Charles Edward Porter and another v Robert Stokes (Personal Representative of the Estate of Walter Edward Stokes, deceased)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Briggs |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] UKPC 11 |
| Docket Number | Privy Council Appeal No 0032 of 2021 |
| Court | Privy Council |
[2023] UKPC 11
Lord Briggs
Lord Kitchin
Lord Sales
Lord Burrows
Lady Rose
Privy Council Appeal No 0032 of 2021
Privy Council
Hilary Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Appellant
Ramesh Lawrence Maharaj SC
Robert Strang
Katharine Bailey
(Instructed by BDB Pitmans LLP (London))
Respondents
Ian Benjamin SC
Kerwyn Garcia
(Instructed by Signature Litigation LLP (London))
Heard on 1 March 2023
By a Deed of conveyance dated 18th August 1982 (“the Deed”) Mr and Mrs Porter acquired a parcel of land (“the main parcel”), lying between the Maracas river to the west and the Maracas Royal Road to the east, from their good friend and neighbour Walter Stokes. The main parcel was separated from the Royal Road mainly by land retained by Walter Stokes (“the retained land”). The only means of access to the main parcel from the Royal Road (or from any other public highway) was along a strip of land (“the strip”) running along the southern boundary of the retained land, connecting the south-east corner of the main parcel with the Royal Road. Although it was already in use for that purpose at the time of the Porters' acquisition of the main parcel, the strip was neither conveyed to the Porters by the Deed, nor was any right of way over it granted to them.
This curiosity, that the Porters had apparently acquired a landlocked parcel of land with no right of way to or from it, remained apparently unnoticed by either side for the following 24 years, in the sense that it was not mentioned in any surviving document. The strip remained in use as a de facto means of access both to the main parcel and to the retained land, with no complaint by either side. In the meantime Walter Stokes had died in April 1990, and his estate (including the retained land) vested in his son Robert Stokes pursuant to a grant of probate in July 1990.
But in February 2006 the Porters' attorneys wrote to Robert Stokes suggesting that the Deed had by mistake omitted to include the strip as part of the land conveyed, and inviting him to execute a deed of rectification to put that mistake right. Robert's refusal to do so led to this claim by the Porters for rectification of the Deed, issued in October 2007 and tried by Charles J in November 2012. Charles J, in her judgment in December 2013, dismissed the claim. This was followed by an appeal heard in October 2018 by Bereaux, Jamadar and Pemberton JJA, leading to their unanimous decision in June 2019 to reverse the judge and make the order for rectification sought by the Porters.
In bare outline the parties' cases at trial were as follows. The Porters relied upon a prior binding agreement for sale dated 15th May 1982 (“the Contract”) which included the strip as part of the land agreed to be sold. They also relied upon indications in the Deed and its accompanying plan which suggested that, apart from the mistaken exclusion of the strip by the omission of three key words, it was intended to be included. In particular they relied upon the express reservation in the Deed of a right of way over the strip in favour of Walter Stokes, for the benefit of the retained land, which made no sense if he was not parting with the strip.
Robert Stokes' case was that the Contract was itself the result of a mistake in including the strip. That mistake was spotted by Robert Stokes after the Contract was made and, to put the matter right, the Contract was allowed to expire unperformed, followed by the execution of the Deed which correctly excluded the strip from the land being conveyed. Robert acknowledged that the Porters enjoyed a right of way along the strip to the main parcel, not by virtue of the Deed, but by prescription.
There were other subsidiary issues in the proceedings, including a claim by the Porters to adverse possession of a separate triangular piece of land, which failed, and by Robert Stokes that the Porters had obstructed the strip, which partly succeeded. But they have all been resolved by the courts below and were of no real consequence for the issue of rectification, with which the Board is solely concerned.
A reading of the careful reserved judgments of Charles J and Bereaux JA (with which his colleagues agreed) reveals a sharp divergence between them in the relative weight which they accorded to the oral evidence (on which Charles J placed her main emphasis) and the surviving documents (on which the Court of Appeal relied almost exclusively). It will be necessary to explore that divergence in some detail in due course. But a careful review of the surviving documents is at least the appropriate starting point in any case in which the trial took place 30 years after the relevant events, following the death of a principal actor, Walter Stokes. More to the point it was 24 years before the emergence of the present dispute gave anyone the impetus to try and remember the detail of what at the time had been just a routine conveyancing transaction between friends. Thanks in part to the excellent custodianship of the Deeds Registry of Trinidad and Tobago the main conveyancing documents and plans have survived, even to the point where, during the hearing of this appeal, coloured versions of the key plans were promptly made available by email from Trinidad whenever requested by the Board during argument. This speedy trans-Atlantic co-operation in real time has been greatly appreciated. The key documents will now be described broadly chronologically.
The earliest, which formed part of Walter Stokes' title in the sale to the Porters, is a deed of conveyance dated 20th June 1967 (“the 1967 Deed”) by which Janet Stanhope-Lovell sold and conveyed both the main parcel and the strip to Walter Stokes, while remaining the owner of the retained land. In the 1967 Deed the main parcel was called “the hereditaments” and the strip was called “the Right of Way”. They were described in detail in Parts 1 and 2 of the Schedule to the 1967 Deed, both in terms of boundary location and area (then using the old system of acres, roods and perches), and stated to be coloured pink and green respectively on the accompanying plan (“the 1967 Plan”).
The 1967 Deed reserved to Ms Stanhope-Lovell an easement of way over the strip for the benefit of the retained land in the following terms:
“Except and reserving unto the Vendor in fee simple full and free rights and liberty at all times hereafter and for all purposes connected with the existing use of the remainder of the adjoining property of the Vendor known as ‘the Glen’ with or without horses and other animals, carts, carriages and motor and other vehicles of every description laden or unladen to go pass and repass along the Right of Way.”
The 1967 Plan labels the strip as “Right of Way” in accordance with the nomenclature of the 1967 Deed, and a coloured copy obtained during the hearing shows that the main parcel and the strip were coloured pink and green in accordance with the descriptions in the Schedule.
At some date before 1982 Walter Stokes acquired the retained land from Ms Stanhope-Lovell, so that it, the main parcel and the strip were in his common ownership by the time of the sale to the Porters. The easement of way over the strip had thereby been extinguished in law, although the strip remained the de facto means of access from the Royal Road, both to the main parcel and to tenanted houses on the southern part of the retained land.
Turning to 1982, the first two relevant documents in point of time are two plans, which came to be labelled “A2” and “A4” in the courts below. The Board will adopt that nomenclature. They were both prepared by the same surveyor, Mr Sylvester, and both were described as having been prepared for “Mr Stokes”, ie Walter Stokes. Taking them in turn, Plan A2 is dated (in Mr Sylvester's handwriting) 23 March 1982 and describes itself as “PLAN of a Parcel of land coloured pink”. The copy of Plan A2 in the trial bundle bears the series number 91705 and is signed by each of Walter Stokes, Mr Porter and Mrs Porter. That copy in the black and white bundle bears no colouring, but copies of the same plan, numbered 91704 and 91705 sent from Trinidad during the hearing, do contain colouring. 91704 shows the main parcel coloured pink and both the strip and the Royal Road coloured in some different colour which varies (depending on the computer screen upon which it is viewed) between yellow and beige or light brown. 91704 is not signed by any of the parties to the transaction. The coloured copy of 91705 is signed, but only by the Porters. Thus that coloured copy of 91705 must be slightly earlier in time of copying than the version of 91705 signed by all three of the parties. It also shows the main parcel coloured pink. The strip is also coloured, but not the Royal Road. It is not possible to tell (after the passage of 40 years) what that colour of the strip is. In all copies of Plan A2 the main parcel is given an area (5340.3 square metres) but the strip is not given any area.
All versions of Plan A2 label the strip as “Right-of-Way”. To the uninitiated viewer of Plan A2 on its own it looks as if it is seeking to distinguish between the main parcel as being subject to the sale and the strip as being subject only to a right of way, serving the main parcel. But if Plan A2 is viewed in the knowledge of the 1967 Plan (which, with the rest of the 1967 Deed, was no doubt being used as a precedent) it looks as if the person drawing and writing on Plan A2 has simply lifted the label for the strip from the 1967 Plan.
Plan A4 bears the date 21 April 1982, again in Mr Sylvester's manuscript,...
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