Saxon v Warnesmoore
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 2005 |
| Neutral Citation | [2005] EWHC 27 (Ch) |
| Docket Number | CASE NO: NE 380045 |
| Court | Chancery Division |
| Date | 13 January 2005 |
[2005] EWHC 27 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
His Honour Judge Behrens
CASE NO: NE 380045
On 4th December 1980 Cumming-Bruce L-J delivered a judgment in the Court of Appeal in Scarfe v Adams1. It starts as follows:
The judgment that I am about to deliver should be regarded as a cautionary tale to be marked and digested by every conveyancing solicitor and legal executive. It is very seldom these days that it is practicable for people to reside in large houses that they have inherited from their ancestors. So now big houses are often divided into a number of separate houses or flats, and sold off by a common vendor to a number of separate purchasers. Each of the purchasers probably buys part of the original house, and part of the land around it, as freehold, with rights over and obligations to purchasers of some or all of the other parts of the original house and land. Such transactions call for special attention to detail on the part of conveyancing solicitors. Though a general description of the property, and reliance on a small scale Ordnance map, may once have been sufficient for the purpose of conveying to a single purchaser a whole great property, together with its surrounding land, such a description and such a plan is likely to be wholly inappropriate to achieve, without uncertainty and resulting confusion, the conveyance of the small divided parts of big buildings or to define the boundaries between the small gardens and courtyards of the adjoining plots into which the vendor has divided the land round the house.
At the end of his judgment in the same case Griffiths LJ expressed the hope that the above remarks would be brought speedily to the attention of the profession. Regrettably they had not reached the conveyancing solicitors practising in Whitehaven, Cumbria by 1987 or even 1990. In the result I am faced with what is no doubt a hugely expensive dispute over what would appear to be 2 relatively small and unimportant pieces of land when parts of Moresby Hall were sold off in the late 1980's.
It is primarily a dispute over ownership of a small triangle of land coloured blue on the plan attached to the Particulars of Claim ("the Blue Triangle") at Moresby Hall, Moresby, Whitehaven, Cumbria.
As can be seen from the photograph produced, the Blue Triangle is a small and relatively unusable piece of scrub land whose only value is for the connection of services and installations, or possibly the widening of access to Lowca Road, should it be required. I was told that the total area of the Blue Triangle is of the order of 55 sq m.
The Defendants are the registered proprietors of the Blue Triangle in Title No. CU109063. The Claimants are seeking rectification of the Register based on (a) what they allege is the correct construction of the Conveyance dated 5 th October 1990, or (b) adverse possession. The Defendants dispute both claims but in the alternative make a Part 20 Claim seeking rectification of the Conveyance so that it reflects the underlying agreement being an Option Agreement dated 29 th May 1987. In addition they contend that the register should not be rectified against them as registered proprietors in possession of the Blue Triangle.
The Part 20 Defendants contend that they have been joined into this litigation unnecessarily. They contend that the rectification claim should have been brought against the Claimants. In all other respects they adopt the arguments of the Claimants
. There is also a claim in respect of the land coloured pink on the plan. It is common ground between the parties that a track forming the majority of the land coloured pink should be owned by the Claimants and the register should be rectified to reflect that. However—as can be seen from the plan there appears to be a small strip of land ("the Pink Strip") to the north- east of the track and to the south west of land shown on the plan as OS 3606. The Pink Strip is of even less value than the Blue Triangle. I was not told its dimensions. The aerial photograph indicates that it is little more than a grass verge. It can also be seen in the helpful survey 2 produced by Mr Saxon during the course of the hearing.
Both the Claimants and the Defendants claim ownership of the Pink Strip, though it is fair to state that very little of the evidence was addressed to this issue.
Representation
Mr and Mrs Saxon were represented by Mr Dov Ohrenstein; Mr and Mrs Moore were represented by Mr Nigel Clayton; Mr and Mrs Messenger were represented by Mr Christopher Vane. All Counsel produced skeleton arguments for which I am grateful. There was clearly some doubt in Counsel's mind as to whether the case was subject to the Land Registration Act 1925 or 2002. The skeleton arguments were prepared on the basis that the 2002 Act applied. During the course of the first day it became clear that there was a real possibility that the 1925 Act was the relevant Act. In those circumstances Counsel were required overnight to carry out significant research into the relevant Transitional Provisions and to prepare alternative submissions based on the provisions of the 1925 Act. I am most grateful to them for their industry.
Witnesses
The principal witnesses to be called were Mr Saxon, Mr Moore and Mr Messenger. Corroborative witness statements were prepared for their respective wives but in the end none of the wives were called to give evidence.
Two other witnesses were called; Mrs Murray McLeod for Mr and Mrs Saxon and the Reverend Edwards for Mr and Mrs Messenger. Neither of these witnesses was able to add any significant evidence on any of the matters in dispute between the parties.
The trial
The trial was listed for 2 days. The listing was based on the estimates of the parties. The land in dispute was small and of limited value. There was a heavily contested 3 day trial to follow. In those circumstances it seemed to me to be appropriate and proportionate to endeavour to ensure that the case did indeed conclude in the 2 days allotted.
I was presented with 6 lever arch files containing a large amount of documentation going back to 1986. In the light of arguments in relation to rectification of the 1990 Conveyance and the discretion in relation to rectification of the register to which I shall refer later in this judgment, these documents were said to be relevant.
Furthermore in the course of their cross-examination both Mr Ohrenstein and Mr Clayton attempted to go through many of these documents with Mr Moore and Mr Messenger. It rapidly became clear that neither Mr Moore nor Mr Messenger had a detailed recollection of the events prior to 1987 when the option was granted. In those circumstances I exercised my case management powers to restrict cross-examination as far as possible.
In fact the evidence did not conclude until after 4 p m on the second day. In order to complete the trial (and to curtail the substantial additional cost that would have been involved in the preparation of detailed written submissions on all of the issues in dispute) I limited closing speeches to 15 minutes per party. I had, after all, already received detailed skeleton arguments.
I congratulate Counsel on the succinctness, the clarity and the relevance of the closing submissions that were made in the very short time allowed. They were extremely helpful and have made a real difference to the result of the case.
The Geography of the dispute
As with all cases of this kind it cannot be understood without a detailed plan and photographs. The most useful plans are those to be found attached to the Particulars of Claim 3, attached to the contract for sale 4 and prepared by Mr Saxon in the course of these proceedings 5
There are 2 aerial photographs—the originals of which were produced at the hearing. One 6 of the aerial photographs was taken in about 1960 and thus well before any of the events in this dispute occurred. The other 7 appeared in a newspaper in early 2002 and thus was taken in late 2001 during the currency of the dispute. In addition I was provided with a number of photographs taken either by Mr Saxon or Mr Moore during the dispute.
The 1960 aerial photograph shows the road from Whitehaven to Lowca—Lowca Road. Lowca is to the north. In the foreground to the east of Lowca Road is Moresby Hall. To the north of Moresby Hall are a number of farm buildings. Those farm buildings formed part of the sales which have given rise to this dispute. To the north of the farm buildings and immediately to the east of Lowca Road appears to be a small right angled triangular piece of land. That triangle appears to have on 2 sides a wall. The third side is a track leading from Lowca Road into the farm buildings. There is a gate across the track and the wall appears to continue the other side of the track. That triangle is the Blue Triangle which is the main subject of the dispute.
To the east of the wall and to the north of the track is a field. That field is part of Enclosure Number 3606. At the time of the 1960 aerial photograph there was no fence preventing livestock in Enclosure Number 3606 getting onto the track or the remainder of the farm buildings.
The 2001 photograph shows a similar but not identical picture. The walls forming the northern and eastern boundary of the Blue Triangle are shown overgrown with ivy or other vegetation. The track has been replaced by a concrete path. Mr Messenger told me that the concrete path did not follow precisely the same route as the track; a close inspection of the 2 photographs shows that...
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