Peter Michael Box and Another (Plaintiffs) v Urban Wesson Graham Edmund Beddows and Another (Third Parties/Respondents)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,Order |
| Judgment Date | 10 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1010-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 October 1994 |
| Docket Number | CCRTI 94/0221/F |
[1994] EWCA Civ J1010-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WALSALL COUNTY COURT
(Mr Recorder Mitchell)
Before: Lord Justice Neill Mr Justice Wilson
CCRTI 94/0221/F
The Defendant/Appellant appeared in person
MR E PEPPERALL (Instructed by Messrs Haden Stretton Miller, Walsall, WS1 1EL) appeared on behalf of the Third Parties/Respondents
( )
Monday, 10 October 1994
LORD JUSTICE NEILLThis matter comes before the Court of Appeal this morning in circumstances where the only live issue is the question of costs. It is necessary to say something about the background of the case to understand the decision which we have reached.
The action was very sensibly described by the Recorder who heard some earlier proceedings as a "very unfortunate dispute". I would respectfully agree. The dispute relates to a right of way which runs at right angles to Stafford Road in Walsall between two properties, 145 and 147 Stafford Road. It is a right of way which is intended to be wide enough to allow cars and lorries to pass along it and to provide access, not only to the back of 145 and 143, but also to a number of properties stretching up to 135 Stafford Road.
In 1990 Mr. and Mrs. Box, who live at 143, brought proceedings against the Defendant, Mr. Wesson, saying that he had obstructed the right of way by putting up a barrier so that the right of way could not be used by vehicular traffic. It was still possible for pedestrians to use it but not for any kind of vehicle. Mr. Wesson's case has always been that he was not obstructing the right of way because the barrier he had erected had in fact been constructed on his own land. The Boxes were saying that he had moved his boundary of the right of way so as to narrow it. Mr. Wesson was saying that any narrowing of the right of way was not due to any action by him but was because of what had been done by the people who lived at 145, that is on the other side of the right of way. It had become constricted because they had moved their boundary into the right of way. That, in broad outline, was the nature of the dispute.
In the pleadings Mr. and Mrs. Box said the right of way had been wrongly obstructed and Mr. Wesson said it had not. But of course Mr. and Mrs Box at 143 were not immediately adjoining owners to 147; in the middle was 145. Mr. Wesson decided he wanted to bring third party proceedings so as to determine where the right of way ran, not only as between 143 and 147, but also between 145 and 147. All the parties would then be bound by any decision that was made. Accordingly, on 19 June 1990, Mr. Wesson issued a Third Party Notice. In the relevant part of the Third Party Notice he said this (part of it being in printed form):
"TAKE NOTICE that this action has been brought by the plaintiff against the defendant and that the defendant claims against you
…
(d)that the following question or issue relating to or connected with the subject matter of the action should properly be determined as between the plaintiff and the defendant and the third party, namely Site of Right of Way purchased by a conveyance …"
On the following page of that Third Party Notice were set out a number of particulars:
"1.The third party are the Freeholders of the land purchased from Hilton estate …
2.The extent of the site of the Right of Way is given by the frontage and depth measurement of the aforesaid conveyance dated 16th June, 1937, and its position given by frontage measurements of the conveyance dated 31st January, 1935 …
3.The site of the Right of Way is obstructed by a strip of the garden at the side of number 145 and the site extension built by the third party in 1977 to replace and extend the extension built by their predecessors in title the parent or parents of Diana Beddows.
4.The resultant encroachment of the Right of Way upon our site was only made possible by the concealment of documents …"
Mr. and Mrs Beddows received the Third Party Notice and, some time later, decided to apply to strike it out. The matter came before Mr. Nicholas Mitchell sitting as a Recorder in the County Court at Walsall on 4 November 1993. In a detailed and careful judgment, the learned Recorder decided that the Third Party Notice was indeed defective and that it should be struck out. He referred to the particulars and went on:
"The essential dispute in this litigation is between the plaintiff and the defendant. The plaintiffs allege that the defendant has obstructed their legal easement. The defendant says that he has not obstructed the legal easement and the only land that he has obstructed is land which properly belongs to him."
The learned Recorder then criticised the way in which the matter had been pleaded by Mr. Wesson. He referred to the steps which might have been open to Mr. Wesson under the Land Registration Act 1925. He went on (page 85 in our bundle):
"I find [that the third party notice] does not disclose any sustainable cause of action … against the third parties —any arguable cause of action, on the...
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