Christopher Price v Jonathan Nunn

Hearing dates: 24 th to 26 th July and 13 th November 2023

Draft Judgment circulated 7 th December 2023

Approved Judgment

This judgment was handed down remotely at 10.00am on Tuesday 19th December 2023 by circulation to the parties or their representatives by e-mail and by release to The National Archives.

HHJRussenKC:

This judgment follows the trial in a neighbours' dispute over a right of way which has a litigation life of almost half a century, though it is not so stale as to dampen the appetites of the protagonists. The dispute as now presented carries with it a procedural narrative and the consequences of six earlier, detailed judicial decisions which bear closely upon the remaining issues that now fall to be determined by me. This highly unusual background adds a degree of complexity and certainly length to this judgment which follows the trial of those issues. Despite the factually contentious claim about a “prescriptive right of way” 1 having disappeared just before the trial, the intricacy of some of those issues is further enhanced by the need for the court, in 2023, to do its best to analyse what the line and status of the track in question might have been some two-and-a-quarter centuries ago.

Without such historical (including previous litigation) baggage one might expect this judgment to be much shorter than has transpired when the central questions to be addressed are, first, whether or not an alleged right of way of a certain type (private vehicular) has been established; and, secondly, over the ownership of a section of the track affected by the alleged right. However, as will also become apparent from the issues identified below, few stones have remained unturned by the parties in exploring those matters, including by reference to expert evidence. Their respective positions within some of those issues also shifted during the course of the trial. There has also been extensive citation of authority, particularly on behalf of the Claimant, some of which perhaps distracts in a search for the right answer to those questions.

In preparing the draft of this judgment I have come to realise that an index is therefore appropriate for its length. The structure of the judgment is as shown below:

A. INTRODUCTION

The claim and counterclaim in these proceedings raise a dispute between neighbours over rights of way over sections of a track (using a neutral term) which runs between those neighbours living in the Gloucestershire countryside. They also involve a claim to ownership of one of those sections.

As I explain in more detail below this dispute goes back a long way, the Claimant in his witness statement of September 2022 saying: “ I have lived with this dispute since the age of 10. I am now approaching 63.”

The dispute is now carried on between the Claimant (“ Mr Price”) and the Defendant (“ Mr Nunn”) in the current proceedings which themselves are very old. These proceedings were commenced in the Gloucester County Court on 28 April 2011 and transferred to the High Court in January 2012. Mr Price's co-claimant, his father Charles Frederick Price, died on 13 August 2012 and therefore around or at least not too long before the time when they might have been expected to have reached a trial.

Mr Nunn is the owner and occupier of a bungalow (“ Woodside Bungalow”) at the top of the track and Mr Price is the owner of Painswick Slad Farm (“ the Farm”) whose farmyard is at the bottom of it. Mr Price no longer farms himself (he runs a chauffeuring business which sometimes involves parking clients' vehicles in the farmyard) but he still lets out his farmland land under summer grazing licences.

At a relatively early stage in the life of these proceedings Mr Nunn's Defence and Counterclaim came under the scrutiny of Morgan J (see [2012] EWHC 1251 (Ch) and on consequential matters see [2012] EWHC 1605 (Ch)), and then of the Court of Appeal (see [2013] EWCA Civ 1002) when Mr Price launched a strike-out application against it. I refer in more detail in the next section of this judgment (and then, later, in addressing Issue 1 in Section G below) to what the judges have already said about the nature of the claim to a right of way which Mr Nunn was, and was not, entitled to pursue to trial.

That strike-out application, which was based upon principles of res judicata (whether cause of action estoppel or issue estoppel) and related abuse of process arguments, was made by reference to earlier court proceedings over the alleged right of way. Those earlier proceedings were brought by Mr Nunn's predecessors in title, Mr and Mrs Close, against Mr Price (then a minor or, as the title to the proceedings had it, “an Infant” acting by his father as Guardian ad Litem) and his parents, Wing Commander Charles Price and Mrs Pamela Price. Those proceedings also reached the Court of Appeal, in October 1979, following the determination and declaration by Deputy County Court Judge Cridlan, the trial judge, as to the (limited) extent of the right of way enjoyed by Mr and Mrs Close by his judgment of May 1978. Their focus was upon one section – “ the Lower Track” as identified in Section B below – of what I have so far loosely described as “the track” 2. I will refer to these proceedings commenced in the Stroud County Court as “ the 1976 Proceedings”.

Between the determination of the 1976 Proceedings by the Court of Appeal and the commencement of the present proceedings, in 1980, Mr Close brought a further claim against the Price family in the Stroud County Court over the alleged right of way (“ the 1980 Proceedings”). Whereas in the 1976 Proceedings the Closes had relied upon the terms of a 1923 Conveyance, the 1980 Proceedings claimed a vehicular right of way (wider in its purpose than that established in the 1976 Proceedings so that, it was claimed, it would permit vehicular access of the Lower Track to Woodside Bungalow) through reliance upon the doctrine of lost modern grant, prescription, section 62 of the Law of Property Act 1925 and/or by implication. Again, the focus was upon the Lower Track, the section of the track owned by the Prices. In March 1983 Registrar Laurie struck out the further claim on the basis that it was an abuse of process in the light of the 1976 Proceedings. Mr Close's appeal from that decision was dismissed by HHJ Braithwaite in May 1983.

The interlocutory decision of Morgan J in this case, in May 2012, as unsuccessfully appealed and cross-appealed to the Court of Appeal in 2013, was obviously designed to provide clarity as to the issues between the parties which, in the light of the outcome

After the decision by the Court of Appeal in July 2013 these proceedings managed, somehow, to lie dormant for the best part of a decade.

I have so far given the barest outline of their history up to 2013 in order to provide the context for a development in these proceedings which has occurred since.

Mr Justice Morgan's order dated 15 June 2012 provided for Mr Nunn to serve an amended Defence and Counterclaim within 21 days of the end of the stay granted pending the appeal. Permission for both Mr Nunn and Mr Price to appeal to the Supreme Court having been refused by the Court of Appeal by its Order dated 31 July 2013 and then by the Supreme Court on Mr Price's further application for permission, no further procedural step was in fact taken by either party until 2022 when Mr Nunn applied to amend the Defence and Counterclaim and a Costs and Case Management Conference took place.

On 4 May 2022, District Judge Woodburn ordered the service of an Amended Defence and Counterclaim in a form which both reflected the decision of Morgan J in 2012 and the permission granted by the District Judge at that CCMC. Only since this recent order has Mr Nunn advanced a claim to a private vehicular right of way (for the benefit of Woodside Bungalow) which is said to arise under the provisions of section 67(5)(a) and (7) of the Natural Environment and Rural Communities Act 2006 (“ NERCA”).

This provision of NERCA came into force on 2 May 2006. The claim under NERCA therefore could have been advanced at the outset of these proceedings but it was not advanced until last year (the date on the Amended Defence and...