Price and Another v Nunn
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,Lord Justice Kitchin,Lord Justice Underhill |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1002 |
| Docket Number | Case No: A3/2012/1882 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2013 |
[2013] EWCA Civ 1002
THE CHANCELLOR OF THE HIGH COURT
Lord Justice Kitchin
and
Lord Justice Underhill
Case No: A3/2012/1882
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE MORGAN
2BS30135
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Guy Adams (instructed by Phoenix Legal Group) for the Appellant
Mr John Stenhouse (instructed by Direct Public Access) for the Respondent
The Chancellor ( Sir Terence Etherton):
Introduction
This is an appeal and a cross-appeal from an order of Morgan J dated 15 June 2012 on an application to strike out parts of the Defence and Counterclaim on the grounds of cause of action estoppel or issue estoppel or abuse of the process of the court. The Judge ordered that part of the Defence and Counterclaim be struck out on the ground of issue estoppel but he refused to strike out other parts of the Defence and Counterclaim. There is also an appeal and a cross-appeal from his order for costs.
The litigation concerns three different paths or tracks, over a relatively short stretch of private land at Slad, Gloucestershire. In parts they are very narrow and not made up. They are called "the Lower Track", "the Pitch" and "the Upper Track", all of which converge at one point. The dispute is as to whether there is appurtenant to the property known as Woodside Bungalow, owned by the Defendant, Jonathan James Nunn, a right of way by foot and vehicle over the Lower Track and the Upper Track or there is, alternatively, a public right of way by foot and vehicle over the Lower Track and a public right of way by vehicle over the Upper Track. It is not in dispute that there is a public footway over the Upper Track.
The Lower Track is on land forming part of Painswick Slad Farm. That farm was owned by the Claimants, Charles Price and Christopher Price ("the Prices"), at the commencement of these proceedings, and they also claim to be the owners of the Upper Track or one half of it. Charles Price has since died, but permission has been granted for the proceedings to be continued by Christopher Price alone.
Whether or not Woodside Bungalow has the benefit of a pedestrian and vehicular right of way over the Lower Track was the subject of two sets of proceedings between 1976 and 1983 between the Prices and Mr Nunn's predecessor in title, Donald Arthur Close. The first set of proceedings ("the 1976 Proceedings") was commenced by Mr Close and his wife against the Prices in 1976 in the Stroud County Court. Following a seven day trial Mr F.J. Cridlan, sitting as a deputy County Court judge, dismissed the proceedings in so far as they claimed a right of way for the benefit of Mr and Mrs Close other than one for the benefit of a parcel of land called the Paddock, which was and is separate and distinct from Woodside Bungalow. The Deputy Judge's judgment ran to 50 closely printed pages. Mr and Mrs Close appealed. The appeal was heard over four days in October 1979 by the Court of Appeal, which, in effect, dismissed the appeal on the point of substance. The judgments ran to 25 closely printed pages.
Further proceedings were commenced in the Stroud County Court in 1980 by Mr Close against Charles Price and his wife claiming a right of way with or without vehicles over the Lower Track for the benefit of Woodside Bungalow by virtue of lost modern grant or prescription under the Prescription Act 1832 or section 62 of the Law of Property Act 1925 or by implication ("the 1980 Proceedings"). In March 1983, following a two day hearing, the proceedings were struck out by Registrar J.S. Laurie on the ground of abuse of process in the light of the 1976 Proceedings. Mr Close appealed. The appeal was dismissed by HH Judge Braithwaite in May 1983.
In 1991 Mr Close transferred Woodside Bungalow to Mr Nunn.
The present proceedings were commenced by the Prices in April 2011 for, among other things, a declaration that Mr Nunn does not have a vehicular right of way over the Upper Track and for an injunction. Mr Nunn has defended the claim and has counterclaimed for, among other things, (1) a declaration that there is attached to Woodside Bungalow a right of way with or without vehicles over the Lower Track, the Upper Track and the Pitch, (2) a declaration that he has, as a member of the public, a right of way without or without vehicles over the Lower Track, the Upper Track and the Pitch, and (3) injunctions restraining interference with those rights of way. The Defence and Counterclaim run to 34 pages.
In October 2011 the Claimants issued an application to strike out the allegations in the Defence and Counterclaim relating to the Lower Track on the grounds of estoppel and abuse of process of the court.
The hearing of the application took place over three days before Morgan J. His judgment runs to 32 pages and 107 paragraphs. He held that Mr Nunn is bound by an issue estoppel which prevents him from asserting that Woodside Bungalow has the benefit of a private right of way over the Lower Track, and he struck out Mr Nunn's pleaded claim making that assertion. He refused the application to strike out other parts of Mr Nunn's Defence and Counterclaim, including, in particular, those parts asserting and relying on a public right of way.
The appeal and cross-appeal to the Court of Appeal lasted over a day and a half. There were four lever arch files containing 94 authorities and extracts from statutes and legal books.
CPR Part 1 .1, which states that the civil procedural rules have the overriding objective of enabling the court to deal with cases justly, provides that dealing with a case justly includes, so far as practicable, allotting to the case an appropriate share of the court's resources while taking into account the need to allot resources to other cases. The above introductory account of the litigation history of the rights of the owners of Woodside Bungalow over the Lower Track gives cause to wonder and concern at the appropriateness of the amount of the court's resources which have been deployed on that issue.
The background
I gratefully acknowledge that much of the following account of the background is taken from the Judge's judgment. It is restricted to what is strictly necessary in order to understand and to decide the appeal and the cross-appeal.
The properties
As I have said, until the death of Charles Price after the commencement of these proceedings, the Prices owned the land over which the Lower Track runs. The northern end of the Lower Track starts at the public highway, the B4070 which leads from Slad to Birdlip. The Lower Track then proceeds in a roughly southwards direction. On the east side of the Lower Track there is the Paddock, now owned by Mr Nunn. He has the benefit of an express grant of a right of way (granted to one of Mr Nunn's predecessors in title) over the Lower Track for the benefit of the Paddock as the dominant tenement. The southern end of the Lower Track is at the point where it meets both the Upper Track and the Pitch.
The Pitch is a steep path or track which leaves the west side of the B4070 and proceeds in a roughly westwards direction to where it meets the southern end of the Lower Track and the beginning of the Upper Track. Neither the Prices nor Mr Nunn claim to have title to the Pitch. The Definitive Map maintained under the Wildlife and Countryside Act 1981 shows a footpath along the Pitch.
The Upper Track begins at the point where the Lower Track meets the Pitch. In the present proceedings, the Prices claim that they own the Upper Track. That claim is disputed by Mr Nunn. In the 1976 Proceedings the Prices did not claim that they owned the Upper Track. The Upper Track runs in a roughly westwards or north-westwards direction until it enters a field known as the 16 acre field. The Definitive Map shows a footpath along the Upper Track. That footpath continues across the 16 acre field.
The Prices are the registered proprietors of Painswick Slad Farm under Title Number GR281942. That land was conveyed to Charles Price by a conveyance dated 26 July 1967 and he transferred the land to himself and his wife in 1970. Later, on 13 May 2005, that land was transferred to the Prices (viz. the claimants Charles Price and his son, Christopher Price). It is not in dispute that the Prices' title includes the Lower Track but, as indicated above, their claim to own the Upper Track is disputed by Mr Nunn.
Mr Nunn is the registered proprietor of Woodside Bungalow under Title Number GR1026. Woodside Bungalow adjoins the Upper Track and has a frontage of about 60 feet running along the Upper Track. Originally there was a continuous wall along this frontage so that access to Woodside Bungalow was not available from the Upper Track. Woodside Bungalow was occupied by Mr Close and his family from around 1960. Around that time, Mr Close made an opening or openings in the wall fronting onto the Upper Track to enable him to access Woodside Bungalow from the Upper Track. Although, as I have said, Mr Close and his family occupied Woodside Bungalow from around 1960, title to that property was not conveyed to Mr Close until 1967. Mr Close transferred that title to Mr Nunn in 1991.
Mr Nunn is also the registered proprietor of the Paddock referred to above, under Title Number GR142222. So far as material, the Paddock was conveyed to Mr Harry Teakle by a conveyance dated 3 October 1960. That conveyance was by a party who retained title to the Lower Track and the 1960 conveyance contained an express grant of a right of way...
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