Bath Rugby Ltd v Caroline Greenwood
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 13 October 2020 |
| Neutral Citation | [2020] EWHC 2662 (Ch) |
| Date | 13 October 2020 |
| Docket Number | Case No: PT-2019-BRS-000103 |
| Court | Chancery Division |
[2020] EWHC 2662 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2019-BRS-000103
Martin Dray (instructed by Royds Withy King LLP) for the Claimant
William Moffett (instructed by Stone King LLP) for the Seventh and Eighth Defendants
The First to Sixth Defendants did not appear and were not represented
Hearing dates: 16–17 September 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is my judgment on the trial of a claim brought under CPR Part 8, for declaratory relief pursuant to section 84(2) of the Law of Property Act 1925. The declaration sought is that a restrictive covenant contained in a conveyance made in 1922 of certain land in the centre of Bath, formerly part of the Bathwick Estate, is unenforceable and not binding on the claimant. The claimant owns a long lease of the land in question, and is preparing to develop it. The claim form was issued on 6 June 2019 at the Rolls Building, Royal Courts of Justice, in London. The claim form was accompanied by details of claim and a witness statement made by Caroline Preist, the claimant's solicitor, exhibiting certain key documents.
By order of Master Shuman dated 9 October 2019, the claim was transferred to the High Court, Business and Property Courts in Bristol. Her order also required the claimant to disclose certain documents and information, the fruits of research carried out by the claimant's solicitors and which had been referred to in a circular letter to local residents dated 1 December 2018. This was done in a further witness statement made by Ms Preist dated 23 October 2019, together with exhibited documents. These documents demonstrated that the properties of some of the defendants, at least, had not been retained in the Bathwick Estate at the time of the 1922 Conveyance. Those defendants thereafter ceased to take an active part in these proceedings.
After the transfer to Bristol, I made an order on 7 January 2020, joining the seventh and eighth defendants, whose property (it was common ground) had been retained by the Bathwick Estate in 1922. I also gave directions for service upon them, and for evidence to be filed by them and in response by the claimant. Further witness statements were then made. One was made on 17 January 2020, by Godfrey White, the eighth defendant, and a director of the seventh. Mr White co-owns the long lease to a flat at 77 Great Pulteney St, Bath, and also a share in the company which owns the freehold of no 77. He is also a director of this company, which has since become the seventh defendant. Another witness statement was made on 30 January 2020 by Ms Preist, in response to that of Mr White. On 28 August 2020 the eighth defendant made a further, short witness statement. The first to sixth defendants have played no effective part in the proceedings since the seventh and eight defendants were joined. The seventh and eight defendants have accordingly borne the burden of defending this claim. But I make clear that the claimant has brought the claim, and it is the claimant that must prove it.
THE ISSUE IN THIS CASE
The land concerned in the 1922 conveyance consists of open land in the centre of Bath on the eastern side of the River Avon, in that part of the city known as Bathwick. It has long been used for the playing of sports, especially rugby football, and is popularly known simply as “the Rec” (as I will term it in this judgment). The westernmost part of this land, adjacent to the river, is occupied by a stadium, and leased to the claimant, which uses it for the playing of rugby matches. Over the last several years, the claimant has formulated a project to redevelop the stadium so as to provide better facilities, and also some commercial outlets. Some people, including the defendants, oppose this project, or at least have reservations about it. The 1922 conveyance to the claimant's predecessors in title contains a restrictive covenant expressed to bind the land conveyed, and which (as the claimant accepts), if enforceable by anyone, has the potential to interfere with that redevelopment project.
This case is accordingly about the continued enforceability in law of that covenant in the 1922 conveyance. This is a very narrow, legal issue. I should say it is also a very technical one, perhaps one of the most technical in what is already a technical area of the law, and made more rarified by the enormous changes made to English property law in 1925 (which, at least so far as this case is concerned, were not retrospective). I am asked to decide only whether the covenant continues to be enforceable by anyone.
Because of the interest generated by this dispute, I should add that it is important to understand what this case is not about. I am not asked to say whether the redevelopment of the stadium would be a breach of the 1922 covenant if it were enforceable, much less what would be the remedy if any such breach were established. Nor am I asked to decide whether the covenant, if otherwise enforceable, should be modified or discharged. Nor am I concerned in this case with planning, environmental or other public law questions. Those are all potentially at least matters of law, and they may arise in proceedings elsewhere, but they are not before me today. Lastly, I am most certainly not concerned with whether the development project is a ‘good idea’, morally sound, of social benefit or aesthetically pleasing, or whether it would be better to maintain the status quo. I am a lawyer, whose function in this case is to decide a certain question of private right arising between private persons, and not a politician or moral philosopher. My role is limited accordingly.
FACTS FOUND
I have already referred to the written witness statements filed and served in this case, exhibiting numerous relevant documents. Because this is a claim under CPR Part 8, where there are not expected to be significant disputes of fact, oral evidence is not always needed. In the present case, no witnesses were called to be cross-examined on their written evidence, and it is not necessary for me to say anything further about the witnesses themselves. On the basis of the material before the court, I find the following facts.
The Bathwick Estate
I begin with the Bathwick Estate, of which the Rec historically formed part. What I say is derived largely from the research carried out for this case and put in evidence before me in behalf of the claimant, but the defendants' documents have contributed too. The story begins with Sir William Pulteney (1624–91). He had three children: William, who became a colonel in the army and died in 1715, John, who became an MP, and Anne, who married Charles Fitzroy, the illegitimate son of Charles II by Barbara Villiers, the first Duchess of Cleveland. None of these three siblings had any part to play in the history of what became the Bathwick Estate. But the issue of all three of them did.
Colonel William's son, Sir William's grandson, also called William (born 1684) became an MP in 1705. In 1727 he bought the Manor of Bathwick (amongst others) from the Earl of Essex. At that time Bathwick was a country village, separated from Bath by the (then unbridged) River Avon. William Pulteney MP was a man of both wealth and political influence. He held a number of public offices during his life, and, in 1742, he was created Earl of Bath. (He was even offered the opportunity by King George II to form an administration in 1746, but this came to nothing.) He saw the possibility of developing the Manor of Bathwick into an affluent suburb of Bath, but although he started the process he did not live to see it completed. He died in 1764, his own children having died in his lifetime without issue. His landed estates (including the Manor) passed to his brother Harry, a retired army general.
Harry himself died unmarried and childless in 1767, and the estates passed to trustees for Frances Johnston, the daughter of William's and Harry's first cousin Daniel, the son of John Pulteney MP, the second son of Sir William. Frances was married in 1760 to Scottish lawyer Sir William Johnston, who changed his name to Pulteney on the inheritance. (It is said that he became known locally as “Mr Pulteney”.) Frances died in 1782, and the real property descended to her daughter Henrietta Laura, who (because of her father's political influence) was created Baroness of Bath in 1792 and Countess of Bath in 1803. She married Sir William Murray in 1794. She and her father were instrumental in developing the Bathwick Estate, largely by laying out streets and granting building leases of 99 years on plots adjoining those streets. They were also involved in the promotion and construction of Pulteney Bridge, across the River Avon, so as to connect the centre of Bath with the Estate, and to make the building plots more attractive.
When the Countess died without issue in 1808, her real estate passed to her third cousin, William Henry Vane, the third Earl of Darlington. He was descended not only from Anne Pulteney, the daughter and third...
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Bath Rugby Ltd v Caroline Greenwood
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