This is an appeal from an order made by Mr Recorder Hirst in proceedings which were commenced in the Wakefield County Court, but heard in the Leeds Combined Court Centre in 2004, concerning a dispute about a right of way.

At the first hearing, which I believe lasted some three days and was followed by a reserved judgment, the judge held that the claimants, Mr and Mrs Jacklin, were entitled to a right of way, not only on foot, but also with vehicles, over a 20-foot wide road, which is in some of the plans referred to as Back Road, the soil of which is part of the premises of the headquarters of the West Yorkshire Police in Wakefield.

The police challenged the claimant’s entitlement to a vehicular right of way on a number of grounds, including that they did not have a proper paper title to it and that even if they did, it had been abandoned long since. He held that they did have the right of way and that it had not been abandoned.

There was then a subsequent hearing to determine what remedy the claimant should have as a result. The principal debate at this hearing was whether the judge should grant an injunction to restrain the Chief Constable from obstructing the right of way or rather to leave the claimants to a right in damages so far as the future is concerned. He decided to grant an injunction and against that, with permission from Chadwick LJ on that issue only, the Chief Constable appeals.

The claimants own a house, 8 Cardigan Terrace, Wakefield, which is the last house in the road called Cardigan Terrace, which runs off Northgate. They derive title from a conveyance dated 1 October 1875, under which the whole site of Cardigan Terrace was conveyed, together with a free and uninterrupted right of foot horse and carriage road at all times and on all occasions to pass and re-pass across and along every part of the road or way, 20 feet wide, then laid out, shown on the plan as extending from the area which is now Cardigan Terrace, as far as a road, then called Back Bond Street, which is now called Laburnum Road.

In 1894 a subsequent owner, Clara Stoney, conveyed the site at number 8 to a Mr Tom Lee, with a right of way over the whole distance between Northgate and Back Bond Street, shown on the plan annexed. Separately, also in 1894, she conveyed the land opposite number 8 to a JF Ianson and that conveyance also referred to Back Road.

The devolution of the title to these two parcels of land is in part described in the judge’s first judgment. By 1984 they were in the same ownership again and they are both now registered at the Land Registry, the claimants being the proprietors. The claimants have also since then acquired some land, as it were on the garden side of Cardigan Terrace, opposite number 6, but that is not particularly relevant for present purposes.

The judge found that the claimants had satisfied him of their entitlement to a right of way on foot and with vehicles between their property and Laburnum Road, over Back Road, shown on the early deeds as being 20 feet wide. Nor had they lost the benefit of this by abandonment of the right by themselves or their predecessors in title.

The judge noted that, after an order for specific disclosure which he made during the trial, the defendant had for the first time disclosed its title documents which start from another deed dated 1 October 1875, by the same grantor as had conveyed to the claimants’ predecessor in title. This conveyance refers to the land conveyed by the other conveyance, which became Cardigan Terrace, and is made expressly subject to “such rights of road as had been granted” by the other conveyance.

The point is further emphasised in the deed of which we have, as the judge had, an abstract. After referring to the rights of road granted by the other conveyance, the abstract of the conveyance which is part of the Chief Constable’s title says this:

The claimants’ paper title therefore is clear and, although their entitlement does not depend on it, the existence of the right of way is also clear from the defendant’s title deeds.

Mr Hill, counsel for the Chief Constable, told us that the reason why the title deeds had not been produced before the trial was that in the course of local government reorganisations over the decades, the early title deeds, at any rate, the land having previously belonged to Wakefield Council, had been stored in a place other than that where one might have expected them to be stored and that it only came to Mr Bottomley, who was in charge of administration on behalf of the Chief Constable, to realise where they might be found, when the judge made the order for specific disclosure, and there they were indeed found. That seems to be an illustration of the value of orders for specific disclosure.

In 1997 or 1998 the Chief Constable carried out a number of alterations to the organisation and layout of the police headquarters site. The judge accepted that the police had obstructed the right of way over Back Road regularly from 1986 onwards, by the parking of police vehicles. He rejected evidence which had been given that a gate which now exists at the Laburnum Road end of Back Road had been padlocked before 1997; accordingly that gate, although it may have existed at that stage, was not then an obstruction of a substantial nature. The judge also rejected the contention that there was a physical barrier at the Cardigan Terrace end, at that stage, which prevented the exercise of the right of way.

However, as part of the re-organisation of the headquarters site in 1997, the gate at the Laburnum Road end of Back Road was regularly padlocked. More intensive parking began and a 20-foot container, which was used for storage, was placed partly across Back Road, leaving only about a metre unobstructed, which was sufficient for pedestrian access, but was a very effective obstacle to vehicular access.

I should say that the works that were carried out in 1997 were fairly substantial. As they were described to us, as they were no doubt described to the judge, the police demolished all or part of a building on the site, which in part abutted on Back Road. They demolished another small building which abutted on Back Road, as well as other smaller buildings elsewhere on the site. Perhaps more significantly they organised, or reorganised, the pattern of traffic flow within the site, so that the opening onto or off Laburnum Road, near the end of Back Road, which had been capable of being used both for access and egress, is now designated only as an exit from the Headquarters site with vehicles entering at another opening off Laburnum Road further South, so that there is a circulation system in at one point and only out at the exit near Laburnum Road.

If the claimants are entitled to the injunction which the judge granted, then they will have to be able to come in at that point off Laburnum Road and that will clearly cause some inconvenience to the no doubt carefully thought out plan to have that as an exit rather than an entrance. That is one consequence of the injunction if granted; another would be that it would be necessary to move the storage container.

Going back to 1997, the police contended that the claimants and all their neighbours in Cardigan Terrace were notified in advance by letter of the proposal to carry out works. The terms of the letter deserve note. Reading from a letter addressed to the owner/occupier at 2 Cardigan Terrace. the letter is as follows. It is headed “Land between Cardigan Terrace and Laburnum Road, Wakefield”. It says:

The police wrote in the same terms to the owners of a number of the houses in Cardigan Terrace. To the owner of number 6 they wrote in similar terms, but there had evidently been some previous correspondence.

They contended that they had also written to the claimants, or perhaps to the owner/occupier of number 8, but they were unable to produce a letter so addressed. Mr and Mrs Jacklin denied having received one and the judge found that they had not received any such letter.

On the other hand Mr Jacklin did accept that at or about this time he became aware that there was correspondence to his neighbours, and it may be that he did get a letter in the next series of communications which is dated 29 July 1997 and is in the following terms:

Despite that last sentence, that appears to have been the last letter from the police to the inhabitants of Cardigan Terrace for some years. Mr Bottomley, who then had the title of Principal Projects Officer and worked at the force headquarters, has responsibility on behalf of the police for this project. He worked in premises which had been part of 18 to 22 Laburnum Road, so he was near the end of Back Road, as it had been.

He gave evidence at the first hearing, as did Mr Jacklin. In the course of his judgment at the first hearing, having held that Mr Jacklin did not receive the letter in the 6 June sequence, the judge said this:

When he says “subsequently” in that context, it is clear that he means after June or July 1997. He does not give any firm exact date of those conversations, but he clearly held that there had been contact between the two men and he went on to explain that his finding in that respect, which resolved a conflict of evidence between the two men, was on the basis of his assessment of the two witnesses and in particular his assessment that Mr Jacklin had a clearer recollection about these matters. Not for the first time, a judge in resolving a dispute in that way attached weight, as he said, to the fact that this incident is only a small part of Mr Bottomley’s life, whilst it forms a much more significant feature to that of Jacklin, so that he had more reasons to recall the various events which took place. That was in the context of abandonment, or as he held no abandonment, but it is nevertheless also relevant to the question of remedy.

There was no return on the police’s part to the negotiations that they had sought to open in June 1997. There was no request by Mr Bottomley to Mr Jacklin for sight of title deeds. There was no attempt on the police’s part to check their own title deeds, perhaps because they did not know where they were.

The police proceeded with a planning application for those aspects of their work that required planning consent and, having obtained the necessary consent, they proceeded with the work. They placed the storage container on Back Road. They placed the gate in the position required and they arranged the exit to Laburnum Road in such a way that it would function only as an exit for cars already lawfully admitted into the force headquarters premises.

It seems fairly plain that there were some continuing discussions on and off, at any rate between Mr Jacklin and Mr Bottomley, and there seems certainly to have been a meeting between them on 31 May 2000. I say that because on 2 October 2000, Mr Jacklin wrote to Mr Bottomley referring to a meeting on 31 May, which he says they had on the Back Road together with Mr Albert Taylor. He says:

The response to that was to refer the papers to the force’s solicitors, but there was no positive response and on 30 March 2001 Mr Jacklin’s solicitors wrote to the force solicitor asserting a vehicular right of way and threatening proceedings unless the way was reopened.

At the hearing concerning remedy before the Recorder, the police sought to argue (a) that even if a right of way with vehicles were protected by an injunction, it was unlikely that it would be ever be used in reality in any substantial form; and (b) that the use of the right of way would be prejudicial to policing and would involve serious risks of impaired security for police officers and staff and possibly for the general public, as well as unnecessary inconvenience with regards to the use of the police’s land. They also relied on the fact that the claimant had not used the right of way for years, so as to show that denial of an injunction would cause no substantial prejudice to him.

In his judgment on remedy, the Recorder addressed the principles set out by Millett LJ in Jaggard v Sawyer [1995] 1WLR 269, derived from Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287. He accepted that the injury to the claimants’ legal right was small, because there is an alternative right of way, namely that between 8 Cardigan Terrace and Northgate, and because the claimants had only used Back Road occasionally. He accepted that the injury was capable of being calculated in money terms. He also accepted that if an injunction were refused, the injury could be adequately compensated in money. So far so good from the tenant’s point of view, but the judge was not satisfied on the fourth point arising under Shelfer, namely whether it would be oppressive to the defendant to grant an injunction.

On this point, he took into account the fact that the right of way had been little used and for a long time had not been in substantial use. He would not characterise the defendant’s conduct in obstructing the right of way as intentional, by which I understand him to mean it was not a deliberate interference with the right of whose existence the police were aware, although he said they ought to have been aware of it from their title deeds. They took into account the operational needs of the police and the factors relied on as indicated above. He considered the judgment of the Court of Appeal in Jaggard v Sawyer, and came to the point by asking whether to grant an injunction would subject the defendant to a loss out of all proportion to that which would be suffered by the claimant if it were conversely refused. He was not much impressed with the arguments about security on the basis that the then current arrangements were not very secure themselves.

He expressed his final conclusion in paragraphs 21 and 22 of his judgment as follows:

By the injunction that he granted, he required removal of the container and a wooden post but he allowed some obstruction, so long as (a) if a security gate were used, the claimants had to have the key or code; (b) parking had always to leave a ten-foot way for vehicles; and (c) the claimant were to be entitled to a full 20 foot on access on notice, if they needed it for a large vehicle.

On that issue of injunction or damages Mr Hill, on behalf of the Chief Constable, argues on appeal that the judge did not give proper consideration to the relevant factors and in particular first, the very long period during which the right had not been exercised; secondly, the lack of any real benefit to the claimants by granting an injunction; thirdly the delay by the claimants in starting proceedings once they realised their rights have been infringed; and fourth, the cost to the defendant of complying with the injunction.

As I say, in his judgment, the Recorder applied principles set out in Jaggard v Sawyer and Mr Hill has taken us to those principles this morning. Millett LJ referred to and quoted a passage from the judgment of A.L. Smith LJ in the Shelfer case, where the Lord Justice had set out what he described as a good working rule for the question whether, under what was then the jurisdiction conferred by Lord Cairns’ Act, it was appropriate to deny a plaintiff an injunction but to grant damages in substitution. The passage is as follows:

That case, and the Shelfer case and others in the that line of authority, exemplify the fact, which is not in dispute, that this is a question of judicial discretion, so that a first instance judge’s decision can only be overturned if he can be shown to have gone wrong in principle. In the Shelfer case, the judge’s decision was overturned in favour of the granting of an injunction. In the present case, Mr Hill invites us to do the reverse.

At this point I must diverge briefly from the proceedings as they were before the judge. In January 2006 the appeal was due to come on in this court, but the defendant applied for an adjournment so as to be able to rely on additional evidence. By an order of 25 January 2006 I allowed what was intended to be short adjournment, so as to enable the defendant to make a formal application as regards further evidence. That was done and the new evidence is now before us.

That evidence is said not to have been available at the time of the trial and to be relevant in that it bears on the practical consequences of opening up the right of way. It relates to the position of the owners of number 2, 4 and 6 Cardigan Terrace, for whom solicitors, the Lister Croft Partnership act, or used to act. Their position is summarised by their solicitor as being that:

It was at the time the claimants’ intention to build a separate house on the farther side of Cardigan Terrace, opposite numbers 6 and 8, which would obstruct or might obstruct the use by the neighbours of their theoretical right of way through Cardigan Terrace and over Back Road, but would take potential benefit from the right of way over Back Road. That planning application has been unsuccessful and no new application has been lodged pending the outcome of the appeal.

If a new application is made and is eventually successful, it seems to me that it adds to the potential significance and value to the claimant of securing use of the Back Road as a vehicular access. That therefore would be a further factor in favour of the judge’s decision. There is no basis for any assumption as to (a) the likelihood that the claimants would get the planning consent needed; or (b) whether the other owners in Cardigan Terrace would seek to enforce any right of way they may have and if so their prospects of success.

In those circumstances I rather regret having allowed even a short adjournment for this purpose, particularly as it has led in practice to a long delay in the hearing of the appeal. I do not regard the new evidence as likely to assist the defendant and though Mr Hill has in effect abandoned the application, I would refuse it.

Reverting to the question of whether the judge misdirected himself or erred in any way in principle in considering whether to refuse an injunction and to grant damages instead, it seems to me that the judge considered rather carefully the relevant factors which he had to take into account. The one factor on which he did not express his reasons at all clearly, which Mr Hill says is relevant, is the question of delay as such. Mr Hill submits that that is relevant in two ways: one is that delay, in the sense of laches or acquiescence, can be a defence to an action for an injunction altogether, and secondly even it were not to operate as a defence to an action for an injunction, it would be relevant to the discretionary question of an injunction or damages.

Mr Hill relied on the proposition that Mr Jacklin knew of the police approaches and intentions in 1997, even though he did not have his own letter, and that knowing of the intended works he did not protest in writing until 2000 and not via a solicitor until 2001. In the meantime the police applied for and obtained their planning permission and implemented it with substantial and relatively expensive works in 1997 and 1998. Those would lead to substantial expense if they had to be put back to square one. It would no doubt be impossible or at any rate difficult to reconstruct any of the demolished buildings. It may be not altogether straightforward to move the container, in the sense that planning permission would be needed to put it somewhere else. It might be difficult to redesign the circulation plan if the opening to Laburnum Road, near Back Road, has to be an in, as well as an out, route.

As against that Mr Bottomley knew, as the judge held, that Mr Jacklin claims to have a vehicular right of way from an early stage, but he took no notice of that; he did not, for example, ask Mr Jacklin to produce his deeds or challenge him to produce evidence. He did not have access to the police’s own misfiled deeds which would have shown that there was a vehicular right of way and altogether he seems to have underestimated the significance of Mr Jacklin’s position and his assertions. The police therefore, knowing of Mr Jacklin’s position, albeit not formulated in any very formal way or in writing, proceeded regardless, leaving only space unobstructed for a pedestrian right of way.

Does the fact that Mr Jacklin did not press his objections more formally at an earlier stage, did not instruct solicitors until 2001, and did not start proceedings until 2002 mean that he ought not to get an injunction? The judge evidently thought not. We have seen an extract from the transcript of the hearing from which it is clear that Mr Hill made submissions, perhaps not very fully developed, but they were supplemental to a skeleton argument that we have not seen, along the lines of those that he has addressed to us today.

It seems to me that in the light of what the judge said in paragraphs 21 and 22 that I have quoted and in the light of the passage from his first judgment which I have also quoted, it is likely that his reason was that the points came up first in 1997 when Mr Jacklin protested orally to Mr Bottomley, and did so before the police took any step involving any substantial or irrevocable expenditure or other irreversible action, and that the police proceeded in the face of that protest without taking steps to clarify the position or check their own deeds or ask for those of Mr Jacklin, in order to see for certain what the position was.

In those circumstances the judge seems to have considered that, as in effect he said at paragraph 22, to return the parties to the position they were in in 1997, when the first protest was made, was not inequitable, unconscionable, unjust or oppressive to the defendant. That would be on the basis that a formal protest on Mr Jacklin’s part was not necessary. If, as I think, that is the implicit reason lying behind the judge’s judgment on this score, it seems to me that that is well within the scope of his discretion and was a proper direction on this point and a conclusion that he was entitled to come to.

Moving on from the question of delay, Mr Hill submitted to us that the judge was wrong to regard failure on the fourth Shelfer point as being fatal and that rather than regarding each point separately all four points should be put in the balance together, so that even if it would not be regarded as oppressive to the defendant to grant an injunction, other factors might justify withholding an injunction.

True it is that the Shelfer principles are only a working rule, although a long hallowed and reliable working rule, but it is clear that the four elements in that are cumulative and that it is necessary for a defendant to satisfy the first three, but that it is by no means sufficient for it to do so. There has to be some additional factor, characterised in Shelfer and in Jaggard v Sawyer as oppression, to justify withholding the injunctive remedy, which is the claimant’s prima facie right as ancillary to his property rights.

So it seems to me that Mr Hill’s criticism in that respect is not well made and what he is left with is his submission that the judge’s conclusion on the fourth point under Shelfer is one that was not open to him. In that respect it seems to me that, by and large, Mr Hill is criticising the particular conclusion that the judge came to, rather than being able to demonstrate that there was any error in principle. He submits that opening Back Road up for full use would require the claimants to accommodate a road across their land, which would cause them greater harm than if the injunction not granted, but as to that, this is not a consequence of the outcome of the litigation as between the claimant and the defendant, it is simply a question of what the position of the neighbours would be if they assert similar rights and succeed. Although that may be the result, that is a risk that the claimants may have to take. As I said earlier, if the neighbours are entitled to and if they are able to use Back Road for their own benefit, that could be an additional reason in favour of an injunction.

Next, Mr Hill submits that the claimants would not suffer any loss since they have no planning permission for any use of any part of Cardigan Terrace, which would allow vehicular use of Back Road, but there is no evidence as to the likely position in this respect. The single joint expert did not deal with the planning position, but he did show that if the garden at number 8 were opened up, as would be necessary, vehicular access between number 8 and Laburnum Road would be possible to a meaningful extent. Accordingly, this too seems to me to be a false point.

The fourth point is that the claimants have not used Back Road to pass and re-pass, but rather had gone to the end of Back Road, stopped there and unloaded. I do not regard that as different in substance from the judge’s point about the fact of very limited actual use. It does not justify a submission that the judge erred in principle.

This is a case which the judge himself described as a close decision (see his paragraph 19). It may well be that a different judge could have come to a different conclusion, but it does not seem to me that the appellant is able to show that the judge made any error of principle in considering the question of whether to exercise his discretion to refuse an injunction and to award damages instead. It seems to me that his decision to grant the injunction was well within the ambit of his discretion and that he reached that conclusion on a properly reasoned basis and for my part I would dismiss the appeal.

I agree.

I also agree. The reason why this court will be reluctant to interfere with the judgment of the judge below is not merely a matter of form, but also because the judge who has heard the trial is in a much better position than is this court to understand the inwardness of the case, the history of it, and the mechanics of the relationships between the parties. That is of particular relevance in this case, where the judge placed weight, and rightly placed weight, on the history of the matter and in particular on the exchanges that he found to have occurred between Mr Jacklin on the one hand and Mr Bottomley on the other, and the fact that, emanating from those exchanges, the police knew through their agent, Mr Bottomley, that a right of way had been asserted in 1997.

In placing weight on those exchanges, the judge was assisted by his view of the two principal protagonists and of the way in which they dealt with the matter on their respective sides. Even without the many matters set out by my Lord, Lord Justice Lloyd, with which I entirely agree, I would be extremely reluctant to interfere in the decision of a judge based upon that sort of scrutiny of evidence that he has seen and heard.

In the event therefore, the appeal is dismissed and the application is also refused, for the reasons given by my Lord.