Johnsen v Johnsen & Ors

The Part 19 Applicant (hereinafter referred to as the Applicant) is the son of the Claimant. The Claimant died on 12 April 2008 and the Applicant is the executor of his estate in Norway. By a grant of probate dated 27 September 2011 the Applicant was authorised to collect in and receive such estate of the Claimant as is situate within England and Wales. For the avoidance of doubt, I direct that the Applicant is joined as a party to these proceedings. The Respondents do not object. Despite the fact that the Claimant is dead it will be necessary to refer to him during the course of this judgment. References to the Claimant are deliberate; they are not to be confused with mistaken references to the Applicant.

By an application notice dated 16 December 2010 but sealed on 15 February 2011 the Applicant seeks an order that I should “perfect” an Order dated 6 October 2006 which I made at the conclusion of proceedings between the Claimant and the Respondents. The Applicant submits that I should make an order which directs that there should be a further sentence added to paragraph 8(c) of the Order of 6 October 2006 which is to the following effect:-

“Subject to the observance of the aforesaid covenant by the legal owners of Plot B then the Defendants as the legal owners of Plot A shall grant a right of way along the said track more particularly marked out in yellow on the plan annexed hereto”.

The application is supported by a witness statement and an exhibit thereto made by Mr Melvyn Pack, the Applicant's solicitor, dated 16 December 2010 and a statement dated 12 February 2010 (which I assume should be 11 February 2011) made by Mr Terence Clifford Court. The Order of 6 October 2006 was the culmination of protracted and fiercely contested proceedings between the Claimant and Respondents.

The Claimant was the brother of Thorleif Johnsen. Thorlief was married to the First Defendant’s mother, Dorothy, for a period exceeding 40 years. Dorothy died on 14 June 1987. By clause 6 of her will Dorothy devised and bequeathed one half of her residuary estate to Thorlief and one half to the First Respondent. By an assent dated 9 August 1988 Thorlief and the First Respondent assented to the property comprising the residual estate being held by them upon a trust for sale; they were also beneficial tenants in common in equal shares.

At the date of her death Dorothy’s residuary estate comprised 3 farms and some accommodation land. The farms were Abercamlo, Cwm and Guidfa. Shortly after Dorothy’s death the First and Second Respondents took up residence in Abercamlo.

Thorlief died on 30 April 1997. He had not realised his share in Dorothy’s residuary estate prior to his death. His share in that estate vested in the Claimant.

By a claim form issued 20 December 2004 the Claimant sought a declaration that the First Defendant and he held Abercamlo Farm upon trust for themselves in equal shares. Further he sought an order for sale of those said premises (and other additional areas of land).

The Claimant's claim came on for hearing before me on 20 and 21 February 2006. At the close of the evidence on 21 February I directed the appointment of a single joint expert. That was an unusual step to take at the stage the proceedings had reached. I took the step because I was anxious to see whether or not there was a practical solution available to the parties which would avoid the need to make an order for sale. Mr Terence Court, a reputable chartered surveyor, was appointed as the single joint expert.

Mr Court produced a written report on 30 March 2006. Mr Court described Abercamlo Farm in the following terms:-

“The land at Abercamlo Farm varies in quality. About 100 acres is good quality pasture land with good road access and fencing. Approximately 50 acres is less appealing and would appear to suffer from a degree of over-grazing. It is poorly drained, poorly maintained, poorly fenced and has poor access. A further 50 acres or so is really very wet and yields very poor grass growth. Unsurprisingly, it has been largely neglected. The sheep that do graze it will sustain little nutritional value from this land. The final 27 acres or so is estimated to be mixed woodland and includes the nature reserve land adjoining that public highway. This totals 227 acres and does not account for 10 acres held back to be valued with the farmhouse, as lotting the property like this represents the most realistic way in which the house would be sold. These 10 acres will be the paddocks immediately adjacent to the house, currently used for the grazing for Mr and Mrs Wilson’s pony.

The farmhouse has been renovated and returned to a habitable condition by Mr and Mrs Wilson….a programme of modernisation would be necessary to bring it up to modern tastes and minimum safety standards before it could be let….

The barn and stable block both have considerable potential for residential development, subject of course to the necessary planning permission. The value apportioned reflect this potential….”

Mr Court valued Abercamlo Farm as a whole at £940,000 as at 30 March 2006. He valued the 227 acres of agricultural land at £466,000 as at the same date.

On the basis of these valuations it became apparent to me and, of course, to the Claimant and the Respondents that justice might be achieved in the proceedings between the Claimant and Respondents if Abercamlo Farm was partitioned.

On 24 April 2006 a further hearing took place before me. My recollection is that at this hearing the Claimant pressed me to make an order for sale but, realistically, recognised that I might be attracted to making an order which had the effect of partitioning the farm. The Respondents primary position was that I should make no order for sale but they, too, acknowledged that I might be attracted to an order which partitioned the farm. At the end of the hearing on 24 April 2006 I reserved judgment.

On 15 May 2006 the court manager of the Cardiff Civil Justice Centre received a letter addressed to me from Messrs Abbot Beresford, the Claimant’s solicitors. The letter is dated 12 May 2006 and its terms are as follows:-

“We understand that HHJ Wyn Williams is currently considering his judgment in respect of this matter following the conclusion of the trial on 24 April last.

We confirm that both parties have been in liaison with expert appointed by the court to conduct valuations in respect of the various properties held by the Defendants upon trust for the Claimant and another party.

The expert has confirmed that it is perfectly viable to partition Abercamlo Farm in a manner that will enable the Defendants to retain the farmhouse, outbuildings and a curtilage that extends around the environs of the said buildings.

The expert now recommends that the acreage for the said plot should be increased to some 15 acres or more, the edging of which follows existing fencing boundaries save for an arc around the outbuildings that will require new boundary fencing in the event that the Honourable Judge opts for a partition.

The expert has also indicated that the partition on the aforesaid lines would provide a broad parity of value between the parties.

We attach herewith for the Honourable Judge’s consideration;

◦

Copy letter of Abbot Beresford to Mr Court dated 25 April last;

◦

Letter of Mr Court to Abbot Beresford dated 27 April last;

◦

Letter of Mr Court to Abbot Beresford & Burgess Salmon dated 10 May last;

◦

Re-draft of Claimant’s alternative order in the light of the revision provided by Mr Court on his report.”

In the letter dated 25 April 2006 from Abbot Beresford to Mr Court the solicitors asked whether “either plot would require easements in respect of the other”. In a letter dated 27 April 2006 Mr Court replied “Yes” to that question. In his letter of 10 May 2006 Mr Court identified that “a right of access should be afforded over a track within Plot A for the benefit of Plot B”.

As I have indicated, a draft order was sent to the court. Paragraph 6 of the order was in the following terms:-

“Mr Terence Clifford Court, FRICS FAAV of Brightwells Ltd Easters Court, Leominster, Herefordshire HR6 0DE is appointed by the court to demarcate the boundaries between the respective plots in red on the index map and shall determine whether the grant of rights of way, easements and covenants concerning the maintenance of boundary fencing/hedging as is required between the plots with such decision being binding upon the parties.”

On 20 June 2006 I sent out a judgment in draft. The paragraphs which are salient to the application before me are as follows:-

“49.

I have to confess that it was with some relief that I read the report of the joint expert. I say that since his report laid the ground for a practical solution should the 1996 Act permit. Stripped to its essentials the value of Abercamlo Farmhouse together with a suitable acreage of land immediately surrounding it is equivalent to the value of the remaining of the farm. That being so the suggestion made by Counsel for the First Defendant was that I should make an order which had the effect of partitioning the two areas so that the First Defendant became the sole owner of the farmhouse and land immediately surrounding it and the Claimant the owner of the remaining area of the land.

50.

Although Counsel for the Claimant did not concede that such an approach provided a solution to the dilemma which I face he was gracious enough to accept that it was a solution which was open to me. For the avoidance of doubt I record that both Counsel accepted that I had power under the Act to make an order in appropriate terms to give effect to a partition of the land. That was because, in short, I had the same powers under the Act as would the trustees of the trust of land and, clearly, the trustees would be entitled to partition the land in appropriate circumstances.

51.

Unhesitatingly, in my judgment, the partition of the land provides the best solution to the exercise of my discretion on the particular facts of this case.

52.

Following the hearing on 24 April 2006 the parties, wisely in my judgment, continued to discuss the basis for partition should that be a course which commended itself to me. By letter dated 23 May 2006 the First Defendant’s solicitor enclosed a plan which showed the land and buildings to be retained by the First Defendant and the land to be conveyed to the Claimant. As I understand it the parties agree that that plan, illustratively, demonstrates how partition can be achieved with the best possible affect for both parties. Subject to any submissions which may be made as to the precise form I would propose to make an order that the land edged blue upon the plan sent to me should be conveyed to the Claimant and the land edged in pink and shown coloured red/pink be conveyed to the First Defendant.

55.

Essentially, therefore, the order I propose to make is an order for partition and any consequential order which is necessary to make partition efficacious. For example, I understand that there may be a need to confer rights of way upon the land to be conveyed to the First Claimant.

56.

In the somewhat unusual circumstances I propose to hand down judgment at some distance in time from the date when this judgment is distributed in draft to the parties’ legal advisers. I suggest Monday 17 July at the Cardiff Civil Justice Centre at 10.00am. I would postpone the handing down even further if by so doing it would assist in a final resolution. The handing down can be by telephone if both parties agree. In the ensuing period the parties should seek to agree the terms of an order to give effect to my judgment. Assuming that neither party wishes to appeal there is no reason why the practical steps necessary to give effect to my judgment cannot begin even in advance of the handing down.”

The handing down did not take place on 17 July. In fact the handing down did not take place until 6 October 2006.

It is common ground that prior to the handing down the court was provided with a draft order. The draft order was sent to the court by Abbot Beresford under cover of a letter dated 4 October 2006. The order consisted of 12 paragraphs. Paragraph 12 was to the effect that the Respondents should pay the Claimant's costs of the claim.

At the hearing on 6 October 2006 I was informed by Counsel for the parties that paragraphs 1 to 11 of the order were agreed but that there was no agreement about the appropriate order for costs. I heard an argument about the issue of costs and I resolved the argument by directing that the Respondents should pay 25% of the Claimant's costs to be taxed on the standard basis if not agreed.

The order issued and sealed by the court is in precisely the same form as that which was sent to the court save for the provision as to costs. Clauses 2 to 4 provide for partition of Abercamlo Farm into Plots A and B and define the partitioned plots. Clause 5 provides:-

“Mr Terence Clifford Court FRICS FAAV of Brightwells Ltd Easters Court, Leominster, Herefordshire HR6 0DE is appointed by the court:

a)

to demarcate the boundaries between the respective plots in red on the index map as per the map annexed hereto;

b)

to demarcate the new boundary running in an arc around the outbuildings of Plot A for new fencing to be erected thereto.”

Clause 8 contains the following:-

“8.

To provide efficacy to the partition as aforesaid the Claimant and the Defendant shall:

a)

share the cost equally for the erection of the new fence arcing the outbuilding of Plot A;

b)

enter into a covenant where the maintenance of the boundary fencing shall fall exclusively to the Defendants as the legal owners of Plot A;

c)

enter into a covenant whereby the costs of maintaining the track from the last gateway from Plot B closest to the building of Plot A to the public highway shall fall equally to the Claimant and the Defendants in their respective capacity as the legal owners of Plot B and Plot A.”

Mr Jones appears for the Applicant in this application; he appeared for the Claimant at all material times. He acknowledges that at the hearing on 6 October 2006 there were no submissions by either party addressed to any issue other than costs. Mr Faulkner appears for the Respondents in this application. Neither he nor his instructing solicitors acted for the Respondents until this application was made.

Part of the exhibit to Mr Pack’s witness statement of 16 December 2010 is correspondence between a firm of solicitors known as H Vaughan, Vaughan & Co (hereinafter referred to as “Vaughan”) and Abbot Beresford. Vaughan was appointed by the Respondents to deal with the conveyancing issues which would arose as a consequence of my judgment.

The correspondence begins prior to 6 October 2006. It is clear that at this stage the Respondents were actively considering purchasing the Claimant's share in Abercamlo Farm. After an exchange of correspondence about that possibility it became clear that such a sale would not take place.

On 5 December 2006 Vaughan provided a form of transfer to Abbot Beresford with a view to giving effect to the terms of my order. On 27 February 2007 they complained to Abbot Beresford that there had been no response. On 9 March 2007 a further reminder was sent.

On 12 March 2007 Abbot Beresford wrote:-

“Any delay in the completion of this matter has been caused by your client’s wholly unreasonable refusal to grant the right of way that was impliedly provided for in the court order and which is required to give efficacy to the terms and objectives of the said order.”

By letter dated 7 June 2007 Vaughan made it clear that the Respondents were unwilling to grant such a right of way.

On 28 February 2008 Abbot Beresford informed Vaughan that unless the Respondents were prepared to grant a right of way over Plot A in favour of Plot B “an application will be submitted to the court for a variation of the order….”. There were two further letters between solicitors, both in August 2008 but, so far as I am aware, there the matter rested until this application was issued.

As is clear from the foregoing, this application was issued by the court 3 years after it was first threatened and some 2½ years after it was last threatened.

The Applicant contends that, properly interpreted, my order of 6 October 2006 compels the Defendants to grant a right of way over Plot A in favour of Plot B. The location of this easement is depicted by a yellow line upon the plan which is exhibit 2 to the witness statement of Mr Terence Court dated 12 February 2010. The Applicant contends that the right may be enjoyed at all times and for all purposes. The Applicant, alternatively, contends that I have power under CPR r40.12 and/or r3.1(7) to amend my order by adding words to paragraph 8(c) thereof as suggested in the notice of application and as set out in paragraph 2 above.

The Respondents argue that there is no provision within my order (either express or implied) which compels them to confer a right of way over Plot A in favour of Plot B either along the route suggested by the Applicant or at all. Further, they suggest that CPR r40.12 and r3.1(7) have no application in the circumstances of this case.

I deal with each of these issues in turn.

Self-evidently, the order contains no express reference to a right of way over any part of Plot A in favour of Plot B. In particular there is no express reference in my order to the Respondents granting a right of way to the Applicant over the section of track which is specified in paragraph 8(c) of my order. However, Mr Jones, on behalf of the Applicant, submits that it is implicit from the terms of my order, read as a whole, that I directed that the Respondents should grant a right of way to the Applicant which would be exercisable at all times and for all purposes over the section of track specified in paragraph 8(c) of my order.

In Attorney General of Belize & Others v Belize Telecom Ltd & Another [2009] 1 WLR 1988 the Privy Council gave consideration to the approach which a court should take when confronted by an argument to the effect that a provision which is not expressly mentioned in a written document should, nonetheless, be implied. The relevant paragraphs of Lord Hoffmann’s judgment are paragraphs 16 to 27. I have taken account of each of those paragraphs. For ease of reference I set out below paragraphs 16-21 which encapsulate Lord Hoffmann’s reasoning.

“16.

Before discussing in greater detail the reasoning of the Court of Appeal, the Board will make some general observations about the process of implication. The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute or Articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means. However, that meaning is not necessarily or always what the authors or parties to the document would have intended. It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would reasonably be available to the audience to whom the instrument is addressed: see investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, 912-913. It is this objective meaning which is conventionally called the intention of the parties, or the intention of Parliament, or the intention of whatever person or body was or is deemed to have been the author of the instrument.

17.

The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.

18.

In some cases, however, the reasonable addressee would understand the instrument to mean something else. He would consider that the only meaning consistent with the other provisions of the instrument, read against the relevant background, is that something is to happen. The event in question is to affect the rights of the parties. The instrument may not have expressly said so, but this is what it must mean. In such a case, it is said that the court implies a term as to what will happen if the event in question occurs. But the implication of the term is not an addition to the instrument. It only spells out what the instrument means.

19.

The proposition that the implication of a term is an exercise in the construction of the instrument as a whole is not only a matter of logic (since a court has no power to alter what the instrument means) but also well supported by authority. In Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601, 609 Lord Pearson, with whom Lord Guest and Lord Diplock agreed, said:

“the court does not make a contract for the parties. The court will not even improve the contract which the parties have made for themselves, however desirable the improvement might be. The court’s function is to interpret and apply the contract which the parties have made for themselves. If the express terms are perfectly clear and free from ambiguity, there is no choice to be made between different possible meanings: the clear terms must be applied even if the court thinks some other terms would have been more suitable. An unexpressed term can be implied if and only if the court finds that the parties must have intended that term to form part of their contract: it is not enough for the court to find that such a term would have been adopted by the parties as reasonable men if it had been suggested to them: it must have been a term that went without saying, a term necessary to give business efficacy to the contract, a term which, though tacit, formed part of the contract which the parties made for themselves.”

20.

More recently, in Equity Life Assurance Society V Hyman [2002] 1 AC 408, 459, Lord Steyn said: “If a term is to be implied, it could only be a term implied from the language of [the instrument] read in its commercial setting.”

21.

It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in expresswords what the instrument, read against the relevant background, would reasonably be understood to mean. It will be noticed from Lord Pearson’s speech that this question can be reformulated in various ways which a court may find helpful in providing an answer – the implied term must “go without saying”, it must be “necessary to give business efficacy to the contract” and so on – but these are not in the Board’s opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?”

I begin by identifying the relevant background. On any view, the terms of my judgment must be part of the relevant background. It seems to me, too, that the evidence provided to the court and the submissions made about it constitute part of the relevant background. Neither Mr Jones nor Mr Faulkner suggests that this approach is erroneous.

I have already identified the salient passages from my judgment (see paragraph 15 above). The only reference to rights of way contained within my judgment is that which appears at paragraph 55.

I have no recollection of what it was that led me to include that paragraph within my judgment. However, it is easy to deduce why it was that the paragraph appears. The only explanation for its appearance within my judgment is the exchange of correspondence which occurred between the Claimant's solicitor and Mr Court in April/May 2006. Until that exchange of correspondence there had been no mention of rights of way. Such rights had not been mentioned in the oral evidence received by me on 21 and 22 February 2006; there is no mention of a right of way in Mr Court’s report of 30 March 2006.

The references to rights of way in the exchange of correspondence to which I have referred are limited. They are set out at paragraph 14 above. The only express reference to a right of way is contained in Mr Court’s letter of 10 May 2006 when he wrote:-

“You will note that to the south east of the plot the roadway carries on into the fields. I would advise that this is retained. I have, you will note, continued the boundary along the outside of the roadway, but a right of access will need to be given to the owners of the land.”

A plan accompanied that letter but no right of way is depicted upon it. The letter itself does not specify the location of the “right of access” to which it refers nor does it indicate whether or not the right to be granted is for all purposes or for limited purposes.

The draft order which accompanied the letter is not without significance. As drafted it suggests that Mr. Court was to determine whether any rights of way should be granted.

As my judgment of October 2006 records the First Defendant’s then solicitors wrote to the court on 23 May 2006 (see paragraph 15 above). No one has suggested that a right of way over Plot A in favour of Plot B was depicted upon the plan which was enclosed with that letter.

Mr Jones submits that it is also a relevant background circumstance that I intended to make an order which respected and gave effect to the fact that the Claimant and First Defendant enjoyed equal beneficial shares in Abercamlo. I agree. Paragraph 1 of my order makes an express declaration to that effect. Mr Jones submits that my order must be interpreted in such a way that the equal shares to which the Claimant and First Defendant were entitled are preserved.

Mr Jones next submits that if all these factors are taken into account clause 8(c) of my order is explicable only upon the basis that I intended to direct that the First Defendant should grant a right of way over Plot A in favour of Plot B. It makes no sense, submits Mr Jones, for there to be a covenant which obliges both the Claimant (and now the Applicant) and the Respondents to maintain a track at equal expense unless each has the legal right to use the track.

At first blush there is considerable force in Mr Jones’ submissions. I accept that there is no obvious reason why the Claimant should be under an obligation to maintain a track running over Plot A unless he was to derive some benefit there from. The only benefit that the Claimant could derive from maintaining the track would be to use it.

Mr Faulkner accepts that paragraph 8(c) of the order is difficult to explain; both in writing and orally he described it as an “oddity”. Nonetheless, Mr Faulkner submits that there is simply no basis for the implied provision for which the Applicant contends. He submits that the words of the order are clear; an effective partition of Abercamlo can be achieved if my order is implemented and, objectively, that is what the order is intended to achieve. He submits that the issue of a right of way was never addressed in any detail in the evidence adduced before me and it was never the subject of submissions before me. Importantly, there was no evidence before me when I made the order which suggested that the absence of a right of way over Plot A in favour of Plot B would adversely impact upon the value of Plot B so as to render it less valuable than Plot A. While Mr Court now says that Plot B would be less valuable than Plot A in the absence of such a right (see paragraph 7 of Mr Court’s witness statement of 10 February 2010) there was no evidence tendered to that effect before I made my order. Accordingly, Mr. Faulkner submits that there can be no basis for concluding that, objectively, my order means that the First Defendant is obliged to grant a right of way over Plot A in favour of Plot B.

Mr Faulkner further submits there is no way to tell from the terms of my order, even when considered against the relevant background circumstances, whether the right of way for which the Applicant contends is a right of way for all purposes exercisable at all times or some more limited right. Accordingly, he submits that implication is simply impossible. He poses the following questions:-

Would the right of way be for use at all times, or only during work hours?

For all purposes, or just agricultural purposes?

For all kinds of vehicles, or just agricultural vehicles?

With or without prior notice to the owners of Plot A?

Would it be occasional or unlimited in frequency of use?

Notwithstanding Mr Jones’ attractive arguments I have reached the conclusion that Mr Faulkner’s analysis is correct. In particular, I simply do not see how it is possible to identify the nature and extent of the right which the First Respondent would be obliged to confer. Such issues are crucial; yet they were simply not addressed in the evidence or submissions which preceded the making of my order.

I have considered whether my order should be interpreted as including a provision whereby the First Defendant was directed to grant a right of way over the identified track but limited to use for agricultural purposes. That is not the Applicant's case as set out in writing. During the course of oral submissions, however, Mr Jones floated that possibility before me although he did not have instructions which permitted him to advance this suggestion, formally, as part of his case.

After a delay such as has occurred in this case I would be loathe to permit any party to change the nature of his case, substantially, during the course of submissions. In any event, it does not seem to me that any evidence was placed before me prior to the making of my order which suggested, unequivocally, that the Claimant was promoting the grant of a limited right of that type.

I have reached the conclusion that my order, properly interpreted in accordance with the principles set out in Attorney General of Belize, does not require that the First Defendant should grant a right of way over the track which runs through Plot A for the benefit of Plot B.

CPR r 40.12 (commonly referred to as ‘the slip rule’) provides

“The court may at any time correct an accidental slip or omission in a judgment or order.”

I accept the following propositions derived from the written submissions made by Mr Jones and Mr Faulkner.

The scope of the slip rule is narrow

It is necessary to show that the judge intended to do one thing, but by accident did another thing in the order

The court has power to make its formal intention clear in the order by varying it

The slip rule cannot be used to enable the court to have second thoughts or to add to its original order, or to change the substance of a judgment.

There is no evidence available which persuades me that at the time I made the order I intended to direct that the First Defendant should grant the Claimant a right of way. Paragraph 55 of my judgment shows that I was aware that it might be necessary for my order to include such a provision. It is common ground, however, that no submission was addressed to me about a right of way at any time after the publication of my draft judgment to the time when it was formally handed down. Further, of course, the form of the order was agreed as between the parties (save as to costs) and there was no debate in advance of the making of the order about any of its terms except as regards the issue of costs. In these circumstances I simply do not see how it can be shown that I intended to do one thing – direct that a right of way should be conferred – but by accident failed to do so.

That is the basis upon which I decline to exercise my powers under r 40.12. Additionally, however, I would be most reluctant, to say the least, to exercise my powers under this rule given the delay which has occurred in making the application. Mr Jones was unable to provide any proper explanation for the delay between the making of my order and the making of this application. No evidence has been adduced from Mr Jones’ instructing solicitor which sheds any light upon the reasons for the delay. I can only conclude that there has been culpable delay on the part of the Claimant and/or the Applicant and/or their solicitors.

This rule provides

“A power of the court under these rules to make an order includes a power to vary or revoke the order.”

In Collier v Williams [2006] 1 WLR 1945 Dyson LJ (as he then was) provides the following guidance as to the circumstances in which the power to vary or revoke an order should be invoked.

“39….CPR r 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Ltd v Christen Ager-Hanssen [2003] EWHC 1740 (Ch) at [7]:

“The deputy judge exercised a discretion under CPR r 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. The course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR r 3.1(7), which enables the court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR r 3.1(7) is exercised, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the bases of the Defendant’s first main submission, that Mr Berry’s order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in turns inquiring whether the Defendant had any realistic prospects of being able to comply with the condition.”

40.

We endorse that approach. We agree that the power given by CPR r 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the Applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under Rule 3.1(7).”

In my judgment Mr Faulkner is correct when he says that there has been no material change of circumstances since my order was made. It is true that the Applicant has filed a witness statement made by Mr Court which now suggests that the value of Plot B is diminished by reason of the absence of the right of way for which the Applicant contends. However, if that evidence is correct it was available to be deployed before I made my order. Mr Faulkner is also correct when he submits that I was not misled. I heard no argument on the right of way or on the effect of the right of way on the respective values of the plots. I fear he is also right when he submits that if any mistake was made in this case it was a mistake made by or on behalf of the Claimant.

I am not persuaded that any of the criteria which would trigger the jurisdiction under CPR r 3.1(7) as identified by Patten J (as he then was) and as endorsed by the Court of Appeal in Collier are met in this case.

In any event the issue of delay is just as pertinent to the exercise of my discretion under CPR r 3.1(7) as it is to the exercise of my discretion under the ‘slip rule’. I cannot think that it would be appropriate to exercise the power to vary my order this length of time after it was made in the absence of cogent evidence which explains the delay.

In my judgment this application must fail.

I note that the Applicant also submits that the principles of proprietary estoppel and the rule in Wheeldon v Burrows [1879] 12 Ch.D.31 can be invoked so as to compel the First Respondent to grant a right of way over the track within Plot A for the benefit of Plot B. These points were not argued before me in the course of the oral hearing and, as I understood him, Mr Jones accepted that if these points are to be pursued they would need to be the subject of separate proceedings. Certainly I do not consider it would be possible to resolve such issues within the confines of an application such as the present.

I should also record for completeness that whereas Mr Court seems disposed to say that a right of way over the track within Plot A for the benefit of Plot B is necessary for the proper enjoyment of Plot B that is strenuously contested by the Respondents and, on any view, there appear to be access points between parts of Plot B and the public highway. Again, within the confines of an application such as the present, it is not possible to determine whether, as a matter of fact, a right of way over the track within Plot A if necessary as opposed to desirable for the proper enjoyment of Plot B.

As I indicated at the end of the oral submissions I propose to hand down this judgment in the absence of the parties. Issues relating to costs will be determined following receipt of any further written submissions. My order at the handing down will specify the time within which further written submissions should be submitted for my consideration. If the Applicant wishes to seek my permission to appeal he can support such application with short written submissions. Again, my order on handing down will provide a timetable for receipt of submissions relating to any proposed appeal.