Site Developments Ferndown Ltd v Barratt Homes Ltd and Others

Hearing dates: 27–28 February, 1 March 2007

Introduction

There are two applications before me. The first and main application is by the Defendants for partial reverse summary judgment. The second is by the Claimant to amend its Particulars of Claim.

The Claimant and the First Defendant are both property developers. The claim relates to two adjoining plots of land referred to as the Pink Land and the Blue Land at Wimborne, Dorset which have been developed into a housing estate by the First Defendant. 34 houses have been built on these plots, and the remaining Defendants are the owners or occupiers of 30 of those houses. The nub of the claim is that the Claimant alleges that it owns a small strip of land (“the Strip”) adjoining the Pink Land. The Claimant claims that the Strip controls access to the Pink Land subject to a right of way, and thence to the Blue Land and to land owned by Cobham plc referred to as the Cobham Land. The Claimant also claims that part of the Strip is required for visibility splays for the access road into the development if the First Defendant is to comply with its planning permission. The Strip is of varying width but not exceeding 1.2m. The Defendants dispute the Claimant's claim to ownership of such a strip. In the alternative, the Defendants say that, if the Claimant does own the Strip, it has dedicated it as a public highway. In the further alternative, the Defendants says that the Claimant is estopped from enforcing its alleged legal rights. In addition to its claim to ownership of the Strip, the Claimant claims that it is the beneficiary of a restrictive covenant referred to as the Works Covenant affecting the Pink Land. The Defendants say that on its true construction the Works Covenant does not now bind the Pink Land. Finally, there is a dispute as to a positive covenant referred to as the Fence Covenant.

The Claimant seeks various heads of relief, including six injunctions, some of which are mandatory in form and some of which are prohibitory in form, and possession. The Defendants' application for summary judgment seeks a summary rejection of the claims to injunctive relief and for possession on the ground that the Claimant has no real prospect of succeeding in obtaining such relief. The Defendants say that it is manifest that the grant of injunctive relief would be oppressive and that damages should be awarded in lieu if the Claimant is otherwise successful. The Defendants also say that the Claimant is exploiting the existence of the claims to injunctive relief to tactical advantage, that the threat posed by those claims is inhibiting a sensible settlement of the dispute and that it is preventing some of the individual Defendants from selling their houses. Subject to two points discussed below, the Defendants accept that the Claimant has a real prospect of success on its underlying claims. The Defendants also accept that, if the Claimant is successful, it will be entitled to more than nominal damages although they do not accept that such damages should be quantified by reference to the First Defendant's profits as the Claimant contends.

As a separate matter, the Defendants seek an order that the claims against the Defendants other than the First Defendant be struck out or stayed on case management grounds.

Principles applicable to summary judgment applications

Since the principal application before me is an application for summary judgment, it is appropriate to remind myself of the principles applicable to such applications, and in particular the principles applicable to the question of whether there is a real prospect of success. These principles have been considered in the leading cases of Swain v Hillman [2001] 1 All ER 91 at 94–95 and Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at [90]–[97]. From these authorities and E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at [8]–[11] Sir Andrew Morrirt V.-C. derived the following propositions in Celador Products Ltd v Melville [2004] EWHC 2362 (Ch) at [6]–[7]:

“(a) it is for the applicant for summary judgment to demonstrate that the respondent has no real prospect of success in his claim or defence as the case may be;

(b) a 'real' prospect of success is one which is more than fanciful or merely arguable;

(c) if it is clear beyond question that the respondent will not be able at trial to establish the facts on which he relies then his prospects of success are not real; but

(d) the court is not entitled on an application for summary judgment to conduct a trial on documents without disclosure or cross-examination.”

This summary was recently referred to with evident approval by Mummery LJ (with whom Longmore LJ and Lewison J agreed) in Doncaster Pharmaceuticals Group Ltd v The Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661, [2007] FSR 3 at [4]—

To these four propositions there must be added a fifth which follows from CPR r. 24.2(b), namely that, even if the court concludes that the respondent has no real prospect of success, summary judgment may nevertheless be refused if there is a compelling reason why the case or issue should be disposed of at trial.

Mummery LJ went on in Doncaster v Bolton at [5]–[18] to sound a number of cautionary notes about the use of the summary judgment procedure. In particular, he said that the summary judgment procedure should be reserved for appropriate cases. His remarks at [13] are equally applicable to the present case. The papers for the hearing comprised three bulky files of statements of case, witness statements and exhibits together with two substantial files of authorities to which further authorities were added during the course of the hearing. I would particularly draw attention to the fact that the Defendants, having (as was their right) declined to give early standard disclosure before making the application, felt it necessary to serve a witness statement in reply which exhibited an entire file of documents, many of which had not previously been disclosed. Not surprisingly, this led to the Claimant serving a witness statement in rebuttal and requesting further disclosure, some of which was given just before the hearing. Equally unsurprisingly, counsel for the Claimant complained that such piecemeal disclosure was unsatisfactory. The Defendants' skeleton arguments

ran to 22 pages and the Claimant's skeleton argument to 29 pages. Finally, the hearing of the application took nearly two days of court time despite considerable pre-reading on my part. Some of that time may be attributable to my relative unfamiliarity with this area of the law, but I do not believe that that was a major factor.

Mummery LJ also re-iterated at [17] the familiar point that the court should exercise caution in granting summary judgment in fact-sensitive cases. Counsel for the Claimant submitted that an exercise of discretion which requires the Court to take into account all the relevant circumstances is a paradigm example of such a case. Counsel for the Defendants did not take issue with the general proposition, but submitted that in the present case there were undisputed and indisputable facts which made it obvious that no injunction would be granted.

Factual background

By a conveyance dated 30 June 1969 (“the 1969 Conveyance”) British Railways Board (“the Board”) conveyed to Flight Refuelling Ltd (“FRL”) a plot of land adjoining Wimborne Station (referred to in these proceedings as the Pink Land although coloured blue on the plan annexed to the 1969 Conveyance) together with

“the right for the Purchasers and their successors in title (in common with the Board and others authorised by them or entitled thereto) to pass and repass at all time with or without vehicles over that part of the Station Forecourt shown coloured brown on the said plan”.

Clause 3 of the 1969 Conveyance provided inter alia as follows;

“FOR the benefit and protection of such part of the adjoining or neighbouring property of the Board as is capable of being benefited or protected and with intent to bind so far as legally may be themselves and their successors in title owners for the time being of the property or any part thereof in whosesoever hand the same may come the Purchasers hereby covenant with the Board as follows:—

(1) Not at any time:—

(a) without previously submitting detailed plans and sections thereof to the Board and obtaining their approval thereto such approval not to be unreasonably withheld and

(b) without complying with such reasonable conditions as to foundations or otherwise as the Board shall deem it necessary to impose:

to erect or add to any building or structures or to execute any works on any part of the property

(2) Within six months to erect and at all times thereafter to maintain to the satisfaction of the Board fences of a design to be approved by the Board on the new common boundaries

(3) To pay to the Board from time to time a fair share (according to user) of the cost of maintaining and repairing that part of the Station Forecourt shown coloured brown on the said plan (which Forecourt shall be maintained by the Board to a standard suitable for their own purposes only)”.

Clause 3(1) is referred to in these proceedings as the Works Covenant and clause 3(2) as the Fence Covenant. There are issues as to the construction of these Covenants that, with one exception, I am not called...