Christopher Charles Price and Another v Jonathan James Nunn
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 11 May 2012 |
| Neutral Citation | [2012] EWHC 1251 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: 2BS30135 |
| Date | 11 May 2012 |
[2012] EWHC 1251 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
Redcliff Street, Bristol
Mr Justice Morgan
Case No: 2BS30135
Mr Guy Adams (instructed by Phoenix Legal Group) for the Claimants
Mr John Stenhouse (instructed on Direct Public Access) for the Defendant
Hearing dates: 20 th, 21 st and 22 nd March 2012
| Heading | Para |
| Introduction | 1 |
| The properties in question | 6 |
| The present proceedings | 13 |
| The previous proceedings | 18 |
| The 1976 proceedings: the pleadings | 19 |
| The 1976 proceedings: the trial | 24 |
| The 1976 proceedings: the appeal | 36 |
| The 1980 proceedings | 49 |
| Mr Nunn buys Woodside Bungalow and the paddock | 52 |
| The present application | 53 |
| Res judicata | 57 |
| Privity: general | 63 |
| Privity: the specific issues | 80 |
| Special circumstances: a preliminary point | 85 |
| Special circumstances: new evidence | 89 |
| Special circumstances: a further point | 99 |
| Abuse of process | 104 |
| The result | 105 |
Introduction
This judgment concerns an application to strike out parts of a Defence and Counterclaim. The relevant parts of this pleading assert the existence of a private right of way, or a public right of way, in either case with or without vehicles, over certain land owned by the Claimants. The Claimants say that there is a cause of action estoppel, or an issue estoppel, arising from two sets of earlier proceedings, binding on the Defendant, which prevents the Defendant putting forward these contentions. Alternatively, the Claimants say that the relevant averments in the Defence and Counterclaim involve an abuse of the process of the court.
The earlier proceedings ran their course between 1976 and 1983. The Defendant was not a party to those proceedings and he had no involvement with the matters in dispute in that period. The Defendant is now involved because, in 1991, he bought two properties which are in the vicinity of the Claimants' land and which were owned, in the period covered by the earlier proceedings, by Mr and Mrs Close (or in the case of one of those properties, Mr Close alone) and Mr and Mrs Close were parties to the earlier proceedings.
The application raises some points, as to issue estoppel, which are far from straightforward, and in particular as to whether the Defendant is a "privy" of Mr and/or Mrs Close. A distinction may need to be drawn between the Defendant's claim to a private right of way appurtenant to the Defendant's property and his claim that there is a public right of way. Further, if there is no issue estoppel which prevents the Defendant defending a claim against him alleging trespass by him on the Claimants' land but there is, or might be, an issue estoppel preventing the Defendant counterclaiming relief against the Claimants, whether by way of damages or an injunction, by reason of the Claimants' obstruction of the claimed public right of way, does that exceptional state of affairs mean that there are special circumstances which prevent the Claimants relying upon an issue estoppel in relation to the Defendant's counterclaim?
Mr Adams appeared on behalf of the Claimants and Mr Stenhouse appeared on behalf of the Defendant.
The property in question is in the village of Slad in Gloucestershire. Slad is the village to which the writer, Laurie Lee, moved when he was three years old. The village and his early life in it is the subject of his well known work, Cider with Rosie. Laurie Lee lived in Slad until the 1930s. In 1935, as the name of his second book records, he walked out one midsummer morning and went to Spain where he fought in the Spanish Civil War on the Republican side. As it happens, between 1959 and 1960, he lived in Woodside Bungalow, which is said by the Defendant in these proceedings to be the dominant tenement of a private right of way over the Claimants' land. The bundle of documents before the court contains two documents in Laurie Lee's own hand.
The properties in question
This case involves paths or tracks. The different parts of the paths or tracks have been described as follows: the first part has been called "the lower track", the second has been called "the Pitch" and the third has been called "the upper track".
Title to the lower track is vested in the Claimants, to whom I will refer as "the Prices". The northern end of the lower track starts at the public highway, the B4070 which leads from Slad to Birdlip. The lower track then proceeds in a roughly southwards direction. On the east side of the lower track there is a paddock now owned by the Defendant, Mr Nunn. He has the benefit of an express grant of a right of way (granted to a predecessor in title of Mr Nunn) over the lower track for the benefit of the paddock as the dominant tenement. The southern end of the lower track is at the point where it meets both the upper track and the Pitch.
The Pitch is a steep path or track which leaves the west side of the B4070 and proceeds in a roughly westwards direction to where it meets the southern end of the lower track and the beginning of the upper track. Neither the Prices nor Mr Nunn claims to have title to the Pitch. The Definitive Map maintained under the Wildlife and Countryside Act 1981 shows a footpath along the Pitch.
The upper track begins at the point where the lower track meets the Pitch. In the present proceedings, the Prices claim that they own the upper track. That claim is disputed by Mr Nunn. In earlier proceedings, to which I will later refer, the Prices did not claim that they owned the upper track. The upper track runs in a roughly westwards or north-westwards direction until it enters a field known as the 16 acre field. The Definitive Map shows a footpath along the upper track. That footpath continues across the 16 acre field.
The Prices are the registered proprietors of Painswick Slad Farm under Title Number GR281942. That land was conveyed to Charles Frederick Price by a conveyance dated 26 th July 1967 and he transferred the land to himself and his wife in 1970. Later, on 13 th May 2005, that land was transferred to Charles Frederick Price and his son, Christopher Charles Price (together described above as "the Prices"). It is not in dispute that the Prices' title includes the lower track but, as indicated above, their claim to own the upper track is disputed by Mr Nunn.
Mr Nunn is the registered proprietor of Woodside Bungalow, Slad under Title Number GR1026. Woodside Bungalow adjoins the upper track and has a frontage of about 60 feet running along the upper track. Originally there was a continuous wall along this frontage so that access to Woodside Bungalow was not available from the upper track. Woodside Bungalow had been built as a gardener's residence in a corner of the large garden of Woodside House, which fronts onto the B4070. Woodside Bungalow was occupied by Mr Close and his family from around 1960. Around that time, Mr Close made an opening or openings in the wall fronting onto the upper track to enable him to access Woodside Bungalow from the upper track. Title to Woodside Bungalow was conveyed to Mr Close in 1967 and Mr Close transferred that title to Mr Nunn in 1991.
Mr Nunn is also the registered proprietor of the paddock referred to above, under Title Number GR142222. So far as material, the paddock was conveyed to Mr Harry Teakle by a conveyance dated 3 rd October 1960. That conveyance was by a party who retained title to the lower track and the 1960 conveyance contained an express grant of a right of way over the lower track for the benefit of the paddock. The grant was expressed by reference to the terms of an earlier grant in a conveyance of 26 th March 1923. The grant was of a right of way over the lower track with or without vehicles at all times and for all purposes. Mr Harry Teakle conveyed the paddock together with the appurtenant right of way to Mr and Mrs Close on 12 th November 1975 and they conveyed that property to Mr Nunn in 1991.
The present proceedings
In around April 2011, the Prices brought the present proceedings against Mr Nunn seeking various heads of relief in relation to the upper track. The Particulars of Claim referred to the fact that Mr Nunn had registered a caution against first registration in relation to the upper track. In the statutory declaration in support of the application to register a caution, Mr Nunn had stated that he was entitled to a right of way with or without vehicles over the upper track. In consequence, the Prices claimed a declaration that they were the freehold owners of the upper track, or at least one half in width of the upper track; they further claimed a declaration that Mr Nunn had "no right to pass" over the upper track with vehicles; and they claimed an injunction to restrain Mr Nunn from trespassing on the upper track by using vehicles upon it. The Prices accepted that there was a public right of way on foot along the Pitch and the upper track.
Mr Nunn has served a detailed Defence and Counterclaim. He denied that the Prices have title to any part of the upper track. He asserted that he has the benefit of a private right of way, on foot and/or with horses and/or with vehicles over the lower track, the upper track and the Pitch. It is implicit in the pleading that this private right of way is for the benefit of Woodside Bungalow and possibly also the paddock. He also asserted the existence of a public right of way, on foot and/or with horses and/or with vehicles over the lower track, the upper track and the Pitch. In addition to putting those matters forward by way of a defence to the relief sought by the Prices, Mr Nunn also counterclaimed for...
To continue reading
Request your trial
-
Decision Nº LRX 127 2013. Upper Tribunal (Lands Chamber), 16-02-2015
...and Boat Co v Pope (2000) CCRTF/0396/B2 (CA) Johnson v Gore-Wood (No.1) [2002] AC 1 Mew v Tristmire [2011] EWCA Civ 912 Price v Nunn [2012] EWHC 1251 (Ch) R (on the application of Hand) v Secretary of State for Communities and Local Government [2014] EWHC 314 (Admin), CO/9777/2013 Law Land ......
-
Christopher Charles Price and Another v Jonathan James Nunn
...deals with the matters which need to be considered following the judgment I handed down on 11 May 2012 with Neutral Citation Number [2012] EWHC 1251 (Ch). It appears that the parties have been unable to agree on any relevant matter. The form of the order 2 I have been provided with two dra......
-
Christopher Charles Price and Anr (Respondent/Claimant) v Jonathan James Nunn
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION BRISTOL DISTRICT REGISTRY (MR JUSTICE MORGAN) [2012] EWHC 1251 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Rimer Case No: A3/2012/1671 Between: Christopher Charles Price and Anr Resp......