):-

...

(g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where enquiry is made of such person and the rights are not disclosed."

40. In Kingsalton Ltd v Thames Water Developments Ltd [2002] 1 P&CR 81 this court considered the construction and application of section 82(1) and (3). One of the points in the case was whether the High Court, in considering whether to exercise its discretion to rectify under section 82(1)(a), was required to apply section 82(3). This court held that that was not required because of the words of exception, "except for the purpose of giving effect to ... an order of the court"; however this court said that in exercising its discretion under section 82(1)(a) the court should have regard to the policy of the Act as manifested in section 82(3). The fact that the registered proprietor is in possession is a matter to be given particular weight, but it is also highly relevant whether the registered proprietor has been at fault in any relevant respect.

41. The Kingsalton decision, although decided on 19th January 2001, is not referred to by the judge, who may well not have received all the assistance which he should have received on rectification.

42. Mr Thomas' approach before the judge, and initially before us, was that Walter Smith needed to show that he had an overriding interest in order to obtain rectification. I can see no such requirement in the Act, though, of course, it may be a factor to be taken into account in the exercise of discretion. Mr Porter did not dispute that. The judge, as I have indicated, accepted that Walter Smith was in actual occupation of the axe head at the date of the claimant's registration through having up to 300 bales of silage on the axe head. But the judge considered that the relevant date was the date of the acquisition by the claimant of her interest in the garage site by the conveyance to her on 1st May 1998. That is a surprising conclusion, given that the judge had found that she did not acquire any interest in the axe head by that conveyance. She had only acquired title to the axe head after the Land Registry had assumed that Walter Shaw had conceded that the land to the east of the drain line, as shown on the claimant's plan supplied to the Land Registry on 18th August 2000, belonged to the claimant, and so had rectified her title accordingly.

43. The judge sought to find assistance from the approval by the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 55 of this court's decision in Lloyd's Bank Plc v Rosset [1989] Ch 350, in which it was held that the relevant date for the ascertainment of an overriding interest under section 70(1)(g) on the disposition of a freehold estate with registered title under section 20(1) of the Act was to be determined at the date of execution, not the date of registration, of the disposition of the legal estate. But Rosset and indeed Cann , in which it was held that the relevant date for determining the existence of an overriding interest affecting the estate transferred or created was the date of registration of the estate, were dealing with problems quite different from that in the present case. It is hard to see any date other than the date of registration as the relevant date in circumstances such as obtain in the present case where the claimant's legal estate in the axe head was not created or transferred prior to registration. In my judgment, therefore, the judge erred in his approach to rectification.

44. The judge did not deal with Mr Porter's further point that Walter Shaw did not bring himself within the definition of overriding interest in section 70(1)(g) by reason of the concluding words of paragraph (g), because of the absence of a response by the defendants' solicitors to the invitation in the Land Registry's letter of 1st September 2000. It seems to me too narrow a view in the light of all the correspondence between Mason Moores and the Land Registry of which the letter of 1st September was the final letter. The letter dated 18th August 2000 from the claimant's solicitors to the Land Registry itself adverted to the fact that Walter Shaw had alleged ownership of the axe head, because the solicitors referred to the erection of the fence and said:

"It is, however, strange that Mr Shaw alleges ownership of part of the land outside this boundary if he was content to block it off with a fence."

45. I have already drawn attention to what was said by Mason Moores in their letter of 26th May 2000. In all the circumstances, were it necessary so to decide, I would not hold that there had been a failure to disclose rights within section 70(1)(g).

46. But, in any event, as I have indicated, in my judgment it is not necessary for Walter Shaw to show that he comes within the wording of section 70(1)(g) in order to obtain rectification.

(3) Should this court order rectification?

47. The claim by Walter Shaw for rectification is made under section 82(1)(a), alternatively (g), the primary claim being made under paragraph (a). For the reasons given in Kingsalton section 82(3) is not directly applicable. What the court must do is take account of all relevant factors in deciding how to exercise its discretion.

48. The factors in favour of granting rectification seem to me to be as follows:

(1) The paper title to a not insignificant piece of land, roughly an eighth of an acre, has been held to belong to Walter Shaw and appears only to have been omitted from the registration of his title because of the incorrect plan attached to the 1982 Conveyance. Rectification would give effect to the holding that Walter Shaw has the paper title.

(2) Contrary to the finding of the judge, there was clear evidence before him, to which he does not refer, that the axe head was used by Walter Shaw throughout his ownership of Cornhill Farm and not merely from 17th August 2000. I say that not merely because the claimant herself complained of the placing of bales on the axe head in July 1999 in correspondence, but because of Stephen Shaw's largely unchallenged written and oral evidence that silage and hay bales had been placed on the axe head far earlier and that the defendants' vehicles and other vehicles coming to the defendants' fields had been parked on the axe head and had used it for turning. I would add that it is always important to take account of the nature of the land in question in considering whether the land has been used or occupied. It is difficult to see why a farmer need do more than the defendants did in respect of a concreted piece of land lying at the end of his fields and adjoining land giving access to the road.

(3) The claimant knew, or ought to have known, that she had no paper title to the axe head. A glance at her own conveyancing documents would have told her that.

(4) The inclusion of the axe head in the claimant's title was an administrative act of the Land Registry without the Chief Land Registrar or the court determining the point, and the action was taken in the erroneous belief that there was no dispute that the claimant owned that land.

(5) The claimant's plan showing the position of the drain as extending north beyond the three inspection chambers was a material factor in inducing the Land Registry to believe that the boundary line went, as she had indicated, further north right up to the southern edge of field number 328. But it is accepted by Mr Porter that it cannot be shown that the drain does go further north than the most northerly inspection chamber.

49. The factors against rectification seem to me to be the following:

(1) the policy of the 1925 Act favours registered proprietors in possession being left with their title undisturbed.

(2) The defendants contributed to the error through their solicitors' failure to respond to the letter from the Land Registry of 1st September 2000.

(3) There was no bad faith on the part of the claimant in providing her erroneous plan to the Land Registry.

(4) There was some delay after registration but before the defendants sought rectification.

50. I should make clear that I do not accept that the axe head is essential for the defendants' farming business. They managed for a year with the fence in place. But neither do I accept that the judge was right to attach great significance to the erection of the fence. It is quite clear from Stephen Shaw's evidence that it was erected in a hurry as a temporary expedient while the garage site was unoccupied and unsold and by way of a response to the interruption to the defendants' farming business caused by the travellers. Moreover, Stephen Shaw also made clear that erecting the fence was not an attempt to mark the boundary. He said in paragraph 31 of his statement:

"We made no attempt to position this fence along the boundary with Lofty's old site, save that we made sure it was on our side of the boundary, because it was not intended to be permanent and we were more concerned about its position being such that travellers would be discouraged from attempting to park up on the land and block our access to the fields. At this stage, the rest of the site was open."

51. Mr Porter drew attention to the fact that on 27th July 1998 Mason Moores did write to the claimant's solicitors:

"When our Client erected the fence he did so along the line of the ditch on his land."

But that attitude was not maintained, as the claimant knew well; and I have already referred to the letter of 18th August 2000 evidencing the claimant's solicitor's knowledge that Walter Shaw claimed to own land to the east of the fence.

52. Balancing the relevant factors, I conclude that, despite the significance of the policy of the 1925 Act favouring registered proprietors in possession, in the particular circumstances of this case the balance weighs in favour of rectification. I say that in particular because of the fact that Walter Shaw has had the paper title for so many years, and that, save for the period when the temporary fence stood, the axe head was used by the defendants for their farming business, and because of the material part played by the claimant in bringing about the error which was made by the Land Registry. True it is that the defendants' solicitors also contributed materially to the error by their failure to respond to the Land Registry's letter, but I take account of the fact that the defendants were never themselves shown the letter of 1st September 2000 from the Land Registry. As for the delay, I do not regard that as being of significant length.

(4) Damages

53. There can be no question of damages for trespass in the light of these conclusions, and, to the extent that the payment on account included any sum in respect of damages for trespass, the amount ordered to be paid on account cannot stand. But, more fundamentally, I am unable to see on what material put before the judge he arrived at any figure as an appropriate payment on account. An interference with a right of way may or may not lead to actual loss. Only the claimant gave evidence of loss, but she did not relate each, or, indeed, any particular, interference with the right of way to any particular delivery which was delayed for any particular period, causing the building work to be held up for any particular period. In these circumstances, I regret to say that I have reached the conclusion that the judge could not properly order any payment on account. It could be that, if the inquiry as to damages goes ahead, only nominal damages for the interference with the right of way will in the event be awarded. I stress the word "if". I hope that the parties will adopt a practical attitude to this one outstanding matter, rather than allow yet further costs to be incurred on what must already have been highly expensive litigation.

54. For these reasons, I would allow this appeal to the extent indicated.

55. I would hear counsel on the form of the order.

56. LORD JUSTICE SCOTT BAKER: I agree.

57. SIR MARTIN NOURSE: I also agree. I add some observations on the paper title to the axe head.

58. It was established by the decision of this court in Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 (see also Scott v Martin [1987] 1 WLR 841) that, provided that a plan which forms part of a conveyance of land does not conflict with explicit descriptions in the parcels, the fact that it is said to be for the purposes of identification only or the like does not exclude it from consideration in order to solve problems left undecided by the parcels. But if there is no such problem, it is equally established that the plan cannot be considered. Thus, to adopt the apposite example given by Bridge LJ in Wigginton at page 1475:

"Where the conveyance shows clearly that a certain acreage is intended to be conveyed but the adoption of a boundary from the plan 'for the purposes of identification only' would leave only a reduced acreage, the boundary on the plan must yield to the indicated acreage."

59. In the present case, the 1920 Conveyance was expressed to convey to Robert Fowles the hereditaments and premises particulars whereof were set out in the schedule and which hereditaments were for the purposes of identification only and not of limitation delineated on the plan drawn on the conveyance and thereon edged blue. Included in the schedule were particulars, first, of Cornhill Farm, stated to be of an aggregate area of 88.821 acres, and, second, of two fields (Ordnance Survey numbers 327 and 328) of an aggregate area of 16.687 acres, making a total area conveyed of 105.508 acres. Fields 327 and 328, with areas of 9.022 and 7.665 acres respectively, were clearly shown on the plan as being included within the blue edging. Thus there was no conflict between the parcels and the plan, each complementing the other. Moreover, it is not in dispute that field 328 included the back land, the side land and the axe head.

60. By the 1945 Conveyance Robert Fowles conveyed the back land to EH Morris. The parcels were in these terms:

" ALL THAT piece or parcel of land situate at Morley Bridge in the parish of Dunham-on-the-Hill in the County of Chester containing in the whole one acre or thereabouts and for the purposes of identification only and not of limitation is more particularly delineated on the plan annexed hereto and thereon coloured pink and edged red..."

In this instance the parcels are an inadequate description of the land conveyed and, under the Wigginton principle, the plan must be considered. That shows a strip of land coloured pink and edged red along very nearly the whole of the southern boundary of fields 327 and 328, the small excluded area at the western end of 328 being that which forms the axe head. Thus the axe head was excluded from the 1945 Conveyance, as was the side land, over which Mr Morris was granted a right of way between the land conveyed and the A56. It may be of some significance that the memorandum of the 1945 Conveyance, which, in accordance with the correct conveyancing practice, was endorsed on the 1920 Conveyance, but unlike the 1945 Conveyance itself, explicitly described the one acre thereby conveyed as forming part of fields 328 and 327.

61. And so the position before the execution of the 1968 Conveyance was that Mr Fowles and subsequently for a short period his son, RB Fowles, retained ownership of the axe head and the side land. By that conveyance Mr RB Fowles was expressed to convey:

"ALL THAT farmhouse land and hereditaments situate in the parish of Dunham-on-the-Hill in the County of Chester known as Cornhill Farm All which said premises are more particularly described in the First Schedule hereto and are for the purpose of identification only delineated and edged red on the plan annexed hereto."

The First Schedule contained particulars of 16 Ordnance Survey enclosures with a total area of 104.486 acres, that is to say 1.022 acres less than the total area of the land conveyed by the 1920 Conveyance. Moreover fields 327 and 328 were in each case described as being part of the whole, with estimated areas of 8.5 and 7.165 acres respectively, that is to say an aggregate of 15.665 acres or 1.022 acres less than their aggregate area as particularised in the 1920 Conveyance.

62. In this state of affairs it is in my opinion clear, without it being necessary to have regard to extraneous circumstances, that the 1968 Conveyance was intended to convey and did convey all those parts of fields 327 and 328 which were not conveyed to Mr Morris by the 1945 Conveyance, including not only the side land but the axe head as well. The difference of 1.022 acres is well accounted for by the "one acre or thereabouts" conveyed to Mr Morris and, as a matter of construction of the parcels, no case is made out for any further reduction in the land comprised in the 1968 Conveyance. The parcels do not give rise to any problem. Accordingly, the plan annexed to the 1968 Conveyance, which excludes the axe head, cannot be considered. The case falls aptly within Lord Justice Bridge's example.

63. In contending that the axe head was excluded from the 1968 Conveyance, Mr Porter, for the claimant, submits that the parcels are unclear and that the Wigginton principle applies. He relies on the fact that the areas given for fields 327 and 328 are stated to be estimated and, moreover, that they are estimates for parts only of those fields. In my view Mr Porter's submission could only succeed if it were shown that the axe head could be accommodated within the unaccounted for area of 0.022 of an acre or thereabouts. It is clear that that could not be the case.

64. Although Mr Porter originally suggested that the area of the axe head was about one twelfth (0.083) of an acre, such measurements as we have been given show, as my Lord has indicated, that that is on the low side. In any event, even if Mr Porter's suggestion was correct, 0.083 of an acre would be a long way from the unaccounted for 0.022 of an acre or thereabouts.

65. It is clear that if the axe head was included in the 1968 Conveyance it was likewise included in the 1982 Conveyance. In the result it is established that the paper title to the axe head is now vested in the first defendant, Mr Walter Shaw.

66. On the other questions, I am in complete agreement with the judgment of Peter Gibson LJ, and do not wish to add anything of my own.

67. I too would allow the appeal.

Order: Appeal allowed. The successful appellant will have their costs of the appeal and three quarters of the costs below.