Bradford and another v James and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Jacob,Lord Justice Wilson |
| Judgment Date | 18 July 2008 |
| Neutral Citation | [2008] EWCA Civ 837 |
| Docket Number | Case No: B2/2008/0002 |
| Date | 18 July 2008 |
| Court | Court of Appeal (Civil Division) |
[2008] EWCA Civ 837
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HALIFAX COUNTY COURT
HHJ IBBOTSON
5HX01423
Lord Justice Mummery
Lord Justice Jacob and
Lord Justice Wilson
Case No: B2/2008/0002
Mr Stephen Howd (instructed by Wrigley Claydon) for the Appellants
Mr Matthew Hall (instructed by Lyons Wilson) for the Respondents
Hearing date: 26 th June 2008
Background
There are too many calamitous neighbour disputes in the courts. Greater use should be made of the services of local mediators, who have specialist legal and surveying skills and are experienced in alternative dispute resolution. An attempt at mediation should be made right at the beginning of the dispute and certainly well before things turn nasty and become expensive. By the time neighbours get to court it is often too late for court-based ADR and mediation schemes to have much impact. Litigation hardens attitudes. Costs become an additional aggravating issue. Almost by its own momentum the case that cried out for compromise moves onwards and upwards to a conclusion that is disastrous for one of the parties, possibly for both.
The extreme acrimony between these neighbours is nothing new. As far as this court is concerned the dispute is about title to a cobbled area of land 3.7m wide (the cobbled area) and its use for parking and access. The cobbled area is in the farmyard adjoining the wall of a converted barn (the Barn) at Great Jumps Farm (the Farm), Erringdon, up the hill from Hebden Bridge in West Yorkshire. The Barn overlooks the farmyard and has a front door giving access directly onto the cobbled area, which runs along the length of the southern elevation of the Barn. The cobbled area is neither fenced off from the rest of the farmyard nor is it physically distinct from it, save for the fact that it is cobbled and the rest of the farmyard is not.
Before 1976 there was no room for disagreement because both the Barn and the Farm, with its farmyard, belonged to Mr & Mrs Wainwright. They had, however, applied for planning permission to convert the Barn before ultimately selling off the Farm minus the Barn and some surrounding land. Planning permission was obtained in February 1975 for change of use of the Barn to a dwelling. Plans for the proposed conversion were prepared. One plan showed the cobbled area adjacent to the Barn and, within that area, some steps going up by the side of the Barn. Evidence was given that they were original stone steps next to the cobbled area and that they led to a raised garden at the western end of the Barn. The position and use of the steps by the owners of the Barn was not an issue in the case. On another plan the yard elevation of the Barn has windows and a front door giving access to the cobbled area. There was evidence from the purchasers of the Farm of a belief that, when converted, the Barn would face away from the farmyard with no main doors or windows on that side. That did not turn out to be the case, however, either on the plans or when the conversion was carried out. As foreshadowed in the plans, the converted Barn has windows overlooking the farmyard and a front door leading out to the cobbled area in the farmyard.
By a conveyance dated 7 June 1976 (the 1976 Conveyance) the Farm, as “more particularly delineated” on an annexed plan and “thereon edged red”, was vested in Norma James and her daughter Dora. The farmyard was part of the Farm conveyed, but the Wainwrights retained the Barn along one side of it. The 1976 Conveyance did not contain any express reservation of the cobbled area along the side of the Barn or of any right of way over the cobbled area for the benefit of the retained Barn.
Much has been made of the fact that the annexed plan is small scale, OS 1:2500. It is, however, clear enough to show the Barn as a box shape building delineated by straight black lines. The straight red boundary line drawn on the plan follows the straight black line of the Barn facing the farmyard. On inspection the original plan shows a dog leg in the red boundary line past the eastern end of the Barn.
Norma and Dora James have since died. The Farm now belongs to Norma's son, Mr Keith James, and the executors of Dora James. Mr Keith James is one of the executors. Mr Keith James and the executors are the defendants to the proceedings and the respondents to this appeal.
The Wainwrights sold the Barn in its unconverted condition about 10 months after the sale of the Farm. By a conveyance dated 21 April 1977 (the 1977 Conveyance) the Barn was vested in Mr & Mrs Fox. The plan referred to in the 1977 Conveyance and annexed to it “for the purpose of identification only” clearly shows the cobbled area as included in the land conveyed with the Barn. It is accepted, of course, that if the cobbled area was included in the 1976 Conveyance of the Farm, the Wainwrights could not convey it by the 1977 Conveyance of the Barn. The 1977 Conveyance is, however, relied on as evidence that the cobbled area was not intended to be conveyed by the 1976 Conveyance. In particular, the 1977 Conveyance contained a covenant by the purchasers to erect and maintain a stockproof post and rail fences between points on each side of the Barn along boundary lines marked B-C and D-E. The fence to be erected between D-E near the area of the dog leg is a continuation of the southern boundary line of the Barn, which is shown as the outside edge of the cobbled area. The fences have been erected.
In 1999 Mr & Mrs Bradford, who are the claimants in the action and the appellants in this court, bought the Barn from Mr & Mrs Fox. From about 2002 relations between the Bradfords and Mr James deteriorated badly. On 12 August 2005 the Bradfords started proceedings, which included a claim for a declaration that the defendants were not entitled to enter on or cross the cobbled area or any other part of their land. They alleged in their Particulars of Claim that
“3. As is more clearly set out on the plan marked “B” attached hereto, being a plan from a conveyance dated 21 April 1977 by which the Barn acquired its own title and induced first registration, comprised in the Claimants' title is an area extending southwards from the Claimants' house for a distance of 3.7 metres referred to and marked out as “the cobbled area “on plans “A” and “B” attached.”
In his order dated 28 November 2007 HHJ Ibbotson made a declaration, but not in favour of the Bradfords. He declared that the cobbled area referred to in that paragraph of the particulars of claim was within the defendants' registered title (No WYK68410.) The Bradfords were ordered to pay 75% of the costs of the action and £20,500 on account of the defendants' costs by 4pm on 18 January 2008. Litigation nowadays is extremely expensive, even in County Court proceedings about a little strip of farmyard worth much less than the legal costs of fighting over it.
On 15 March 2008 Arden LJ granted permission to appeal. On 10 June 2008 an application was issued by the Bradfords for permission to adduce fresh evidence on the appeal in the form of a further witness statement by Mrs Linda Fox and exhibited documents. I shall deal in the course of this judgment with that application and a related application for permission to amend the grounds of appeal.
The main issue on this appeal is whether the judge wrongly construed the 1976 Conveyance of the Farm as including the cobbled area. More particularly, is the plan annexed to the 1976 Conveyance sufficiently clear to render extrinsic evidence inadmissible as an aid to its construction? There is a dispute about the extent (if any) to which the court should admit, in aid of construction (a) evidence of surrounding circumstances at the date of the 1976 Conveyance and (b) evidence of subsequent acts and events relating to the cobbled area.
The judgment
The judge held that the 1976 Conveyance plan was clear. It was not made unclear by the small scale of the plan when all that was shown on the relevant part of it was the position of the Barn wall. He pointed out that on a plan to scale 1:2500 a strip of 3.7m would be shown by a line less than 1.5mm wide, which was not consistent with the width of the black and red lines drawn on the plan. He said
“I have concluded that the plan is clear because it depicts the only relevant feature it was intended to depict, that is the barn wall. The cobbles were, I find, included in the...
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