AJP Homes Limited v Tate Estates (Lambert House) Limited

By Appellant’s Notice dated 20 May 2024 the Appellant, AJP Homes Ltd, applied for permission to appeal against the judgment dated 27 March 2024 in the County Court in Leeds (the “Judgment”) handed down by His Honour Judge Saffman (sitting as a Circuit Judge in retirement) (the “Judge”) in which he dismissed the Appellant’s claim for damages for trespass against the Respondent. In the action, the Respondent was the First Defendant and its building contractor, Harris CM Ltd (“Harris CM”) , was joined as the Second Defendant. The Second Defendant did not appear at the trial and was not a Respondent to this Appeal. However, the relationship between the First and Second Defendants did give rise to one of the Grounds of Appeal.

By Order dated 1 May 2024 (the “Order”) the Judge made five declarations in which he recorded the key findings which he had made. He dismissed the Appellant’s claim for trespass and awarded nominal damages on the Respondent’s counterclaim for interference with its right of way. He also ordered the Appellant to pay 90% of the Respondent’s costs of the claim together with a payment on account of £160,000, although he ordered the Respondent to pay the costs of the counterclaim. Finally, the Judge refused permission to appeal.

By Order dated 29 November 2024 Fancourt J, the then Vice-Chancellor of the County Palatine of Lancaster, granted permission to appeal limited to two grounds. The first related to the question whether the Respondent had admitted that it was responsible for the acts of Harris CM. The second involved four questions relating to the construction of the right of way. In relation to both Grounds of Appeal, Fancourt J stated that he was not convinced that there was a strong case on the merits but considered that the threshold for granting permission to appeal was met.

On 10 October 2025 I heard the Appeal and reserved judgment. Mr Wilson Horne, instructed by Gunnercooke LLP, appeared for the Appellant and Mr Gary Blaker KC appeared for the Respondent. Both appeared below and filed detailed Skeleton Arguments for the Appeal. I am grateful to them for both their written and oral submissions.

The Facts

The Judge set out a factual chronology of the background to the issues which he had to decide in the Judgment, at [1] to [15] and [20] to [22]. It is also necessary to set out briefly the background to the claim for trespass and the counterclaim for interference with the right of way because they are also relevant to this Appeal:

“1.

The claimant, AJP Homes Ltd, was at the times material to this claim, the registered owner of 106 Station Parade, Harrogate. I shall refer to it hereafter as “106”. It is a large, residential property which, before it was acquired by the claimant on 30 June 2021, had been converted into 3 flats. That is the format in which it remains.

2.

To the west and rear of 106 lies 108 Station Parade. 106 and 108 are separated by a small alley. 108 is owned by the first defendant, Tate Estates (Lambert House) Ltd to whom it was transferred on 18 October 2018.

3.

108 is accessed by a minor private road called Back York Place. That runs down the southern elevation of 106 and 108. Back York Place is, and was at the material time, owned up to the centre line by 106. Included within 106’s ownership is a parking area which runs along the southern elevation of 106. The alley to which I refer comes off Back York Place at 90 degrees so that the eastern elevation of 108 and the western elevation of 106 abut the alley. The majority of the width of the alley in so far as the alley abuts 108 and 106 is also owned by 106. I have attached to this judgment as Appendix 1 a plan which, amongst other things, gives a pictorial representation of the position on the ground.

4.

108 has rights of way over Back York Place and the alley and also a right to park in part of the parking area I have referred to. Those were granted by a transfer of 29 November 2016 (the 2016 Transfer), the terms of which are central to this case. The rights of way are over an area of land coloured green on a plan attached to the 2016 Transfer. That plan is the one reproduced in Appendix 1. The parking area is roughly, but not quite, rectangular and is within the green land and is delineated by edging coloured pink.

5.

At various times relevant to this claim, the area upon which 108 stands has been an office cum depot called Lambert House operated by a sun glasses manufacturer, an empty site (the office/depot having been demolished) and is currently an apartment block containing 12 apartments.¹ The first defendant was the developer in respect of 108 in its current form. When it was Lambert House and was operating as a commercial depot, vehicular access to the interior was achieved via a roller shuttered entrance along the southerly elevation of Lambert House in an area to which the green shading on the 2016 Transfer does not extend.

1 I shall refer to it as Lambert House in its guise as the office/depot but as 108 when I refer to it in its current form. It is right to record that 108 actually has a smaller footprint on the ground than Lambert House had.

6.

The build of 108, at least in the period relevant to this claim, was undertaken by the second defendant, Harris CM Ltd. It does not appear to be in dispute that it did so under a JCT Design and Build contract.² The essence of such a contract is that the builder (contractor) becomes responsible for all aspects of the build and the building site other than those obligations relating to health and safety and workers’ welfare which are non-delegable pursuant to the Construction (Design and Management) Regulations 2015 (CDMR). The second defendant entered into administration in August 2022 and has now been dissolved. These proceedings against it have been stayed and, consequently, it takes no part in this hearing.

2 Surprisingly, the contract is not in the bundle having apparently not been disclosed by the first defendant but the claimant, in advancing its claim for trespass, has not asserted that, at least in the period when it suffered trespass, the contractual relationship between the first and second defendant was not governed by a design and build contract.

7.

By this claim the claimant seeks damages, including negotiating and exemplary damages and injunctive relief for 31 acts of trespass by the second defendant over 106 between 2 July 2021 and 20 October 2021. It asserts that the first claimant is jointly responsible for those acts of trespass because the second defendant was its contractor and was acting at its direction.

8.

In fact, the claimant does not pursue any injunctions at this time but reserves its right to do so at a later date. If it should do so then the first defendant reserves its right to argue that such an application would be an abuse because it should have been pursued at the trial which, as Lewison LJ once memorably remarked is the “opening and closing night of the show”

9.

The first defendant concedes that the second defendant committed 4 of the acts of trespass about which the claimant complains but asserts that they were de minimis -- as were such of the other acts of trespass pleaded in so far as the second defendant is indeed found to be guilty of them.

10.

Many of the disputed acts of trespass relate to a complaint that, during the construction of 108, commercial vehicles stopped on the land belonging to 106 but over which 108 has rights of way to load and unload building materials and, further, materials were stored on 106 when there was no right to do so.

11.

The first defendant does not deny that building materials were unloaded and that wagons stopped on the green land for that purpose but argues that the rights it has over the green land granted by the 2016 Transfer permit it, and those authorised by it, to do so. This is a contention with which the claimant disagrees. The court’s first task therefore is to determine the meaning of the rights contained in that 2016 Transfer.

12.

However, perhaps more fundamentally, the first claimantdefendant asserts (albeit that this was not pleaded in terms in the defence) that, in law, it is not liable for any trespass committed by its independent contractor, the second defendant.

13.

There is one further act alleged by the claimant which it contends is a continuing act of trespass and/or private nuisance. It has, understandably, assumed major importance in this trial. This particular claim comes about by virtue of an amendment made to the Particulars of Claim for which permission was given on 23 February 2023. It was not one of the claimant’s original pleaded allegations.

14.

108 has undercroft parking for the use of the apartment occupiers. The entrance to this parking facility is some way down the alley separating 106 from 108 to which I have referred. As I have said, by reason of the right of way granted by the 2016 Transfer, 108 has vehicular rights of way over a sufficient length of the alley to enable access to the entrance to the undercroft if the right of way is sufficiently extensive so as to permit the authorised users of 108 to use it for that purpose.

15.

The claimant argues that a true construction of the right of way does not permit that interpretation. It argues that the right of way into and over the alley permits nothing more than to use that part of it over which there is a right of way as a vehicular turning point to enable vehicles to reorientate so they can exit onto Station Parade without reversing onto it. This too, of course requires the court to determine the extent of the right of way over the green land granted by the 2016 Transfer. Does it give the dominant tenement (108) the right to use it for access to and egress from the undercroft or not?

16.

There is a counterclaim by the First Defendant for damages for wrongful interference by the claimant with the first defendant’s rights of way and the parking easement. It is not in dispute that between 21 August 2021 and 05 June 2022 the claimant erected Heras fencing which prevented the first defendant and those authorised by it from accessing the green area edged pink. It argues that, as well as the Heras fencing frustrating the right to park, it also made it very difficult and, indeed, sometimes impossible for larger commercial vehicles to make the turn from Back York Place into the alley because the fencing made the angle too acute. This caused significant difficulties in delivering materials to site and those difficulties resulted in the completion of the site being significantly delayed. The major part of the counterclaim is to recover the additional expenses incurred by the first defendant arising from the delay caused by that contended infringement of their rights.

17.

The counterclaim is resisted on the basis that a proper construction of the rights of way and the easement to park does not support such a claim. Essentially it is argued that the right of way over the green land edged pink is limited to a right of way to access that land for parking purposes. It does not permit that area to be used as a route to the alley which avoids the need for an acute turn from Back York Place into the alley. Inevitably this issue also requires the court to construe the extent of the first defendant’s rights by reference to the 2016 Transfer.

18.

However, the claimant argues that, in so far as it is determined on a true construction of the 2016 Transfer, it has infringed the first defendant’s rights then the second defendant with the connivance of the first defendant intended to use those rights in furtherance of an unlawful purpose (i.e. to breach planning controls and CDMR). It is argued that, as a result, the right to damages has been forfeited. Further, the claimant argues that no loss has been sustained by the first defendant by reason of any interference by the claimant with their rights. The claimant argues that any delays were not caused by the claimant’s infraction of the first defendant’s rights but by other factors independent of any alleged interference with those rights.”

“20.

In my judgment, having heard the evidence and submissions those issues upon which determination is now required are:

1.

The meaning and extent of the rights conferred by the 2016 Transfer, in particular;

a.

Whether, pursuant to the 2016 Transfer, the first defendant and those authorised by it are permitted to stop vehicles and/or unload/load them on the area shaded green in the plan appended to the 2016 Transfer.

b.

Whether the 2016 Transfer allows the first defendant and those authorised by it unfettered passage to the entrance to the undercroft at 108

c.

If there is a right to stop, does that right extend to a right to stop at the entrance of the undercroft in order to lift the roller shutter that protects the entrance to it?

d.

Does the right of way over the area coloured green and edged in pink extend to an unrestricted right of way or is it only a right of way appurtenant to the right to park a vehicle?

2.

Whether, in law, the first defendant is liable for any acts of trespass by the second defendant

3.

If so, the extent to which, based on the outcome of the exercise in construing the 2016 Transfer, the second defendant has exceeded the terms of the right of way by their construction operations and has thus committed trespass.

4.

To the extent that the second defendant has trespassed and the first defendant is liable for that, what damages is the claimant entitled to and to what extent should they include negotiating and exemplary damages?

5.

Has the claimant wrongfully interfered with the first defendant’s right of way and its parking easement?

6.

If so, did that interference cause delay in the completion of the development of 108?

7.

If so, the extent to which that should sound in damages

21.

I should record that initially the position of the boundary in the alley between 106 and 108 was in dispute to the extent that the court could have expected to have to decide on precisely where it was. The parties have however agreed on the boundary line in the alley.

22.

I will be corrected if I am wrong but my understanding is that the boundary is contiguous with what would have been the eastern and southern elevations of Lambert House prior to its demolition. It will be remembered that 108 has a smaller footprint than did Lambert House both to the east and the south. It is accepted that the extent of Lambert House to both east and south when it existed is delineated by a pin kerb that now runs along the eastern and southern elevations of 108 and that pin kerb is therefore the boundary.”

“27.

As will be seen by reference to the appendix plan, the area coloured green on Plan 2 runs from Station Parade to the eastern boundary of Lambert House in so far as that was in the ownership at that time of Mrs Cooney and is now in the ownership of the claimant as the owner of 106. It will be noted though that there is excluded from that green area a series of parking spaces that abut the southern wall of the building at 106. It will also be noted that the green land then turns into the alley and runs along what as the eastern elevation of Lambert House.

28.

I have said that the parking spaces abutting 106 were excluded from the green land but not all were. A perusal of the plan at Appendix 1 shows that one such parking area and some land at the angle of the turn from Back York Road into the alley is included in the green land. As well as being part of the land coloured green, that area is also edged in pink and is referred to in clause 2.1 above.”

I adopt the defined terms and abbreviations which the Judge used. In so doing, I bear in mind his comment in footnote 1 to paragraph 5 that although he referred to the building on 108 as “Lambert House” the current building has a smaller footprint than the original depot and office which stood on that property. Mr Horne also pointed out that there was a correction to paragraph 12 of the Judgment which neither counsel had picked up at the time and I have made that correction above.

The 2016 Transfer

By the 2016 Transfer and made between Mary Rose Cooney as the “Seller” (1) and East Coast Developments (Yorkshire) Ltd as the “Buyer” (2) the Seller transferred 108 to the Buyer at a price of £775,000. Two plans were attached to the transfer. The first was the Land Registry plan for title no. NYK 146159 which was defined in clause 1 as “Plan 1” and the second plan was a site plan defined as “Plan 2” and which the Judge annexed at Appendix 1. It bore the following legend in the bottom left hand corner: “108 Station Parade Proposed Site Plan” and was defined in clause 1 as “Plan 2” (and I adopt the same defined terms).

Box 2 of the 2016 Transfer described the Property as “108 Station Parade Harrogate HG1 1HQ comprised in title number NYK146159” and stated that “The Property is shown edged in red on the attached Plan 1”. Clause 1 of the 2016 Transfer defined the “Property” as “the property transferred by this deed and each and every part of it”. Clause 1 also defined the term “Planning Obligation” as “an Agreement under section 106 of the Town and Country Planning Act 1990 made 30 March 2016 between Sophie Cooney (1) The Council of the Borough of Harrogate (2)”. Clauses 2.1, 2.2, 2.3 and 4 of the 2016 Transfer provided as follows:

“2.

The Seller grants to the Buyer for the benefit of the Property:

2.1

the exclusive right for the Buyer and its successors in title and those authorised by it or them to park one domestic vehicle or small van within the area edged pink on Plan 2 and/ or for such other use as authorised by planning, provided that the area edged pink shall not be used for the parking of more than one domestic vehicle or small van SUBJECT to maintaining (including any landscaping on) the area edged pink

2.2

a right of way for the Buyer and its successors in title and those authorised by it or them in common with the Seller and other persons having the same right to pass with or without vehicles over the area shaded green on Plan 2 for all purposes connected with the Property SUBJECT to the person exercising such rights paying a fair proportion according to user of the cost of maintaining repairing renewing or cleansing the same

2.3

a right for the Buyer and its successors in title and those authorised by it or them to construct a road (including pavements, lighting signage and other features) and landscaping on (provided that this shall not permanently materially affect access (including parking) to the other parts of the Adjoining Land) and to install Service Media within the area shaded green on Plan 2 and to remove and/ or reposition such part or parts of the wall bounding the Adjoining Property and Station Parade as may be required in order to comply with the requirements of any planning consent in respect of the initial development of the Property or by the Highway Authority and to enter upon the area shaded green for the purposes of doing so in each case and to inspect maintain repair and renew such road (including pavements, lighting signage and other features), landscaping and Service Media FOR THE AVOIDANCE OF DOUBT all costs incurred under this clause 2.3 shall be the sole responsibility of the Buyer and its successors in title and the Seller and its successors in title shall not be required to contribute to any such costs

PROVIDED THAT the rights are subject to and conditional upon the Buyer and its successors in title:

i)

producing to the Seller all necessary consents from the highways authority or local authority or utility provider as the case may be;

ii)

carrying out all works in a good and workmanlike manner using good quality, materials which are fit for purpose for which they will be used and in accordance with any relevant planning permission

iii)

causing as little disturbance and inconvenience as is reasonably practicable to the Adjoining Land and the owners and occupiers of any neighbouring land and to provide reasonable notice of when works are to be undertaken

iv)

doing as little damage as is reasonably practicable and making good all damage forthwith”

“The Buyer covenants with the Seller so as to bind the Property into whosoever hands it may come and to benefit and protect the Adjoining Land and each and every part of it which either remains unsold after the date of this deed or is transferred with the express benefit of this covenant:

4.1

not to block or allow others to block with vehicles or otherwise the area shown shaded green on Plan 2 other than as permitted by clause 2.1 of this Panel 10

4.2

not to use or allow the use of the Property for any purpose or in any manner which may be a source of nuisance or damage to the Seller provided that the works to be carried out in the Development of the Property shall be deemed not to constitute a nuisance or damage

4.3

to observe and perform the obligations on the part of Sophie Cooney under the Planning Obligation and to compensate Sophie Cooney in full on demand for any liability resulting from any failure to do so”

Plan 2 showed 108 shaded in pink and when I refer to 108 as shown on Plan 2 I will refer to it as the “Pink Land”. The “area shaded in green” referred to in clause 2.2 consists of the part of Back York Place running from Station Parade to the edge of the Pink Land and turning a sharp right angle down the alley towards Robert Street. I will refer to this as the “Green Land” and the part of the alley shaded in green on Plan 2 as the “Alley”. Finally, “the area edged in pink” referred to in clause 1 is shown not only edged in pink but also shaded green on Plan 2 and I will refer to it as the “Pink/Green Land”.

The Planning Obligation referred to in the 2016 Transfer consisted a unilateral deed dated 30 March 2016 made between the Seller (1) and Harrogate Borough Council (the “Council”) (2) in which the Seller undertook to pay £80.90 as a contribution to costs and £6,047.27 for the purposes of creating or upgrading public open space on the grant of planning permission for residential development of 108. The Planning Obligation specifically referred to an application for planning permission which had been submitted on 22 December 2015 under reference no. 6.79.7500.C FUL (the “Planning Application”).

On 12 April 2016 the Council resolved to grant planning permission for the development of 108 subject to certain conditions and on terms that the development should be carried out in accordance with approved amended plans received on 16 March 2016 (the “Planning Permission”). Those approved amended plans included the “As Proposed Site Plan 013155-102 Rev C” dated November 2015 (the “November Plan”). This plan was not included in the Appeal Bundle but I was provided with both hard and soft copies of it and both counsel confirmed that the Judge was taken to it and referred to it in the Judgment.

The significance of the November Plan was that it showed four bollards either across or at the end of the Alley which, as I have stated, runs at right angles from Back York Place to Robert Street. Those bollards were never erected by the Buyer or the Respondent. Indeed, neither the Seller nor her successors in title carried out the development for which the Seller obtained the Planning Permission and a wholly new development was undertaken which included the undercroft, as described by the Judge in the Judgment at [14].

The Statements of Case

Particulars of Claim

On 21 October 2021 the Appellant issued the Claim Form and in the Amended Particulars of Claim dated 9 March 2023 (the “Particulars of Claim”) the Appellant set out its case in relation to the scope of both the right to park in clause 2.1 and the right of way in clause 2.2 of the 2016 Transfer. The Appellant also advanced its claim in trespass as follows:

“11.

The true meaning and effect of the right of way granted by clause 2.2 of the 2016 transfer, when construed together with clause 4.1 and the layout of the dominant tenement as shown on Plan 2 is, that it is a right of way for the Buyer and its successors in title in common with the Seller and other persons having the same right to pass with or without vehicles over the areas shaded green on the Plan 2 for all purposes connected with number 108. The true interpretation of that right of way is that (a) it does not expressly or impliedly confer upon the First Defendant the right to stop to load and/or unload on the same and (b) it does expressly or impliedly confer upon the First Defendant the right to gain vehicular access to number 108 at any point along its easterly boundary.

12.

The car parking space granted under clause 2.1 of the 2016 Transfer only amounts to a right to park, and consequently an easement, within a defined area that falls within the curtilage of number 106. Further, clause 2.1 only authorises the parking of one domestic vehicle or small van, within the area edged in pink on Plan 2. Furthermore, the true interpretation of the right granted by clause 2.1 of the 2016 transfer is such that the Claimant retains possession and, subject to the reasonable exercise of such right to park, control of the servient land edged in pink on Plan 2.

Acts of trespass

13.

There is set out below particulars of the allegations of trespass made by the Claimant against both Defendants in respect of the misuse of the right of way, the misuse of the car parking space edged in pink on Plan 2 and other trespasses within the curtilage of number 106, without the necessary prior consent or licence of the Claimant. The Claimant avers that insofar as acts of trespass have been committed by the Second Defendants, they did so as the Defendant’s contractor and at its direction and consequently the Defendants are jointly liable for the same. Further, there is attached hereto a bundle of photographs in chronological order that relate to the description of trespass given below.”

There then followed 31 specific allegations of trespass all of which involved acts by Harris CM between 2 July 2021 and 20 October 2021 (followed by a sweep up paragraph in which the Appellant alleged that the acts of trespass were continuing and would be dealt with in its evidence). For example, the Appellant alleged that on 17 September 2021 Harris CM caused a black delivery van to park within the curtilage of 106 on the land shaded green on Plan 2 and that on 20 September 2021 it caused tools and building materials to be deposited within the curtilage of 106 and on the land shaded green on Plan 2.

The Defence and Counterclaim

On 20 December 2021 both Defendants served a joint Defence and Counterclaim. On 28 March 2023 the Respondent served an Amended Defence and Counterclaim (the “Defence”) in its sole name only. It is clear from the Defence that both Defendants had originally been represented by both solicitors and counsel but that after Harris CM had gone into administration and the claim against it had been stayed, Clarion Solicitors Ltd (“Clarion”) continued to act for the Respondent alone. The Amended Defence of the Respondent contained the traditional general traverse which had originally been pleaded by junior counsel in the joint Defence of both Defendants:

“Save as hereinafter expressly admitted or not admitted, the Defendants deny each and every allegation contained in the Amended Particulars of Claim as if the same were set forth herein and specifically traversed seriatim.”

In answer to paragraph 13 (above) the Respondent did not admit that the Appellant had locus standi to bring the claims in trespass because the Seller was the registered proprietor of 106 throughout the period during which they were committed. The Defence then addressed each of the 30 allegations on the facts. It was common ground that Harris CM was the Respondent’s contractor but the Respondent did not amend to deny the factual allegation that Harris CM committed the alleged acts of trespass at the direction of the Respondent or to deny the consequence which was averred by the Appellant to follow from this allegation, namely, that the Respondent was jointly liable for those acts of trespass.

The Trial

The evidence

Neither party addressed me in detail on the adequacy of disclosure or the extent to which the Respondent disclosed documents relating to its relationship with Harris CM. It is clear, however, from the Judgment itself that the Judge did not even have the benefit of seeing the contract for the design and build of the new development: see the Judgment, [6], footnote 2 (above). The Appeal Bundle also contained a request for specific disclosure of site minutes and correspondence between the Respondent and Harris CM served by the Appellant’s solicitors, Gunnercooke LLP (“Gunnercooke”) on 14 November 2022. In their response dated 24 November 2022 Clarion refused disclosure on the basis that neither category of document was relevant to the issues. This attitude was surprising to say the least.

I was not taken to any of the witness statements either. Mr Blaker took me briefly to the report of Mr Bruce Collinson FRICS dated 28 September 2022. Mr Collinson gave evidence as the single joint expert in relation to the quantification of negotiating damages. His evidence was that he had been asked to prepare a valuation on the basis that the Appellant succeeded in its claim for trespass and that the Respondent’s development of Lambert House was landlocked and could not be built lawfully without the use of the Appellant’s land.

Skeleton Arguments

In his Skeleton Argument for trial dated 14 February 2024 Mr Horne did not address the question whether the Respondent was liable for any trespass committed by Harris CM head-on. He addressed the Respondent’s liability in the following passage:

“Has D1 committed acts of trespass?

43.

This answer must undoubtedly be answered in the affirmative, and in fairness to D1, it admits acts of trespass in the Amended Defence and Counterclaim (e.g. paragraphs 13.4.2, 13.5.3, 13.6.2, 13.14, 13.15.1, 13.18.2, 13.21.3, 13.24.2, 13.26.1, 13.27.2 and 13.28.2).

44.

This issue is likely to be one that turns upon a question of fact when the Court has determined what rights have been granted by the 2016 Transfer. It will involve an analysis of the album of photographs and videos that have been prepared by C. A useful starting point for the Court is to consider the first 18 photographs attached to the Amended Particulars of Claim at A33 and a selection from C’s photographs. The types of acts of trespass on number 106 are summarised below.

(i)

The storing of goods within the car park, the private roads and the area edged pink and shaded green such a materials, tubs of concrete, site cabins and skips (Photographs 76, 77, 95, 97, 310, 313, 315, 316, 317, 345, 360, 462, 468, 486 and 523).

(ii)

The parking of various vehicles such as telehandlers, concrete lorries and large vans and domestic cars not parked in the parking space (Photographs 128 and 129).

(iii)

Rubble being dumped and not removed (photograph 13).

(iv)

Heras fencing trespassing over the western boundary of number 106 (see (i) above).

(v)

Continuous loading and unloading thereby causing the aforesaid Heras fencing to be opened out further on to number 106 on a weekly and from time to time daily basis and scaffolding overflying number 106 (Photograph 172, 180, 181 and 489).

(vi)

Wide materials oversailing number 106 when being transported by a telehandler (Photograph 199, 201).”

Mr Horne then invited the Judge to consider the effect of the planning permission granted on 2 August 2017 (i.e. the revised planning permission for the development of Lambert House and not the Planning Permission granted before the 2016 Transfer). He then submitted:

“46.

On 5.5.2020, D2 prepared a Construction Method Statement for the purpose of D1 seeking the discharge of condition 7 of planning permission 17/00730/FULMAJ, which occurred on 19.8.20 (H1114), and probably also the satisfaction of the Construction (Design and Management) Regulations 2015 (“the 2015 Regulations”). The 2015 Regulations impose statutory duties on D1 as the client and D2 as the main contractor, and in terms of D1 it must (pursuant to regulation 4) make suitable arrangement for the management of a construction project including the allocation of sufficient time and resources to ensure that the work is carried out without risks to the health and safety of any person affected by the project. The Court is referred to the Site Setup Plan at E573 that shows the location of the site parking in the undercroft, material storage in the undercroft and the site cabins on the continuation of Back York Place. What actually occurred on site during construction was completely different. It is obvious that the reality of construction was such that Ds breached the terms of the planning permission and the 2015 Regulations. C shall return to these matters on the question of exemplary damages.

47.

In these circumstances, it is quite apparent that D1 committed continuous acts of trespass throughout C’s ownership of number 106.”

Mr Blaker did not address this issue head-on either. In his Skeleton Argument for trial also dated 14 February 2024, he submitted that the only acts of trespass upon which the Appellant relied were committed by Harris CM and that there was no evidence before the Court that the Appellant had instructed it to commit those acts:

“54.

The first point to make in relation to this issue, is that the complaints about the use of the right of way were directed to D2’s actions. The examples given in the Amended Particulars of Claim are all instances where it is said that D2 or subcontractors stopped on the green land or dropped off materials on that land. D2 is not present at trial and there is no evidence that D1 provided any instruction to D2 to stop on the said land.”

Opening submissions

Given the oblique way in which the parties had addressed the question whether the Respondent was liable for the acts of Harris CM, it is unsurprising that the Judge raised it with the parties during their oral opening submissions. Mr Horne was making submissions about the Construction (Design and Management) Regulations 2015 (the “CDMR 2015”) and the frustration of Mrs Appleby, the director of his lay client, when the Judge asked for clarification:

“JUDGE SAFFMAN: Well, I have another problem with this. Insofar as her complaint can only be if this is a trespass, of course

MR HORNE: Yes.

JUDGE SAFFMAN: - insofar as there has been trespass, it has been by the contractors, not by the first defendant, is it not?

MR HORNE: Well, it is not. In reality, all these trespasses must be adopted by the first defendant. The reason why they must be

JUDGE SAFFMAN: Well, you say that but is the law not that an independent contractor is responsible for any torts that he commits?

MR HORNE: Yes, yes, save for this; it depends upon the directions he’s getting from the first defendant in terms of, you know, “Get on and do this”. At the looks of it, the reason being, there was very early contact in the summer of 2021 between Shane Tate, the directing mind of D1 and Mrs Appleby and, as it were, there’s been constant, sort of – if I can describe it – there’s been constant irritation on both sides since that point of contact. So, the first defendant has always known what has been going on on site and, in my submission, it would be very difficult for the first defendant to suggest that somehow, they don’t have knowledge of what’s going on in terms of D2-

JUDGE SAFFMAN: But that is not a trespass, is it?

MR HORNE: Well, it is when one looks at the construction design management regulations because, at the end of the day, the duty imposed upon an owner for the purpose of those regulations – if I could take you to the end of the authorities’ bundle?

JUDGE SAFFMAN: Yes.

MR HORNE: I think it is the fifth last page of the bundle; so, right at the end.

JUDGE SAFFMAN: Yes, health and safety construction regulations

MR HORNE: Yes, yes. That’s the one. In terms of the defined terms – I’ll do this quickly as opposed to wasting any time on it; “The client means any person from whom a project is carried out. The construction phase means the period of time beginning when construction work on the project starts and ends. Project means construction work and includes all planning, design and management or other work until the end of the construction phase”, and then, we turn over the page to part two, regulation four, which are the client’s duties. “A client must make suitable arrangements for managing a project, including the allocation of sufficient time and other resources. Arrangements are suitable if they ensure that the construction work can be carried out so far as reasonably practicable without risks to the health and safety or other person affected by the project and facilities as required by schedule two are provided”. Schedule two facilities are welfare facilities, effectively. So, that is a non-delegable statutory duty on the part of D1. It has got to ensure that there are suitable arrangements to manage the project in terms of sufficient time and other resources”

“JUDGE SAFFMAN: Well, in that case, you are alleging a breach of the construction design and management regulations?

MR HORNE: No, I’m not. Well, I’m alleging they are in breach of those regulations but I’m not, for the purpose of this case – my case is trespass. My point is that they’ve always know what’s been going on and whatever protestations have been made by my client, they’ve done nothing to stop their contractors

JUDGE SAFFMAN: Is that the – is that trespass? I mean, it might be procuring a trespass but that is a different tort.

MR HORNE: Well, it’s – what it is – at the end of the day, they ultimately are responsible for the project on site. It’s their project; it’s being done for them and insofar as they can ensure compliance by their contractors with

JUDGE SAFFMAN: Well, before you go on; it may be that Mr Blaker agrees with you and I am the one who is – I do not know; do you accept that if there has been a trespass

MR BLAKER: No.

JUDGE SAFFMAN: - by D2, D1 is responsible?

MR BLAKER: No, I don't accept that.

JUDGE SAFFMAN: You do not? Right.

MR BLAKER: And I also – not only do I not accept that but where this case seems to – and many of the – and I’m slightly veering into my own submissions now, where we seem to be morphing into by the claimant is complaints that are of a public law nature rather than private rights

JUDGE SAFFMAN: Well, that is the – yes.

MR BLAKER: And this is a trial where – and I think Your Honour clearly has the point, the focus has to be on whether the claimant’s private law rights and private law property rights have been infringed or not. Not whether there has been a breach of planning; that’s a matter for Harrogate Borough Council; not whether there has been some breach of construction regulations; that’s a matter for the Health & Safety Executive; and there has to be a relentless focus on boundaries and easements and rights of way and those matters that are in the pleaded case.

JUDGE SAFFMAN: Well, that must be right, must it not, Mr Horne?

MR HORNE: Not completely and the reason for that is this; part of my client’s claim is for exemplary damages – a sort of a cynical abuse of her rights. The cynicism is the treatment of her by the first defendant

JUDGE SAFFMAN: I understand – I understand; I just want to get down to basics of understanding this

MR HORNE: Yes, yes.

JUDGE SAFFMAN: - it is trite law, is it not, that a person who commissions an independent contractor – as long as they are an independent contractor – is reasonably conditioned – in other words, you know he is not a cowboy, is not responsible for the tort of the independent contractor

MR HORNE: Indeed.

JUDGE SAFFMAN: Right.

MR HORNE: But that changes with your knowledge.

JUDGE SAFFMAN: Does it?

MR HORNE: Yes, and that is my point in this; this is a very intimate development. From – within a couple of weeks of my client acquiring the site, there’s contact by Shane Tate because there are problems on site

JUDGE SAFFMAN: I just do not understand how failing to stop a trespass becomes a trespass?

MR HORNE: Because, effectively, you are authorising it because you know of the persisting problems and yet, do nothing to stop it.

JUDGE SAFFMAN: Well, that might be procuring a trespass but that is a separate tort. Procuring or inducing somebody to commit a tort is not the same as committing a tort itself.

MR HORNE: Well

JUDGE SAFFMAN: Is it?

MR HORNE: Well, it’s – it’s – in my submission, it’s – I’m going to admit, it’s ultimately a distinction without a difference because

JUDGE SAFFMAN: Well, it is – well, it then goes to the parameters of the pleadings, presumably? I mean, if you plead procuration of a tort – inducement by a third party to commit a tort, that is, in itself a wrong. But that has got to be a pleaded wrong. You cannot – I have difficulty – I say you cannot – I may be wrong; you may convince me or persuade me I am wrong but if I – if I tell you to go and trespass on somebody else’s land, you are the trespasser, not me. I am guilty of another tort; I am guilty of inducing you to do that.

MR HORNE: Well, or the other analysis is that you are effectively – you are the agent – you have trespassed on behalf of your principal and that’s how I would invite you to analyse it because then, the trespass is that of the principal and, in my submission, that’s the proper analysis. And that is why it does matter what knowledge D1 has because if D1 has constant knowledge of all these problems and he is just saying, “Well, forget about it; just get on with it, lads; it doesn’t matter”, those are trespasses for which the principal are responsible for

JUDGE SAFFMAN: Well, we might need some more discussion about this in submissions

MR HORNE: No, I understand.

JUDGE SAFFMAN: It seems to me, that is procuring a trespass

MR HORNE: I understand that, but

JUDGE SAFFMAN: Which is wrong but it is not a wrong with which I am concerned, I do not think at the minute

MR HORNE: No, but I would classify it the way I have classified it

JUDGE SAFFMAN: As a principal agent issue MR HORNE: Principal agent, yes, absolutely.”

Cross-examination

Neither Mr Horne nor Mr Blaker took me to any passages in the cross-examination of the witnesses of fact. Mr Blaker took me to the evidence of Mr Collinson and he relied on a passage in which the Judge put a number of questions to the witness. In the course of some questions from Mr Horne the Judge questioned whether Mr Collinson had gone beyond the remit of his instructions. The following exchange then took place:

“JUDGE SAFFMAN: I put this to you, Mr Collinson, because I am aware of the remit of your instructions and I understand exactly what you were instructed to do but if it is factually incorrect in the sense that you are talking about 44,000 square metres and you are talking about the need for D2 to negotiate a deal which is going to last for two years, your report is based on a complete misconception, is it not? A. It’s flawed in places. Yes, Your Honour. JUDGE SAFFMAN: So it would be difficult for me to rely on a flawed report, would it not? 18 A. Well, that’s for you to decide. JUDGE SAFFMAN: But it is flawed? A. Well, the flaws are in the maths and the maths are capable of being corrected, would have been capable of being corrected if challenged. JUDGE SAFFMAN: Well, the flaws are not just in the maths, are they? The flaws are in the length of time you say they have to negotiate a deal and the area, for example, over which they had to negotiate a deal, whether it is 500 square metres, 800 square metres or 4000 square metres? A. Well, it would involve a separate calculation based on what is now being alluded to. JUDGE SAFFMAN: Right. But the bottom line is, and I do not criticise you for this, as I say, because I understand where you are coming from and how you reach your conclusions, but it turns out as a fact that if those facts are correct, we have a flawed report here? A. Yes. JUDGE SAFFMAN: Thank you. Thank you very much. Thank you. Mr Collinson is released.”

Closing submissions

Finally, neither counsel took me to their closing submissions (whether written or oral) and the Appellant did not suggest that the Judge had wrongly summarised the evidence or arguments before him and, in particular, in relation to the evidence of those witnesses who gave evidence about the Respondent’s relationship with Harris CM.

The Judgment

The 2016 Transfer

After setting out the terms of the 2016 Transfer the Judge set out the relevant law. He cited the principles of construction set out in Gale on Easements21^st ed 2020 (“Gale”) (which was then the most recent edition). He also cited the decision of the Court of Appeal in Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 763, [2013] Ch 305, which is the leading decision on the admissibility and construction of documents registered at HM Land Registry. Finally, he cited the familiar decisions of the Supreme Court in Arnold v Britton [2015] UKSC 36, [2015] AC 1619 and Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173.

The Judge then addressed the question of admissibility and concluded that both the Planning Permission and the November Plan were admissible as an aid to the interpretation of the 2016 Transfer. He also identified the following background facts at [53]:

“53.

At the date of the 2016 Transfer the following was the position: a. 106 and Lambert House were both owned by Mrs Cooney. b. There was vehicular access into Lambert House. It was through the roller shutters I have referred to in para 5 above. The approximate location of these shutters is given on the plan at Appendix 1. They were approximately half way down the southern elevation of Lambert House and about three quarters of the way down the land coloured brown There was no vehicular access into Lambert House from anywhere else and, in particular, not from the alley. c. The planning permission shows that demolition of Lambert House and the building of a 6 unit residential development was envisaged following the sale to ECDL with parking along the southerly edge of the units replacing Lambert House. Indeed I remind myself that the 2016 Transfer itself recognises, in terms, that Lambert House is to be developed. One only has to read Additional provision 4.2 referred to above to see that.”

The Judge then addressed the first issue of construction which was whether the Respondent and those authorised by it were permitted to stop and unload on the Green Land. He cited Gale at 9—38, Bulstrode v Lambert [1953] 1 WLR 1064 and McIlraith v Grady [1968] 1 QB 468 before concluding that the right of way included a right to stop and load or unload for the following reasons:

“55.

Although the wording is wide and allows vehicular passage and repassage over the green land for all purposes connected with 108, Mr Horne argues that the wording does not allow any stopping. He argues that a right to stop would only arise if the grant had been to “use” the land rather than simply to pass over it. He supports that assessment by reference to para 9-38 of Gale which states: “ where however the grants is of a right to use the road as opposed nearly to pass or re-pass over it, it seems that will entitle the grantee to stop to load and unload and to use the road for other purposes by which property adjoining a street would normally be accommodated provided such user does not interfere unreasonably with the use of the road by its owner and those equally entitled.”

56.

That however is not the sum total of what is said in para 9-38 and was not the view taken by the court in Bulstrode v Lambert (1953) 1 WLR 1064, nor in McIlraith v Grady (1968) 1QB 468. In these cases the court was faced with a right of way that employed the phrase “pass and repass” and not the word “use” but held that nevertheless the right included by implication a right to stop and unload. In both cases the right was held to extend to stopping and unloading because that was necessary for the enjoyment of the reserved right.

57.

Mr Horne points out that the background facts that can aid interpretation can only be facts that existed at the time of the 2016 Transfer and at that point, in light of the existence of the roller shutter door and the parking that existed within Lambert House and the fact that the 2016 Transfer actually grants a parking easement, there is simply no necessity for the right to stop and unload on the green land to be implied.

58.

However, I have already found that the background includes the fact that Lambert House was due for demolition and replacement. The fact that there were roller shutter doors on, and interior parking in, a building whose days were well and truly numbered, as was known at the time, is in my view neither here nor there.

59.

In my judgment it is inevitable that it would be necessary for vehicles to stop on the green land to upload rubble to clear the site. It is equally inevitable that it would be necessary for vehicles to stop on the green land to deliver materials for the new construction. Even if vehicles could have stopped mostly within the curtilage of 108 (because the 6 units on the planning plan had an even narrower footprint that the current building) that would clearly not have been possible all the time because when the southern and eastern elevations of Lambert House were demolished the rubble would be at the extremities of the boundary.

60.

Furthermore, it is clear that the courts in Bulstrode and McIlraith took a tolerant view of what was “necessary”. In McIlraith for example, and I will be corrected if this is a misreading of the case, it looks like the grantee of the right of way put up a wall after he acquired the land which meant that vehicles had to stop and unload on the right of way whereas that was not necessary before the wall was built. Still it was held that the right to stop and unload was implied because it was necessary.

61.

There is another background factor here. For some reason the green land does not extend to where the roller shutters were on Lambert House. The route down what was the southern elevation of Lambert House is not within the green area. The plan attached to the planning consent seems to suggest that there were to be bollards at the end of the alley shaded green. In other words, the right of way appeared to lead to a dead end. I have to ask myself what would be the point of a right of way for vehicles which leads nowhere unless it included the right to stop on it for purposes connected with 108 which must include taking deliveries? Mr Horne says that the green land into the alley is only a turning point and nothing more. But there is nothing to support that contention. The right to pass and repass is for all purposes connected with 108 – not just turning around. If Mrs Cooney had wanted the green area to be used for such a limited purpose the 2016 Transfer could have made that clear. Mr Horne recognised that the reasonable person tasked with undertaking the interpretation process could consider what was not said as well as what was. In any event, I observe in passing, that turning a vehicle usually requires the driver to stop even if only for a very short time.

62.

There is yet a further point to aid interpretation. Additional provision 4.1 precludes the grantee from blocking or allowing others to block with vehicles or otherwise the area shaded green. That must imply there is a right to stop. As a general rule, if one cannot stop one cannot usually block. Blocking in my view envisages a stationary vehicle. If that is so the 2016 Transfer itself lends credence to the proposition that the right of way included the right to stop. One can, I think, also assume that there must be a purpose for such right to stop in a dead end and loading/unloading is one obvious one.

63.

For all these reasons I am satisfied, quoting from the passage in Arnold v Britton that I quote above in para 32, that a reasonable person having the background knowledge that I have specified would, in the light of (i) the natural and ordinary meaning of the clause, (ii) the presence of clauses 4.1 and 4.2, (iii) the overall purpose of the clause, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, understand clause 2.2 as extending to a right to stop and load/unload on the green land as long as it did not cause a blockage.

64.

I should make it clear though that the right to load and unload does not include a right to store materials on the green land. Mr Blaker did not suggest that it did and the obstacles to such a contention, had it been made are, in my view, insurmountable, if for no other reason than that, to the extent that materials are stored on the green land, they are blocking it – a course of action precluded by clause 4.1.”

The Judge then addressed the second question of construction which was whether the 2016 Transfer permitted the Respondent and those authorised by it unfettered passage to the entrance of the undercroft. Again, he answered this question affirmatively for the following reasons:

“65.

This question also requires a consideration of Additional provision 2.2.

66.

In my view it cannot be gainsaid that the words are very clear. There is a right to pass and repass along the green land with or without vehicles for all purposes connected with 108. If construction merely depended on the literal meaning of the words used then it would be axiomatic that the right extends to travelling to the undercroft.

67.

Mr Horne is right though when he says that the words are only a piece of the jigsaw. He says that the background and physical features on the ground militate in favour of a different construction and one which only allows the green land in the alley to be used as a turning head.

68.

His first argument is that the physical features on the ground at the date of the transfer, particularly the position of the roller shutter, show that access to the building was envisaged via a route along the southerly edge of the property.

69.

Secondly, he argues that the plan attached to the planning permission which is incorporated into the 2016 Transfer by implication does not suggest that access to the interior of 108 will be gained from the alley. Indeed parking was envisaged to be within the southern curtilage of the boundary of 108. That is his basis for concluding that the right of way into the alley is simply to facilitate the turning round of vehicles so they can exit onto Station Parade front first.

70.

I do not accept that the right of way is limited in the way Mr Horne suggests. The words used are very important even though, I accept, they are not determinative. I remind myself of the law that I summarise above regarding construction but in reality, I need only look at some of the factors Lord Neuberger identifies in Arnold and which are set out in para 33 above. I must recognise that:

• The meaning is most obviously gleaned from the language. (factor a)

• The clearer the natural meaning, the more difficult it is to justify departing from it (factor b)

• There should be a reluctance to reject the natural meaning (factor d)

71.

Secondly, I note that the 2016 Transfer is a professionally prepared document. That engages the observations of Lord Hodge in Wood at para 13 of his opinion which I recite at para 34 above. In the interpretation exercise that is a weight in the scales in favour of a more textual analysis.

72.

Are the background facts which I have identified enough to tip the scales in the other direction? I do not think so.

73.

I do not attach the same importance to the location of the shutter doors at Lambert House as does Mr Horne. Lambert House was going to be demolished, a fact that was known at the time.

74.

Further, the fact is that the 2016 Transfer does not require Lambert House to be built in accordance with the planning consent. As I have said, the planning consent is not even mentioned. Plan 2 is clearly not there to influence the shape of the build, it is there only to record the extent of the rights that the 2016 Transfer grants to ECDL. 75. The planning consent is not, for reasons already explained, incorporated into the 2016 Transfer. I observe that even the s106 agreement gives no clue as to what the details of the planning consent were. It merely creates an obligation on Mrs Cooney to pay money to the local council.

76.

Also, in my view, if the green land in the alley was only ever intended to be a turning head the 2016 Transfer could have made that clear. It would not have been difficult to do so. Instead the transfer states that the right of way is for all purposes. That is wholly at odds with the very limited purpose for which Mr Horne contends.

77.

Taking all of this into account I find it impossible to believe that a reasonable person, even with the relevant background knowledge, would believe from reading Additional provision 2.2 that a right of way for all purposes only means a right of way to execute a turn and that it does not mean that the grantee can pass up and down the green land in the alley for any other purpose connected with 108.

78.

In short, what Mr Horne suggests is, to me, not an interpretation of the grant but rather a wholesale redrafting of it. That is not what construction of a contract is about. That is a journey into the realms of rectification.”

The judge also held that the right of way extended to a right to stop at the entrance to the undercroft to open the roller shutter: see [79] to [81]. He then moved on to the final question of construction which was whether the right of way over the Pink/Green Land extended to an unrestricted right of way or was only appurtenant to a right to park on that area of land. Again, he held in the Respondent’s favour for the following reasons:

“84.

Mr Horne this time seeks to rely specifically on the wording of 2.1. In other words he promotes a literal interpretation of this clause over the contextual interpretation that he favours for Additional provision 2.2. As he says in para 42 of his skeleton argument “The literal language used in the 2016 Transfer is such that the right of way is granted over the area shaded green, and not the area shaded green and edged in pink.”

85.

Mr Horne then prays in aid the planning consent and the plan attached to it and argues that the latter shows that that part of the green/pink area which abuts the alley was to be planted. That is clear from that plan and is emphasised by the fact that the green/pink area is much larger than would be needed for the purpose of parking a car or small van. He argues that the planning consent itself has something to say about parking and anticipates, in the interests of character and appearance, that approval will be sought from the local authority for revised alterations to the car parking area. He argues that the reasonable individual interpreting this provision and armed with that knowledge, which was available at the time, would not think there would be a right of way over the planted area beyond a right of way to gain the parking area which was not planted.

86.

Finally, he argues that if there is a right of way for all purposes as well as a right to park in the green/pink area then the consequence would be that the grantor of the right would effectively be excluded from that area. That would mean that it is not a right of way at all. It would be a licence to occupy. He cites Gale para 9-125 in support of that proposition.

87.

More fundamentally though, he argues, that if the rights extend to both parking and a general right of way then, in effect, the servient owner (106) is left with no use of the area in question and that would make the right excessive. His authority for that is Gale para 9-123.

88.

With respect to Mr Horne, I am not persuaded by any of these arguments. First, in my view the literal interpretation does not help him. The green area within the pink edging is still a green area. The provision provides rights of way over the green area. It does not draw a distinction between that green area and the rest of the green area. In my judgment, the provision simply gives additional rights to the area edged in pink. It gives it a parking easement in addition to the rights of way. That is what the provision literally means.

89.

Mr Horne argues that if there is a parking easement there must inevitably be a right of way to get to it and the right of way should be confined to that. But the fact is that the land is coloured green and the right of way over the green land is for all purposes connected with 108. If the area edged pink was to be subject to different considerations than the rest of the green land then the draftsman (a professional draftsman I might add) could have made that clear by shading it in a different colour and making that area subject to a different regime.

90.

Secondly, it is true that the planning plan shows some planting in the green/pink area but, in fact, plan 2 attached to the 2016 Transfer does not. In so far as plan 2 is a stripped down version of the planning plan the draftsman has actually gone to the trouble of erasing the planting on the planning plan from plan 2.

91.

Finally, I do not accept that the servient owner is excluded from occupation of the green/pink area if there are general rights of way over it as well as a parking easement because that area is part of the green shaded area which clause 4.1 ensures cannot be blocked except by a parked car/van.

92.

I add, because it was raised by Mr Blaker that, since the green/pink area is still part of the green area it must enjoy the same rights to load/ unload as the rest of the green area. Hence, the servient owner could not validly complain if the dominant owner and those authorised by it for example spent time unloading the shopping from the car or removing a baby seat from it.”

Joint liability for trespass

For present purposes, the last issue which the Judge had to consider was whether the Respondent was liable for the acts of trespass of Harris CM. The Judge set out paragraph 13 of the Particulars of Claim and recorded that the Defence did not take issue with the allegation that Harris CM committed acts of trespass: “as the first defendant’s contractor and at its direction and consequently the defendants are jointly liable for the same”: see [93] and [94]. The Judge also directed himself that the Respondent was not required by CPR Part 16 to plead any points of law. He then stated as follows at [101] to [109]:

“101.

This issue was raised on the first morning of a 5 day trial. Both sides made themselves ready to deal with it. Much of Mr Horne’s cross examination of the first defendant’s witnesses was directed at establishing the extent to which the first defendant had control over the second defendant and/or authorised and ratified its acts of trespass. That is an issue which goes to the heart of the question of the first defendant’s liability for the acts of the second defendant.

102.

This situation is far removed from the Lombard North Central case. This issue cannot be said to have taken Mr Horne by such surprise that he could not and did not deal with it. He did. Both sides, by reference to the evidence, have referred me to those parts of Clerk and Lindsell on Torts on this issue which suits their purpose.

103.

Furthermore, it may well be questionable whether points of law have to be pleaded save to the extent specifically covered by Part 16. The Practice Direction merely says that a party “may” refer to a point of law – not that it “must”.

104.

I do appreciate that any reader of the defence would have no clue that there is this fundamental defence to liability. In that sense, it does not only not plead it, it could be said that actually, in practical terms, it diverts attention away from that possibility.

105.

Nevertheless, the fact remains that the claimant has not been taken by surprise to the extent it has not been able to deal with it. It has been dealt with, both with the witnesses and in law. It would, in my view, not least bearing in mind the wording of the PD and the albeit perhaps fairly oblique reference to the defence in the skeleton argument, be unjust for the court not to “entertain and decide the unpleaded issue”.

106.

In determining whether the first defendant is liable I turn to chapter 6, Clerk and Lindsell 24th ed. to which I have been referred by counsel. 107. The starting point is para 6-04 which states “On Supreme Court authority, vicarious liability cannot be imposed upon an employer in relation to torts committed by an independent contractor”. That principle is repeated in para 6-66. There is, as Lady Hale said in Barclays Bank Ltd v Various Claimants (2020) UKSC 13 at para 24 “a classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor on the other”.

108.

There are exceptions to this general rule. As Clerk and Lindsell put it at para 6–68 “If the employer has negligently selected an incompetent contractor or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results he will himself have committed a tort for which he can be held responsible. If the employer has authorised or ratified the independent contractors torts, he will also be liable on normal principles on joint tortfeasance.”

109.

For completeness I would add that there are also certain duties which are non-delegable duties to which an employer is subject. Breach of those, however, make the employer liable in his own right and have nothing to do with vicarious liability. It was at some point suggested by Mr Horne that the first defendant was caught by the non-delegable duties that are set out in the CDMR. That is not the case however. The CDMR relates to health and safety and workers’ welfare neither of which are relevant here.

110.

So the question is “has the first defendant done any of the things referred to in para 108 above?”

Having reached the conclusion that it was appropriate to try the issue of the Respondent’s liability and having framed that issue in [108], the Judge then went on to decide it in the Respondent’s favour. He held that the Respondent had not selected an incompetent contractor: see [111] and [112]. He also held that the Respondent had not interfered with the manner in which it carried out the works. I set out his conclusions at [153] to [156]:

“153.

I have reviewed the evidence carefully and am satisfied that there is wholly insufficient evidence to suggest that the first defendant interfered with the manner of carrying out the work on site. Nor is there any evidence that the first defendant authorised any trespass. Indeed, the evidence would suggest the opposite. Mr Tate tells Gunnercooke that he has reminded the contractors of their obligations and at the meeting when there is a threat of suspension he goes along with handballing and even offers some labour to facilitate it.

154.

As to ratification, I refer to Clerk and Lindsell para 6-92. It must be evidenced by “clear adoptive acts which must be accompanied by full knowledge of the essential facts” and there can be no ratification unless the party on whose behalf the acts complained of were done “ratified the acts of the agents with knowledge that they did them not according to authority, or unless he meant to take upon himself, without enquiry the risk of any irregularity which they might have committed, and to adopt all their acts”

155.

Just because a person may benefit from the tort committed by another does not mean that he has ratified it. There has to be a clear adoptive act. I can see no clear adoptive act in the evidence.

156.

In all the circumstances I conclude that the first defendant is not liable for any of the acts of trespass of the second defendant.”

Although the claim against Harris CM had been stayed and he had held that the Respondent was not liable for its acts of trespass, the Judge went on to decide whether any of the 31 allegations of trespass were made out. In deciding each of these issues, he took into account and applied the conclusions which he had reached on the construction of the 2016 Transfer. He concluded as follows at [162] and [163]:

“162.

I am satisfied that, in so far as there have been breaches, except what I say below in para 163, broadly they were not significant. Where the Heras fencing transcended the boundary line it did so only to a small degree which did not appear to have precluded access through the alley (evidenced by the fact that in some of the photographs where the fencing does encroach still vehicles are using the alley). Additionally, for the most part the acts of trespass by misuse of the right of way was transient.

163.

However, I except from that assessment the existence of the cabin and the skip. Their presence was from the date of acquisition of 106 by the claimant until the latter end of August when they were removed following the demand by Gunnercooke. I also except some incidents of storage. It seems, for example, that flooring may have been stored on the car park for days rather than hours and the walling stone also looked like it was an unwelcome feature for some days.”

Finally, the Judge went on to consider what award of negotiating damages he would have made on the assumption that the Respondent was liable for the acts of trespass committed by Harris CM. He asked the following question and then gave the following answer:

“To the extent that the second defendant has trespassed and the first defendant is liable for that, what damages is the claimant entitled to and to what extent should they include negotiating and exemplary damages?

164.

The first defendant is not liable so its obligation to pay damages, nominal or substantive does not arise. Unless the parties persuade me that it is necessary to do so I do not intend to extend an already very lengthy judgment by remaining in the realms of the academic.

165.

What I think is not academic is the claimant’s claim for negotiating damages of £150,000. At first sight that this should remain a live issue is counterintuitive in light of my findings but the second defendant had to operate in a very restricted area. That was clearly an inconvenience. I have found that in some respects it did trespass in the course of the build and it would have been easier to build if it had been allowed to encroach onto the green land for purposes not covered by the right of way such as for storage purposes. The question of how much the claimant could have demanded for that privilege remains, I think, a live one.

166.

The first difficulty for the claimant, however, is that 108 was built with only marginal encroachment and, bearing in mind the extent of it, it is much more likely than not that it could have been built without such encroachment. This substantially reduces the extent to which the builder is “over a barrel” and thus the amount that it would pay to make life that bit easier.

167.

The second difficulty is that this was a design and build contract. Essentially with such an arrangement the client abrogates to the contractor the obligation to build. The issues caused by the restrictive nature of the site were a problem for the contractor. The claim requires a leap in that it seems to be premised on the contention that it is more likely than not that the first defendant would pay to make the second defendant’s life easier.

168.

Not only is that unlikely, such evidence as there is does not support that eventuality. I have mentioned that the second defendant entered into negotiations to use the parking spaces at 106 that were outwith the green land and a deal was tentatively done at £2750. There is no suggestion that that was to be paid by anybody other than the second defendant. Certainly it was not suggested that the first defendant would be paying it or indemnifying the second defendant for it. Why then, I ask rhetorically, would the first claimant be prepared to pay the claimant the amount it now claims, or any amount, for negotiating damages? To put it bluntly the problems caused by the restrictive site were not its problem, they were the second defendant’s. That indeed was the evidence and, because it seems to have been prepared to make that payment of £2750, it appears that it was also the second defendant’s view.”

The Judge rejected the evidence of Mr Collinson that £150,000 was a reasonable sum because his evidence was flawed for a number of reasons (as he accepted): see [169] to [173]. He then returned to the only evidence that either Defendant would have been prepared to negotiate before concluding as follows:

“174.

I do however recognise that the second defendant seems to have wanted to continue negotiations after it became clear that their offer totalling £2750 was not going to be taken forward. That suggests that it would have been prepared to improve its offer but assuming it would do by the margins that the claimant now has in mind would have meant such a rethink by the second defendant that it seems unlikely. However, I need not dwell on that. It seems clear that, whatever would have been paid if agreement could have been reached, would have been paid by the second defendant and not the first.”

In the Grounds of Appeal accompanying the Appellant’s Notice, the Appellant contended that the Judge had made a number of serious procedural errors, that he made a number of findings of fact which were wrong and that he made a number of errors of law. The Judge himself refused permission to appeal on all grounds and his reasons for refusing permission to appeal in relation to Ground 1 (serious procedural errors) and Ground 3 (errors of law) were as follows:

“A. Ground 1 Serious procedural errors

D1 was permitted to advance a defence based on the unpleaded assertion that D2 was its independent contractor and any acts of trespass established by the claimant committed in the course of the development of D1's site by D2 were those of D2 for which D1 was not responsible. The judgment sets out (particularly at paras 93 to 105) why the court permitted this defence to be advanced. The draft grounds of appeal do not offer any realistic basis for contending that the decision to allow this defence was wrong or involved serious procedural error…”

C. Ground 3 Errors in law in respect of the construction of the 2016 transfer and in dismissing claim for trespass by D1.

It was not thought that there was a real prospect of a successful appeal on the approach adopted to the construction of the transfer and the conclusions reached. It was not clear on what basis it was suggested that the law had been misapplied. The claim for trespass by D1 was dismissed because of the finding that in so far as D2 trespassed on the claimant's land D1 was not responsible. There was insufficient evidence to establish trespass after August 2022 (see para 158 of the judgment).”

Fancourt J gave permission to appeal on the grounds set out below only and I will refer to them as “Ground 1(i)” and “Ground 3(i), (ii), (iii) and (iv)” respectively. As I have already stated, he doubted whether there was a strong case on the merits but considered that the threshold for a successful appeal had been met. The Grounds of Appeal for which he gave permission were as follows:

“1.

The judge’s decision is unjust because of the following serious procedural errors. (i) The judge made findings on an admitted issue (“the admitted issue”), namely that D1 was not responsible for the acts of D2 as its independent contractor, despite the fact that D1 made no application to amend its defence to plead a defence to C’s allegation that Ds were jointly liable as any acts of trespass by D2 were carried out at the direction of D1, when the defence and amended defence (served on behalf of both Defendants) in fact contained no denial or non-admission to that allegation and hence admitted it due to the effect of CPR 16.5 (3); and further or alternatively, no disclosure had been given in relation to the admitted issue.”

“3.

The judge’s decision was wrong in law in relation to the following matters.

(i)

The judge’s interpretation of the 2016 transfer that it conferred on D1 an implied right to stop and unload at any point.

(ii)

The Judge’s interpretation of the 2016 transfer that D1 was entitled to gain vehicular access to the undercroft car park.

(iii)

The Judge’s interpretation of the 2016 transfer that the pink edged area could be used, in addition to the express granted right to park one domestic vehicle or small van, as part of the right of way and also to stop on and load and unload at any point.

(iv)

The judge was wrong in law to dismiss C’s claim for damages for trespass. He should have found that C’s claim for trespass was established and that C was entitled to damages as pleaded in the Amended Particulars of Claim.”

Ground 1(i)

CPR Part 52.21(3) provides that an Appeal Court will allow an appeal where the decision of the lower court was either (a) wrong or (b) unjust because of a serious procedural or other irregularity in the conduct of the proceedings in the lower court. In the present case, the Appellant did not seek to argue that the Judge’s findings were wrong and that he either misdirected himself as a matter of law in relation to the question whether the Respondent was jointly liable for trespass with Harris CM or that his findings of fact were so perverse that this Court ought to interfere with them. The only issue for this Court, therefore, was whether the Judge’s decision to dismiss the claim for damages for trespass against the Respondent was unjust because of a serious procedural or other irregularity.

Mr Horne cited the decision of the Court of Appeal in Dunbar Assets plc v Dorcas Holdings Ltd [2013] EWCA Civ 864 as an example of a case where the Court of Appeal had exercised the jurisdiction in CPR Part 52.21(3)(b) to allow an appeal and order a retrial. In that case, a claim for possession was listed for a one day trial and when it became impossible to hear it, the judge made a possession order on a summary basis. Briggs LJ described the irregularity at [14] and explained what the judge should have done at [15]:

“14.

In my judgment the real procedural irregularity lay in the Judge deciding that the claim for possession could be dealt with summarily without a trial, (either then or after an adjournment) without first inviting and hearing submissions on the question, squarely raised by the claimant's trial skeleton argument and in Miss Jeavons' opening submission, whether the defendants' pleadings, amended to the extent which the Judge permitted, disclosed any defence to that claim.

15.

There is in my judgment nothing procedurally irregular about a trial judge entertaining at the beginning of a trial a submission that the defendants' pleadings disclose no defence to the claim, even if no formal application to strike out has been made by the claimant if, on his pre-reading of the papers, it appears to him that there is a properly arguable case for strike out which, if established, would save the parties substantial further time and expense. Before entertaining such an application, the Judge would have to be satisfied that the defendants had a fair opportunity to respond to it. Before deciding such an application, it is an elementary and fundamental principle of fair procedure that he should first hear submissions on it from the defendants.”

Mr Blaker relied on the decision of Kerr J in Samuels v Laycock [2023] EWHC 1390 (KB) as an example of a case in which the Appeal Court declined to exercise the jurisdiction in CPR Part 52.21(3)(a). The facts of that case are very different from the facts of the present case and its principal significance for this Appeal is that it confirms that the Court may dismiss an appeal and affirm the decision of the lower court where there has been a serious procedural irregularity but it has not led to an injustice: see [34].

Vicarious liability

I begin my analysis of Ground 1(i) with some observations on the law. It is trite (as the Judge observed in argument) that an employer who has engaged an independent contractor to perform work is not vicariously liable for any tort committed by that contractor in the execution of that work: see Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] AC 973 at [24] (Lady Hale PSC). It is possible that an employer may be held vicariously liable for the torts of an individual who is not an employee where the relationship between the parties is “akin to employment”: see Clerk & Lindsell on Torts 24^th ed (2023) (“Clerk & Lindsell”) at 6—35. But the Appellant did not allege such a relationship or that the Respondent was vicariously liable for the torts committed by Harris CM.

Non-delegable duties

There are also a number of well-recognised exceptions to the general principle that an employer is not liable for any tort committed by an independent contractor. The basis for liability in those cases is generally stated to be that the employer has assumed a non-delegable duty to the third party. These exceptions are listed by the editors of Clerk & Lindsell at 6—66 to 6—82. But they also include the negligence or personal fault of the principal or employer which exposes the victim to harm by the independent contractor. After stating the general principle and discussing Barclays Bank plc v Various Claimants (above) at 6—66 the editors continue as follows at 6—67 (footnotes excluded): (Footnote: ¹)

“The employees of a contractor, whilst acting as such, stand in the same position as their employer. However, the employer of the contractor is not automatically liable for the torts committed by the contractor’s employees. Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor or his employee, it may also be attributable to the negligence or other personal fault of the employer. If, for example, the employer has negligently selected an incompetent contractor, or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable. If the employer has authorised or ratified the independent contractor’s tort, he will also be liable on normal principles of joint tortfeasance.”

Joint liability

The last sentence of 6—67 (above) is not concerned with the direct liability of the employer for exposing the victim of the tort to harm but with joint liability for torts which parties combine to commit. The editors of Clerk & Lindsell deal with this topic in much greater detail in Chapter 4. They state that two parties will be jointly liable for a tort which they both commit or for the commission of which they are both responsible (but not where each is independently responsible for a separate tort and the two torts combine to produce the same damage): see 4—03. They devote section 4—04 to providing numerous examples of joint tortfeasors before summarising the general principle upon which these examples are based (my emphasis and footnotes omitted):

“Thus, the agent who commits a tort on behalf of his principal and the principal himself are joint tortfeasors; so are the employee who commits a tort in the course of his employment and his employer (even if the employer became insolvent before the time of the trial); so are an independent contractor who commits a tort and his employer, in those cases in which the employer is liable for his independent contractor. Equally, a parent company and its subsidiary may be regarded as joint tortfeasors in respect of loss or injury suffered by employees of the subsidiary so long as a supervisory duty is borne by the parent company. However, the mere fact that a parent company appoints a director of the subsidiary who holds responsibility for health and safety matters in that company is not enough to attach liability to the parent company. He would need to be acting not just as a director of the subsidiary, but also on behalf of the parent in order for this to be the case. Finally, a company director and the company itself may be regarded as joint tortfeasors where the director “is sufficiently bound up in [the company’s] acts” to make him personally liable. This will certainly occur where the wrongful acts complained of arise from a director’s participation in a manner that goes beyond the mere exercise of his power of control through the constitutional organs of the company. An example is where he facilitates the breach of a design right with a view to enabling a breach of that right to occur.

Apart from these instances, concerted action is required. Where one person instigates another to commit a tort, they are joint tortfeasors; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design. However, it is important to appreciate that although mere facilitation of the commission of a tort will not suffice, a sufficient common design may nonetheless be held to exist where D1 makes a more than de minimis contribution to the commission of a tort by D2. The Supreme Court in Fish & Fish Ltd v Sea Shepherd UK found that while a common design would normally be expressly communicated between the principal and the accessory, it could be inferred. The assistance, however, had to be more than de minimis or trivial. Lord Neuberger advised that “once the assistance is shown to be more than trivial, the proper way of reflecting the defendant’s relatively unimportant contribution to the tort is through the court’s power to apportion liability, and then order contribution, as between the defendant and the primary tortfeasor”. For this reason, any case of unlawful means conspiracy could be explained in terms of joint tortfeasance where the unlawful means used constitute the commission of a tort. However, since the unlawful means in this tort can also include other wrongs, such as the commission of a common law crime, it cannot be said that unlawful means conspiracy is an otiose cause of action. “All persons in trespass who aid or counsel, direct, or join, are joint trespassers.” Similarly, according to the decision of Mackay J in Daniels v Commissioner of Police for the Metropolis, there may be joint tortfeasance under the Protection from Harassment Act 1997 where the harassment on at least two occasions has been perpetrated by more than one person, each acting on separate occasions, in furtherance of some joint design. Anyone complicit in the commission of a deceit may likewise be regarded as a joint tortfeasor so long as there is a common design. However, an alleged joint tortfeasor cannot have actively co-operated to bring about the relevant act of the primary tortfeasor if he (the alleged joint tortfeasor) did not know about that act.”

The editors of Clerk & Lindsell provide no authority for the proposition that: “the agent who commits a tort on behalf of his principal and the principal himself are joint tortfeasors”. If they intended to say no more than that both principal and agent will be liable if the principal instructs or authorises the agent to commit the wrong, then I respectfully agree. If they intended to go further and state that the principal is liable for any tort committed by the agent whilst acting as agent, then I respectfully disagree. In my judgment, the editors of Bowstead & Reynolds 23^rd ed (2024) accurately state the law in Article 90 at 8—177 (again footnotes omitted):

“(1)

In general, if an agent is an employee or director of the principal, the principal is liable for loss, damage or injury caused by the wrongful act of the agent when acting in the course of employment. Partners are similarly liable for wrongful acts of one another.

(2)

A principal is liable in tort for loss or injury caused by an agent, whether or not an employee, and if not an employee, whether or not the agent can be called an independent contractor, in the following cases:

(a)

if the wrongful act was specifically instigated, authorised or ratified by the principal.

(b)

(semble) in the case of a statement made in the course of representing the principal within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal.

(c)where the principal can be taken to have assumed a responsibility for the actions of the agent.

(3)

In some circumstances, the owner of a business or organisation may owe duties of care, usually in relation to the personal safety and wellbeing of others, that apply whether or not the owner performs the services personally or through employees, or by engaging independent contractors. Such duties are termed “non-delegable”. These duties do not necessarily invoke agency concepts.”

(4)

Where principal and agent are both liable for a wrongful act committed by the agent they are joint tortfeasors.

(5)

In this Article, save where the context requires, act includes “omission”.”

The only reference in either textbook to one party being jointly liable for “directing” another to commit a tort is in the sentence which I have highlighted in 4—04 above. Those words are taken from the summing up given to the jury by Tindal CJ in Petrie v Lamont (1841) 174 ER 424, and, although they suggest that there might be a special rule for joint liability in trespass, the report itself shows that the judge was concerned to direct the jury that they had to be satisfied that the members of a partnership had consented to an illegal distress and that an employee of the partnership was sufficiently involved to be personally liable:

“The first question then is as to partnership. One partner has no right to involve another, or to pledge him to a fact, unless in the ordinary course of business. As here, in this case of trespass, one partner cannot involve another in the same mischief; yet there may be exceptions even to such a case as this, where, for instance, the trespass is in the nature of a taking, which is available to the partnership, more especially if the other partners afterwards agree and consent to the act. It is a question, therefore, for you, seeing that, in point of fact, the distress was made by Stewart only, whether Lamont and Matravers did consent to this wrongful distress, so that they agreed it should be made, or did they afterwards so give their assent as to shew that their minds were concurring. As to the defendant Matravers, there is another question, for it is yet matter of doubt whether he were a partner or not. This is not like a case in which the question is, whether A. B., and C. were partners on a just debt, but whether they were so as to concur in an unjust distress. The province of a jury, therefore, would be, not only to find, whether they were partners, but also by evidence before the transaction, that they all joined in ordering the doing of this act, or by evidence afterwards, that they concurred and received the benefit of it. The language of the distress warrant is this:—Stewart authorizes Parnham to distrain for rent due “to me,” he says, and then signs himself, “For Lamont, Stewart & Co.” The question is, Can he do this? One partner cannot drag another into a trespass without his previous consent or without his after concurrence. Then, for the fourth defendant, Jones: All persons in trespass who aid or counsel, direct, or join, are joint trespassers. The question is, did Jones do more than as a clerk to Stewart, or was he so implicated, as to make himself a principal trespasser?”

It may be that the sentence which I have highlighted in Clerk & Lindsell provided the basis for the case which the Appellant pleaded in paragraph 13. But whether it did or not, I am satisfied that there is no special rule in the law of trespass that an employer who engages or directs an independent contractor to carry out works (e.g. under a building contract) is jointly liable for trespass which the contractor commits in the course of carrying out those works. Petrie v Lamont (above) is not authority for the proposition. It does no more than confirm the general rule that a partner or principal will be liable for the torts committed by another partner or agent if they have instigated, authorised or ratified that tort.

CPR Part 16.5

CPR Part 16.5 sets out the basic rules for pleading a defence. It provides that a defendant who denies an allegation must state their reasons for doing so and, if they intend to advance a positive case, must plead that case. It also provides that if a defendant “fails to deal” with an allegation they will be taken to admit it:

“(1)

In the defence, the defendant must deal with every allegation in the particulars of claim, stating— (a) which of the allegations are denied; (b) which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c) which allegations they admit.

(2)

Where the defendant denies an allegation— (a) they must state their reasons for doing so; and (b) if they intend to put forward a different version of events from that given by the claimant, they must state their own version.

(3)

If a defendant— (a) fails to deal with an allegation; but (b) sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation…

(5)

Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.”

The editors of Civil Procedure (2025 ed) Vol 1 cite a decision of mine at 16.5.8 for the proposition that CPR Part 16.5(5) is automatic and that in the absence of any application for permission to amend, a defendant runs the risk of being held to have admitted allegations at trial: see Re BHS Group Ltd [2023] EWHC 2875 (Ch) [66]. However, I also stated in that case that in the absence of an application to an amend, the Defendant could expect an application for judgment on admissions or summary judgment: see [67].

Mr Blaker did not seek to argue that the Respondent had complied with CPR Part 16.5(1) or (2) by including a general traverse in the Defence. Nor did he argue that CPR Part 16.5(5) did not apply because the Respondent had “dealt” with the allegation in the second sentence of paragraph 13 even if it had not fully complied with CPR Part 16.5(2). For my part, I am not entirely satisfied that the Respondent should be taken to have admitted any of the allegations in that sentence once it had pleaded the general traverse at the beginning of the Defence. But for the purposes of this Appeal, I will assume in Mr Horne’s favour that the Respondent failed to comply with CPR Part 16.5(3) and as a consequence CPR Part 16.5(5) applies.

Practice Direction PD16

CPR Part 16.5 does not distinguish between allegations of fact and allegations of law. However, PD16, paragraph 12.2 (upon which the Judge relied) implies that even if the Claimant pleads a proposition of law in the Particulars of Claim, the Defendant is not bound to answer it in the Defence:

“12.2

A party may in a statement of case— (1) refer to any point of law; (2) give the name of any witness they propose to call, and may attach to it a copy of any document necessary to their case (including any expert’s report under Part 35).”

The Judge considered that it was “questionable” whether it was necessary to plead a point of law. I would go further. In my judgment, it is not a strict rule of pleading that a Defendant must expressly deny that a proposition of law and the sanction for the failure to do so is not that they are taken to have admitted the point, but that the Court may strike out the Defence or order summary judgment if it is bad in law. As PD16 recognises, it may be good practice to plead a point of law but it is not a strict requirement of pleading. The editors of Bullen, Leake & Jacob’s Precedents of Pleading 19^th ed (2020) confirm the view which the Judge took that this is not a rule but a matter of good practice only. They state as follows at 1—30 and 1—31 (footnotes omitted):

“The discussion set out above shows that the principal function of a statement of case is to state the facts relied on. The pre-CPR position was that pleadings were only to state material facts. That is no longer the case. Rule 16.4(1)(a) provides that particulars of claim must include a concise statement of the facts on which the claimant relies. But under the CPR there is no provision limiting the statement of case to material facts. This was a conscious decision intended to promote flexibility. In particular, there is no longer any objection to including references to evidence or legal argument in a statement of case. This point is considered further below. Foreign law is regarded as a question of fact in the English courts, and the general rule is that if a party wishes to rely on a foreign law he must plead it in the same way as any other fact.¹³³ In practice, the statement of case will be supplemented by a detailed expert’s report on the applicable foreign law.”

“The Practice Direction supplementing CPR Pt 16 provides “A party may … refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based.” As Buxton LJ has stated: “A beneficial effect of the Civil Procedure Rules is that by CPR PD16 para.13.3(1) it is now made clear, as under the Rules of the Supreme Court it was not, that a party in his pleading may ‘refer’ to any proposition of law on which his case is based. It will often be valuable that he should do so, because parties, and the court, should not be left to speculate upon the relevance in law of a purely factual narrative.” Although detailed legal argument is best set out in skeleton arguments, it will often be good practice to identify the point of law concerned in the statement of case. This is because the statement of case should clearly state what the case is about; that is its function. Without necessarily requiring the details of the argument to be set out, points of law should be clearly identified where to do so is necessary to give adequate notice to the other side. Reference to case law is not generally appropriate. On the other hand, where reliance will be placed on legislation, the legislation and relevant sections should be identified.”

Finally, I draw attention to PD16, paragraph 8.2 which provides that a claimant “must” set out particulars of any allegation of notice or knowledge of a fact “where they wish to rely on them in support of the claim”. This is a very familiar rule of pleading and I am bound to observe that one of the curiosities about this Appeal is that the Appellant relies on a single sentence in the Particulars of Claim of which it gave no particulars at all but which it is now said that the Respondent was not entitled to dispute.

What did the Respondent admit?

Mr Horne relied on the Respondent’s failure to plead to the second sentence of paragraph 13. I break down that sentence in the following way: “The Claimant avers that: [A] insofar as acts of trespass have been committed by the Second Defendant, [B] they did so as the First Defendant’s contractor and [C] at its direction and [D] consequently the Defendants are jointly liable for the same.” In my judgment, that sentence consisted of four separate allegations and I will refer to them as “Allegations [A], [B], [C] and [D]” respectively.

There is no issue that the Respondent pleaded to Allegation [A] by either admitting or denying each of the 31 particulars of trespass under paragraph 13. As for Allegation [B], there was no dispute either that Harris CM was acting as the Respondent’s contractor when it committed the acts of trespass which the Judge found proved at [157] to [163]. In my judgment, Allegation [D] was a point of law which the Respondent was not required to answer (although it would have been good practice to do so). No new facts are pleaded in that part of the sentence and it is clear that it was intended to set out the legal consequence of what has gone before because it is introduced by the word “consequently”. This leaves Allegation [C], namely, that Harris CM was acting at the Respondent’s direction. This was undoubtedly an allegation of fact and, in my judgment, the Respondent must be taken to have admitted it.

Was there a serious procedural irregularity which led to injustice?

Mr Horne argued in both his Skeleton Argument and in his oral submissions that the Judge ought to have held that if the Appellant proved the allegations of trespass at trial, the Respondent had admitted that it was jointly liable for them and should have been held liable for damages on that basis. He also submitted that it would have been far too late for the Respondent to withdraw the admission. He put the argument in the following way in his Skeleton Argument:

“The rule is unequivocal in its terms and application. Further, neither paragraph (3) nor (4) of CPR 16.5 are applicable. Subparagraph (3) provides that where a defendant fails to deal with an allegation but sets out in the defence the nature of its case in relation to the issue an exemption to the general rule applies: this does not apply in the present case as the amended defence did not deal with this issue. Put simply, notwithstanding the very specific and clear nature of the allegation of joint liability between D1 and D2 for D2’s trespasses in the Amended Particulars of Claim, neither defendant engaged in the defence on this issue. Hence, the starting point for the Judge should have been that it shall be taken that the issue was admitted by D1 that if trespasses were proved at trial against D2, it was jointly liable for the same. Therefore, the Judge was in fact in a situation where he was actually dealing with whether or not it was appropriate for D2 to withdraw an admission in its amended defence. If the Judge had approached the issue in this way, C would have opposed such an application on the basis that it was too late and if allowed, C would suffer irremediable prejudice if the trial proceeded. The most obvious prejudice is the fact that there had been no disclosure on this issue such as minutes of site meetings that D1’s principal witness (Mr Tate) admitted to having attended frequently during the course of the development; who was also the controlling shareholder of both companies. The only time the potential for a defence to this admitted issue was considered was when it was raised obliquely in D1’s Counsel’s trial skeleton argument as referred to in paragraph 96 of the Judgment. By this time, C could not deal with the defence at trial.”

Although Ground 1(i) turns on the significance to be attached to the four words “and at its direction” in the second sentence of paragraph 13, I confess that I have found this the most difficult aspect of the Appeal. Nevertheless, I have reached the conclusion that the Judge’s decision to try the question whether the Respondent was jointly liable for the acts of trespass which Harris CM committed did not involve a serious or other procedural irregularity for the following reasons:

Furthermore, even if Mr Horne had taken the CPR Part 16.5 point and either applied for judgment on admissions or to strike out the Respondent’s defence to liability for trespass, I am not fully satisfied that the outcome would have been any different. Again, I have reached this conclusion for the following reasons:

Was the decision unjust?

But even if I am wrong and the Judge ought to have held that the Respondent had admitted joint liability for the acts of trespass of Harris CM and also refused to grant permission to amend to withdraw that admission, I am satisfied that no injustice was done for the following reasons:

Finally, even if I had been persuaded to allow the Appeal on Ground 1(i), it would only have made a significant difference to the overall outcome if I had been satisfied that the Judge’s decision was wrong on one or more of the issues of construction which are the subject of Ground 3. If the Appellant had succeeded on both Ground 1(i) and Ground 3, then I accept that it would have been necessary to remit the decision to the County Court for a retrial. As it is, however, I am satisfied that the Judge was correct for the reasons which he gave. I therefore dismiss Ground 1(i).

Ground 3

The Judge set out the relevant law relating to the interpretation of the 2016 Transfer in the Judgment at [29] to [53]. He accepted Mr Horne’s submission that he was entitled to have regard to the extrinsic evidence at [39]. He also accepted Mr Horne’s submission that the Planning Permission and the Plan were admissible as aids to construction of the 2016 Transfer. Finally, he identified three additional key background facts which were relevant to its construction at [53]. There is no criticism of any of the Judge’s reasoning in these paragraphs in either the Grounds of Appeal or Mr Horne’s Skeleton Argument.

Further, in addressing each of the three issues of construction, the Judge carried out a careful analysis of the 2016 Transfer. In each case, he construed the relevant words of clauses 2.1 and 2.2 against the admissible background before reaching a conclusion about the meaning of the words. As Mr Blaker submitted, the Judge did not stop there. He also stood back and tested his conclusion against the principles set out in Arnold v Britton (above) before reaching a final conclusion: see, in particular, [63] and [77]. Again, there is no criticism of the Judge’s methodology in either the Grounds of Appeal or Mr Horne’s Skeleton Argument.

Indeed, Mr Horne did not criticise the Judge because he had failed to direct himself correctly in relation to the law or that he failed to admit admissible evidence or to exclude inadmissible evidence or even about the way in which approached the construction of the 2016 Transfer. In substance, his real criticism of the Judge was the weight which he gave to the background evidence. This was pre-eminently a matter for him as the trial Judge. Moreover, he had the advantage in the present case of seeing the site itself and, although I accept that this was of limited importance given that the development of 108 has now been completed, the site visit provided him with one real advantage. He was able to gauge very much better than I can the spatial limitations of the site and the challenge which this would have provided to a developer.

For example, Mr Horne’s principal criticism of the Judge’s decision that clause 2.2 permitted the Respondent to stop and unload vehicles on the green land was that, having accepted his own submissions on the admissibility of extrinsic evidence, the Judge then attributed too much weight to the fact that it was known that at the time of the 2016 Transfer that Lambert House was due for demolition and too little weight to the fact that the means of access to Lambert House was through roller shutter doors into a loading or parking bay. These were matters of weight for the Judge which he weighed up carefully in the Judgment, [58] and [59]. In doing so, he made no error of law. This is sufficient to dismiss Grounds 3(i) to 3(iii). However, in deference to the careful submissions of Mr Horne, I briefly set out my own views on the three issues of construction.

Ground 3(i): right to stop and load or unload

As Mr Horne put it in his Skeleton Argument, the issue which the Judge had to decide was “a relatively hackneyed area of law”. The issue of construction for the Judge was whether the words in clause 2.2 “a right of way…to pass with or without vehicles for all purposes connected with the Property” included a right to stop and also to load or unload. Mr Horne’s argument was that the right to “pass” does not include the right to stop for any length of time or to load or unload and if such a right had been intended, the right word was “use” not “pass”.

The right of way in clause 2.2 is expressed to be a right of way “for all purposes”. Furthermore, there is clear authority that a right to pass and repass may include a right to stop to load and unload depending on the physical attributes of the way at the time of grant or re-grant: see Bulstrode v Lambert[1953] 1 WLR 1064 and McIlraith v Grady [1968] 1 QB 468. Mr Horne had to persuade the Judge, therefore, that the physical attributes of the way in the present case were so different from the physical attributes in those cases that it was appropriate to construe clauses 2.2 restrictively.

The Judge concluded that there was no grounds of distinction and, in my judgment, he was right to do so. I respectfully agree with the Judge that the key background fact in the present case was that it was known to both parties that Lambert House was due to be demolished and that they could not have intended the only means of access to be the roller shutters: see [58]. I also agree with the Judge that the fact that the right of way led nowhere other than to Lambert House (subject to whatever use could be made of the Alley) was an equally important factor: see [61]. The purpose of the right of way was, therefore, to give access to Lambert House which was at the time commercial premises. Further, a marketing report dated 8 December 2015 to which Mr Horne took me showed that Lambert House extended right up to the boundary. It is impossible, therefore, to see how the process of demolition could have been begun without vehicles stopping to load and unload on the Green Land: see [59].

I accept that it might have been theoretically possible for the Buyer to produce a method statement for the demolition of Lambert House which enabled it to access and demolish the site without using the Green Land. I also accept that the Buyer was not bound to implement the Planning Permission. But I ask myself why the parties would have agreed to such a limitation on the right of way in clause 2.2 if demolition and development was within their contemplation. It is much more likely that if they had expressly considered the issue, the parties would have agreed that the Buyer should have the right to stop on the Green Land for the purpose of loading or unloading materials provided that the Buyer did not block it permanently or cause a nuisance. I agree with the Judge that clause 4.1 supports the conclusion that this is what they agreed and that clause 2.2 conferred such a right subject to compliance with the covenants in that clause: see [62]. For these reasons, therefore, I dismiss Ground 3(i).

The second question of construction which the judge had to address was very similar to the first. The Judge held that the words of the grant were plainly wide enough to include a right of way over the Green Land to and from the undercroft: see [66]. Mr Horne did not challenge that conclusion. The Judge also rejected Mr Horne’s argument that the right of way only permitted the Buyer access to Lambert House through the roller shutter door and only permitted it to use the other part of the Green Land as a turning point because of the bollards shown on the November Plan: see [67] to [78].

Before me Mr Horne advanced a different argument. He submitted that clause 2.2 must be construed as if it were subject to the Planning Permission and that it only permitted a right of access to at the points shown on Plan 2 which did not contemplate the creation of the undercroft or access to the development along the alleyway. He submitted, therefore, that since the Respondent did not implement the Planning Permission but obtained planning permission for a different development, it had no right to use the Green Land as a means of access to the undercroft.

I reject this argument. It makes no commercial sense and, in any event, the express words of clause 2.2 are not limited in this way either. Plan 2 appears to have been a version of the site plan which was used to obtain the Planning Permission. But it was not dated, it did not bear a plan number and the Appellant adduced no evidence before the Judge that it was one of the approved plans listed in paragraph 2 of the Planning Permission. Furthermore, the 2016 Transfer made no reference to the Planning Permission itself. Mr Horne relied on the Planning Obligation (which was referred to in the Transfer). But this was not a reference to the Planning Permission itself but to a unilateral deed by which the Seller (not the Buyer) agreed to pay the Council’s legal fees and for open space.

As the Judge pointed out, the 2016 Transfer was professionally drafted and if the parties had intended the Buyer to have a right of access to the Pink Land at one point only and to use the section of the Green Land which formed part of the alleyway for turning only, they would have said so. Moreover, if they had intended the right of way only to be available to the Buyer if and to the extent that it implemented the Planning Permission, they would have imposed a covenant to that effect and defined the Property and the Pink Land by reference to one of the approved plans listed in it. They did neither. Indeed, the Property is defined by reference to Plan 1 (the filed plan) and not by reference to the Pink Land at all. As Mr Blaker pointed out, the Judge thought that this was an attempt to re-write clause 2.2 and so do I. I dismiss Ground 3(ii).

The third question of construction which is the subject matter of the Appeal is whether the Judge was right to find that the right of way in clause 2.2 extended to the Pink/Green Land on which the Seller granted a separate right to park in clause 2.1. The Judge rejected Mr Horne’s argument that the right of way in clause 2.2 only permitted the Buyer to have access to the Pink/Green Land for the purposes of parking: see [82] to [92]. I agree entirely with his reasoning. Put simply, the Seller granted two separate rights in clause 2.1 and clause 2.2 over the same land and they were both intended to be enjoyed by the Buyer (and its successors in title). Mr Horne’s argument was that one right should be used to exclude or limit the other. But, as Mr Blaker submitted (and the Judge accepted) the land edged in pink would not also have been coloured green if the parties had intended the Buyer to have a right of parking over it only.

Mr Horne also prayed in aid the “ouster” principle, namely, that an easement of parking must not be “so excessive as to exclude the servient owner and leave him without any use of the area in question for parking or anything else”: see Gale at 9—121. In Moncrieff v Jamieson[2007] UKHL 42, [2007] 1 WLR 2620 (a Scottish appeal) both Lord Scott and Lord Neuberger doubted the existence of such a principle, at least in relation to the grant of an express right: see [59] and [139] to [140]. The editors of Gale express the view that the decision has not conclusively determined the issue but that the reasoning of Lord Scott and Lord Neuberger is “so obviously sensible and the result so practicable that it is suggested that courts are unlikely in the future to allow the “ouster principle” to prevent an exclusive parking right being regarded as an easement, at least where it is intended to be”: see 9—127.

I did not hear full argument on this issue and it would not be appropriate for me to express a view on this issue myself because the Judge did not accept that the Seller was excluded from occupation or possession of the Pink/Green Land: see [91]. I also bear in mind that there was no Respondent’s Notice in which Mr Blaker sought to uphold the decision on other grounds. However, the question whether the effect of the grant of both rights effectively ousted the Seller from possession of the relevant land was one for the Judge and he had the benefit if a site visit to assess this issue. Moreover, this was the issue on which a site visit would have particularly useful since this the relevant land did not form part of the development of Lambert House.

Furthermore, in deciding this issue the Judge was not required to assume that the Buyer and its successors in title would effectively exercise the right in clause 2.2 and prevent all other use of the Pink/Green Land to park a car or light vehicle on the Green/Pink Land for 24 hours a day and 365 days a year. In Moncrieff v Jamieson (above) Lord Hope addressed a similar argument made by the servient owner at [37] to [40]:

“37.

It was suggested in the course of the hearing before your Lordships that a decision that there was an accessory right to park vehicles on the servient tenement could mean that very large numbers of vehicles belonging to all manner of people would be parked there, perhaps for long periods, resulting in an unacceptable burden on the servient tenement. There are however three reasons for discounting such an abuse of the right as a realistic possibility.

38.

The first reason is that the right of access over the servient tenement is granted in favour only of the owner of the dominant tenement and her successors in title, not in favour of the public generally. Of course, as Lord Clyde said in Hogg v Campbell, 2 April 1993, unreported (1993 GWD 27–1712) in a passage quoted by Cusine & Paisley, Servitudes and Rights of Way , para 1.60, the proposition that the dominant proprietors are the only person interested cannot be taken too strictly. The right extends to the proprietors' guests, visitors, employees and others who come there for the purposes to which the land is being put. But, as he also pointed out, that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement. The servitude right of pasturage provides a useful analogy for the determination of the extent of the servitude. As Lord Grieve explained in Ferguson v Tennant 1978 SC (HL) 19, 25, the number of cattle that may be put on the lands of the servient tenement must not exceed that which is “proper to the dominant”-that, is, that the number that the proprietor of the dominant tenement can support from his own resources.

39.

The second reason for discounting the possibility of abuse is to be found in the principle that, in Bankton's words, the servitude right must not be used “invidiously to the other's detriment”: An Institute of the Laws of Scotland, II, vii, 18. As Lord Marnoch said in the Extra Division, para 24, questions of how and precisely where the right to park is to be exercised are questions that ought to be capable of being resolved by the parties acting sensibly but can, if necessary, be decided under reference to the rule that the servitude right must be used civiliter. This point has been recognised by the terms of the declarator, which refers to the right to park “such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement”. The right is not to store or warehouse vehicles on the servient tenement. It is a right which is ancillary to the right of access to the dominant tenement. It is available only for the parking of vehicles which are intended to be used in the exercise of that right. I would not limit the phrase to the determination of where the right of parking may be exercised, although it is of course relevant to that issue. It covers all questions that may arise as to how the right to park may be exercised, including the number of vehicles that may be parked on the servient tenement.

40.

The third reason is that it has not been suggested that an abuse of the kind suggested occurred at any time between 1984 when the first pursuer first began to use the right of access to Da Store by means of vehicles and 1998 when the defenders first disputed the right to park vehicles on the servient tenement. The dispute arose not out of the presence of an excessive number of parked vehicles on the servient tenement. It arose because the first defender wanted to reclaim the pink area as part of the ground for his garden. The experience of all these years indicates that it is reasonable to assume that in practice a decision that there is an ancillary right to park vehicles will not create an undue burden on the servient tenement. So I do not think that it is necessary for the court, at least at this stage, to set a precise limit on the number of vehicles that may be parked there.”

In the present case, there was no evidence before the Judge that the Respondent had exercised the rights in clause 2.1 and 2.2 excessively or that it had prevented any meaningful use of the Pink/Green Land. It is also clear from the 2016 Transfer itself that the parties themselves did not anticipate that the Seller would be unable to make any sensible use of the Pink/Green Land. This is because clause 4.1 imposed a covenant upon the Buyer not to block that area of land other than when exercising the right to park. They therefore contemplated that the Seller would be able to enjoy user of the Pink/Green Land when the Buyer was not using it for parking one car or a small van. The Judge considered this to be decisive: see [91].

I agree. In my judgment, the Judge was entitled to assume that the parties intended the Buyer to make use of the right in clause 2.1 to the extent that was necessary for the reasonable and comfortable enjoyment of the dominant land and that any conflict between the rights in clauses 2.1 and 2.2 and the obligation in clause 4.1 “ought to be capable of being resolved by the parties acting sensibly”: see Moncrieff v Jamieson (above)at [39]. But he was also entitled to assume that if the Buyer abused the right to park and prevented any use by the Seller, then the Seller would have been entitled to enforce the covenant in clause 4.1.

Finally, there was some discussion between counsel about the size of the Pink/Green Land and the other uses to which it could be put. Mr Blaker accepted that it was bigger than a single parking space but not a big enough space upon which to park two cars (or light vans). However, the parties plainly contemplated that the Seller might use some of it as amenity land for landscaping: see clause 2.1 itself. But even if the Seller chose not to use it for that purpose, she and her successors in title could always use it to cut the corner of Back York Place and the Alley. This was (and is) a very tight corner as is clear from the photographs. As the Judge observed, the planting appeared to have been removed from Plan 2 and he heard no evidence that there was any physical barrier to driving across the corner at the date of the grant: see [90] and footnote 7. There was no challenge to these findings and I am satisfied that the Judge was entitled to find on the facts that the “ouster” principle had no application. I, therefore, dismiss Ground 3(iii).

Ground 3(iv)

Mr Horne accepted that the Judge was only wrong in law to dismiss the Appellant’s claim for damages and to have found its claim made out if he succeeded on Ground 1(i) and persuaded the Court that the Respondent was jointly liable and that the Judge was wrong to construe the 2016 Transfer in the way in which he did. Since I have dismissed Ground 1(i) and Grounds 3(i) to (iii) I also dismiss Ground 3(iv).

For these reasons I dismiss the Appeal. I invite the parties to agree a form of order and to submit it to the Court. If there is any dispute about the terms of the Order I will decide any outstanding issues on paper. If the parties are unable to agree a form of order or file brief submissions before the date and time fixed for the hand down of this judgment, I invite them to agree directions for the resolution of any outstanding issues and submit to the Court.

When I circulated this judgment in draft, Mr Horne submitted that I had not considered his argument based on the decision in Waterman v Boyle [2009] EWCA Civ 115 as set out in paragraph 28 of his Skeleton Argument:

“In the Court of Appeal authority of Waterman v Boyle [2009] EWCA Civ iv 115, the Court of Appeal held that it was not right to imply a right to park as ancillary to a right of way, not least where the grant of the right of way also included a more limited express right to park. Further, the Court of Appeal described the facts of the Scots Law case of Moncrieff v Jamieson [2007] 1 WLR 462, where an implied right to park was held to exist as “quite exceptional”. The Court of course note the express right to park granted by clause 2.1 of the 2016 Transfer and also the fact that there was ample parking within the grounds of the dominant tenement as referred to in paragraph 27 above.”

I have considered Waterman v Boyle and I do not consider that it has a material bearing on Ground 3(i) or my decision in [63] to [66] (above). Both Moncrieff v Jamieson and Waterman v Boyle are concerned with implied easements of parking and not with the question whether, as a matter of construction a right to pass and repass (as opposed to use) a way for all purposes includes the right to stop or stop for the purpose of loading and unloading.

Mr Horne relied on Waterman v Boyle at [31] to [34] where Arden LJ stated that the circumstances in which the Court will imply an easement of parking into the grant of a general right of way would have to be quite exceptional. I have no doubt that this is correct. But Arden LJ was not suggesting that it would be exceptional for a right of way for all purposes to include a right to stop or to load and unload and cited Bulstrode v Lambert with approval: see [29]. She also stated that the owners of the servient tenement permitted loading and unloading but challenged the right to park: see [6]. I did not refer to Waterman v Boyle because it seemed to be of limited value in the present case and clause 2.2 is clear. For these reasons, therefore, I decline to recall my decision to dismiss Ground 3(i).