Nicholas Kossodo Weaver v Deborah Smith
| Jurisdiction | England & Wales |
| Judge | Jarman |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWHC 1200 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2022-CDF-000028 |
[2023] EWHC 1200 (Ch)
HIS HONOUR JUDGE Jarman KC
Sitting as a judge of the High Court
Case No: PT-2022-CDF-000028
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT IN WALES
PROPERTY TRUST AND PROBATE LIST (ChD)
Cardiff Civil and Family Justice Centre
2 Park Street, Cardiff CF10 1ET
Mr Owen Curry (instructed by Guy Clapham & Co) for the claimant
Mr Alex Troup KC (instructed by Welch & Co Cyfreithwyr Solicitors) for the defendant
Hearing dates: 2–4 May 2023
Approved Judgment
This judgment was handed down remotely at 2pm on 19 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HIS HONOUR JUDGE Jarman KC
HHJ Jarman KC:
Introduction
The parties own neighbouring dwellings and land respectively known as Cwmclydach and Blaenclydach, Llywel, Brecon, Powys. They are in dispute as to whether on the true construction of a deed of easement dated 8 October 2015 (the deed), made between the claimant Mr Weaver, and the predecessors in title of the defendant Ms Smith, a right of way leading from the former to the latter continues to an unclassified highway to the west, as Mr Weaver claims, or it stops several meters short of the highway, as Ms Smith claims. If the latter is the correct construction, then in the alternative Mr Weaver claims that the deed should be rectified to make that connection.
Ms Smith's predecessors in title are cousins Cynthia Williams and Islwyn Williams who entered into the deed as the executors of their late uncle Islwyn Thomas, who had farmed at Blaenclydach for many years prior to his death. Mr Weaver bought the old farmhouse at Cwmclydach in 1975. When Blaenclydach was being sold after Mr Thomas's death, Mr Weaver spoke to the solicitor acting in the sale, James Anderson of Jeffreys and Powell, Brecon, about a right of way that he claimed over Blaenclydach land. Mr Anderson thought that a deed would be sensible and sent letters to his client about this, but received no reply. In that event he suggested to Mr Weaver that he should consult his own solicitor, which he did, and instructed James Thomson.
There are some factual issues surrounding the execution of the deed by the executors, to which I may have to return later in this judgment when considering the issue of rectification. For the purposes of construing the deed, however, all that needs to be said about that is that each of them accept that they did sign the deed.
The deed
The deed is professionally drawn by Mr Anderson, and Mr Weaver's signature is witnessed by Mr Thomson. The parties are referred to as the grantee and the grantor respectively and their respective properties as such. In the recitals, it is said that the executors have agreed to confirm the rights as defined in the deed to Mr Weaver for the benefit of Cwmclydach on the terms contained in the deed.
The rights granted in clause 3.1 are set out in schedule 1 as follows:
“1. The right for the Grantee and its successors in title and those authorised by it all them to pass with or without private vehicles over and along the Accessway at all times to gain access to and egress from the Grantee's Property for all purposes connected with the use of the Grantee's Property as a private residential dwelling but not for any other purpose.
2. The right to enter onto the accessway with vehicles and machinery for the purpose of making good the surface of the Accessway so as to accommodate the rights granted in the preceding paragraph.”
The accessway is defined in the interpretation clause of the deed at 1.1 in this way:
“Accessway: the access way forming part of the Grantor's Property which passes between the points marked A and C on the Plan and that is no more than 12 feet wide (it being acknowledged by the parties that the width of the existing gates at the points marked A B and C on the Plan where thy cross the Accessway determines the width of the Accessway at those points) the approximate route of which is shown coloured yellow on the Plan.”
The plan is defined as the plan annexed thereto. That is based on the Ordnance Survey map with a scale of 1:2500. It shows and names each of the properties referred to, and the boundary between them which follows the Nant Clydach, or Clydach Brook. Point C is marked at the boundary, where there is a gate and a bridge over the brook. Point B is close to a gate to the west into a small grassed enclosure forming part of Blaenclydach. Point A is marked adjacent to a gate leading from that enclosure to a hard surface yard in front of outbuildings at Blaenclydach. Point A is positioned on the yard, about half way between the adjacent gate and the highway.
To the south of the yard there is a concrete apron adjacent to the farmhouse at Blaenclydach. There is also shown a road with two dashed lines leading to the farmhouse and then to the north, which is the unclassified highway in question. This has been tarmacked since at least 1964, when the local highway authority sought a Ministry of Agriculture grant to do so. The yellow colouring follows a route shown edged with two continuous black lines and a dashed line in between from point C to point B, and then continuing over the grassed enclosure near to point A. The local highway authority in the 1960s or 1970s laid the yard with grey hardstone and built walls to retain the bank on which the highway runs, by way of accommodation works.
By clause 2, in consideration of the grant of the rights, Mr Weaver surrendered to the executors “all rights of access whatsoever and howsoever arising” in relation to Blaenclydach “with the intention that those rights of access shall cease and be extinguishes from the date hereof.” By paragraph 5 of schedule 2, Mr Weaver covenanted to “close the gates at the points marked A B and C on the Plan every time after [he] uses the gates.”
The deed was then registered on the registered title of the respective properties at HM Land Registry. In the charges register of Blaenclydach, it is noted that the land is subject to any rights that are reserved by the deed. In the property register for Cwmclydach it is noted that the property has the benefit of any easement under the deed.
Mr Curry for Mr Weaver submits that although the yellow colouring stops at the gate adjacent to point A, and although point A on the plan is shown on the yard and not at the highway, a reasonable reader of the deed would say that the clear intention was to give access to and egress from Cwmclydach over the yard at Blaenclydach to the adjacent highway. Mr Troup KC for Ms Smith submits that the rights granted are to the gate at point A and not over the yard to the highway.
The principles of construction
The principles of construction applicable to the deed were not in dispute before me and can be shortly stated. There have been helpfully summarised by Carr LJ in the recent case of ABC Electrification Limited v Network Rail Infrastructure Limited [2020] EWCA Civ 1645 at paragraph 18 as follows, after a review of Supreme Court and other authorities:
“i) When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions;
ii) The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision;”
iii) When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning;
iv) Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made;
v) While commercial common sense is a very important factor to take into account when interpreting a...
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