Graham & Ors v Mayrick

This is an appeal against the decision of HHJ Cooke dated 3^rd December 2004 granting the respondent (“the College”) summary judgment in respect of its claim to specific performance of a contract dated 9^th April 2003 (“the contract”).

The contract was entered into in order to compromise county court litigation between the College and the appellant concerning their respective rights and interests in land situate off the Old Woolwich Road, Greenwich, London SE10.

The county court litigation raised issues of some potential complexity in relation to the relevant parcels of land. Describing those issues otherwise than by reference to an agreed plan with consistent colouring is difficult. No such plan exists. In what follows I have largely adopted (with gratitude) the description of the various parcels given by the judge below.

Nos. 122 and 124 Old Woolwich Road are a pair of Georgian houses which directly abut Old Woolwich Road, and which are separated by an archway (with part of each property over the archway). The passageway under the archway is variously described in the papers before me as “the Orange land” or “the Accessway land”. Somewhat confusingly this piece of land is edged yellow on the plan used in the county court litigation. I will refer to it in this judgment as the Accessway land.

Between the Accessway land and the public highway (and to the north of the Accessway land) there is a small piece of land, described by the judge as a pavement crossing, and referred to in the judgment as “the Front land”.

To the south of the Accessway land what looks on the plan like an extension of the passageway over the Accessway land continues until it debouches into a large yard on which there are shown two workshops and stabling. The judge referred to the area which looked like an extension of the passageway as “the Appendix”. One of the issues in the county court litigation concerned the erection of gates which divided the Appendix from the rest of what I have described as the yard (these gates being between F and G on the plan annexed to the Particulars of Claim in that litigation).

The yard together with the Appendix was identified in those Particulars as “the Green land”.

A narrow triangular piece of land to the east of the Appendix was referred to as the Blue land. The issue in the litigation concerning this parcel was as to the legitimacy of its incorporation into the back garden of No. 124.

A further piece of land was identified as “the Red land” by reference to that plan.

The College claimed to be entitled as freeholders to possession of the Green land (including the Appendix), the Red land and the Blue land. The claim was against the defendant who was the registered freehold owner of No. 124 (under title number TGL 155476).

In relation to the Green land the College complained that the appellant was trespassing by storing vehicle parts and equipment thereon.

In relation to the Red land the College complained that the appellant had wrongly been registered as proprietor of it under title number TGL 176377 as a result of a claim by him to have become entitled to it by adverse possession. The reason why the College maintained that this was an impossible claim as against it was that from 1972 onwards until 16^th October 2001 the Red land had been comprised in leases granted by the College: since the appellant’s possession of that land began (if at all) no earlier than 1975, his possession could not have been adverse to the College’s title.

In relation to the Blue land the College complained that it had been wrongly incorporated by the appellant into the garden of No. 124 by the construction of a wall and/or fence.

The College also asserted, on the basis of an exception and reservation contained in its conveyance in 1986 of the Accessway land to Hyde Housing Association, a right of way over the Accessway land, and claimed that that right had been obstructed by gates erected between F and G on the plan by the appellant.

The appellant’s position in relation to these issues was:

The contract compromising the county court proceedings was concluded by an exchange of letters dated 4^th April 2003, of which the following provisions are material:

“1.

Our client (“Morden College”), to transfer to your client, Mr Brian Mayrick, workshop 1 and the land at the rear of 122 Old Woolwich Road in the trustees’ ownership to the north of the boundary of the new fence to be erected as shown between points X and Y on the attached plan.

2.

Mr Mayrick to transfer to Morden College the land at the rear of 122 Old Woolwich Road comprised in the title TGL 176377, save for the part lying to the north of the new fence.”

Clause 3 dealt with the removal by the appellant of his possessions from the land south of the XY line by 28^th April. Clause 4 provided for the erection of the new fence by 14^th May 2003. Clause 5 provided for completion of the transfers on 1^st June 2003 and for the College to pay the appellant £5,000.

The line XY runs from a point (X) at the north western corner of workshop No. 2 to a point (Y) at the north western corner of the enclosed garden of No. 122. So far as the land to the north of X-Y and the rear of No. 122 is concerned the College’s position turned out to be as follows. In part (up to the position of the gates at F-G which had been in issue in the county court proceedings) the College had a registered title having registered the same in 2002. As to the remainder, to the north of the line F-G, the College’s title was unregistered. The judge referred to this latter piece of land as “the Rear land”. The contract made no provision however for how the College was to deduce title to the land which it had agreed to transfer.

The title originally proffered by the College’s solicitors consisted, as I understand it, only of the land in respect of which it was registered. That registration had been supported by a statutory declaration made by Major General Dick who was then the clerk to the trustees of the College (“the General’s declaration”). When this shortcoming was pointed out to them the College’s solicitors in due course proposed to make it good by relying on a further statutory declaration by their property manager, Mr Boyne, which sought to prove the College’s possessory title to the Rear land. The College also offered to have the Rear land registered.

In the meantime, however, the appellant conceived the notion that title to the Rear land (or at least a substantial part of it) was or ought to be his quite independently of any alleged title of the College. The theory seems to have been that the College had been dispossessed in and after 1986 following its transfers of Nos. 124 and 122 to, respectively, NWKHA and Hyde. Hyde had thereby acquired a title by adverse possession by the time (1998) when the appellant took his transfer of No. 124, and ought to have been included in that transfer. On this basis the appellant sought and obtained from Hyde a conveyance of the Rear land to himself, and has claimed to be entitled to rescind the contract. He also demolished the fence at X-Y which, pursuant to the contract, the College had erected.

The College’s application before the judge was for summary judgment on its claim for specific performance of the contract for possession of such parts of the Green land and Red land as were not, under the contract, to be transferred to the appellant, an injunction restraining him from occupying such parts of the Red and Green land, an injunction ordering him to reinstate the fence at X-Y, and damages for trespass.

The defendant appeared in person at the hearing below. His contention was that the issues which he had raised were not fit to be determined by a summary process. Those issues were, in essence, whether the contract complied with section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989, whether he had been induced to enter into the contract by a false representation that the College had a possessory title to the land agreed to be transferred, and whether the College was entitled, under the contract, to force on to the appellant a title based solely on the evidence as to possession before the court.

The misrepresentation allegation took two forms before the judge. One was that the representation as to the College’s possessory title was false in that part of the land to be transferred was in fact registered. The other was that it was false because possessory title could not be shown to the unregistered part. Before me only the second of those points is taken. Accordingly the second and third issues involve exactly the same point of substance, namely as to quality or sufficiency of the defendant’s title to the Rear land for the purposes of the contract. It is convenient to deal with that issue first.

I do not think that the appellant disputes that prior to 1972 the College was the freehold owner by virtue of an ancient undocumented title of the Rear land. It owned what I have described as the yard, it owned No. 124, it owned No. 122 and it owned the Accessway land. That unity of ownership left the Rear land completely enclosed by land owned by the College. There is absolutely no reason to doubt that the Rear land was in the College’s ownership along with the rest.

By a lease dated 24^th February 1972 the College demised to the appellant for a term of 14 years from 25^th December 1971 the yard premises. It did so by reference to a plan which showed the demised premises as having a northern boundary roughly in the middle of the Rear land (in my bundle the plan at p. 47 is the clearest version of this). The appellant was also granted a right of way in common with others over the remainder of the Rear land, the Accessway land and the Front land.

By paragraph 9 of his witness statement dated 25^th October 2004 the appellant suggested that the reason why these latter parcels had been excluded from the 1972 lease was because they were “outside the boundary gates of the premises” and were “at all material times shared with the tenants of 122 and 124”. In that quotation I take “the premises” to mean the land demised by the 1972 lease.

In the same witness statement, at paragraph 11, the appellant said that “boundary gates” between the premises and the Rear land had first been put up in 1972 “and adjusted in 1975”. I infer that the adjustment referred to was the positioning of the boundary gates between the points marked F and G which (in paragraph 28b of his amended defence in the county court litigation) he alleged had happened at the College’s behest in 1975.

The appellant was declared bankrupt in 1981. An issue which was canvassed before the judge was whether the 1972 lease at that point came to an end. The appellant was not able to show that there had been any disclaimer by his trustee in bankruptcy. However he did produce evidence, in the form of a witness statement dated 24^th October 2004 by Jacqueline Mason-Hamlyn (“JM-H”), that she became the College’s tenant of “the garage premises” in April 1981.

In the meantime the appellant had become the College’s tenant of No. 124. No. 122 was also tenanted.

Accordingly the position may have been as from April 1981 that JM-H was paying rent to the College for “the garage premises”, but that so far as she was concerned the Rear land beyond the “boundary gates” was under the control of the tenants of Nos. 122 and 124 and not part of the garage premises in respect of which she was paying rent. For so long as those tenants were tenants of the College no acts of possession by them in relation to the Rear land could have operated to bar the College’s title to the Rear land. The presumption is that a tenant who encroaches on adjoining land of his landlord for the relevant period of limitation does so for the benefit of his landlord. The effect is that the landlord’s freehold title to the land is not barred but the land is treated as an addition to the tenancy: see Smirk v. Lyndale Developments [1975] Ch. 317, C.A., approving at 337H and 340E the judgment of Pennicuik V-C at first instance (ibid. at 321 and in particular 326H and 332H-333A).

I pause at this point to note the difficulty which arises on the facts (as I am assuming them to be) from the fact that the acts of dispossession which occurred were not acts by the tenant of one property in relation to other property of his landlord but acts by the tenants of two different properties. If the acts of the two tenants, viewed collectively, were sufficient in principle to have the effect of adding the land to their respective tenancies, to which the tenancy is the land to be added?

By separate conveyances, each dated 31^st October 1986, the College conveyed away its freehold interest in Nos. 124 and 122. The conveyance of No. 124 was to NWKHA. The conveyance of No. 122 was to Hyde. Neither conveyance included the Rear land but it is, I think, common ground that the conveyance of No. 122 did include the Accessway land.

Accordingly, from that date, the appellant became the tenant of NWKHA and the tenant of No. 122 became the tenant of Hyde. I will assume for present purposes that they continued to use the Rear land in the way JM-H describes, that is to say exercising control over the Rear land and excluding JM-H (the College’s tenant of the garage premises) from the Rear land. If so the presumption is that their encroachment enured for the benefit of their respective landlords: see Megarry & Wade, 6^th Edition at para 21-027 and the cases there cited.

The next event of significance is the grant by the College to JM-H by a lease dated 14^th January 1987 (“the 1987 lease”) for a term of 15 years from 24^th June 1985 of the garage premises. This lease purported to be not only of the garage premises but also the Rear land the Accessway land and the Front land. JM-H’s evidence is to the effect that, whatever the 1987 lease may have said, the tenants of Nos. 124 and 122 continued to control the Rear land.

In March 1991 NWKHA transferred its freehold title to No. 124 to Hyde. The appellant’s tenancy of No. 124 continued.

According to the appellant’s evidence (supported by JM-H) his use of the Rear land in common with the tenant of No. 122 continued as before until, in 1994, Hyde sold No. 122 to a Mr Michael Maloney. In the following year Hyde sold to Mr Maloney what appears to have been a small section of the Rear land in respect of which Mr Maloney became registered with possessory title (TGL 110440) on 29^th June 1995. The appellant says that Mr Maloney then erected a new boundary fence to enclose this small section into the garden at the rear of No. 122 and that the effect of this enclosure was thenceforth to give him, as tenant of No. 124, exclusive use of the remainder of the Rear land: see paragraph 14 of his witness statement dated 25^th October 2004.

The appellant purchased the freehold of No. 124 by a transfer dated 3^rd December 1998 and was registered as proprietor on 19^th January 1999 under Title Number TGL 155476.

To complete the picture, JM-H’s lease was forfeited on 16^th October 2001 by a consent order made in proceedings brought against her for forfeiture in the High Court.

The appellant’s case on the above facts is that from 31^st October 1986 Hyde, by its tenants at No. 124 and 122, was in possession of the Rear land adversely to the College and that, accordingly, by 31^st October 1998 the College’s title had become barred.

It was argued on behalf of the College that its title could not have become barred by any acts of dispossession by the tenants of Nos. 122 and 124 or by Hyde because the Rear land had always been subject to a tenancy, and time could not run against the College until the tenancy had expired. Thus, it was argued, even if the appellant’s 1972 lease had terminated in 1981, there could only have been possession adverse to the College’s freehold title during the period between the termination of the 1972 lease and the grant of the 1987 lease. That argument was accepted by the judge at page 15 of his judgment.

The proposition accepted by the judge was that, even if time had started to run in favour of Hyde in October 1986, Hyde’s possession would only have been adverse to the College up to the point where it granted the 1987 lease and that thereafter possession would only have been adverse to JM-H’s lease. Before me this proposition was treated as self-evident by Mr Clark in his submissions, and only questioned by Miss Holland in the course of her reply. I invited counsel to lodge further written submissions on the point. When they did so it turned out that Mr Clark was prepared now to concede “for the purposes of the Part 24 application that if time had started to run against [the College] in 1986 it would continue to run as against [the College] notwithstanding the grant of the 1987 lease unless the tenant under the 1987 lease dispossessed the squatter so that the latter was no longer in occupation and control”

That concession rendered it necessary (which it had not been before) for the College to argue either:

The first and third of those arguments depend, as it seems to me, on my rejecting JM-H’s evidence as to the extent of the possession of the Rear land enjoyed by her during the period (1981 to 1987) when she claims to have been paying rent to the College in respect of the garage premises. It seems to me at least arguable on her evidence that the “garage premises” for this purpose stopped at the gates which existed (or may have existed) between the points marked F and G on the plan referred to above.

The second argument does, however, require closer scrutiny. As put in Mr Clark’s further written submissions, the lack of reality in the proposition was based on the assertion that there was no physical barrier between the garage premises and the Rear land such as would have prevented the tenant of the garage premises for the time being from occupying the Rear land, whereas there was such a barrier preventing the tenants of Nos. 124 and 122 respectively from occupying the Rear land. This, however, seems to me to overlook the evidence of the appellant and JM-H as to the existence from 1972 of what they call boundary gates, and their evidence (not wholly clear) that there were gates into the rear of No. 124 and (until 1995) a mere rope boundary at the rear of No. 122. As I understand the appellant’s evidence the user of the Rear land by the tenants of Nos. 122 and 124 was as a pedestrian and vehicular access to the rear of their respective properties. It does not seem to me wholly unrealistic to suppose that that user may have been to the exclusion of the tenant of the garage premises as JM-H seems to be asserting that it was.

The real difficulty with the appellant’s theory seems to me to be in the point which I noted at paragraph 30 above. Even if one supposes that the Rear land was not subject to a tenancy at any material time I find it difficult to see how time can have started to run in favour of Hyde as against the College until at the earliest 1995 when, on the appellant’s case, he as Hyde’s tenant of No. 124 claims first to have obtained exclusive possession of the Rear land. Before that time the position appears to have been:

My conclusion is, therefore, that nothing had happened between 1972 and the date of the contract to bar the title which the College undoubtedly had to the Rear land in 1972. It follows that any representation made by the College in the negotiations leading to the contract was a true representation.

The point noted at paragraphs 30 and 44 above had played no part in the submissions made by counsel before me at the hearing, and I thought it right to give Mr Clark an opportunity to indicate whether he adopted it and Miss Holland to reply by further written submissions. Mr Clark did adopt it, and Miss Holland did not seek to argue that on the basis of the factual assumptions on which it was based that it was ill-founded as a matter of law. She did, however, seek to introduce, under the guise of the further written submissions which I had invited, entirely new evidence to the effect that the appellant’s possession of the Rear land north of the points F-G had not been shared with the tenant of 122 from May 1988 onwards. No explanation was, however, given as to how this could be reconciled with paragraphs 14 and 17 of the appellant’s own witness statement, or as to why this evidence had not been adduced before the judge. Insofar as Miss Holland’s further submissions can be interpreted as an application to adduce fresh evidence on the hearing of this appeal, there do not seem to me to be good grounds for its admission.

The College proposed to prove its title by a statutory declaration. The initial statutory declaration proffered simply did not speak to the Rear land and was plainly insufficient. The College therefore proposed to offer a different statutory declaration and ultimately produced one by its property manager Mr Boyne dated 18^th November 2003. By this time the appellant had decided that the College could not prove a title but that Hyde could.

Miss Holland advanced two reasons why any attempt by the College to prove its title by statutory declaration failed: first that the statutory declarations did not satisfy the obligations implied in an open contract for the sale of land; and, secondly, that the title proffered was unreliable.

As to the first point Miss Holland relied on a passage from Barnsley’s Conveyancing Law and Practice at page 353 which is in the following terms:

“A title resting solely on the vendor’s possession (or that of his predecessors) for at least twelve years, though supported by statutory declarations, does not suffice to establish a good title under an open contract. He must show that the possession has extinguished the interests of all claimants to the original title. This entails tracing the title from a good root to the point when the then legal owner was dispossessed. Thereafter possession for at least twelve years may, depending on the facts, constitute a good title if verified by sufficient evidence. …”

She also cited passages to similar effect from Emmett on Title (para 5.118) and Megarry & Wade, 6^th edition (at p. 692).

The College had not, in either of the statutory declarations, sought to trace the title from a good root to the point where the legal owner was dispossessed. All Mr Boyne’s statutory declaration did was to refer to the fact that the legal title to the property was vested in the Official Custodian of Charities pursuant to a Scheme dated 12^th December 1871 and to the fact that from his knowledge and the records available to him the College had been in continuous and undisturbed possession for a period considerable in excess of 40 years. Accordingly, she submitted, that was insufficient proof of the College’s title.

Mr Clark on behalf of the College accepted the validity of the general proposition relied on by Miss Holland. He submitted, however, that the usual implied obligation had to be modified in the light of what the appellant knew of the College’s title to the Rear land at the date of the contract. It was the appellant’s own case that representations had been made to him in the course of the negotiations that their title was an “ancient” title or “an unregistered ancient title” (see paragraphs 5 and 21 of his witness statement). At page 16 of his judgment the Judge records the appellant as having said that the representation was that the College’s title was “an ancient undocumented title”. The submission was that the reference to the College’s title being an ancient one was quite inconsistent with any expectation on the part of the appellant that the College proposed to prove title by showing a good documentary root of title and then some ancient act of dispossession by the College of the notional paper owner.

In support of the submission that the content of the implied obligation to show title had to be read, or moulded, to accord with what was known by the appellant at the time of the contract, Mr Clark relied on the decision of the Court of Appeal (Lord Cozens-Hardy M.R., Warrington LJ. and Lawrence J.) in Alderdale Estate Company v. McGrary [1917] 1 Ch. 414 which approved and applied the following passage from Williams on Vendor and Purchaser, 2^nd edition at page 203:

“Here we may notice a case in which a purchaser may be obliged to take lands subject to some defect of title or particular incumbrance, without any written stipulation to that effect. Where the vendor’s obligation to show a good title is not an express term of the contract, but is merely implied, as in the case of an open contract, it is open to him to prove that the purchaser bought with notice (though given by word of mouth only) that a good title could not be made, either wholly or partially; and the vendor will then be exonerated from showing title to the extent indicated by such notice. But where the vendor has expressly contracted to show a good title, he is not permitted to modify the terms of his written agreement by giving oral evidence of any such notice”

That case is binding on me, and on this point I accept Mr Clark’s submissions.

Miss Holland’s second point was that the title offered was insufficiently reliable to be forced on a purchaser, referring me to Farwell J.’s observation in Re Nisbet & Potts’ Contract [1905] 1 Ch. 391 at 402 that the court will not force a purchaser “to take a leap in the dark”, to Russell LJ.’s dictum in George Wimpey & Co. Ltd v. Sohn [1967] Ch. 487 at 512 that:

“A possessory title will be forced upon a purchaser in place of the title contracted for only, I think, in a clear case.”

and to O’Connor M.R.’s comment in Ashe v. Hogan [1920] 1 R 159, at 168, that:

“… although Farwell J recognised [in Re Nisbet & Potts’ Contract] that a purchaser may be forced to take a possessory title, it must be in a case which admits of indubitable evidence, and leaves the purchaser subject to no risk.”

The first point to make about this submission is that the judicial observations relied upon were all made in cases where the issue was whether a possessory title could be forced on a purchaser in place of the paper title stipulated for in the contract. Those cases go no further than showing that the answer is affirmative, but only in a clear case.

In this case nothing more than a possessory title was contracted for if I am right to have accepted Mr Clark’s earlier submission. The question is therefore whether the possessory title offered was a good one. This is identical to the question to that which I have already answered in dealing with the issues over misrepresentation, where I have concluded that the College could prove that it had a good possessory title to the Rear land.

In any event the suggestion that the title offered left the appellant at risk that it might be upset is inconsistent with the case advanced by the appellant himself as to the potential source of any attack on the College’s title. On his case the only person who could attack the College’s title was the appellant himself, since his case (supported by Hyde) was that Hyde had acquired a possessory title to the Rear land and that, as between himself and Hyde, the Rear land ought to have been included in the conveyance to him of No. 124. That factor, not necessarily relevant in the same way to the misrepresentation claim, seems to me fatal to any argument that the title offered by the College put him at any risk.

The short answer to the point, however, is that as between the College on the one hand and Hyde/the appellant on the other, the College did have good title to the Rear land. It may very well be that, if the College had been contracting with a third party to sell the land, the third party with notice after contract of Hyde/the appellant’s claims might have put himself in a position to rescind the contract by requiring the College, within some reasonable time, to provide evidence that those claims were bad ones. In those circumstances the College might have found difficulty in providing the requisite proof within the requisite time. However in the present case the appellant did not rescind the contract on the ground of any delay by the College in proving its title but on the assertion that the College had no title which it could prove. That was, in my judgment, a misconception.

Of the two points argued before me, only one was argued below. This was simply that the description in the contract of:

“the land at the rear of 122 Old Woolwich Road in the trustees’ ownership to the north of the boundary of the new fence to be erected as shown between points X and Y on the attached plan”

was insufficiently certain to identify the Rear land.

The judge dealt with this point at page 10 of his judgment as follows:

“It must be remembered that what s2 requires is for the written contract to contain all the terms agreed between the parties. That of course includes an identification of the property to be conveyed. But the section does not provide how that identification is to be made. Conveyancers have (probably so long as there have been conveyancers) had to struggle with the question of whether the property offered can be sufficiently identified with the property contracted for. The 1989 Act has not changed any of that.

In my judgment

(a)

the words of Clause 1 though they could be improved upon do actually identify what is to be purchased by Mr. Mayrick in a way that is capable of identification simply on the words of the Clause themselves. The land to be sold is all the land which the College owns in a defined area that is north of the new fence line and to the rear of 122. Mr Mayrick in the course of argument said (it would have been a sustainable point had the facts supported it) that simply to say land south of the fence line without more might have encompassed large portions of the College’s lands between Old Woolwich Road and the river. I think a construction in the factual context would have avoided that result anyway but in fact the argument overlooks the requirement that the relevant land is land is land at the back of 122. So what you have to do to complete the contract is require the College to convey or transfer everything they own within the defined area.

(b)

But when one comes to look at the agreement in the factual matrix (para 3 above) any doubt is removed completely. It is the land to the rear of 122 of which the College in the claim are claiming ownership. This includes the Rear land.

Accordingly, whichever approach one adopts I see no real prospect of Mr. Mayrick being able to show (were there to be a trial) that the Contract fails to identify the land to be transferred and in particular that it does not identify the Rear land, although I accept that it could have been better done.”

Miss Holland submitted that this reasoning was flawed in that it was based on the assumption that the intention of the parties in negotiating the contract was limited to dealing with those parts of the land dealt with in the pleadings in the county court and that recourse to the negotiations for the purpose of showing that intention was impermissible as a matter of general principle. She further argued that the judge had failed to take account of the appellant’s contention that he believed the Front land was also intended to be included in the contract. She also made the point that one could not literally describe the Rear land as being to the rear of No. 122 since part of it adjoined the eastern boundary (and thus ran along the side rather than behind) No. 122. She also submitted that an issue which was debated before the judge concerning what he described as “the Yellow strip” (and dealt with at pages 16 to 18 of his judgment) confirmed the uncertainty issues in relation to the description of the land to be transferred.

I do not consider that these criticisms are well-founded. I agree with the judge that when one considers, as one is entitled to, the factual matrix, there can be no doubt whatsoever as to the identity of the land which the College was to convey. It was common ground in that litigation that the College owned the Green land. The College made no claim to own anything beyond the Green land. The Green land included the Rear land. There were unresolved disputes in that litigation as to the precise boundary of the Green land on the East (the Blue land) and the West (the Yellow land). Both those disputes related to land north of the line X-Y and to the rear of No. 122 and were thus resolved by the College’s agreement to transfer the land described in clause 1 of the contract to the appellant. I cannot see any basis on which it can be said that the description in clause 1 of the contract gave rise to uncertainty as to whether or not the Front land was intended to be included: the Front land plainly does not fall within the description. Nor can I see that the fact that, on a literal reading, not all of the Rear land is in fact to the rear of No. 122 causes any uncertainty. Against the background of what was agreed, and what was in dispute, in the county court litigation it is perfectly clear what the description meant. So far as the yellow strip is concerned, I did not understand Miss Holland to be contesting the general approach taken by the judge so much as drawing attention to the fact that, notwithstanding what the judge found to be a necessary implication of the contract (namely that insofar as the College had had a valid objection to the registration in the appellant’s name of that part of the yellow strip to the north of the line X-Y such objection would have to be withdrawn) the College had not in fact yet withdrawn the objection. That may be so, but I do not see that there is any difficulty, if the order for specific performance stands, in providing for the withdrawal of the objection on completion.

The new point which was argued before me arose from the fact that the parties’ respective solicitors agreed in correspondence (in August 2003) a slight variation to the line X-Y on the contract plan. This was done in order to accommodate the appellant’s wish that the new fence should not pass over a drain which he wished to include wholly within land in his ownership. The submission was that this variation was not enforceable as the requirements of s. 2 of the 1989 Act were not satisfied in relation to it, and that the College could not enforce the original line since the purported variation had had the effect of discharging the original contract.

On behalf of the College it was submitted that a variation of a contract need only comply with s. 2 if the variation is material (which this variation, it was submitted, plainly was not): see McCausland v. Duncan Lawrie [1997] 1 WLR 38, CA. Alternatively, if the variation ought to have complied with s. 2, it was submitted that the College was entitled to enforce the contract according to its original terms, which was in fact what it sought to do by its application for summary judgment.

I have some doubt as to whether I can reach a conclusion on the evidence before me as to the materiality of the variation for s. 2 purposes. However, it seems to me to be quite impossible to conclude that the intentions of the parties in agreeing the variation were to discharge the contract and enter into a new one. Accordingly, I think that the College is correct in its contention that it is entitled to enforce the contract by reference to the contract plan.

For these reasons I consider that the judge’s conclusion that the appellant had no real prospect of succeeding at trial was correct and I accordingly dismiss the appeal.