Easteye Ltd v Malhotra Property Investments Ltd

JurisdictionEngland & Wales
CourtChancery Division
JudgeKramer
Judgment Date01 June 2020
Neutral Citation[2020] EWHC 2606 (Ch)
Docket NumberCase No. D80NE064
Date01 June 2020

[2020] EWHC 2606 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN NEWCASTLE

PROPERTY, TRUSTS AND PROBATE LIST (ChD)

The Moot Hall,

Castle Garth,

Newcastle upon Tyne NE1 1RQ

Before:

His Honour Judge Kramer sitting as a judge of the High Court

Case No. D80NE064

Between:
Easteye Limited
Claimant
and
Malhotra Property Investments Limited
First Defendant
Malhotra Property Limited
Second Defendant
PFS (Newcastle) Limited
Third Defendant
The Council of the City of Newcastle Upon Tyne
Third Party

Mr George Laurence QC and Mr Charles Morgan of counsel (instructed by Square One aw) for the Claimant

Mr Michael Pryor of counsel (instructed by Clarke Mairs) for the Defendants

Ms Ruth Stockley of counsel (instructed by Newcastle City Council Legal Services)

Hearing dates: 28,29,30,31 October, 4,5,6,7,8,12,12,14,15 November

His Honour Judge Kramer

Kramer

Introduction

1

Grey Street in Newcastle upon Tyne was described by Nikolaus Pevsner, the architectural scholar, as “one of the best streets in England”. 1 Until the 1800s, however, it was no more than a steep banked dene through which ran the Lort Burn, described as “a receptacle of filth, butchers' offals, &c. of the neighbourhood”. 2 Lort is a Scandinavian word for dung but, unlike others words of Norse or old German origin, such as spelk (splinter), bait (food) and hyem (home), it no longer features in the Geordie lexicon. The dene ran past the backs of burgage plots. Those to the west fronted onto what was then the Flesh Market (soon to become the Cloth Market) and it is this area with which the case is concerned.

2

The burgage plots, which are said to date from the 13 th Century, were served by lanes giving access from the Flesh Market to the rear of the plot of which it formed part. Two of those lanes, White Hart Yard and Ship's Entry, are the subject of these proceedings. The Claimant is the freehold owner of both. The disputes in this case are as to the existence of public and private rights of way over these lanes.

3

The trial lasted 13 days, in the course of which there was a site view, I heard evidence from 43 lay witnesses, and read the evidence of five witnesses, whose statements had been produced under Civil Evidence Act notices, and a further eight witnesses whose statements were admitted by agreement as hearsay on the basis that the opposing parties did not agree

their contents but neither wished to cross-examine the makers. In addition, the Claimant and the Defendants each called three experts. I have had 2 sets of written submissions from each party in the course of the hearing plus a further 4 sets of submissions from the Claimants and the Defendants post final submissions, the last on 21 st April 2020. The documents in this case fill 14 lever arch files. I'm very grateful to counsel for Easteye Limited, Mr Laurence QC and Mr Morgan, to Mr Pryor, counsel for Malhotra Property Investments Limited, Malhotra Property Limited and PFS (Newcastle) Limited, and Ms Stockley, counsel for the Third Party, the Council of the City of Newcastle, for their assistance in guiding me through what would otherwise have been a morass of information
4

In order to gain an understanding of the essential features of this case I have attached to this judgment, at appendix A, a greyscale plan showing the relevant buildings and land. I have set out at appendix B a summary of the key witnesses and some documentary evidence which I have taken into account for the period following the 1960s in relation to White Hart Yard. I have taken the same approach with the witness and documentary evidence for Ship's Entry at Appendix C for the period from the late 1950s. Where appropriate, I have included my observations on particular witnesses. In respect of each witness I have indicated, in brackets, the period of time which their evidence covers. To have included this quantity of evidence in the body of the judgment would have been unwieldy, appearing more akin to a summing up. Appendix D contains an index to the judgement; I am further grateful to Mr Morgan and Mr Pryor for compiling this index.

5

I shall refer to the Defendants and PFS as the Malhotra companies, as they are owned by members of the Malhotra family. The Claimant is owned by the Ladhar family. Indeed, the dispute has been described to me as the Ladhars versus the Malhotras.

The relevant land

6

White Hart Yard and Ship's Entry are marked on the plan at appendix A; in some documents the latter appears as ‘Ship Entry’ but for consistency I will stick with ‘Ship's’, which seems to be the modern name. The land owned by Easteye is shown in dark grey and includes White Hart Yard and Ship's Entry. That owned by the Malhotra companies is shown in light grey; they also own the rest of the block between Balmbra's and Mosley Street. Balmbra's is on the site of what was the Wheat Sheaf Inn, to the rear of which, and now incorporated into Balmbra's, was the Oxford Music Hall.

7

White Hart Yard runs from the Cloth Market, at Point E, through an undercroft, emerging through another undercoft into Grey's Court at point D. Grey's Court is a cul de sac running through a further undercroft to Grey Street. The yard has a cobbled roadway with paving on both sides. The entrance to the western end of the yard is flanked by numbers 16 and 14 Cloth Market. For most of the length of the yard there are derelict buildings dating from the 17 th to 19 th Centuries. At the eastern end, however, there is a night club, and formerly a casino, operated by Easteye. These premises are on either side of the eastern undercroft and extend a little way back into the yard. Currently, there is decking along much of the yard as it is used as an outside area for the nightclub.

8

Ship's Entry also leads from the Cloth Market at point A, through an undercroft to point B, where it passes under no.11–13 Grey Street, and enters Grey's Court at point C via the ‘Dog's Leg’, also sometimes referred to as the ‘Dog Leg’. It is within the title of 10 Cloth Market. Currently, there are gates at points E,D, C and A as well as a gate in Ship's Entry in the vicinity of the boundary between the Easteye and Malhotra land to the west of 11–13 Grey Street (rear). There is a dispute as to what was gated and when, and whether the gates were locked. The buildings along the length of Ship's Entry are empty and in need of renovation, as is – 11–13 Grey Street.

9

11 Grey Street consists of a ground floor property and basement fronting onto Grey Street. It has a rear door opening into the Dog's Leg on the Ship's entry side of the gate at point C. 13 Grey Street consists of the 3 floors over number 11 which front onto Grey Street and passes over the Dog's Leg at first floor level from where it runs west along Ship's Entry as a 4 storey building. It has a fire exit at ground floor level at its western end, opening onto Ship's Entry. Until 1934, 13 Grey Street also comprised the first and second floor over the arch between Grey's Court and 15 Grey Street, the remaining storeys of which were in the title of 15 Grey Street. In that year this part of the building was conveyed to the owners of number 15 Grey Street. The plan to that conveyance, in particular, has featured in the argument.

10

Most of White Hart Yard and all of the buildings along and beyond Ship's Entry are in need of redevelopment. In 2011 a planning application by the Malhotra companies to develop their properties included Ship's Entry within the scheme of development. Permission was granted on 10 th December 2012 but not implemented. In 2017 Mr Jagmohan Malhotra, who is a, if not the, key member of the family with control of the Malhotra companies, was in a dispute with Baldev, known as Dave, Ladhar, now deceased, the patriarch of the Ladhar family with control of Easteye, as to whether the Malhotras had any rights over Ship's Entry. That dispute has developed into the case before me.

The dispute

11

The Malhotra companies allege that there are public rights of way over White Hart Yard and Ship's Entry, and, if there is no right for the public over the latter, the First and Second Defendants nevertheless have private rights over that land. These include a right of way between Grey's Court and the Cloth Market by virtue of their ownership of 11/13 Grey Street, a right of drainage from the eaves of Balmbra's with rights to enter to inspect and repair, and a right of fire escape from 11/13 Grey Street in both directions, i.e. to both the Cloth Market and Grey's Court. Easteye has accepted that there is a right of drainage for Balmbra's and that this includes a right to inspect and repair on notice; in the course of the trial the parties were able to agree the terms governing the operation of such rights.

12

Easteye also accepts that the occupiers of 11 Grey Street have, for the purposes of their business, a right of way on foot over Ship's Entry from the ground floor door at the rear to a storeroom on the opposite side of the Dog's Leg and a right of way for the purpose of a fire escape from the rear door along the Dog's Leg into Grey's Court.

13

As regards 13 Grey Street, which is served by a boiler situated in a boiler room opening into Ship's Entry, but not the building itself, Easteye accepts that there exists a right of way over Ship's Entry between the fire door at the western end of 13 and the boiler room and a right of fire escape between that door and the Dog's Leg into Grey's Court.

14

The existence of all the other claimed rights is denied. A right claimed by PFS, the owners of 15–17 Grey Street, to a right of way over Ship's Entry was abandoned by the time of trial.

15

Newcastle City Council takes a neutral stance. It was joined as the relevant Highway Authority in view of the public rights claimed. The council has no record of there...

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