Nata Lee Ltd v Abid and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs,Lord Justice Underhill,Lord Justice Moore-Bick |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1652 |
| Docket Number | Case No: B2/2013/3525 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2014 |
[2014] EWCA Civ 1652
Lord Justice Moore-Bick,
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Underhill
and
Lord Justice Briggs
Case No: B2/2013/3525
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
District Judge Langley
2CL10269
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Weekes (instructed by DWFM BECKMAN) for the Appellant
Nicholas Isaac and Harriet Holmes (instructed by RONALD FLETCHER BAKER LLP) for the Respondent
Hearing dates: Thursday 4 th December 2014
Introduction
This is an appeal against the Order of District Judge Langley made in the Central London County Court on 5 th November 2013, in which she made detailed declarations after a liability-only trial of a claim by the respondents, Mr. and Mrs. Abid, against the defendant, Nata Lee Limited, for trespass and interference with a right of way. After a three-day trial the judge found for the claimants broadly on all the heads of their claim, and gave case management directions for the necessary further hearing as to remedies.
Nata Lee appeals against all the declarations made, seeking for the most part determinations in its favour, but in the alternative a re-trial.
As Mr. Tom Weekes, counsel for Nata Lee, very properly emphasised at the beginning of his submissions, this was a trial which presented the learned District Judge with very real difficulties. The case raised a confusing mass of issues. There was no proper trial bundle, but a mass of documents, presented non-chronologically. There was a stark inequality of arms between the parties. The claimants were represented by leading and junior counsel, whereas the defendant appeared via one of its directors, in an essentially chancery case in which legal complexity makes effective self-representation even harder than it usually is. As will appear, I have concluded that many of the appellant's criticisms of the fact-finding and legal analysis in the judge's promptly-delivered reserved judgment are well-founded. Nonetheless, my detailed conclusions about the shortcomings in the judgment do not diminish my appreciation of the difficulties which the judge had to surmount. It was a case which a County Court judge, and even a High Court judge, would have found challenging.
The dispute arose from the re-development, in 2007–08, of former warehouse premises in Clarence Road, London, E5, which Nata Lee acquired in late 2005. Those premises, now known as 99–103 Clarence Road (but previously 99–105), lie on the west side of Clarence Road. The claimants own the adjoining property to the north, known as 105–107 Clarence Road, having acquired it in April 1995. The claimants have, throughout their ownership of it, run a printing business from their property.
Nata Lee's redevelopment consisted of the demolition of the former warehouse and its replacement with a mixture of offices and apartments on, substantially, the same footprint as the warehouse. Between the warehouse (now the new development) and the printing works, a viewer from Clarence Road would see a gated yard giving access to both buildings, free of built structures save for a metal fire escape staircase on the right (serving the printing works) and some modest structures at the western end of the yard which may have been lavatories. I shall refer to the two properties, for brevity, as "No. 99" and "No. 105".
The boundary line between the two properties was originally created by a transfer of No. 105 out of common ownership dated 14 th June 1963, by reference to a plan ("the 1963 Plan"), which Mr. and Mrs. Abid's expert, Mr. Carl Calvert FRICS, described in his report as "one of the best I have seen in the last 10 years…". It provided a precise delineation of the newly-created boundary between the two properties in such a way that the front (eastern) part of the yard remained part of No. 99 and the rear (western) part of the yard was transferred as part of No. 105. Unsurprisingly, the 1963 Transfer granted a right of vehicular access to the owners of No. 105 across the front part of the yard. It was in the following terms:
"A right of way at all times for the purpose of ingress and egress only and for loading and unloading for the Purchaser and his successors in title, the owners or occupiers for the time being of the property hereby transferred (in common with the Vendor and all other persons having the like right) their tenants, servants and visitors with or without vehicles to and from the property hereby transferred over and along the roadway about 15 feet wide etched green on the plan attached hereto and to the use by the Purchaser and such other persons as aforesaid of the entrance gate subject to payment by the Purchaser of one-half of the expense of maintaining such roadway and gate in repair."
Similarly, there was reserved for the benefit of No. 99 a right of access for maintenance and repair of the (then new) warehouse over the rear part of the yard transferred as part of No. 105.
I have thus far described Mr and Mrs Abid's claim as one for trespass and interference with their right of way. At the heart of the issues between the parties however lies a boundary dispute. Mr. and Mrs. Abid claim (and the judge in due course held) that their predecessors in title to No. 105 had acquired a small but significant three metre slice of the yard, having the effect of varying the boundary across the yard shown on the 1963 Plan three metres to the east. In fact the original boundary had a dog-leg in it around the metal fire escape, whereas the alleged new boundary ran right across the yard just to the east of the fire escape structure. The claim was that this variation of the boundary had been accomplished by an informal agreement between unknown predecessors in title to both properties, at some time between 1963 and 1989. The significance of the variation was it increased the part of the yard falling within the title to No. 105 to a size which comfortably accommodated a parked car. I will refer to this three metre slice of the yard as "the disputed land".
The legal basis for Mr. and Mrs. Abid's claim to be the owners of the disputed land (which was part of the registered title to No. 99) was pleaded as based upon an oral agreement supported by part performance, upon estoppel and upon adverse possession. It is not clear whether the estoppel claim was pursued at trial. The judge found in Mr. and Mrs. Abid's favour upon the basis of the oral agreement supported by part performance, and adverse possession. She said nothing about estoppel, and it was not pursued on appeal.
The boundary dispute was central to the issues between the parties because the access door to the residential part of Nata Lee's new development opened onto the disputed land. Thus, whereas Nata Lee claimed that the door opened onto the far end of its part of the yard, Mr. and Mrs. Abid claimed that it could not be reached without trespass upon the front section of their part of the yard. Further, Mr. and Mrs. Abid claimed that the threshold to the doorway was itself built on the disputed land, and that the whole of the new development encroached into the yard, so as to trespass upon their part of it and to constitute an actionable interference with their right of way over Nata Lee's part of it.
In addition, Mr. and Mrs. Abid claimed that the foundations of the new development trespassed even further into their part of the yard, that Nata Lee had trespassed by re-routing drains under their part of the yard, and had obstructed their right of way both by narrowing the gap between the gates at the junction between the yard and Clarence Road, and by numerous specific acts of temporary obstruction, by vehicles, scaffolding and other materials, during the carrying out of the redevelopment works.
The judge found, and so declared in her Order, that all of these claims by Mr. and Mrs. Abid were well-founded. I have explained the basis of her findings in relation to the boundary dispute. The trespass by the erection and use of the doorway to the residential part of the development followed as a matter of course. Her conclusion that the new development encroached into the yard, both at the Abids' end and Nata Lee's end was based upon her preference for the evidence of the Abids' expert over the expert called by Nata Lee. I shall have to describe the basis of her conclusions that the drainage trespass and the interference with the Abids' right of way were made out in due course.
The question whether the infringements of Mr. and Mrs. Abid's rights found by the judge to have occurred should be remedied by damages or injunction remains at large, save that I note that Mr. Nicholas Isaac for Mr. and Mrs. Abid (who did not appear at the trial) told us that the relief sought in respect of the encroachment by the new development and its foundations would be monetary only, rather than an injunction to require its partial demolition.
The boundary dispute
I need say little about the case advanced and accepted by the judge, based upon an oral agreement supported by part performance. Upon reading Mr. Weekes' skeleton argument for this appeal, Mr. Isaac very sensibly did not seek to uphold the judge's analysis of that point. It was manifestly wrong because, although prior to its abolition by the Law of Property (Miscellaneous Provisions) Act 1989 part performance did operate as a way round the formalities required by Section 40(1) of the Law of Property Act 1925 for a contract for...
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