Jason Victor Fuller (Part 20 Claimant) v Diana Carolyn Kitzing and Another (Part 20 Defendants)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hodge |
| Judgment Date | 27 March 2017 |
| Neutral Citation | [2017] EWHC 810 (Ch) |
| Docket Number | C30MA228. |
| Court | Chancery Division |
| Date | 27 March 2017 |
[2017] EWHC 810 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre,
1 Bridge Street West,
Manchester,
M60 9DJ.
His Honour Judge Hodge QC
sitting as a Judge of the High Court
C30MA228.
Mr Thomas Grant QC and Mr Christopher Newman (instructed by Claremont Litigation, Leeds LS1 3BE) appeared for the Part 20 Claimant
Mr Charles Harpum ( instructed by Loxley Solicitors Ltd, Wotton-under-Edge, GL12 8RL) appeared for the Part 20 Defendants
Monday 27 th March 2017
This is the trial of the three remaining preliminary issues in litigation between Mr Jason Victor Fuller (as Part 20 Claimant) and Mrs Diana Carolyn Kitzing and her adult son Mr Mark Eberhardt Kitzing (as Part 20 Defendants). The three remaining preliminary issues are said to raise novel and important questions about the nature and incidence of rights of shooting and of way which may have important implications for the practice of shooting in England and Wales. Mr Fuller is the freehold and long leasehold owner of Winsley Hurst Hall and some 30 acres of surrounding land at Burnt Yates, Harrogate in the county of North Yorkshire. Mrs Kitzing is one of the trustees of the surrounding and neighbouring Winsley Hurst Estate and she is also the owner of the sporting rights over Winsley Hurst Hall which used to be within the ownership of the Estate.
The litigation started life on 29 th February 2016 as a Part 7 claim by Mrs Kitzing against Mr Fuller to restrain him from felling trees and cutting back ground cover on his land, allegedly to the detriment of Mrs Kitzing's sporting rights. There was an application for interim injunctive relief against Mr Fuller which was dismissed by me in an extemporary judgment delivered on 31 st March 2016 which bears the neutral citation number [2016] EWHC 804 (Ch). Essentially I held that there was just about an arguable case of interference with Mrs Kitzing's sporting rights but that there was no present threat of any activity against which the protection of interim injunctive relief was needed; that the injunctions sought were too broad and lacking in clarity; and that the grant of an interim injunction would have had a stifling effect upon the activities of Mr Fuller which was not justified on the evidence before the Court.
Although the focus of the previous hearing was on the clearance of ground cover, which is no longer an issue in this litigation, my earlier judgment contains much useful background material about the nature of the dispute between the parties which I do not propose to repeat in this judgment.
Following on from the hearing last March Mr Fuller brought a Part 20 counterclaim against Mrs Kitzing and her adult son, who effectively manages the shoot on her behalf. There was an unsuccessful attempt at alternative dispute resolution after which, on 29 th September 2016, Mrs Kitzing discontinued the whole of her claim against Mr Fuller, leaving only his Part 20 claim outstanding.
At a Costs and Case Management Hearing on 7 th October 2016 I ordered the trial of six preliminary issues and gave procedural directions in support thereof, including permission for each party to adduce evidence from experts in the field of sporting rights 'as to the effect and practice of shooting in the vicinity of residential properties.'
On 4 th January 2017 Mr Fuller conceded three of the original preliminary issues leaving three outstanding, one of which was slightly reformulated by agreement between the parties.
The trial of those preliminary issues took place over three Court days between Monday 20 th and Wednesday 23 rd March 2017. Mr Fuller was represented by Mr Thomas Grant QC leading Mr Christopher Newman, as he had been at the interim injunction hearing in March 2016, whilst Mrs Kitzing and her son were represented by Mr Charles Harpum of counsel, who had not appeared before me last March. Both sets of counsel had submitted detailed written Skeleton Arguments supported, in the case of Mr Grant and Mr Newman, by some 48 case law and textbook authorities, with some 10 additional authorities from Mr Harpum. In closing, some 12 further authorities were placed before me.
On the morning of Day 1 Mr Grant opened his case for a little under two hours and Mr Harpum responded for a little over 30 minutes. On the afternoon of Day 1 I heard oral evidence from the only two live witnesses: Mr Fuller for about 20 minutes in cross-examination and 10 minutes in re-examination, and from Mrs Kitzing for about an hour and 20 minutes in cross-examination.
On the morning and early afternoon of Day 2 I heard from the two shooting experts Mr Adrian Thornton-Berry, of Farmoor Services (Rural Advisers and Valuers) of North Yorkshire for Mr Fuller, and from Mr Charles Andrew Huntington-Whiteley of Strutt & Parker's Exeter office for Mrs Kitzing. Both joint experts had agreed a joint statement in early March 2017. Mr Thornton-Berry gave evidence before me for a little over an hour and a quarter and Mr Huntington-Whiteley for about one and a half hours.
Mr Harpum then addressed me for about one and a half hours on the afternoon of Day 2 and for a similar time on the morning of Day 3. After a short break Mr Grant addressed me, with the assistance of a written speaking note, for a total of a little under two and a half hours, concluding at about 3.50 on the afternoon of Day 3.
At the request of the parties I was asked to defer delivering an oral judgment until 10.30 on the morning of Monday 27 th March with consequential matters being deferred to a hearing, to be attended by counsel, which is presently scheduled for Friday 21 st April 2017 with the time for applying for permission to appeal being extended until then. In the event I had to defer delivering judgment until two o'clock today (Monday 27 th March) because, whilst in the course of preparing my judgment, on the afternoon of Thursday 23 rd March I received emails with attached further written submissions from both Mr Grant and Mr Newman for Mr Fuller and from Mr Harpum for Mrs Kitzing. As a result I had to interrupt the preparation of this judgment to deal with those further submissions and attend to the email traffic as a result of which, given other official commitments between last Thursday and today, I needed the morning of today to finish sketching out this judgment.
I am attended today by representatives from the parties' solicitors, Mr Blease and Mr Inglis.
At the outset of this judgment I should make it clear that I conceive my primary function as a judge of first instance to be to find the relevant facts and to set out my reasons for deciding the crucial legal points in a particular way, doing so in sufficient detail to show the parties – and if need be, the Court of Appeal – the principles on which I have acted and the reasons that have led me to my decision. Those reasons need not be elaborate and there is no duty upon me to deal with every argument advanced by counsel in support of his case provided I sufficiently set out my conclusions and give my supporting reasons. I should also remember — even though ground clearance no longer features in this case — that I should not lose sight of the wood for the trees.
Before dealing with the evidence and identifying the issues it is important, in order to place them in to focus, to deal with the historical and conveyancing background to this present unfortunate dispute. This began in 1916 when Mrs Kitzing's maternal grandfather, Mr Thomas Brewster, began acquiring the land which now forms the Winsley Hurst Estate. On his death in the 1950s he left the Estate with its shooting rights to his daughter, Mrs Katharine Dunbar, who was Mrs Kitzing's mother.
Having inherited the Estate from her father, on 21 st April 1989 Mrs Dunbar granted a lease to Mr and Mrs Brooks for a term of 999 years. That lease was registered with Title No NYK71206 which is now the registered leasehold title of a property adjoining that owned by Mr Fuller and known as Hartwith Hall. By clause 1 of the Lease the grant was subject to certain exceptions and reservations in favour of the lessor as set out in the Third Schedule. Two of these are relevant for present purposes. First, paragraph 1 of the Third Schedule, so far as relevant, was a right of way for the lessor, for the benefit of herself and her successors in title, in common with the lessees and all other persons authorised by them over the road coloured orange 12 feet wide shown on the plan for all purposes. The identifying plan is at bundle 2, divider 12, p. 225. The road coloured orange runs in part along the north-western boundary of Winsley Hurst Hall and forms part of the leasehold title to Hartwith Hall to the east of Winsley Hurst Hall. Secondly, paragraph 7 of the Third Schedule reads as follows:
'There are reserved to the Lessor, her successors in title and her or their servants, agents or invitees all sporting rights including fox hunting over the Estate to include without prejudice to the general reservation of such rights the following rights (a) the right to stand guns on the Estate; (b) the right to take game and game eggs; (c) the right to come on to the Estate for the purpose of exercising the sporting rights and their management but no game shall be reared on the Estate nor fed thereon except on the duck pond.'
The "Estate" was the land demised by the lease: see the recitals in the First Schedule.
On 30 th May 1990 Mr and Mrs Brooks transferred...
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