Graham Gore v Kishwar Naheed and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Lewison,Lord Justice Underhill |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] EWCA Civ 369 |
| Docket Number | Case No: B2/2016/1052 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2017 |
and
[2017] EWCA Civ 369
Lord Justice Patten
Lord Justice Lewison
and
Lord Justice Underhill
Case No: B2/2016/1052
B2/2016/1051
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COMBINED COURT CENTRE
His Honour Judge Harris QC
3RG51989
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan McNae (instructed by Louise Greer Solicitors) for the Appellants
Henry Webb (instructed by Richard Wilson Long Solicitors) for the Respondent
Hearing date: 3 May 2017
This is an appeal by the defendants, Mrs Naheed and Mr Ahmed, against an order made by HH Judge Harris QC on 22 September 2015 following judgment for the claimant, Mr Gore, in his action against them for damages and an injunction in respect of the alleged obstruction of a right of way. Permission to appeal has also been granted in respect of the costs order which the judge made on 15 January 2016 after the receipt of further written submissions.
The dispute between the parties centres on the use of a driveway which connects Mr Gore's property known as the Granary to Church Street in Pangbourne, Berkshire. The area in question is shown on the simplified plan below.
Access to Church Street is obtained through a brick archway from the driveway which is referred to on the plan as the Yellow land. The defendants' premises at 4–8 High Street are shown marked on the left hand side of the plan and were formerly a branch of the Nat West Bank. The defendants acquired the premises in September 2012 and they are now used to run a family wine merchants' business. The Granary is the building shown on the plan between the defendants' premises and the River Pang.
The Granary enjoys a right of way to Church Street over the driveway by virtue of a conveyance dated 11 November 1921 under which the then National Provincial and Union Bank conveyed to the purchasers the Granary and some adjoining cottages and land:
"TOGETHER with the right for the Purchasers their respective heirs and assigns and others the owners and occupiers of the said granary in common with other persons having similar or greater rights with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise."
The area coloured yellow on the conveyance plan included the entirety of the driveway shown on the plan as the Yellow land including the area marked "Garage" to which I shall refer in that way. The ownership of the driveway is now divided between the Post Office (who own the section closest to Church Street); the defendants (who have the next section adjacent to their premises); and the claimant who when he purchased the Granary in March 2007 also purchased the Garage land which had been acquired by the vendor or her predecessor in title by adverse possession. In 1994 a garage with some bedrooms above had been constructed on the Garage land so that since then the position on the ground has been that the driveway effectively ends with the Garage.
Although the defendants' premises front on to the High Street, they use the driveway for deliveries. The area occupied by the driveway is quite confined and the effect of parking or delivering when outside the rear of the defendants' premises is that it will almost inevitably obstruct vehicular access to the Granary or the Garage. It is common ground that the easement granted by the 1921 conveyance entitles Mr Gore to drive a car or other vehicle to the front door of the Granary (as shown on the plan) and to park the car there for the purposes of loading and unloading. Mr McNae (for the defendants) also accepts that it would have been permissible for the owner of the Granary prior to 1994 to have parked for that purpose on the area of the driveway now occupied by the Garage and that Mr Gore may legitimately access the Garage via the driveway and park there temporarily for loading and unloading just as he might have done had it remained part of the driveway. What is in dispute is the right of Mr Gore (or a tenant of the property) to use the driveway to obtain direct access to the Garage for the purposes of leaving a car parked there for an indefinite period of time. Parking in such circumstances would not, of course, amount to a trespass because Mr Gore now has title to the land on which the Garage has been built. But it is said that to use the driveway for the purpose of parking in the Garage lies outside the scope of the easement granted under the 1921 conveyance on a correct application of the decision of this Court in Harris v Flower (1904) 74 LJ Ch 127.
The practical significance of this argument, if correct, is that it was not unlawful for the defendants to have obstructed access to the Garage by parking on the driveway outside the rear of their premises. The judge found that on various occasions between 2012 and 2014 a van had been parked in front of the Garage. Although therefore there may have been occasions when the position of the defendants' van was such as to obstruct vehicular access even to the claimant's front door, most of the use of the driveway by the claimant and his tenant over the relevant period was with a view to parking in the Garage. If that is not permissible under the terms of the 1921 grant then the award of damages and the injunction granted by the judge will have to be re-considered.
Access to the Garage is the major issue on this appeal but the defendants also challenge the order made by the judge even if the claimant does have the right claimed. Judge Harris made a declaration that the rights granted by the 1921 conveyance include the right for the claimant to pass over the driveway for the purpose of parking in the Garage and granted an injunction in terms which prevent obstruction of vehicular access to the Garage but provide that parking of a vehicle by the defendants on their part of the driveway for up to 20 minutes for the purpose of loading and unloading shall not amount to an obstruction. In the case of a shared driveway, there obviously needs to be some give and take and some certainty as to what will and will not amount to an obstruction. The defendants accept this but say that the specified time limit should have been two hours.
The judge also awarded general damages of £2,500 in addition to special damages of £4,584.54 in respect of lost rent caused by the early termination of a tenancy due to the obstruction. The defendants contend that no claim for general damages was ever made and that the judge's award is both unreasonable and arguably inconsistent with the award of special damages.
The judge ordered the defendants to pay the claimant's costs to be assessed on the standard basis and made an order for an interim payment of £17,500. The defendants say that because of the claimant's failure to engage with their invitations to submit the dispute to mediation, the judge was wrong not to have made some deduction or allowance against the claimant's costs in accordance with the guidance contained in the decision of this Court in PGF II SA v OMES Company I Limited [2013] EWCA Civ 1288. His order that the claimant should have interest on costs is also said to be wrong in this case.
Access to the Garage
The first two of the essential characteristics of an easement referred to by Sir Raymond Evershed MR in Re Ellenborough Park [1956] Ch 131 are that there must be a dominant and a servient tenement and that the easement must accommodate the dominant tenement. This was explained as meaning that the easement should operate for the better enjoyment of the dominant tenement which was satisfied in that case even though the right to use the park was shared with a number of other houses in the same development. It is also well established that a right of way granted over the servient tenement can accommodate the dominant tenement even though the dominant and servient tenements are not physically contiguous: see Pugh v Savage [1970] 2 QB 373 where the owner of the dominant tenement had the third party owner's consent to cross the intervening land between the dominant and the servient tenement. The fact that the right of way over the servient tenement provided access to the intervening land rather than to the dominant tenement was held not to be fatal to the validity of the grant.
The issue in the present case is whether the 1921 conveyance gives the claimant as the owner of the Granary the right to use the driveway to obtain direct access to the Garage for the purpose of parking. The appeal has been argued in terms of whether such a right was included in the grant. If it does, as a matter of construction, create such a right, it has not been suggested by Mr McNae that this could not form the subject matter of the grant of an easement provided that it operates for the better enjoyment of the Granary. Although title to the Garage was acquired comparatively recently and it does not form part of the dominant tenement for the purposes of the 1921 conveyance, it is no different from the intervening land in Pugh v Savage over which the dominant owner had permission to pass or which in the earlier case of Todrick v Western National Omnibus Co Ltd [1934] Ch 561 also belonged to the dominant owner although not part of the dominant tenement. In his judgment, Lord Hanworth MR said that there was no authority for the proposition that the dominant and the servient tenements must be contiguous and that the true test (as stated in Gale on Easements) was that an easement "must be connected with the enjoyment of the dominant tenement and must be for its benefit"...
To continue reading
Request your trial
-
Abdel-Kader and ors v Royal Borough of Kensington and Chelsea and ors
...compensation. There has been no change in the law since Halsey. The court was referred to the comment of Patten LJ in Gore v Naheed [2017] EWCA Civ 369 at [49]: “Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of ......
-
Clare Elizabeth Annetts v Nureni Adetunji Adeleye
...use of the dominant tenement, as part of the garden of Dawning, is an ancillary use and therefore the Strip is not land-locked: see Gore v Naheed [2017] EWCA Civ 369. So, on his submission, that is not a reason for saying that the right of way was not abandoned. 26 As to the question whethe......
-
Philip Warren & Son Ltd v Lidl Great Britain Ltd
...penalty. It is an aspect of the party's conduct which may be taken into account in evaluating reasonableness. In Gore v Naheed & Anor [2017] EWCA Civ 369, Patten LJ in the Court of Appeal said: “Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which B......
-
BXB v Watch Tower and Bible Tract Society of Pennsylvannia
...It is simply an aspect of the parties' conduct which must be addressed in a wider balancing exercise: ibid: [51]; Gore v Naheed [2017] EWCA Civ 369, [2017] 3 Costs LR 509, [49] (Patten LJ). 7 In this case, there was a specific direction, made by the Deputy Master on 30 April 2018 in the te......
-
Just get on with it: more reasons to mediate (and a look at some of the excuses people use to avoid ADR)
...a failure to engage in mediation, even if unreasonable, will not automatically result in a costs penalty. (See Gore v. Naheed & Anor [2017] EWCA Civ 369 (24 May 2017).) In Gore, the judge accepted the claimant's view that a mediation would have had no realistic prospect of succeeding and wo......
-
Indemnity Costs For Failure To Mediate?
...refusal to mediate was only one facet of a party's conduct to be taken into account when determining costs, relying on Gore v Naheed [2017] EWCA Civ 369. The defendants' response to the first offer to mediate was that they did not consider it would be productive or cost effective at that st......
-
Rights Of Way Expanded?
...the recent case of Gore v Naheed and Another [2017] EWCA Civ 369, the Court of Appeal considered the extent to which a right of way benefiting one property could be used to gain access to adjoining land which did not have the express benefit of the easement. The Court confirmed that in cert......
-
Refusing to engage in ADR
...is a factor for the court to consider when exercising its discretion on costs. Gore v. Naheed and Ahmed In Gore v. Naheed and Ahmed [2017] EWCA Civ 369, the Court of Appeal considered an appeal relating to a right of way for vehicle access. The claimant, Mr Gore, was successful and awarded ......
-
Table of Cases
...182, 48 JP 293, 53 LJ Ch 219, ChD 190 Gordon v Selico Ltd [1986] 1 EGLR 71, (1986) 18 HLR 219, (1986) 278 EG 53, CA 198 Gore v Naheed [2017] EWCA Civ 369, [2018] 1 P&CR 1, [2017] 3 Costs LR 509, [2017] 2 P & CR DG17 178 Grant v Edmondson [1931] 1 Ch 1, 100 LJ Ch 1, [1930] All ER Rep 48, CA ......
-
Transfer of Burden
...following an assignment of part, even though the lease includes a provision for re-entry on 20 (1904) 74 LJ Ch 127. 21 Gore v Naheed [2017] EWCA Civ 369, [2018] 1 P&CR 1. 22 But see Parker v Roberts [2019] EWCA Civ 121, [2019] 1 P & CR DG20. 23 See paras 14.2 and 14.4.1. 24 See Glass v Kenc......
-
Persuasion and Compulsion
...and not well-settled, the Court of Appeal has been reluctant to hold that refusal to mediate was unreasonable (see Gore v Naheed [2017] EWCA Civ 369). Although this decision was not well-received by Sir Alan Ward, former member of the Court of Appeal and Chairman of the Civil Mediation Coun......