Karen Shaw v Peter David Grouby and Another

JurisdictionEngland & Wales
JudgeLord Justice Patten,The Chancellor of the High Court
Judgment Date06 April 2017
Neutral Citation[2017] EWCA Civ 233
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B2/2015/2628
Date06 April 2017

[2017] EWCA Civ 233



HH Judge McCahill QC


Royal Courts of Justice

Strand, London, WC2A 2LL




Lord Justice Patten

Case No: B2/2015/2628

Karen Shaw
(1) Peter David Grouby
(2) Claude Anthony Francis Barkham

Charles Auld and Dr Kate Harrington (instructed by Morrison & Masters Ltd) for the Appellants

Raj Sahonte (instructed by Royds Withy King) for the Respondent

Hearing dates: 21 and 22 March 2017

Judgment Approved

Lord Justice Patten



This is an appeal by the defendants, Mr Grouby and Mr Barkham, from an order of Mr Recorder Jarvis QC made in the County Court at Bristol on 15 January 2016 in order to give effect to the judgment of HH Judge McCahill QC which was given on 21 July 2015. The Recorder made the order (by agreement with the parties) owing to the absence of the judge due to ill health.


The dispute between the parties concerns a private driveway which links the claimant's property at 76 Broome Manor Lane, Swindon ("No. 76") to the public highway and over which No. 76 enjoys a right of way under the terms of a transfer dated 3 September 1999. The freehold title to No. 76 is registered at HM Land Registry under title number WT185715. The driveway itself is owned by the defendants and is registered under title number WT168644.


The two main property issues on which the parties are divided are (1) whether the right of way grants access to every part of No. 76 which abuts the driveway or is limited to the point of access which existed at the date of the 1999 transfer; and (2) whether a brick wall which the claimant and her husband have now built around No. 76 involves an encroachment and therefore a trespass on the defendants' property. As part of this dispute the judge was required to resolve an issue as to whether the true boundary between No. 76 and the defendants' property lay along the line of a wooden fence and some stones which the defendants erected and put in place and which were replaced by the brick wall or whether the boundary was the edge of the metalled surface of the driveway. The significance of this dispute lies in the fact that there was a narrow grass verge between the line of the fence and stones and the surface of the driveway so that (assuming the right of way was co-extensive only with the width of the metalled road) it would have been impossible for the owners of No. 76 to open up and use an alternative point of access to that property without trespassing over at least part of the defendants' property. This would have rendered the dispute about the easement academic. But in the event the judge decided that the boundary followed the line of the edge of the road surface so that it remains a live issue.


Over and above these specific issues about title and the right of way, the defendants challenge the judge's conduct of the trial and the order for costs which he made. It is said that the judge's questions and interventions both during the factual and the expert evidence amounted to his entering the arena so as to throw into doubt his objectivity and impartiality and made a fair trial impossible. His order for costs is also said to have been disproportionate and wrong in principle in failing to recognise the amount of time and preparation expended in dealing with points which the claimant abandoned during the course of the trial.


I propose to turn first to the property issues which are ultimately questions of law. In order to put them in context and to explain how they arise I must begin by describing the history of the development as found by the judge. Although the defendants challenge the judge's conduct of the trial as a whole, there is no appeal against any particular findings based on lack of evidence or a misunderstanding by the judge of the material he had to consider. But if of course the judge's conduct of the trial was unfair for the reasons alleged then there will have to be a re-trial and I accept Mr Auld's submission that the question of whether there was a fair trial cannot be determined simply by the fact that the judge produced a coherent and reasoned judgment in which he resolved the factual issues in dispute between the parties. It requires one to consider the prior question of whether the judge's intervention prevented the witnesses from being able fairly to put their evidence before the Court and prevented the evidence which they did give from being fairly and properly adjudicated upon. Subject to that caveat I turn to the facts.


The defendants acquired the land at Broome Manor Lane in February 1998. The property included Broome Manor House, its garden, a lake and other land around it which originally formed part of the Broome Manor Estate. As mentioned earlier, Broome Manor House was connected to the public highway at Broome Manor Lane by a long drive. Broome Manor House together with part of its garden was sold to a Mr and Mrs Sutherland on 17 April 1998 but the defendants were able to obtain planning permission to develop the land adjoining Broome Manor House and the land between the lake and Broome Manor Lane into three plots on each of which they constructed a detached dwellinghouse. These became No. 72 Broome Manor Lane (Gloucester House); No. 74 (Salisbury House) and No. 76 (Hereford House) which were completed and sold to the first purchasers in September and October 1999. No. 76 was transferred to Mr and Mrs Leroy on 4 October 1999. It was acquired by Mr and Mrs Shaw in April 2005 and transferred into Mrs Shaw's sole name on 9 July 2010.


The defendants retained ownership of the driveway because it was thought that it might have some further development value. But this meant that access to the three newly constructed houses and to Broome Manor House itself was provided by the grant of rights of way along the drive to the public highway. The local planning authority was keen to preserve two large trees which stand in what is now part of the front garden of No. 76 and the defendants therefore adopted a layout for the development in which plots 2 and 3 (now Nos 74 and 76) were provided with an access point to the driveway via a spur from the main driveway constructed over what had been an old roadway leading to some farm buildings. This was upgraded and is shown on the transfer plan in the shape of what the judge described as a hammerhead.


The only original resident of the houses to give evidence at the trial was Mr Sutherland who still lives with his wife at Broome Manor House. He completed his purchase in April 1998 and told the judge that at the time of the development of the other plots the land was open grassland up to the edge of the asphalt driveway. Later the defendants erected a wooden post and rail fence around part of what is now No. 76 from its boundary with Broome Manor House. The fence stopped short of the entranceways to Nos. 74 and 76 leading from the hammerhead spur but the gap was filled by the line of large stones I referred to earlier.


The creation of the fence and the placing of the stones were part of a landscaping scheme submitted to the local planning authority in order to comply with one of the planning conditions attached to the planning permission for the development. Although very little documentation relating to the original development has survived (the solicitors' file, for example, no longer exists), the defendants were able to retrieve the planning documents which show that the landscaping scheme had to be approved prior to the commencement of the development and to be completed within 12 months of that date. Apart from the fence and stones, the scheme included the planting of a beech hedge along the length of the fence and the stones from the entrance to No 76 to the entrance to Broome Manor House. There is a letter on the file from the defendants to the local planning authority dated 3 December 1998 which states that the hedge was to be planted using a double row of beech whips at 600mm centres but the judge was told that the hedge (if so planted) had either died or ceased to exist by the time Mr and Mrs Shaw bought No. 76 in April 2005.


The other landscaping feature which needs to be mentioned is the grass verge between the fence and the edge of the roadway. The landscaping drawing (TD 9333/3) that was submitted to and approved by the planning authority indicates that the post and rail fence would be erected close to the edge of the driveway within an area of grass that extends along the whole of the boundary between No. 76 and the driveway and also across most of the frontage between the house and the fence except for the area taken up by the internal driveway and parking area in front of the house and its garages. The photographs show that the fence was erected along the grass area leaving a small strip of grass between the position of the fence and the edge of the asphalt of the driveway. This is the strip which was relied on by the defendants as belonging to them on the basis that the fence and stones marked the boundary between their and the claimant's property. The defendants' pleaded case was that the claimant had no rights of way over the grass verge and was not therefore entitled to open up any alternative point of access which would involve passing and re-passing over the verge. Mr Paul Haydon was instructed to provide an expert's report as to whether the new wall constructed by the Shaws to replace the fence and stones constituted a trespass on the basis that the fence and stones marked the true boundary between the two properties. He identified a small triangular shaped piece of land in the vicinity of the original access point to No. 76 which he said formed part of the defendants' land but...

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3 cases
  • Murtagh v Minister for Defence
    • Ireland
    • Supreme Court
    • 30 July 2018
    ...long trial was achieved. 40 My overall conclusion has much in common with the conclusions expressed by Patton L.J. in Shaw v. Grouby [2017] EWCA Civ. 233. That was a case where, somewhat similarly to the present case, the interventions by the trial judge, particularly during cross-examinat......
  • Gary James Keane v David Sargen
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 February 2023
    ... ... Thus, in Shaw v Grouby [2017] 1 WLR 2455 , Patten LJ, with whom Vos C ... ...
  • Bissessur and Another v McMillen
    • Ireland
    • High Court
    • 24 April 2024
    ...the trial judge's conduct. A fair though needlessly long trial was achieved.” 55 Peart J. held in Murtagh that, as in Shaw v. Grouby [2017] EWCA Civ 233, the interventions by the judge were such that he had effectively taken over the cross-examination of the defendant's witnesses. Peart J.......
2 firm's commentaries
  • How much can a judge intervene in cross-examination before a trial becomes unfair?
    • United Kingdom
    • JD Supra United Kingdom
    • 24 May 2017
    ...without risking actual or perceived unfairness. Court of Appeal decision on judicial intervention In Shaw v. Grouby and another [2017] EWCA Civ 233 (6 April 2017) (Bailii), the defendants appealed a County Court decision on property law and rights of way issues, alleging that the judge's in......
  • How much can a judge intervene in cross-examination before a trial becomes unfair?
    • United Kingdom
    • JD Supra United Kingdom
    • 9 October 2017
    ...without risking actual or perceived unfairness. Court of Appeal decision on judicial intervention In Shaw v. Grouby and another [2017] EWCA Civ 233 (6 April 2017) (Bailii), the defendants appealed a County Court decision on property law and rights of way issues, alleging that the judge's in......

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