Lovering and another v Atkinson and Others
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge,Lord Kitchin,Lord Sales,Lord Briggs,Lady Arden |
| Judgment Date | 18 May 2020 |
| Neutral Citation | [2020] UKPC 14 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0100 of 2018 |
| Date | 18 May 2020 |
[2020] UKPC 14
Privy Council
Easter Term
From the Court of Appeal of Guernsey (Civil Division)
Lord Hodge
Lord Briggs
Lady Arden
Lord Kitchin
Lord Sales
Privy Council Appeal No 0100 of 2018
Appellants
Mark Ferbrache
(Instructed by Mishcon de Reya LLP as agents for AFR Advocates)
Respondents
N J Barnes
(Instructed by ABT Advocates)
Heard on 31 March 2020
( with whom Lord Kitchin and Lord Sales agree)
This appeal concerns a conveyancing dispute. It is a dispute between the partners of a firm of advocates and notaries public, Atkinson Ferbrache Richardson (“AFR”), and their clients, Richard and Christine Lovering (“Mr and Mrs Lovering”) as to whether AFR were negligent in allowing their clients to purchase a residential property with a defective title. At the heart of the dispute is the question whether the title was defective. It is unfortunate that the case has involved a five-day trial before the Royal Court, a hearing in the Court of Appeal of Guernsey and an appeal as of right to the Board.
In 2008 Mr and Mrs Lovering engaged AFR to act for them in the purchase of a house known as La Roche Douvre in Torteval, Guernsey. The house is located close to the public road, Rue de la Folie, which runs on the northern boundary of the property but the house is at a height above that road which makes impracticable to have vehicular access to and from it. As a result, access to the house is by a driveway from the Rue de Rougeval which is located to the South-east of the house. By conveyance dated 13 January 2009 the owner of the house, Mrs Harrison, sold the property comprising the house and the driveway (“the Property”) to Mr and Mrs Lovering.
In 2012, Mr and Mrs Lovering encountered a difficulty when they attempted to sell the Property because the purchasers, Mr and Mrs Garrod, acting on legal advice, were not satisfied that they had a good title to the whole of the driveway from the public road to the house. This caused delay in the sale transaction while Mr and Mrs Lovering's lawyers negotiated the purchase of a small piece of land, which the Board describes below, to rectify what they believed to be a defect in the title to the driveway to the house. Having purchased this ground, arranged for earthworks to remove a bank of earth and level the surface of the ground, Mr and Mrs Lovering had tarmacadam placed on the purchased ground to create an access route which runs entirely on the land which they had been advised was what they owned. Having done so and having thus satisfied Mr and Mrs Garrod as to the title, Mr and Mrs Lovering conveyed the Property to them on 31 January 2013.
Mr and Mrs Lovering commenced legal proceedings for damages for professional negligence against AFR in the Royal Court in 2015. In their claim against AFR Mr and Mrs Lovering claimed substantial consequential losses which the Royal Court, if it had found in their favour, would have disallowed as being too remote. Mr and Mrs Lovering did not appeal that part of the Royal Court's judgment with the result that their claim is estimated at about £36,000 and interest. The question which arises in this appeal is whether there was a defect in title to the Property which gives the Mr and Mrs Lovering the legal basis to claim those damages.
In order to understand the dispute over title it is necessary to describe the access route as constructed and to set out the parts of the conveyances which are relevant to the question in dispute.
The driveway as originally constructed comes off the Rue de Rougeval in a North-westerly direction and runs in what is almost a straight line with only a very gentle curve to the North-west until it joins the plot of ground on which La Roche Douvre sits. On the North-eastern side of the driveway for about 40% of its length is the South-western boundary of the property known as “Le Sommet”, which used to be owned by Mr and Mrs Brookfield and is now owned by Mrs Clavadetscher. Continuing up the driveway as it was originally constructed one passes the junction of the South-western and the North-western boundaries of the “Le Sommet” land and the latter boundary curves away from the driveway for an unspecified distance in the range of 20 to 30 feet until it joins the South-western boundary of a small field (which has been called “the Brehaut field” in these proceedings) which runs in a straight line to a point beside which the driveway joins the plot of ground on which La Roche Douvre is built. As one progresses in a North-westerly direction up the driveway as originally constructed that driveway is separated from the South-western boundary of the Brehaut field by a small plot of ground of roughly triangular shape but, about half way up that boundary of the Brehaut field, the Eastern edge of the access track joins and runs along that boundary until the access track reaches the plot on which La Roche Douvre is built. There is attached to this advice a plan, numbered 2842, on which one sees among others the Le Sommet land and the Brehaut field.
Mr and Mrs Lovering, acting on legal advice, claim that the driveway as originally constructed did not run along the course which was stated in their title to the property and shown on the attached plan 2842 and that in part it ran over ground belonging to a third party. Further, because of the conveyance in 1984 by Mrs Harrison, their predecessor in title, of ground which was shown in their title plan to be part of the intended driveway to their house, lying between the driveway as constructed and the South-western boundary of the Brehaut field, they claim that, when they purchased the Property in 2009, it was no longer possible for the driveway in its entirety to run wholly within the land conveyed to them. As a result, their legal means of access to their property had been materially restricted.
The house now known as “La Roche Douvre” was originally called “La Folie”. A separate property (comprising that house and the driveway) was created out of land owned by Mr and Mrs Le Lacheur and was located on the North-east of the larger area of land which they owned which extended South to border the Rue de Rougeval.
Mr and Mrs Le Lacheur by a conveyance dated 15 November 1960 (“the 1960 Conveyance”) conveyed that separate property to Mr and Mrs John de la Mare. The property was described as consisting of two parts both of which were shown on the plan 2842 annexed to the conveyance, the first part being the substantial piece of ground within which the house is located and the second part being the driveway. As the Board discusses in more detail below, the driveway was described as “a strip of ground coloured in blue with measurements on the said plan” and its Western boundary was described as land retained by the sellers, Mr and Mrs Le Lacheur, with markers between them (“des bornes entre deux”). In the verbal description the Eastern boundary of the driveway was described in substance as the Brehaut field and the Le Sommet land with hedges between. The plan 2842 is at a scale at 52 feet to the inch and shows the first part in red and the driveway in blue with three measurements of the width of the driveway of precisely ten feet (10′0″).
Mr and Mrs de la Mare sold that property in 1967 to Mr and Mrs Humphrey-Lewis. Nothing turns on the terms of that conveyance. In 1968, when Mr and Mrs Humphrey-Lewis sold the house and driveway, they retained from the property initially created by the break-away conveyance of 1960 a substantial plot of land on the Western side of the first part on which the house was located (the first part being shown in red on plan 2842). This reduction in the size of the grounds of the house is not relevant to the dispute which has arisen. The conveyance dated 17 September 1968 (“the 1968 Conveyance”) transferred the property, thus reduced in size, to Miss Una Kaines, who on marriage became Mrs Harrison. The 1968 conveyance described the driveway as a strip of ground about ten feet in width indicated in blue on the annexed plan (plan 4782). The plan showed the driveway coloured in blue on the same location and with the same measurements as those in plan 2842 annexed to the 1960 Conveyance. The 1968 Conveyance described the boundaries of the driveway in similar terms to those in the 1960 Conveyance. In particular, the conveyance described the Western boundary of the driveway as land belonging to the widow of Mr Le Lacheur “des bornes entre deux”.
By a conveyance dated 17 May 1984 (“the 1984 Conveyance”) Mrs Harrison conveyed to Mr and Mrs Brookfield a triangular area of land “forming part of the driveway shown coloured blue on Plans Nos 2842 and 4782”. This was ground lying between the driveway as constructed and the junction of the North-western boundary of the Le Sommet land and the South-western boundary of the Brehaut field respectively. Mr and Mrs Lovering claim that the selling off of this plot of land materially restricted their right of access to their house.
In 2009 Mrs Harrison sold the Property (ie the property conveyed by the 1968 conveyance minus the plot of ground sold in the 1984 Conveyance) to Mr and Mrs Lovering by a conveyance dated 13 January 2009 (“the 2009 Conveyance”). In this conveyance it was stated that unless the context otherwise requires:
“1.1 ‘the Driveway’ means the driveway measuring ten feet or thereabouts in width, shown coloured blue on plan 4782, and is the driveway referred to in item 1.6.2 below;”
Item 1.6 described the property as (1) the dwelling house and garden and (2) the driveway. Clause 5 of the conveyance provides:
“That part of the Property described in Item 1.6.2 hereof is bounded on or towards the:
5.1 North-east by the field belonging to the Brehaut Heirs, an...
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