Victor Crabb (Plaintiff v Arun District Council (formerly Chichester Rural District Council) (Defendants

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE SCARMAN
Judgment Date15 December 1976
Judgment citation (vLex)[1976] EWCA Civ J1215-1
Docket Number1971 c. No. 4011
CourtCourt of Appeal (Civil Division)
Date15 December 1976
Victor Crabb
Plaintiff (Appellant)
and
Arun District Council (formerly Chichester Rural District Council)
Defendants (Respondents)

[1976] EWCA Civ J1215-1

Before:

The Master of the Rolls (Lord Defining)

Lord Justice Lawton and

Lord Justice Scarman

1971 c. No. 4011

In The Supreme Court of Judicature

Court of Appeal

On Appeal From The High Court of Justice

Chancery Division

MR. M. MACDONALD, Q.C. and MR. A. TEMPLEMAN (instructed by Messrs. Bells, Solicitors, Kingston upon Thames) appeared on behalf of the Plaintiff (Appellant).

MR. G. LIGHTMAN (instructed by Messrs. Doyle, Devonshire, Box & Co. Solicitors, London) appeared on behalf of the Defendants (Respondents).

THE MASTER OF THE ROLLS
1

This application is a sequel to a case we had some 18 months ago, Crabb v. Arun District Council. It is now reported in (1976) Chancery page 179 To recapitulate, Mr. Crabb was the owner of a piece of back land which needed access to a highway. To get that access, he had to go through a point marked "B" and along a new estate road so as to get to the main road. The controversy was whether he was entitled to use this access so as to have virtually a right of way. As it turned out, he could not prove an express agreement by the Arun District Council or their predecessors which gave him that right of way. Nevertheless, owing to the conduct of the council or their predecessors, it was held that he had in equity a good claim to have a right of way. The gateway ought never to have been shut up. Going back to 1969 the District Council put up a fence barring his right of way. There were negotiations in which the council asked for £3,000 for him to have a right of way. He refused to pay. He brought an action saying that he had this right of way. He started the action in 1971- She case came on for hearing before the Vice-Chancellor, Mr. Justice Pennycuick, in January 1374. He held that Mr. Crabb failed because he had not a positive agreement. But in July 1975 this court reversed the Vice-Chancellor's decision. We held that although there was no positive agreement to a right of way, nevertheless he had a right in equity; and the correct1way of satisfying it was that he should be granted a right of way: and that he ought to have had it all the time from 1969.

2

Now Mr. Crabb says that he ought to have compensation or damages because he was kept out — and his land was rendered sterile — for some six years. He has lost all the profit from the income which he would have been able to receive from that land if only he had had the access. He agrees that if he hadbeen granted a right of way in 1969 he would have had to pay something for it. He says that he is ready for credit to be given for any reasonable payment for it, but still there ought to be an inquiry so that he can get big damages for his land being rendered sterile for six years.

3

We have had a good deal of discussion as to whether in principle such a claim by Mr. Crabb for compensation is available. It was submitted to us by Mr. Lightman, that at common law he had no cause of action, and that equity cannot give damages or compensation. The answer is given by Lord Cairns' Act in 1858 the Chancery Amendment Act 1858. Section 2 says: "In all Cases in which the Court of Chancery has Jurisdiction to entertain an Application for an Injunction against a Breach of any Covenant, Contract or Agreement, or against the Commission or continuance of any wrongful Act, or for the specific Performance of any Covenant, Contract, or Agreement, it shall be lawful for the same Court, if it shall think fit, to award Damages to the Party injured, either in addition to or in substitution for such Injunction or specific Performance, and such damages may be assessed in such Manner as the Court shall direct". That section, oddly enough, has been repealed, but the House of Lords have held that it is still part of the law of England. It gave an equitable remedy which was in existence in 1858 before the Judicature Act in 1873: and it is kept in being by the combination in 1873 of law and equity. It was so decided by the case of Leeds Industrial Co-operative Society Ltd. v. Slack (1924) Appeal Cases 851.

4

For present purposes, the important provision of the Act is that the court can give damages in addition to an injunction.

5

If Mr. Crabb had come at once in 1969 for an injunction he would have been granted it without the need for any damages.Because of delays, which were not his fault, it took six years before he could get an injunction or any remedy. Why 3hould he not have compensation for being kept out of his equitable right or interest? In principle I see no reason why he should not have it. That appears from Eastwood v. Lever (1863) De Gex, Jones & Smith's Reports, Volume IV, 114,...

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