Wall v Collins & Jennifer Collins

This is the trial of a claim by Mr Keith Wall, the registered owner of 231 Leigh Road, Westhoughton, Bolton BL5 2 JG, against his neighbours, Mr Brian Collins and Mrs Jennifer Collins, who are the registered owners of the adjoining semi-detached house at 233 Leigh Road. The claim form was issued on 20^th November 2007 in the Manchester District Registry of the Chancery Division seeking “(1) legal remedies to permanently protect the claimant's rights of way over the defendants’ land from the defendants’ continuing refusals to fully accept them; (2) damages (aggravated, punitive or otherwise) for loss of amenity by intermittent obstructions, loss of property value, personal suffering; and (3) costs”. This trial is effectively the sequel to an earlier trial between the same parties that took place before His Honour Judge Pelling QC, also sitting in the Manchester District Registry of the Chancery Division, under claim number 5BL01209, over 4 days in February and March 2006, with judgment being handed down on 6^th March 2006. Part of that judgment was then the subject of a successful appeal by Mr Wall to the Court of Appeal (Mummery, Carnwath and Hooper LJJ), heard on 4^th April 2007, with the appeal court’s reserved judgment (delivered by Carnwath LJ) being handed down on 17^th May 2007: [2007] EWCA Civ 444, reported at [2007] Ch 390. On 17^th July 2007, the Court of Appeal handed down a supplementary judgment (also delivered by Carnwath LJ) dealing with the form of relief and costs: [2007] EWCA Civ 724. The Court of Appeal’s decision established the existence of Mr Wall’s property interest (in the nature of a right of way); and, since then, it has never been in issue. The present case raises one or two minor, but not really contentious, issues of law (addressed at paragraph 33 below); and also involves consideration of the circumstances in which a property owner may be entitled to resort to discretionary equitable remedies in the perceived vindication of his established property rights.

The background to this sad dispute between neighbours is as follows: The defendants have owned and occupied No 233 since about September 1986. Mr Wall (who is now 72 years of age) and his wife, Helen, have owned and occupied No 231 since February 1999. Nos 231 and 233 are semi-detached properties lying on the east side of Leigh Road. No 231 lies to the north of No 233. Both properties have access, not only to Leigh Road at the front, but also to a road which runs along the rear of the properties, parallel to Leigh Road, and known as Back Street. Leigh Road and Back Street are both public highways. Immediately to the south side of No 233 is a passageway (referred to in the judgments in the earlier litigation as "south road") which provides a link between Leigh Road and Back Street. This passageway forms part of the defendants’ title as the registered owners of No 233. Immediately to the south of the passageway is No 235 Leigh Road, which is owned by Mr John Hurst. The passageway varies in width from about 8 feet at its eastern end (where it emerges into Back Street) to about 9 feet for most of its length. On 8^th April 2009 Mr Hurst began rebuilding the boundary wall separating his property from the passageway. This took about two weeks, and has resulted in a slight widening of the passageway at the western end. There the passageway emerges into Leigh Road within an area controlled by traffic signals, which have been installed within the last couple of years to control the T-junction formed by the intersection of Leigh Road (running in a north-south direction) with Washacre (running east-west). The traffic lights also incorporate a push-button facility designed to enable pedestrians to cross Leigh Road and/or Washacre in (relative) safety. Unusually, the passageway is not itself regulated by the traffic lights: a driver emerging from the passageway into Leigh Road has to wait for a convenient break in the flow of traffic regulated by the signals (and also has to watch out for, and avoid, any pedestrians who may be crossing). The junction is shown on the plan at 3/850; and relevant photographs are at 3/833-5 and 838-9. (The photographs at 3/900-1 show the position before the traffic signals were installed.)

Part of the earlier dispute between the parties concerned Mr Wall’s claim that there were public rights of way over the passageway. That claim was rejected by Judge Pelling QC; and there has been no appeal from that part of his decision. Despite Mr Wall’s attempts to do so, it is not open to him to contend that the passageway is a public highway. Another part of the earlier dispute concerned Mr Wall's claim to a private right of way over the passageway. That private right of way was said to have arisen under the terms of an assignment of the long leasehold interest in No 231 on 25^th February 1911. In the previous year, the freeholder had granted a 999 year lease over the undeveloped site of the two properties that later became Nos 231 and 233 (including the passageway). It is clear from the terms of that long lease that the parties to it expressly contemplated that a street 6 yards wide would be constructed at the rear of those properties: the lease refers to the property thereby demised as being bounded on the most easterly side by the centre line of a back street 6 yards wide; and it also contains a covenant by the tenant to “leave and maintain vacant open and unbuilt upon a space of land 3 yards wide out of and along the whole length of the most easterly side of the plot of land hereby demised in order to form one half of a back street 6 yards wide on that side". As the Court of Appeal noted, the passageway did not exist at the time of the 1910 lease; and there was nothing to indicate that it was within the contemplation of a further provision in that lease which declared that "the streets so far as the same be opposite to or extend over the said plot of land hereby demised may at all times during the said term be used as foot carriage and drift ways by the lessee and his tenants, lessees and others deriving title through him… and any person or persons in going to or returning from the said premises hereby demised…". Following the construction of Nos 231 and 233, by the 1911 assignment the unexpired lease in respect of No 231 was assigned “Together with the right for the purchaser his executors administrators and assigns and tenants and occupiers for the time being of the premises hereby assigned and conveyed to pass and repass on foot or with horses carts and other vehicles over and along the road coloured yellow on the [plan annexed thereto] for the purposes of the convenient use and enjoyment of the premises hereby assigned and conveyed and for no other purpose whatsoever". The "land coloured yellow" included the passageway and the western half of Back Street, which were retained by the assignor together with No 233. (Carnwath LJ appears to have misunderstood the true position in paragraph 5 of his principal judgment when indicating that the "land coloured yellow" included the whole, rather than merely the western half, of Back Street.) In the earlier litigation, it was not in dispute that from 1911 until 1986 the occupiers of No 231 had enjoyed an express right of way over the passageway; but it was said by the defendants (and Judge Pelling accepted and held) that that right of way had been extinguished when the leasehold interest in No 231 had merged with the freehold estate in 1986. It was that part of Judge Pelling's decision that was reversed by the Court of Appeal; and it is now clearly established by the Court of Appeal’s decision that Mr Wall, as the owner of No 231, enjoys the express right of way over the passageway (and the western half of the section of Back Street to the rear and north of the passageway) that was granted by the 1911 assignment. The Court of Appeal further held that that express right of way was exercisable for the benefit of a double garage that had been constructed on additional land owned by Mr Wall to the rear of No 231, on the footing that it was ancillary to the ordinary residential use of that property.

At the time when the defendants acquired No 233 in 1986, gates had already been erected at both ends of the passageway, but not so as to prevent its use on foot by the owner of No 231. However, the gates effectively prevented the use of the passageway by vehicles. It is common ground that the gate and fencing at the eastern end of the passageway (at the junction with Back Street) were removed by the defendants towards the end of April 2007, after the hearing in the Court of Appeal. (Although judgment was not formally handed down until 17^th May 2007, it was common ground before me that the likely outcome of the appeal was apparent to the parties at the hearing on 4^th April.) It is also common ground that the gate and fencing at the western end of the passageway (at the junction with Leigh Road) were removed by the defendants on Sunday 18^th November 2007, two days before Mr Wall attended personally at the Manchester District Registry to issue his present claim form (on Tuesday 20^th November 2007). Mr Wall had written to the defendants on 17^th October 2007 enclosing a draft of the relief that he indicated that he would be pursuing in further intended legal proceedings, but with the addition of a further claim, later omitted from the issued claim form (because, by then, the defendants had already done so), seeking "the removal by the defendants of the existing fence and gate at the western end of the South Road to allow vehicular access by the claimant". (I note, in passing, that between 17^th October and 20th November 2007 the level of Mr Wall’s claim for damages had inexplicably grown from "not in excess of £5,000” to “exceed £30,000”). I accept Mr Collins’s evidence that he removed the gate at the western end of the passageway in an attempt to appease Mr Wall, and in order to avert his impending threat of another court case, thinking that this would satisfy Mr Wall’s demands. Unfortunately, it did not. Mr Wall told me that he had issued the claim form because, by the time the western gate had been removed, the matter had “passed the point of no return”; and because, if he had not issued a claim form, the defendants would have put the gates back, and put locks on them.

In paragraphs 2 and 3 of his supplementary judgment in the first action, Carnwath LJ had said this:

By the time the matter first came before me, at a pre-trial review on 11^th June 2009, there had already been an earlier pre-trial review before His Honour Judge Waksman QC (on 26^th February 2009) at which a previous trial date had been vacated, and directions for mediation had been given. Mr Wall had subsequently withdrawn from any attempt to mediate the dispute; and a new trial date had already been fixed in my list for 5 days beginning on Monday 3^rd August 2009 by the time of the pre-trial review before me. Against that background, I took the view that it was already far too late for me to transfer the matter to the County Court (as I would otherwise have done since it involved no novel issue of law but merely the application of well established legal principles to particular facts, the issues were not complex, and the amount of money involved was well within the proper range of everyday County Court litigation). However, in an attempt to further the overriding objective of, so far as practicable, ensuring that both parties were on an equal footing, saving expense, dealing with the case in ways which were proportionate, ensuring that it was dealt with expeditiously and fairly, and allotting to it an appropriate share of the court's resources while taking into account the need to allot resources to other cases, I directed Mr Wall to serve on the defendants “a list of the alleged obstructions to the right of way on which he intends to rely at trial (with dates, times and details)”; and I directed the defendants to respond with their observations on that list. It had seemed to me that Mr Wall's amended particulars of claim failed to identify with sufficient clarity the case that the defendants would have to meet at trial; and although (in compliance with an earlier order of DJ Smith, dated 19^th May 2008) Mr Wall had previously served a list of the obstructions of which he made complaint, it had seemed to me that that list of obstructions failed adequately to clarify his case. Mr Wall served his schedule of obstructions on 19^th June 2009 (1/55A-55B), and the defendants responded on 29^th June 2009. (Although this response does not feature in the trial bundles, prepared by Mr Wall, it was effectively incorporated within the skeleton argument of Mr Ian Foster of counsel, who appeared at trial for the defendants, as he has throughout this serial litigation.) At trial, and despite the terms of my direction, Mr Wall referred to his schedule as merely detailing representative examples of the sort of obstructions from which he and his wife “have now suffered for nearly a decade at the hands of our malicious neighbours", and which should be reflected in the quantum of damages. I am satisfied that more than sufficient representative examples of the defendants’ allegedly obstructive behaviour have been placed before the court to enable it to do justice to all of the issues arising in the present dispute. I should add that Mr Wall has, from time to time, alleged that the defendants have defamed him to various of his neighbours, and also that they have conspired with them with a view to injuring him; but there is no pleaded claim to that effect, nor was any evidence adduced to support such a case, and I need say no more about such allegations.

The trial was listed before me for five court days, commencing on Monday, 3^rd August 2009. (In the event, subject to judgment, I was able to dispose of it in four court days.) There were four trial bundles (comprising some 1,000 pages) prepared by Mr Wall with the assistance of his wife, as his McKenzie friend. (For some inexplicable reason, and contrary to paragraph 6 of Appendix 6 to the Chancery Guide, and thus paragraph 3 (b) of my Order of 11^th June 2009, the documents were inconveniently arranged in reverse date order.) I had pre-read the principal documents, including the judgments in the earlier litigation of Judge Pelling and the Court of Appeal, and the statements of case, orders, witness statements and skeleton arguments in the present litigation. Mr and Mrs Wall had each made two witness statements, in each case dated 28^th November 2008 and 8^th July 2009, in support of the claim. On the first day of the trial, Mr Wall opened his case by showing me 5 scenes from a video recording; and he then gave evidence for about 1 1/2 hours before the court adjourned for lunch. The afternoon of the first day was taken up with a site visit. I spent about 40 minutes on site in the presence of the parties and (in the case of the defendants) their solicitor and Counsel; and I derived considerable benefit from this exercise. Mr Wall gave evidence before me for about a further 1 3/4 hours on the second day of the trial. He then resumed the role of a litigant in person and called his wife. Despite the clear direction of DJ Smith (in paragraph 2 of an order dated 9^th December 2008) that "witness statements shall stand as evidence in chief", Mr Wall indicated that he wished to examine his wife in chief for about a day. I indicated to him that she had made two very full witness statements, one as recently as 8^th July 2009, which, in accordance with the district judge's order, constituted her evidence in chief. I indicated to Mr Wall that it was certainly permissible for him to refer his wife to certain documents that had not been sufficiently identified in her witness statements; but that this should not take more than about half an hour. Mr Wall then took his wife to certain old maps, predating Mrs Wall's birth, the first dating back as far as 1849 (3/949). I indicated to Mr Wall that his wife could not give admissible evidence of such matters. She was however referred to, and identified, certain photographs and contemporary documents. Ultimately, Mrs Wall was in the witness box for about 50 minutes, of which less than half comprised cross-examination by Mr Foster. I am satisfied that, despite the restrictions I imposed upon him (consistently with the overriding objective), and bearing in mind the content of her two witness statements, Mrs Wall was able to, and did, give evidence on all relevant and admissible matters on which Mr Wall wished to rely in support of his case.

On the third day of the trial, Mr Foster, for the defendants, called three witnesses. The first was the first defendant, Mr Brian Collins, who had made two witness statements, dated 3^rd December 2008 and 13^th July 2009. He was cross-examined for about four hours, with the lunch adjournment intervening. I then heard from Mr Hurst, the owner and occupier of No 235, who had made a witness statement dated 27^th November 2008. He was cross-examined before me for about 40 minutes. Finally I heard from the defendants’ son, Mr Michael Collins, who is in his mid-20s. He had made a witness statement dated 3^rd December 2008, and he was cross-examined for about 30 minutes. Although she had made a witness statement, dated 27^th November 2008, simply confirming the contents of her husband's first witness statement, the second defendant, Mrs Jennifer Collins, was not called to give evidence before me. She was, however, present throughout the trial; and she also attended the site view. She was visibly outraged by many of the observations made by Mr Wall in the course of his evidence, his cross-examination of the defendants’ witnesses, and his oral submissions; and she was clearly highly excitable. I have no doubt that had she been called to give evidence, and subjected to cross-examination by Mr Wall, he would have succeeded in winding her up. The defendants’ evidence concluded shortly before 5.30pm on the third day of the trial. (Both parties had encouraged me to sit late to conclude the oral evidence so as to avoid the inconvenience of Mr Hurst and Mr Michael Collins, who had been present in court throughout the third day, having to return to court on the following day in order to give their evidence.)

On the fourth day of the trial, I received oral submissions from Mr Foster (for about an hour), and both oral and written submissions from Mr Wall (to which his wife had contributed). The hearing concluded at about 2.30pm; and I reserved judgment to Tuesday 11^th August.

My evaluation of the characters and personalities of Mr and Mrs Wall, and of the defendants, are critical to my resolution of the disputed factual issues in this litigation, and to my assessment of the relief (if any) to which Mr Wall is entitled in all the circumstances of the case. It is of the essence of Mr Wall’s case that the grant of injunctive relief against the defendants is the only way to put an end to what Mr and Mrs Wall perceive to be a decade of obstruction by the defendants of Mr Wall’s exercise of his right of way in a manner deliberately calculated by the defendants to harass and annoy Mr and Mrs Wall. In support of that case, Mr Wall relies upon findings made by Judge Pelling at the earlier trial; and the submission that it is the existence of undertakings to the court, extracted from the defendants by Judge Pelling, and those undertakings alone, that has been effective in bringing to an end the earlier obstruction by the defendants of the gates leading to the forecourt and garage serving the rear of No 231.

The defendants' case, by contrast, is that there is, and has been, no present, or imminent, threat by them to prevent the legitimate exercise by Mr Wall of his undoubted rights of way, and therefore no justification exists for the grant of a perpetual injunction. In any event, the grant of a perpetual injunction (or the giving of undertakings instead) would be extremely onerous, and unduly oppressive, to the defendants because of the existence of the real prospect of unreasonable demands being made, and fanciful and unjustified complaints being raised, by Mr Wall, and of the defendants being forced, in consequence, to engage, under the threat of committal to prison for contempt of court, in further expensive and disproportionate litigation.

In support of his case that only injunctive relief will safeguard the exercise of his right of way, Mr Wall places particular reliance upon the conclusion (at paragraph 92 (f) of Judge Pelling's judgment) that

The undertaking ultimately given to the court by Mr and Mrs Collins was that

Having heard and closely observed Mr Wall during the course of this trial, I entirely agree with Judge Pelling’s assessment of him as “dogmatic”, “self-righteous” and (but without any qualification) “profoundly irritating”. Earlier (at paragraph 74), Judge Pelling had described Mr Wall as someone who asserts his rights “in a way which can appear, to some at least, as arrogant, officious and self-righteous”. Again, I agree with that assessment. Carnwath LJ referred (at paragraph 3 of his principal judgment) to Mr Wall’s “enthusiasm for legal research and his anxiety to advance his case on as many fronts as possible”. Again, I concur with that assessment. One example of Mr (and Mrs) Wall’s enthusiasm for research appears from the photograph at 3/849. This is nothing to do with the properties in the present dispute, but shows 36 Chatham Street, Colne, the servient property in Young v Brooks [2008] EWCA Civ 816, decided on 22^nd May 2008, and one of the many cases unearthed by Mr and Mrs Wall’s researches. This photograph was apparently obtained by Mrs and Mrs Wall, and included by them within the trial bundles, after they had contacted the dominant landowners (and successful appellants) in that case. Indeed, Mr Wall told me that he had taken hundreds, if not thousands, of photographs in order to prove his case. However, in my judgment, these earlier assessments of Mr Wall by Judge Pelling and Carnwath LJ considerably understate the problems that he presents to his neighbours.

At times, I found the content of Mr Wall's evidence to be both confused and confusing. However, I have no doubt that he is both self-opinionated and thoroughly unreasonable to an extent bordering on the paranoid. He is pernickety to the point of obsession; he sees matters entirely his own way; and he makes mountains out of molehills. He is obsessed by his dispute with the defendants; and he construes any action by them as motivated by hostility towards himself and his wife. In short, Mr Wall is thoroughly exasperating; and he must be a nightmare to live next to. A few examples should suffice.

Mr Wall told me that he could tell what the defendants were going to do before they did it. In relation to scheduled obstruction 3.1, on 21^st July 2007 (3/875), Mr Wall could not remember if he had wanted to make use of the south passageway on that day; but he said that it did not matter whether he had wanted to do so or not. Likewise, in relation to scheduled obstruction 4.1, on 15^th July 2007, Mr Wall said that he could not remember whether he had wanted to go out in his car that day. In relation to scheduled obstruction 3.4, on 25^th February 2009 (3/846), Mr Wall accepted that this had merely made his use of the south passageway difficult, rather than impossible. In the course of cross-examining Mr Collins, Mr Wall accepted that at the hearing before Judge Waksman on 26^th February 2009 he had indicated that he would not pursue any complaint about this (in my judgment, non-existent) obstruction; yet it was included within Mr Wall's later schedule of obstructions, in order (according to Mr Wall) to demonstrate that these were not all historic. (The phrase “scraping the bottom of the barrel” comes to mind.) In relation to scheduled obstruction 4.2, which was committed, not by one of the defendants, but by a visitor to No 233 (Wayne Walsh), and lasted only for 26 minutes on 6^th February 2008, Mr Wall acknowledged that he had received a “nice letter of apology” dated 19^th April 2008 (which, when it was produced, was inserted in the trial bundle at 2/510), and that he had no reason to doubt that the defendants had told Mr Walsh not to park there. Mr Wall had not even asked Mr Walsh to move his car.

In relation to scheduled obstruction 4.3, in cross-examination of Mr Hurst, Mr Wall did not pursue his allegation that the defendants had “condoned their supportive neighbours the Hursts” in parking so as to obstruct Mr Wall's vehicular use of the south passageway. I find Mr Wall's approach to the Hursts’ alleged obstruction of his vehicular use of the south passageway to be both inconsistent and partial: at times, he maintained in evidence that the Hursts were not malicious, and that if he asked them to move their car, they would do so; that one could not complain about people parking on their own land outside their own house; and that if the Hursts did block his access to the south passageway, he did not complain because he had an alternative route, and he did not have to use the south passageway. At other times, Mr Wall maintained that, recently, the Hursts had started to do things to obstruct the south passageway, and that there was evidence that they had been “brainwashed” by the defendants and were “in league with” them. This was not an allegation that Mr Wall chose to put to Mr Hurst, and it was unsupported by any evidence. In cross-examination, Mr Collins maintained, in my view with justification, that Mr Wall's approach was that there was one rule for the Hursts, and others with properties bounding on Back Street, and another for the defendants.

It was Mr Wall's evidence that he was “determined not to be bullied by the Collins into moving out of my property"; and that even if (notwithstanding what, in my judgment, are Mr Wall's efforts to frustrate any such sale) the Collins were to succeed in selling No 233 and leaving the area, they were “going to persuade the neighbours to continue obstructing” Mr Wall. Mr Wall complained that the Collins had said (pointing to Mr Hurst’s property) that Mr Wall would “make enemies of the neighbours”. If this was said (which is not unlikely), then in my judgment it was not (as Mr Wall perceives it to be) a threat to “poison the minds” of the neighbours against the Walls, but rather an honestly entertained (and probably accurate) prediction of the likely effect of Mr and Mrs Wall's conduct upon their neighbours. In relation to alleged obstruction 5.1, Mr Wall alleged that the defendants had erected a trellis at the side of their front garden in order to increase the impression that visibility was poor when emerging from the south passageway into Leigh Road; but, inconsistently, Mr Wall did acknowledge (correctly) that the trellis did not restrict his view very much. His comment was: “You have to get into the minds of these weird people to see why they do these things." Both at the site view, and in evidence, Mr Wall asserted that Mr Hurst had wanted to increase the height of his boundary wall where it abutted the south passageway; and in evidence Mr Wall said that it was “obvious” that the defendants had been “involved” in attempting to increase the height of the wall on Mr Hurst’s side of the passageway. When he gave evidence, however, Mr Hurst denied that he had ever intended to increase the height of his wall; and this allegation was not pursued by Mr Wall.

In relation to scheduled obstruction 5.2, Mr Wall acknowledged that he had asked for the defendants’ hedge to be cut back, and that they had done so, and then later still, after a further complaint, that they had removed it entirely; but he suggested that they might have cut the hedge back with an ulterior motive, because they had a camera there which was being obscured by the foliage. In relation to paragraph 6.2 of the schedule, on two separate occasions during the same night of 21^st April 2009 Mr Wall said that a hooded youth or youths had thrown a brick through his front windows, which he had since boarded-up with substantial black shutters which I viewed when I attended the property. These incidents had been reported to the police. Mr Wall accepted that there was no evidence that the defendants had been responsible for them, or that they even knew who had been; but he said that these incidents had all started because of the defendants derogating from their grant, and that the defendants did not like the Walls.

Mr Wall’s attitude is perhaps best expressed in the enclosure to a letter he wrote to the defendants’ solicitors (Widdows Mason) on 7^th September 2007, in which he referred, in the context both of the width of the right of way and of the parking of unattended vehicles in a position that made access to No 231 difficult, to the law's attitude as being one of "zero tolerance". I do not consider that Mr Wall’s principle of “zero tolerance” accurately represents the law. As Arden LJ observed in Waterman v Boyle [2009] EWCA Civ 115, one of Mr Wall’s authorities, at paragraph 40, “The law expects neighbours to show some give and take towards each other”. In the context of the law of easements, that observation is entirely in accordance with the principle of “civiliter” which, on the authority (not cited to me) of Lord Scott of Foscote in the case of Moncrieff v Johnson [2007] UKHL 42, [2007] 1 WLR 2620 at paragraph 45, applies in English law, and requires "the dominant owner… to exercise the right reasonably and without undue interference with the servient owner’s enjoyment of his own land”, limiting the dominant owner's use of the servient land to a reasonable use whilst enabling the servient owner, subject only to an obligation not to interfere with that reasonable use, to make whatever use he wishes of his servient land. Mr Wall, I fear, is all take and no give. He is ready to resort to litigation, at no personal expense to himself because he acts as a litigant in person, in order to grind those who disagree with him into submission by an expensive process of attrition by court action. Mr Collins expressed it accurately when he said that Mr Wall just wanted everything his own way and no one else’s; and that he caused distress to the defendants by constantly finding something to complain about. Mr Wall himself told me that he had to insist on an undertaking from the defendants because otherwise the obstructions were not going to stop. He said that he was sorry to appear arrogant and to be dictating to the court, but he was not going to be bullied by the defendants into giving up his legal rights. Whilst I agree with Judge Pelling that Mr Wall would not deliberately lie about a breach of a court injunction, I am in no doubt that he would adopt a thoroughly unreasonable attitude and, viewing matters entirely from his own distorted perspective, he would complain about every minor perceived infringement, however trivial.

I consider Mrs Wall to be a worthy companion to her husband. In paragraph 13 of her second witness statement she described her husband as “a kind and considerate person”. She acknowledged that he could appear “arrogant”, but this was said to be because “he is and always has been a very confident and happy person. He does have high standards and morals and is a committed Christian. It can be irritating when he doesn't appear to grasp what is being said. I have learned that this is usually because he is trying to think ahead." Mrs Wall is clearly protective of her husband, and she is deeply committed to his cause. She encourages and supports her husband in his complaints and in this litigation, on occasion directing his submissions. Mrs Wall told me that she stands in her bedroom window and observes every occasion on which her husband uses the south passageway. She acknowledged that she herself does not drive along the south passageway at all. Mrs Wall also acknowledged that the "overhanging" of the defendants' car on to Back Street was not substantial; but it was, she said, "discourteous". (In passing, I should record that, in answer to questions from the bench, Mrs Wall explained that the security camera and floodlighting had been installed at No 231 for security purposes, because there had been several occasions on which houses and cars had been broken into.) In my judgment, my observations on Mr Wall's character, personality and attitudes apply equally to his wife.

I turn to the first defendant, Mr Brian Collins. He was subjected by Mr Wall to a tedious, but painstaking, cross-examination for some four hours. In my judgment, in his evidence Mr Collins understated his desire to see the discontinuation of any vehicular use of the south passageway; but I am satisfied that he now appreciates, and accepts, that he and his wife must live with such use. Subject to this one qualification, however, I find Mr Collins to be a decent, honest, and down-to-earth witness who is thoroughly (and justifiably) exasperated with the conduct of his neighbours, the Walls. I make the following findings of fact in relation to Mr Collins’s evidence.

Mr Collins accepted in evidence that what had happened before the first trial (as found by Judge Pelling) in terms of the actionable interference with Mr Wall's access to the rear of No 231 by the parking of vehicles in front of his gates had been wrong. I am satisfied that there has been no deliberate and material obstruction to the gates since the undertakings were given by Mr and Mrs Collins, and that there is no threat of any repetition of such conduct. I accept Mr Collins’s evidence that he now accepts that Mr Wall has a right of way over the south passageway whenever he chooses to exercise it, and that he does not regard Mr Wall's use of that right of way as improper. I accept that whilst, at one time, Mr Collins would have liked to have extended the southern wall of No 233 on to the passageway to the extent necessary to create a double cavity wall for their home, the defendants had no other intention of building on the south passageway; and I find that they now recognise that there can be no encroachment on the south passageway that would interfere with Mr Wall's right of way. I accept that Mr Collins took the eastern gate and fence down after the appeal court hearing in April 2007 because he understood that this was what Mr Wall wanted.

I accept that, until the end of July 2007, Mr Collins occasionally parked on the east side of Back Street, opposite the eastern end of the passageway; and that this made it more difficult, if not impossible, for Mr Wall to use the passageway for the purpose of effecting a three-point turn in order to facilitate his use of Back Street as a public highway. (At this time, of course, it was not possible for Mr Wall to drive down the south passageway because of the fence and gate at the western junction with Leigh Road.) I am satisfied that Mr Collins discussed Mr Wall's actions in reversing in and out of the south passageway to execute a three-point turn with his legal representatives, and that he was told that the parking of a motor vehicle in this position could be construed as an obstruction. I accept that, as a result, and notwithstanding the statement in Mr Collins’s (relatively conciliatory) letter to Mr Wall of 24^th August 2007 (2/544) that "we now park, on a rare occasion, on the other side of the road across our garage", Mr and Mrs Collins have not parked in that position since the end of July 2007, and that they have no intention of doing so in the future. I find that Mr Collins has told his son and his daughter not to park so as to obstruct Mr Wall's right of way. I also find that, if Mr Wall had wished to exercise his right of way, any obstructing vehicle would have been removed immediately upon request. I accept Mr Collins’s evidence that all he wants is “a peaceful life” but that he does not get it from Mr Wall; instead, all he gets is “aggravation, constant aggravation” from him. I also accept Mr Collins’s evidence that he is not going to obstruct Mr Wall at all in the future, and that if he were to be required to give an undertaking to the court, he would do so; but I also accept that signing an undertaking would be "fraught with danger" for the defendants because of their legitimate concerns about Mr Wall’s propensity to resort to the court for no sufficient reason (as exemplified by Mr Wall's complaint at paragraph 3.4 of the schedule of obstructions, referred to both at paragraph 11 of Mr Collins’s second witness statement and in cross-examination). In short, I accept Mr Collins’s evidence that the defendants go out of their way not to obstruct Mr Wall because they know what the consequences will be.

Mr Hurst was an entirely straightforward, honest and decent witness. Indeed, there was no challenge by Mr Wall to either the honesty or the reliability of his evidence. He told me, and I accept, that the defendants played no part in Mr Hurst’s decision to demolish the existing wall on the south side of the passageway or to deposit the resulting debris and other building materials on the passageway whilst this work was being carried out. I accept that Mr Hurst never intended to increase the height of the boundary wall, which at that time Mr Hurst had believed to be in his sole ownership. I also accept Mr Hurst’s (commonsense) evidence that the removal of the gates to the western end of the passageway is an invitation to anyone who wishes to do so to walk down the passageway.

Michael Collins was an impressive witness. I accept his evidence that he does not have any problem with Mr Wall, although he considers him to be “very dramatic”. I accept Michael Collins’s evidence that he did not park his Mercedes opposite the entrance to the eastern end of the passageway (as shown on the photographs at 3/873-4) in order to inconvenience Mr Wall, but rather because it was more convenient for Michael to park there. I accept Michael’s evidence that his parents had probably told him not to park in that location, that he did so only on two or three occasions, and that he had stopped doing so by about the middle of August 2007, over 3 months before the second action was commenced. I find that Michael resents the fact that, at Mr Wall’s insistence, he can no longer park on the western side of Back Street, against the eastern wall of his parents’ property, and that, as a result, when visiting his parents, he now has to park some distance away and cross the road with his children; but I also find that he has no intention of causing any obstruction to Mr Wall's right of way. Michael's attitude is that Mr Wall's requirements make matters more convenient for Mr Wall, but less convenient for the Collins family; but Michael is sufficiently intelligent to appreciate that flouting Mr Wall's requirements entails the real risk for his parents of still further expensive litigation.

I begin by observing that it is long-established law that an action for disturbance of a private right of way will not lie unless there is a real and substantial interference with its enjoyment having regard to the terms of the express grant. The question is whether practically and substantially the right of way can be exercised as conveniently as before the alleged obstruction. The narrower the right of way, the more likely it is that an obstruction of the right of way will be held to be actionable: see generally Gale on Easements, 18^th ed (2008) paras 9-93/5 and 13-06/11.

I am not concerned with events prior to the hearing before Judge Pelling in March 2006 save insofar as they may throw light on the issue whether injunctive relief (or appropriate undertakings) are necessary in order to secure the free exercise by Mr Wall of his rights of way. Mr Wall’s complaints about such matters (paragraphs 1.1 to 1.3 of his schedule of obstructions) were sufficiently addressed in the earlier litigation.

Until the removal of the gate at the western junction of the passageway and Leigh Road, on 18^th November 2007, two days before Mr Wall attended in Manchester to issue his present claim form, Mr Wall was clearly unable to exercise his vehicular right of way over the passageway. However, this obstruction must be viewed in the context of the postscript, added by way of final comment, at paragraph 55 of Carnwath LJ's judgment in the Court of Appeal:

Mr Wall submitted that Carnwath LJ had misunderstood the scope of his concession as to his alternative means of access over Back Street; and that, in any event, Carnwath LJ had not benefited from the opportunity, afforded to me, of viewing the site, and of appreciating the constraints imposed on the presence of gates by the modest width of the right of way. Mr Wall told me, and I accept, that he invariably uses Back Street, rather than the south passageway, when returning to his property by car. The reason is that it is difficult to turn into the south passageway from Leigh Road. But Mr Wall also told me, and I also accept, that, except on the occasions - which he says are rare - when he leaves No 231 to travel south, he invariably uses the south passageway when leaving the property by car. Against that background, it is, I think, common ground (and, if not, I so hold) that Carnwath LJ’s observations, with their implicit recognition of the continued existence of gates along the south passageway, should not be construed as preventing Mr Wall from using the south passageway by car. It is also, I think, common ground (and again, if not, I so hold) that Carnwath LJ’s view that Mr Wall’s right of way over the south passageway would not enable him to use it for purposes for which he has an equally or more convenient access by another route cannot stand with the ratio of the later decision of the Court of Appeal in Young v Brooks [2008] EWCA Civ 816. Although concerned with an express right of way (“for all proper purposes connected with the reasonable enjoyment of the [dominant] property”) granted in somewhat different terms than those of the 1911 assignment, for present purposes that case seems to me to establish that if the right of way is being used for the convenient use and enjoyment of No 231, such user is lawful, notwithstanding that there is an equally (or, perhaps, an even more) convenient access or (more pertinently) egress by another route, and irrespective of how inconsiderate such user may be from the point of view of the defendants as the servient landowners. Whether or not an intended user of a right of way is "convenient" (or, indeed “reasonable”) is to be determined objectively by the court, and not subjectively by the dominant owner, in accordance with the principles established by cases such as Young v Brooks. Similarly, whether or not an alleged obstruction is actionable does not depend on the subjective views of the dominant owner but is ultimately a value judgment for the court to be determined on the court's findings of fact according to the evidence.

Mr Collins told the court that he would choose to use Back Street, rather than the south passageway, when leaving his property by car, even to travel north. Having viewed the site, I can understand his preference: because of its narrowness, and the undoubted difficulties of exiting safely on to Leigh Road, I, myself, would certainly choose to use Back Street, in preference to the south passage, even when travelling north, and notwithstanding the reported difficulties of emerging from the junction of Lower Landedmans into Leigh Road. But the choice of which route to use is clearly one for Mr Wall, and not for the defendants or for the court. However, in the light of Carnwath LJ’s observations, I can understand how, for a time after the handing down of Carnwath LJ’s judgment, the defendants may have been labouring under a genuine misapprehension as to the full extent of the rights of way declared by the Court of Appeal's decision. I am satisfied that any such misapprehension has now been dispelled. As stated in paragraph 23 above, Mr Collins now appreciates that Mr Wall has a right of way over the south passageway whenever he chooses to exercise it, and he no longer regards the use of that right of way as improper. I am satisfied that there is no intention, or threat, on the part of the defendants to obstruct Mr Wall’s exercise of his right of way. They appreciate the dire consequences, in terms of further costly, time-consuming and wearisome litigation, if they, or their visitors, were to do so.

Whether the erection or maintenance of a gate across a right of way constitutes a substantial interference with the dominant owner’s right of passage is a question of fact to be determined objectively on the evidence, and not by reference to the subjective assessment of the dominant owner. On the facts of the present case, and in particular having regard to the width (8-9 feet) of the right of way and the position on the ground, I am satisfied that the parking or stationing of a motor vehicle on any part of the south passageway and/or substantially on Back Street at the rear of No 231 (otherwise than for the purpose of loading or unloading or receiving or depositing passengers) may constitute an unreasonable and substantial interference with Mr Wall's right of way. On the facts, I am also satisfied that the existence of a gate, even if left permanently unlocked, at either end of the south passageway would constitute such an interference. I am further satisfied that the existence of a gate at any point along the south passageway would also constitute such an interference unless any such gate could be opened, and closed, without leaving any motor vehicle travelling along the right of way, and without obstructing any traffic on Leigh Road or Back Street. Indeed, in the light of Mrs Wall's answer to a question from the bench to the effect that the south passageway was too narrow to enable anyone driving along it to stop their car, open a door, get out to open any gate, return to their car, drive through the gate, and then repeat the process to close the gate, this point was readily, and very fairly, acknowledged by Mr Collins when I asked him about it at the end of his evidence: he said that there would have to be some form of electrically-operated gates. In this connection, reference may usefully be made to the photographs at 3/858, 885 and 901.

It is accepted by the defendants that Mr Collins and his son parked their cars as alleged in paragraphs 3.1 and 3.2 of the schedule of obstructions. However, Mr Wall did not ask for these cars to be removed, and he has not established that he has suffered any actual inconvenience as a result of such parking. I am satisfied that there have been no similar parking incidents since the end of July 2007 (in the case of Mr Collins) and since about the middle of August 2007 (in the case of his son). I am satisfied that the parking of motor cars in this position would not constitute a substantial interference with the exercise by Mr Wall of his rights over Back Street in his capacity as a user of the public highway. I accept that the parking of motor vehicles in this position would make it more difficult for Mr Wall to enter, and thus to drive along, the south passageway by car; but such use was at that time impossible because of the continued existence of the fence and gate at the junction with Leigh Road. Mr Wall complains that such parking prevents him from using the eastern opening of the south passageway for making a three-point turn; but effecting such a three-point turn is not something done in the exercise of Mr Wall’s right of way over the south passageway, as granted by the 1911 assignment, but rather is an activity undertaken with a view to facilitating Mr Wall’s use of Back Street as a public highway. For the defendants, Mr Foster indicated that this was no longer a live issue between the parties; but, in my judgment, as a matter of strict law, Mr Wall is not entitled to use his private right of way, granted by the 1911 assignment, for the purpose, not of passing between No 231 and Leigh Road via the south passageway, but rather for the purpose of facilitating his use of Back Street as a public highway. However, now that both gates have been removed, and the south passageway can be used for vehicles travelling between No 231 and Leigh Road, the parking of motor vehicles opposite the eastern end of the passageway in such a position as to make it substantially more difficult to use the private right of way would, in my judgment, constitute an actionable interference with Mr Wall's private right of way. Although the parking would be taking place outside the servient land, this would seem to me to be one of those quite exceptional cases where, following the views of Arden LJ in Waterman v Boyle [2009] EWCA Civ 115 at paragraphs 20-1, an act on adjacent land may interfere with a right of access. The reason is that it was clearly contemplated by the parties to the 1911 assignment that the private right of way thereby granted would emerge into a back street 6 yards wide.

It is accepted by the defendants that Mr Collins and his daughter parked their cars as alleged in paragraphs 3.3 and 3.4 of the schedule of obstructions: see the photographs at 3/866 and 846 respectively. These cars were substantially parked on the defendants’ own off-street parking area, although it is accepted that (owing, as I find, to its length) Mr Collins’s then car, a VW Passat estate, protruded slightly into Back Street when parked in that position. I am satisfied that these cars were not parked deliberately with a view to obstructing the exercise by Mr Wall of any right of way; and I reject Mr Wall’s assertion that this was “malicious”. I am further satisfied, on the evidence, that there was no actionable obstruction of Back Street as a public highway; nor was there any substantial and actionable interference with the exercise by Mr Wall of his private right of way by the parking of motor vehicles in this position. This is an example of the “give and take” that the law expects neighbours to show towards each other, particularly in the light of Mr Wall’s objection to the defendants and their visitors parking outside No 233 on the western side of Back Street.

The parking of motor cars (by Michael Collins and Wayne Walsh respectively) in the positions alleged in paragraphs 4.1 and 4.2 of the schedule of obstructions is admitted. It has not been established that Mr Wall suffered any actual inconvenience as a result of such parking. At the time of the former incident (15^th July 2007, shown on photograph 3/876) the south passageway was unusable by vehicles because of the continued existence of the gate at its junction with Leigh Road. I am satisfied that Michael Collins has not parked in this position since the removal of this gate. Indeed, Mr Wall said in evidence that this was the only time that Michael Collins had parked there. Mr Wall accepted in cross-examination that he could not challenge the defendants’ evidence that they were not responsible for Wayne Walsh parking so as to obstruct the entrance to the south passageway. I am not satisfied that Mr Wall suffered any actual inconvenience as a result of this incident; and he acknowledged that he had received a “nice” letter of apology from Mr Walsh.

There was simply no evidence to support the allegation in paragraph 4.3 of the schedule that the defendants have “condoned their supportive neighbours the Hursts” in allowing a vehicle to park partly on their land in a position to make Mr Wall's vehicular use of the south passageway impossible.

I reject the allegation in paragraph 5.1 of the schedule that the defendants erected a trellis to try to restrict his view of the main road when Mr Wall drives his car out of the south passageway. Mr Wall accepted that the trellis, which is shown on the photograph at 3/888, does not restrict his view very much. Indeed, based on my observations at the site view, my assessment was that the trellis did not affect visibility at all when emerging into Leigh Road from the south passageway: contrast the view without the trellis shown on the photographs at 3/889. In any event, it is clear law that, save in the most exceptional case, of which Carter v Cole [2009] EWCA Civ 410 (cited by Mr Wall) is an example (because at the time of the grant of the right of way in that case it was known that a visibility splay was required as a condition of the grant of the planning permission to use the premises for the purpose for which the grant was made), the grant of a right of way does not carry with it an implied right to have visibility splays at the junction with a highway either provided or kept clear, and it is not a derogation from such grant to obstruct the view from or of the way; see Gale at para 9-86. As for paragraph 5.2 of the schedule, in my judgment the hedge and bushes that were formerly overhanging the northern side of the passageway from No 233 did not constitute an actionable obstruction of the right way; but, in any event, the defendants cut them back, and later removed them, when Mr Wall complained about them.

I reject any suggestion that the defendants deliberately placed a brick on the south passageway to obstruct the exercise of Mr Wall's right of way. On the evidence, the defendants were not in any way responsible for the temporary closure of the south passageway whilst Mr Hurst was first demolishing, and then rebuilding, the wall on the southern boundary of the south passageway. I further reject the suggestion in paragraph 6.2 of the schedule of any alleged acts of intimidation on the part of the defendants directed to Mr or Mrs Wall. Mr Wall's attitude towards the two separate occasions on the night of 21^st April 2009 when bricks were thrown through his front windows merely exemplifies his willingness to wound, whilst being afraid to strike, the defendants.

On the evidence, I am satisfied that there is no present obstruction to the exercise by Mr Wall of his right of way. It follows that there can be no mandatory order to remove such non-existent obstructions. On the evidence, I am also satisfied that the defendants do not threaten or intend to obstruct Mr Wall's established rights of way in the future. It follows that the grant of injunctive relief, or the exaction of undertakings instead, is not warranted. In any event, I am satisfied that, in the light of Mr Wall's predisposition to resort unnecessarily to litigation over the most trivial of matters, it would be unduly oppressive to the defendants to grant such relief, which should be refused in the principled exercise of the court’s discretionary equitable jurisdiction. I therefore dismiss the claim for injunctive relief.

I also dismiss the claim for damages. Judge Pelling awarded no damages in respect of pre-2006 matters. Although Judge Pelling’s decision that Mr Wall was entitled to no right of way over the south passageway was reversed on appeal, Mr Wall emphasised that he had not sought any award of substantial damages in respect of that period. In any event, that was a matter which, if it was to be pursued at all, was for the first action.

Perhaps unsurprisingly, there was no expert evidence of any diminution in value of No 231 as a result of the alleged obstruction of Mr Wall’s right of way. I accept that it is convenient for Mr and Mrs Wall to have access on foot over the south passageway in order to carry goods and transport articles which cannot conveniently be carried or transported between the front and the rear of their home by going through the inside of the house. Based on my own estimate at the site view, the shorter pedestrian route, via the passageway, takes some 5 minutes’ less walking time than the alternative route via Back Street, Lower Landedmans and Leigh Road. However, there has been no complaint in this action of the non-availability of such pedestrian access. Although Mr Wall prefers to use the south passageway, rather than the alternative route via Back Street, when leaving No 231 by car, he has not identified the number, or the nature, of specific occasions when he was actually prevented by the defendants from doing so, asserting that it did not matter to his case whether he had actually wanted to go out when particular obstructions occurred. I am not satisfied that Mr Wall has made out any case of sufficient obstruction to the exercise of his right of way to sound in an award of damages for inconvenience. I therefore dismiss his claim for damages.

In order to assist in regulating the position regarding the use of the right of way for the future, and without thereby acknowledging that the conduct of the defendants necessitates the grant of such relief, I am prepared to make declarations that (1) the parking or stationing of a motor vehicle on any part of the south passageway and/or substantially on Back Street at the rear of No 231 or opposite the south passageway (otherwise than for the purpose of loading or unloading or receiving or depositing passengers) may constitute an unreasonable and substantial interference with the Claimant’s right of way; (2) the existence of a gate at either end of the south passageway would constitute an unreasonable and substantial interference with the Claimant’s right of way; and (3) the existence of a gate at any point along the south passageway would constitute an unreasonable and substantial interference with the Claimant’s right of way unless such gate can be opened and closed without leaving any motor vehicle travelling along the right of way, and without obstructing any traffic on Leigh Road or Back Street. If it is practically possible to do so without undue interference with the exercise by Mr Wall of his right of way, I would be disposed to permit the installation of such a gate if one can be found. It is common sense, supported by the evidence (which I accept) of both Mr Collins and Mr Hurst, that, whilst the installation of some form of gates will not deter all unauthorised third parties from proceeding along the south passageway, it will tend to deter some of them from doing so, and thereby reduce the risk of burglary and vandalism. The fact that security is an issue is attested by both parties’ installation of security cameras, and floodlighting, and the reasons given for this by Mrs Wall.

I am not satisfied that it is either necessary or appropriate to grant any of the other declarations or orders claimed by Mr Wall in his amended particulars of claim. In particular, servient landowners, in this case the defendants, are not ordinarily bound to execute any repairs necessary to ensure the enjoyment of a right of way by the dominant owner. Whilst there exists no obligation on the dominant owner to keep the subject matter of his right of way in repair, he is entitled to do so should the same be necessary; but in this event, he has no entitlement to recover the whole of his costs of doing so, or even to seek a contribution to such costs, from the servient owner: see Gale at paras 1-93/5. The defendants have never sought any contribution to the cost of repairing the south passageway from Mr Wall.

By refusing the remedy of an injunction in the exercise of the court’s discretion to withhold equitable relief, I am in no way refusing to recognise, still less overriding, Mr Wall's undoubted existing rights of property in the nature of an easement. These are not in issue. But there is a crucial difference in principle between the exercise of an undoubted right of property and resort to the court for its protection by the grant of discretionary equitable remedies. Mr Wall's rights of property have already been established by the Court of Appeal's decision; and my declarations will serve to define more clearly their true nature and extent. Nothing I say or do will deny Mr Wall the opportunity of fully exercising his undoubted rights of property. But I am satisfied that no case has been made out for the intervention of equity in the exercise of Mr Wall’s property rights; and that, in any event, it would be unduly oppressive to grant him the remedy of an injunction against the defendants in the particular circumstances of the present case.

I accept Mr Foster's submission that this is a claim that should never have been brought at all this, still less one that should have been pursued as far as the contested trial of a four day Chancery witness action. By the time Mr Wall came to issue his present claim form, the offending gates and fences at both ends of the south passageway had been removed and it was available for use by vehicles; and the offending parking had ceased some three months earlier. If there were any matters which then still required the intervention of the court, the appropriate course would have been for Mr Wall to have brought the matter back to court by way of application in the earlier High Court action. Had this been done, and had Mr Wall displayed a reasonable and neighbourly attitude, I have no doubt that the matter could have been resolved without the need for further live witness evidence and cross-examination, in all likelihood within the confines of a half day’s hearing. As it is, I consider the whole of this present, second, High Court action to have been a monumental waste of the parties’ time and money, and of the Chancery Court’s scarce resources, to the detriment of other, more deserving, court users. These observations will fall to be reflected in the court's order for costs. At Mr Wall's request, I have indicated that I will adjourn, if he requires it, until 10.30am this Thursday, 13^th August, for him to prepare further submissions in writing on costs and the final disposal of this action. Subject to such submissions, and without in any way wishing to pre-judge matters, however, it seems to me that two matters that should be addressed are: (1) whether this matter should be transferred to the County Court for the purposes of the future working-out of my order and the assessment of costs, and (2) whether some restraint should be placed upon the parties’ ability to embark upon further, and related, litigation until all outstanding costs have been paid. Although any order for costs will have to be subject to a detailed assessment, there will no doubt be an application for a payment on account of costs, and, if so, it should be supported by an appropriate costs statement.

I conclude by paying tribute to Mr Foster for the considerate and careful way in which, on behalf of the defendants, he has conducted this hostile and unneighbourly litigation against a litigant in person.