Goddard v Megac Ltd and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LINDSAY |
| Judgment Date | 28 April 2006 |
| Neutral Citation | [2006] EWHC 3720 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: IHC 46/06 |
| Date | 28 April 2006 |
[2006] EWHC 3720 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Lindsay
Case No: IHC 46/06
MR W AINGER (instructed by D'Angibau Willmot) appeared on behalf of the Claimant
MR W MOFFETT (instructed by Grundberg Mocatta Rakison LLP) appeared on behalf of the 2 nd Defendant
Approved Judgment
I have before me an application notice of 9 January 2006 in the action Kenneth Goddard, claimant, against, as first defendant, Megac Limited, and as second defendant, Mr Roger Evelyn Stanfield Salvesen Baden-Powell. The application notice asks that there should be an order for summary judgment against the claimant, dismissing the whole claim pursuant to CPR Rule 24.2, further or alternatively, that the claimant's claim be struck out pursuant to CPR Rule 3.4(2) because (the individual defendant so avers) the applicant has no real prospect of succeeding on his claim and because the particulars of claim, he says, disclose no reasonable grounds for bringing the claim.
I need to say something of the action. It was begun with a claim form of 9 February 2005, and it concerns two properties, and to some extent, the relationship between them. The properties consist, firstly, of Alderbury Hill House, which is owned by the first defendant, but may be beneficially owned by the second defendant. At any rate, its ownership is on the defendant's side. The other property is The Lodge which was for a time (and it was at material times) owned by Kenneth Goddard, the claimant.
I have laid in front of me, handed up this morning, estate agents' particulars as to the lodge. Even discounting to the usual extravagance of estate agents' language, it would seem to be (The Lodge) a property of some charm. It is described as an “exquisite Victorian lodge situated in the setting of Clarendon, only 1 1/2 miles from the cathedral city of Salisbury”. Although I am not in terms told this, I would expect that Alderbury Hill House, of which I have no photograph, is a grander property, possibly in much the same style.
The casus belli between the owner of The Lodge and the owner of Alderbury Hill House is a water supply to The Lodge, and that supply goes back possibly 100 years, but, so far as concerns expressed legal rights, it came into existence as a right in favour of The Lodge as dominant tenement over Alderbury Hill House's servient tenement by a deed of grant of 8 May 1974. The grant was by the then owner of Alderbury Hill House in favour of the then owner of The Lodge. Both of those parties have been succeeded in the sense that there no longer is Stanley William Edwards as the owner of Alderbury Hill House, and no longer are the grantees of that grant, Mr and Mrs Holland, the owners of The Lodge.
The recitals in the deed of grant indicate, after noticing who is owner of what, that the grantee, it says, (that is to say the then owners of The Lodge) is desirous of obtaining a supply of water to the lodge aforesaid for domestic purposes from a boring situated on the owner's land (and the owner is defined as the owner of Alderbury Hill House of the time and successors, and equally, the grantee is defined so as to include successors) “shown on the plan annexed hereto”. One notices that whereas the grantee is desirous of obtaining a supply of water for domestic purposes, it does not follow that he is going to get it. For that, one has to see what the effective part of the deed provides.
That was at recital (3). At recital 4, it says:
“The supply of water aforesaid is intended to be by means of a pipe about Two Inches in diameter already laid.”
At recital 5, it says:
“The Owner has agreed with the Grantee for the grant to him in fee simple of the right to take water from the said boring so far as the same may be required for the domestic purposes only of the Grantee.”
So much for the recitals; now, says the deed of grant (in the conventional way) this deed witnesseth as follows:
“1. In consideration of the premises and of the covenants hereinafter contained the owner hereby grants unto the grantee full and free right and liberty to draw and receive from the said boring and to convey through the said pipe such an amount of water as may be required for the domestic purposes only of the grantee's said dwelling and for no other purpose whatsoever with liberty from time to time as shall be necessary to cleanse repair or replace the said pipe in the same position as the present pipe and for these purposes and no other to enter upon pass along and break up the land adjoining the said pipe doing as little damage as possible to the said land TO HOLD the said liberties and rights unto the grantee in fee simple.”
Then at paragraph 2, it says:
“The grantee hereby covenants with the owner …”
The first little covenant is for the payment of a sum and that transpires to be a really small (that is almost to say insignificant) sum of 5.4 pence in the pound of the rateable value from time to time of the lodge per annum. I will not say any more about that for the moment. There is a covenant by the grantee to exercise the rights that he gets so as to do as little damage as possible to the owner's land and to make good, and I do not think I need to go into that further. The grantee also covenants at (c):
“To remove and carry away all stones gravel soil clay sand or any refuse or rubbish at any time removed from the said pipe or accumulated on the adjoining land at the time of any repair thereto or cleansing thereof and not at any time to create or continue a nuisance on the Owner's land.”
There is a covenant by the grantee to keep the owner indemnified and at 2(e) the grantee covenants:
“In the event of a water main being laid by the competent local authority or other statutory contractor along the nearest public road to The Lodge aforesaid to apply to such authority or contractor for the main water supply to be connected to The Lodge at the Grantee's expense.”
It is not, in terms, a provision that if a connection is made to that particular main that the rights granted under the deed fall away. Given that they were expressed to be granted in fee simple, one would expect them to continue however relatively valueless they might be once there were to be a connection with the main.
The plan attached to the 1974 deed shows the main road, which is the A36. It shows The Lodge virtually on top of the main road at the entrance of a driveway which passes The Lodge and wends a curving way up to Alderbury Hill House at some good distance from the road. In the top northern corner (almost as it is) of the Alderbury Hill House plot on the plan, one sees a dot and the word “boring”.
There is no indication whatsoever on the 1974 deed's plan of the course that the then-already-laid pipe took. Nor is there any mention of pumps or water towers, stop cocks, electricity supply to a pump or anything of that nature. The deed is not badly drafted but it could be that the solicitors were never told of the existence of a pump, a water tower and the course of the pipe or any need for the supply of electricity. One just does not know, and the parties before me now—Mr Moffett appearing for the second defendant, and Mr Ainger for the claimant—are unable to tell me whether, when the deed was drafted in 1974, the pump and the water tower already existed or not.
If they did exist, it looks as if the solicitors who drafted the deed were never told. I suppose it is possible that instead they were told, but failed to realise the significance of them. One way or another, as I say, there is no mention whatsoever of pumps, water towers, stop cocks, electricity supply or anything else. In many respects it is the deficiencies in that respect that have come to lead to difficulty between the parties, and difficulty there certainly has been.
Unfortunately, whilst they were neighbours (or for a time at any rate whilst they were neighbours, because Mr Goddard no longer lives there) there were very poor relations indeed between the claimant, Mr Goddard, and the second defendant, Mr Baden-Powell. Thus, it came about that the sort of issues that might have been dealt with amiably enough between neighbours who were amicable, came instead to be not dealt with in an amiable way but dealt instead by the issue of proceedings which, as I have mentioned, began in February 2005.
The particulars of claim set out the case as the claimant then wished to formulate it, and at paragraph 6(2) it said this:
“The Claimant will, inter alia, contend that by reason of the 1974 Conveyance and the 1974 Deed [and it is chiefly, if not only, the 1974 deed to which I have referred which is the material document] the owner (or owners) from time to time of AHH [that is the Hill House] was (or were), in the premises, at all material times under an obligation or duty to ensure that …”
Then five separate duties or obligations are set out and it is the breach of those duties that gave rise to various claims in damages which the claimant was looking to be relieved against. Mr Moffett began his argument, as one would expect on a striking out, to indicate that, in the second defendant's view, the duties that there were pleaded really had no sound foundation in law and that, as framed, the case must fail. It has long been recognised on both sides that the claimant, Mr Goddard was chiefly intending to base his case on a reported case called Abbahall Ltd v Smee [2003] 1 WLR 1472.
Mr Ainger says, with good justification, that the second defendant has always...
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