Banks v Morgan & Ors

This is an appeal from a decision of HH Judge Hodge on 21^st November 2008, with the permission of Etherton LJ given on 27^th July 2011. The appeal was commenced in time but queries over jurisdiction, and a possible mediation, seem to have delayed a final disposition of the permission application. Its unfortunate history spans 4 applications to the court in relation to a dispute about the existence of, obstruction of and ultimately the physical extent of a right of way. The appeal before us arises because the parties have not managed to bring about a situation in which the physical extent of that right of way, in terms of its physical width, has been rendered clear. The application to the judge below was an attempt to clarify that matter. As will appear, it failed.

The parties are the respective owners of South Miry Fold Farm (the claimant) and Miry Fold Farm (the defendants) near Chorley, Lancashire. A tracked area runs between two hedges from the highway, to South Miry Fold. The tracked area is owned by the defendants; the claimant (who is the current appellant) claims, and indeed has, a right of way over it. That area between the hedges I shall call the roadway, since that is the description given to it in the original Particulars of Claim. Within it is a track created by vehicles running down roughly the middle of it (or down the middle of most of it) with verges each side. In 2004 there was a two day trial about it before HH Judge Howarth. It is a little depressing to record that the parties cannot even agree on whether the trial took place in the County Court or the High Court, but that does not matter for present purposes. The claim in those proceedings was for a declaration that the right of way existed, and orders restraining interference with it. The defendants admitted the right of way had once existed, but claimed abandonment. They also counterclaimed for a declaration as to the true boundary between the two main plots of land that each of them owned.

The Particulars of Claim pleaded the claim by reference to a plan which outlined the parties’ respective properties in different colours and which sought to colour the roadway brown. However, the pleading (or the plan) got the outline colouration the wrong way round, and the outlines obscured part of the brown colouration. At the beginning of the trial there was a discussion in which the claimant’s counsel suggested that a clearer plan be presented. We were told, and accept, that a fresh plan was produced. Its precise form is unfortunately not clear, at least to us. It is, nonetheless, a document on which the claimant now relies heavily.

In a decision dated 11^th June 2004 HH Judge Howarth held that the right of way had not been abandoned and that certain physical items were an obstruction of it. He also made determinations in relation to the boundary between the two principal plots. That latter aspect of the case does not impact on this appeal and I do not need to refer to it hereafter. He indicated that he would make a declaration as to the existence of a right of way “along the roadway coloured brown on the annexed plan” (judgment paragraph 26). Exactly what plan the judge should be taken as referring to is one of the points that arises on this appeal. This is a significant point to which I will have to return. The order when drawn granted a declaration in terms of a right of way shown on the plan annexed to the particulars of claim. There is a dispute as to what particular plan was referred to.

The matter came back before Judge Howarth on 4^th March 2005 on an application which is described by the appellant as an application to enforce his first order. We were told that this application was made in the applications court in Manchester. In it the appellant complained that the defendants were still placing obstructions along the right of way. No transcript of the judgment was available to us. At the end of the hearing the claimant submitted a draft order but the judge apparently carried out significant surgery to it and the final form of proposed order contained the following wording:

“It is further declared that the right of way referred to in the order made by this court on 11^th June 2004 (hereinafter referred to as ‘the Right of Way’) extends as far as is shown on the plan annexed to such order and that the width of the Right of Way is not restricted to the track area of the same.”

However, while the judge seems to have been provisionally prepared to make an order in those terms it was never finalised because the judge required the parties to approve it. A letter from the court to the claimant’s solicitors dated 15^th July 2005 recorded that:

“The order has been referred to the learned Judge but unfortunately, as feelings in this case are very strong he is not prepared to authorise the sealing of any order unless it is approved in writing by both sides or there is a hearing on notice to all parties.

I look forward to receiving a signed copy of the order in due course.”

The parties never signed a copy, or attended before him to indicate approval, so the order was never finalised. In the light of the events that happened the judge was, in my view, wise to take that course, and the parties were extremely unwise to leave matters in abeyance as they did.

Still the disputes continued. On 10^th August 2005 the claimant applied for an order “that the court remake the order as to paragraphs 1 to 3 of … the order of 11^th June” because “the defendants have only partially complied with the order”. If there is a contemporaneous witness statement in support of that application we do not have it, but a later witness statement served in support of the application indicates that the complaint was about a continued obstruction or obstructions of the right of way, including obstruction by narrowing its availability to the tracked area within the roadway. A witness statement in opposition, provided by the third defendant, complains about inconsistencies in past plans used in the proceedings, and accepts that the right of way included the verges up to a point about two thirds along its length (measuring from the road). Particulars of claim were ordered within this application and part of the complaint made in the Particulars of Claim was that there was an impermissible narrowing of the actual way by the defendants. The defendants defended the application and later amended their Defence to include a claim that the claimants were no longer entitled to the right of way, having parted with the dominant tenement.

The application came before HH Judge Hodge QC and he delivered judgment on 11^th November 2005. He decided the dominant tenement point against the defendants and then turned to “the only real issue” which was whether there had been an actionable obstruction of the right of way. He upheld some complaints and dismissed others. His judgment was obviously based on certain assumptions about the physical scope (width) of the right of way. If an order was drawn as a result of this hearing, it was not available to us.

There was then some protracted correspondence between the parties, as a result of which it appeared that there had been some agreement about a plan which was said to show the physical extent of the right of way, but which agreement was then denied by the claimant.

Although the defendants had come to accept (or were forced to accept) the claimant’s case that the right of way extended to the entire width of the roadway for its northern two-thirds or so, there remained a dispute as to the extent of the land which was subject to the right of way at its southern end. The claimant was contending for more than the defendant was prepared to concede. In that context the appellant/claimant made a further application to the court which resulted in the judgment appealed from. On 9^th September 2008 the claimant sought an order:

“That the matter be listed for a hearing to determine which is the appropriate plan to bind the parties because there is a confusion as to which is the correct plan. The claimant believes that the plan attached hereto and marked Plan 1 is the correct plan to which the parties should be bound and seeks for an order in those terms.”

By way of evidence relied on it was said:

“ … There has been confusion in previous court hearings as to which is the correct plan upon which is marked the right of way … The Claimant believes that the Plan attached hereto and marked Plan 1 is the correct plan to which the parties should be bound and seeks for an order in those terms.”

If it is properly reproduced in our papers, Plan 1 is another somewhat casually produced plan with colouration not clearly linked to physical boundaries. It looks like an attempt to reproduce the second of the two plans produced to Judge Howarth in the June 2004 trial. It is probably an attempt to show the right of way as extending beyond the vehicular tracks in the disputed space and extending up to what are shown as physical boundaries on that plan. But as a plan which is intended to produce clarity in a situation where there has already been a serious degree of lack of clarity it is, in my view, somewhat deficient.

In the judgment appealed from Judge Hodge QC set out some of the history of the matter and commented that in his first order Judge Howarth cannot have been intending to refer to the plan originally annexed to the Particulars of Claim because in paragraph 3 of his judgment he referred to a plan which will “now” be attached to the Particulars of Claim. Judge Hodge himself commented on the fact that the original plan was confusing because it got delineating colours the wrong way round, and the roadway itself got lost because of an overlayering of three colours. He then referred to the second Judge Howarth hearing and found that the resulting order was probably not actually approved and that the judge required agreement or an oral hearing before he would make it. Nonetheless Judge Hodge was satisfied that Judge Howarth had intended to make a declaration that the right of way was not restricted to the tracked area (the area marked by vehicle tracks) and that he envisaged a plan in something like the form of the second plan produced to Judge Howarth at his trial, and observed that that plan seemed to indicate a greater area of land subject to the right of way than the original Particulars of Claim plan. He then referred to the first hearing before himself, and comments that the order he made did not require a plan to be annexed; he was dealing with specific obstructions, and narrated some evidence that a plan was subsequently agreed in correspondence between the parties (though in due course he said that any issue as to whether this was a binding agreement would require a separate action).

At paragraph 11 he described his unenviable task as being one of “trying to decide what plan had been in the mind of Judge Howarth when he made his 2004 order”. He thought that he had in mind a plan like the one annexed to the particulars of claim, but “which showed the right of way coloured brown more clearly”. He noted that Judge Howarth had refused to agree that a different plan should be attached to his order of 2005 without agreement or further hearing.

He then concluded:

“23.

In those circumstances, it seems to me that all that I can do is to say that the right of way that was found and declared by Judge Howarth is that shown and coloured brown on the plan that was attached to the particulars of claim, and to leave it to the parties, or their respective surveyors, to attempt to extrapolate from that poorly coloured plan the full width of the right of way, bearing in mind Judge Howarth’s later 2005 order that it is not confined to the track area of the right of way.

“24.

I was invited to attempt to resolve this dispute once and for all, but I do not feel able to do more than I have. Any difficulty seems to be entirely of the parties’ making. The claimant’s solicitors failed properly to colour the plan attached to the particulars of claim, and failed to secure agreement from the defendants’ solicitors to any substitute plan; and the solicitors failed to take up Judge Howarth’s suggestion that, if they could not resolve the matter, there should be a hearing before him that was set out in the Court Service’s letter in July 2005.

…

“26.

So what I propose to do is simply to say that the extent of the right of way is as defined by Judge Howarth’s 2004 order by reference to the plan attached to the particulars of claim, but in a form that would clarify the precise extent of the brown colouring. It may be well that Miss Harrison is right in saying that, by reference to the conveyance and the statutory declaration, that should extend to all of the land coloured brown on the plan at page 45; but equally that does seem to me on its face to extend a little beyond the area that was shown by the colouring on the plan that was attached to the original particulars of claim. Hopefully the parties will be able, by reference to physical features on the ground, to resolve the matter, although it does not seem that they have been able to resolve anything so far; but I do not feel able to provide any further guidance beyond that which I have already indicated.

…

“30.

I have decided the appropriate plan is that which was originally annexed to the particulars of claim although it may require some interpretation. …”

The order as drawn goes further than the application before him required. The application was all about plans. The order is about the extent of the right of way. It declares that:

“The extent of the right of way found by HHJ Howarth on 11^th June 2004 is as shown coloured brown on the plan annexed to the Particulars of Claim”.

It is unfortunate that, in a situation in which it was unclear which plan should be treated as annexed to the Particulars of Claim, the order should merely repeat that rubric, but the judgment makes clear which plan that was - it was the original unclear plan.

The claimant seeks to appeal that last judgment of Judge Hodge, and relies on 3 grounds of appeal:

Based on these grounds of appeal, the Appellant’s Notice sought a new trial, but before us Miss Sarah Harrison, who appeared for the appellant, instead sought an order that the plan be determined as being what she said was the second of the plans presented to Judge Howarth at his trial; or alternatively a plan annexed to a statutory declaration which was said to show the extent of the land covered by the right of way. At the heart of Miss Harrison’s submissions lay an averment that the result of Judge Howarth’s first judgment was that the physical extent of the right of way had been determined by him, and that it was determined by reference to the new plan produced in opening the case. That plan should be treated as the one referred to in his first (and therefore his second) order. The purpose of establishing which plan was “binding” was that it determined what was currently in issue between the parties, which was the extent of the right of way.

The proper determination of this appeal depends on working out what should be taken to have been decided at the various hearings below. A study of the judgments (where available) and the evidential material (where available) reveals the following.

First, the physical extent of the right of way (in terms of its width) was never in issue at the 2004 trial and was neither decided nor admitted. The onetime existence of a right of way was not itself disputed. What was in issue at that trial was abandonment and obstruction, but the obstruction issues did not clearly involve a determination as to the physical extent. One can see that from the statements of case and from the judgment. The judge had misgivings about the plan, and it is plain that an amended plan was proposed. It does not appear to be disputed that an amended plan was produced. We have seen a transcript of a short exchange between judge and counsel in which the suggestion was made to produce a new plan. However, the purpose of doing that was not to produce a plan which laid down the precise physical extent of the right of way. It was to do better than the first plan, and reflect obvious colouring problems so that the court could see what the point was for the purposes of the issues then before it. There is no challenge to Judge Hodge’s finding that the colouring of the first plan obscured the colouring of the right of way, and that must explain the reference to an apparent future plan in paragraph 3 of the judge’s judgment where he refers to a plan “which will now be attached to the particulars of claim”. There is nothing in all this to suggest that in 2004 the judge was making any findings about physical extent. He just wanted a clear plan to make sense of the case before him.

Miss Harrison sought to say that the pleadings contained an admission on the part of the defendants about the physical extent of the right of way, by which they were now bound. In my view this submission misunderstands the pleadings. Paragraphs 1 and 2 of the Particulars of Claim identify the respective properties of the claimant and defendants. Paragraph 3 reads:

“There is coloured brown on the Plan a roadway (‘the Roadway’) leading from the Claimant’s property to the public highway known as Briers Row which runs through the Defendant’s Property.”

Paragraphs 4 and 5 claim long usage of a right of way over the Roadway, and paragraph 6 claims that:

“Accordingly the Claimant claims the aforesaid right as a legal easement …”

Paragraph 7 refers to a 1963 conveyance which conveys the claimant’s property with the roadway, and paragraph 8 refers to a statutory declaration which is said to support user “over the full extent of the Roadway which was coloured brown on the plan annexed thereto since 1929”. The remainder of the pleading pleads interference with use of the right of way.

The Defence starts by pleading:

“Title

Miss Harrison relies on this as being an admission of her case for the physical extent of the right of way. In my view it cannot be so construed. At the time the action was started there was no identifiable dispute about physical extent. The dispute was about the whole existence of the right of way. The Particulars of Claim assert the existence of a right of way. The heading in the Defence treats the first three paragraphs as pleading “Title”, and title is admitted. There is a reservation about colouring, and that must be taken to be a reservation that the scope of the respective titles is not entirely accurately described in the plan. That means that paragraph 1 of the Defence cannot be taken as any admission of the physical extent of the right of way. Coupled with that, it is accepted by the claimant that the colouration on the plan was carelessly applied, so even the claimant cannot be treated as saying that the plan was entirely accurate. If that is the case it cannot be right to treat the defendant as accepting, at that stage, that a badly coloured plan set out the physical extent of the right of way.

So at that stage of the reasoning the crucial underpinning of Miss Harrison’s argument is taken away from her. Her position is not improved by a reliance on what she says was the better plan submitted after the opening. There was never a formal application to amend the pleading to substitute the new plan, or formal order or agreement allowing it, so there was never a pleading to the new plan. Even if, which appears to be the case, the parties then conducted the trial on the basis of the new plan, it would in no way be right to treat what was hitherto not an admission as becoming one when the new plan was used.

This assumes that it is clear what that new plan was purporting to illustrate as the extent of the right of way. In this court’s appeal bundles there were various versions of what was said to be the substituted plan. They were all individually coloured. None of them showed new versions of the red and blue colouring, and the extent of the brown colouring (actually represented by yellow in our plans) varied from plan to plan. We did not see anything which could clearly be taken as a faithful reproduction of the plan produced to Judge Howarth. Miss Harrison has therefore not even demonstrated a clear enough plan.

It would not be surprising if the actual plan produced to Judge Howarth was equally imprecise. The pleadings and judgment in the case demonstrate quite clearly that the physical extent of the right of way was not in issue at this stage, as does a list of issues in the case prepared by Miss Harrison which makes no reference to it. What was in issue was whether it still existed or had been abandoned. Plans which did not necessarily colour in every last potential inch of the alleged territory of the right of way were not necessary for this purpose. When the judge’s order declared an easement by reference to a plan he was not declaring its physical extent - he was merely declaring that there still was one.

Then comes the 2005 hearing. It is not possible for us to work out precisely what was in issue here, but it does seem to have been a question about physical extent. In a later skeleton the third defendant is recorded as having said in a statement that he believed the right of way was restricted to the track itself. The judge seems to have wished to resolve whatever was in issue by saying that the right of way was not confined to the physical tracks on the ground. But two points arise. First, in the absence of a sealed order, or transcript of a judgment, it is not possible to say that there was some sort of binding finding about extent. Second, the indication given by the judge was in a negative form, rather than a positive form - his draft order states what the right of way was not, and not what it was. Just because he was minded to find that the right of way was not confined to the tracked area, it does not necessarily follow that it must extend right to the hedges on each side; and even if it does that for part of its length, it does not follow that it does it for the whole of its length. So one cannot rely on what happened on this occasion as fixing the physical extent of the right of way.

Then we come to the November 2005 hearing in front of Judge Hodge. At this hearing the physical extent of the right of way does seem to have been in issue. Some of the debated points only make sense in that context (for example, coning off of the tracked area itself, which the judge found to be an obstruction). The claimant’s pleading seeks a right to use the whole width of the trackway. In his judgment on that occasion Judge Hodge observed (correctly, in my view) that physical extent was not in issue at the trial in 2004. He then went on to make findings which plainly assume a width going beyond the tracked area. In particular, he describes a gate at the highway end of the trackway as extending “across the full width of the right of way, including the verge” (my emphasis). So this judgment again presupposes a width beyond the tracked portion. It does not, however, contain findings which enable one to be precise about the width along its entire length.

The effect of that history is that it is impossible for any court to delineate precisely the area of the land which is subject to the right of way in the sort of terms that the claimant apparently seeks. Much less is it possible to decide that one of the plans produced in this action is, and should be treated as, the definitive plan in that respect. The original Particulars of Claim plan is apparently too unclear; the intended substitute plan has not been demonstrated to be clear; it was not intended for that purpose (at least not overtly so); and it was never ruled on for that purpose. So the question posed in the application to Judge Hodge was the wrong question. The real issue was not about plans, which would not address the real issue. It was about how wide the right of way was. It was not possible to answer that question by reference to either of the plans used at the 2004 trial. That task was not just unenviable; it was impossible.

The judge below, however, did give a sort of answer to the real question. In doing so he was doubtless (and commendably) doing the best he could to assist the parties out of a difficulty of their own making. He said that the extent of the right of way was defined by the 2004 order by reference to the original Particulars of Claim plan albeit with some clarification (see paragraph 26). I respectfully disagree for the following reasons:

The order drawn does not quite reflect any of the judge’s findings in his judgment. It is a straightforward declaration which assumes that one can just look at the plan annexed to the particulars of claim and see the extent. The judge’s own reasoning demonstrates that that cannot be right.

I would therefore decide that the judge’s order was wrong, as is his apparent decision on this point in paragraphs 23 and 26 (and 30). In short, his decision is wrong in linking Judge Howarth’s order with the original plan, and his final order is wrong in saying that that plan determined the physical scope of the right of way.

However, having said that, I would not substitute the order sought by the appellant. The appellant seeks to vary the order so that it refers to the substituted plan. That would leave the substituted plan as defining the physical extent of the right of way. For the reasons given above, this court cannot be satisfied that the amended plan appropriately delineates the entirety of the physical width of the right of way.

Nor would it be right to substitute the plan annexed to the statutory declaration referred to above. It is not necessary to describe that declaration in any detail. Suffice it to say that it was made in July 1963 and says that the declarant had “used and enjoyed … over the full extent of the said access coloured brown on the plan [annexed] …” since 1929. Once again, the colouring on the plan varied from copy to copy, and it was not possible to see what the original showed as to the width of the roadway which was coloured. Miss Harrison relied on this as demonstrating that the claimant had made a case based on the full width of the right of way, and that it was a plan which represented what the judge found. However, Judge Howarth made no findings at all about extent by reference to this plan. There is no way in which his first order can be taken to be referring to it. In the circumstances it would have been quite wrong for Judge Hodge somehow to substitute a reference to this plan for the actual reference in the judge’s order; nor can this court do so.

The question therefore arises: What order should this court make, bearing in mind that the judge’s order cannot stand? For my part I would make no order on the actual relief sought in the application. The application sought a determination as to which plan binds the parties. If its purpose was to ascertain which plan was intended to be referred to in Judge Howarth’s first order it would probably be the substituted plan. That “binds” the parties in the sense that is part of the order. It does not, however, address what is the real question, and what was really meant by “binds”. The appellant really means: “Which plan binds the parties as to the physical extent of the right of way”. The answer to that question is: None of them, because the parties are not yet bound in relation to the whole right of way (though some of the findings of HH Judge Hodge in his first application will have a binding effect in relation to parts of the right of way). But there is no point in making such an order. In my view the right order would be to make no order in relation to the relief sought other than to give some directions for trying what are apparently the real issues between the parties.

It is important that some finality be introduced in relation to this dispute to stop a further multiplicity of hearings. There are two potential routes to finality. The first is a determination on the merits of the extent of the right of way. The second is the alleged agreement between the parties as to a plan which shows the physical extent. I have referred to this above. After Judge Hodge’s first judgment the defendant proposed a plan which was understood by them to set out the position as a result of the preceding hearing. About 18 months later the claimant’s solicitors wrote to confirm “that the plan you have attached is correct”. The defendants apparently allege that this (together with an expressed agreement at a telephone hearing with a district judge) gives rise to a binding agreement as to the physical extent of the right of way. Judge Hodge considered that he could not rule on that (rightly, in my view). The matter is apparently the subject of separate proceedings.

It seems to me that absent an agreed resolution of the issues in the meanwhile, one or other of those routes must be made to yield finality. It was tempting at first sight to let the agreement route run its course first, because it seemed to have some merit in itself, and the additional merit of being a relatively self-contained point which did not need a lot of evidence to deal with it (despite the fact that the defence to it raises, inter alia, mistake and want of authority points). However, having considered it further I do not think that it would be right to take the decision, at this point, that that point should be run first and separately. Having looked at the correspondence, it seems to me that the agreement point is not what it at first seemed. The terms of the defendants’ solicitors’ letter of 14^th November 2006 which is relied on by the defendants as making the offer does not propose the plan attached to it as a substitute for either of the plans used at the 2004 trial. Nor does it in terms promote it as a way of settling outstanding disputes. It refers to the fact that the court was refusing to seal “any orders” until such time as a plan is agreed, and says that agreeing it would “save having to prepare a different plan for each of the Orders from June 2004 to November 2005”. That is a curious remark because none of those orders (or neither of the earlier ones) referred to a plan as annexed to the order; they both referred to a plan annexed to the Particulars of Claim. All in all it is far from clear what that document is proposing, so it is equally unclear what the confirming letter is confirming or agreeing to. It is not easy to foresee that the trial of the agreement point will produce finality in the case, though of course at the end of the day the judge trying the point will decide it on the basis of what he or she hears, not on the misgivings expressed here.

I do, however, think that the prospect of having an aggregate of 6 hearings to sort this matter out rather than 5 is sufficiently unattractive to require that all possible outstanding disputes be dealt with in one hearing. With that in mind I would give directions on the merits point, and direct that the point be heard with the agreement point. The directions I would give on the merits point would be as follows:

It may be that the parties would wish to propose or agree refinements of those directions, because they have not been the subject of debate. They may raise them with this Court in writing before the order on this appeal is finalised.

I would therefore allow this appeal, substitute a “No order” provision for the declaration made by the judge below, and give the further directions referred to above.