Sarah Gilpin and Others v Howard Legg

JurisdictionEngland & Wales
CourtChancery Division
JudgeHHJ Paul Matthews
Judgment Date13 December 2017
Neutral Citation[2017] EWHC 3220 (Ch)
Docket NumberCase No: B30BS616
Date13 December 2017

[2017] EWHC 3220 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BRISTOL DISTRICT REGISTRY

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Before:

HHJ Paul Matthews

(sitting as a Judge of the High Court)

Case No: B30BS616

Between:
(1) Sarah Gilpin
(2) Elizabeth Hort
(3) Paul Ratliff
(4) Valerie Ratliff
(5) Patrick Moverley
(6) Julie Moverley
Claimants
and
Howard Legg
Defendant

Aaron Walder (instructed by Portland Legal Services) for the Claimants

Michael Norman (instructed by Lee & Company) for the Defendant

Hearing dates: 25, 26, 27, and 28 July 2017

HHJ Paul Matthews

Introduction

1

This is my judgment on the trial of this claim, which was started by claim form dated 1 September 2015. It seeks a declaration regarding a notice dated 23 December 2014, expiring 31 March 2015, given by the defendant to the claimants intended to determine what are alleged to be licences to use five particular chalets or huts (sometimes called "beach huts") at Portland Bill in Dorset. It also seeks a prohibitory injunction to prevent the defendant landowner relying on the notice or interfering with the quiet enjoyment of the claimants' rights to use those huts. The particulars of claim assert that the claimants have tenancies of the huts and that the notice is invalid or amounts to a derogation from grant. The defence and counterclaim was served on 30 September 2015, after the defendant had served a second notice. This was intended to determine any tenancy from year to year that may have come into existence, and expired on 31 March 2016. So that second notice is also in issue. A reply and defence to counterclaim was served on 16 October 2015.

2

The claimants are the owners or joint owners of five huts out of some 71 sited on fields belonging to the defendant. Each one has a different history, having been constructed (and in some cases replaced) at different times, pursuant to rights granted by different people. It will therefore be necessary to deal with the facts of each case separately. The defendant is not the only landowner at Portland Bill with huts sited on his land. But each landowner deals differently with the huts which are on his or her land. There is not one model agreement or set of terms which applies to all huts at Portland Bill. Nor is there any special statutory regime relating to their occupation or their use. It is the ordinary law that I must apply.

3

I should say a few words about the statements of case. In summary form, the claimants claimed that they had 5 yearly, or alternatively annual, periodic tenancies of the plots of land on which their huts stood. An alternative claim was made that the first notice to quit was invalid, or, if it was valid, amounted to a derogation from grant. This allegation relied on, inter alia, alleged representations by the defendant or his parents, on which the claimants relied, that they would be able to sell what were called their "interests" at market value. But, in light of what happened at trial, it is to be noted that the particulars of claim advanced no claim in proprietary estoppel.

4

The defendant denied the claim to tenancies, and said that the claimants had licences for one year at a time to station their respective huts on his land. His defence made clear that in his view the huts continued to belong to the claimants. He also denied that there was any derogation from grant in serving the first notice. Having served a second notice to quit on 10 September 2015, to expire on 31 March 2016, he made a counterclaim for declarations as to the effect of the notices, alternatively for injunctions and damages for trespass.

5

The claimants' reply and defence to counterclaim joined issue on the question of tenancy or licence. It also asserted expressly that the huts formed part of the realty. In the claimants' response, dated 4 July 2016, to the defendant's request for further information, dated 28 January 2016, concerning (amongst other things) the allegation of representations made to the claimants in relation to the claim of derogation from grant, for the first time the claimants appeared to be advancing a claim which at least resembled one in proprietary estoppel. I will have something to say about the pleadings in this case at a later stage.

Witnesses

6

The following witnesses gave oral evidence in this order: John Hort (father of the second claimant), Dr Paul Ratliff (the third claimant), Sarah Gilpin (the first claimant), Patrick Moverley (the fifth claimant), Howard Legg (the defendant), Jeffrey Lee (the defendant's solicitor), Margaret Legg, and Graham Thorne (expert witness). I record here my impressions of them.

7

Mr Hort was a careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.

8

Dr Ratliff was a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.

9

Ms Gilpin was a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light. I accept what she says when it is corroborated by another source, but am more cautious when it is not.

10

Mr Moverley gave clear and straightforward evidence, and was obviously trying to assist the court. I accept what he says.

11

Mr Legg was an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful. On the whole I accept his evidence.

12

Jeffrey Lee is the defendant's litigation solicitor. He was a professional but slightly excitable, even enthusiastic witness. I accept what he says as truthful.

13

Mrs Legg is an elderly lady, whose late husband was the defendant's cousin, and hence they share the same surname. Her grandfather had a hut on Portland, and was a native Portlander. His hut passed to her father, and then to her. She did not have a great deal of relevant evidence to give, but I accept what she says as truthful.

14

Lastly, there was Graham Thorne, a surveyor who was instructed as a single joint expert. I found him to be a cautious and on the whole careful witness, who was doing his best to help the court. I accept his evidence as truthful. However, I did not find his evidence particularly helpful in relation to the questions arising in this case.

15

In addition, witness statements were filed from Mr Ross Gould (but who however was not tendered) and Margaret Leicester (who was proposed to give evidence but it being unchallenged she was not in fact called). Expert reports were filed from Barry Vincent and Dr Kenneth Falcon on the structure and removeability of the huts. In addition, they made a joint statement showing where they agreed and disagreed. They were not called to give live evidence.

Background

16

On the basis of the evidence given and the materials placed before me I find the following facts. The defendant was born in 1943, and owns several fields at Portland. The field and tithe numbers are as follows:

The defendant owns a 3/5 undivided share of field 737. The Bird Observatory apparently owns one fifth of that field, and the other one fifth is vested in another person. There are 71 huts in total on the defendant's land. There are other huts on the lands of adjacent landowners, including the Crown Estate.

No.

Tithe

761

2351

762

2362

765 (part)

2359

737 (part)

2350

739

2313

17

Vehicular access to the defendant's fields (737, 761 and 765) as well as to others, is by means of a track from the road to Portland Bill which meets field 737 at the north-western corner. The track is barred by a gate with steel posts a few yards from the road. In the past there may have been another gate, but there was also a period when there was no barrier at all.

18

In broad terms, the history of the fields now belonging to the defendant is this. On 16 July 1958 the defendant's parents Herbert and Dorothy Legg bought part of tithe 2359 (now Field 765) from Jonathan Lano and Rebecca Moore. One of the two huts belonging to the first claimant ( hut 6) and the hut belonging to the second claimant ( hut 1) were already on that land. The other hut belonging to the first claimant ( hut 5) and that belonging to the fifth and sixth claimants ( hut 18) were constructed later on this land. At the same time Mr and Mrs Legg senior also bought part of tithe 2351 (now Field 761, on which the hut of the third and fourth claimants ( hut 20) is now situated. They also bought a further third of tithe 2351 on 23 September 1958, from John Pearce. There were already some huts on those fields. All of this land was of low quality, not good enough for farming activity beyond grazing, and there were few other ways to exploit it. The defendant's parents allowed third parties to construct and occupy such huts in return for payments, but they ran other businesses as well. Between 1946 and 1952, for example, they owned and operated a café at Portland Bill, called The Lobster Pot. In about 1964 they moved to Weybridge, then in 1977 to Yateley.

19

All huts constructed...

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