William Old International Ltd v Arya
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 2009 |
| Neutral Citation | [2009] EWHC 599 (Ch) |
| Docket Number | Case No: HCO7C02430 |
| Court | Chancery Division |
| Date | 20 April 2009 |
[2009] EWHC 599 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Manchester Civil Justice Centre
1 Bridge Street North
ManchesterM60 9DJ
His Honour Judge Pelling QC
Sitting as a Judge of the High Court
Case No: HCO7C02430
Mr Isaac Jacob (instructed by Barrea & Co) for the Claimant
Mr Stephen Boyd (instructed by Needleman Treon) for the Defendants
Hearing dates: 16–18 March 2009 (RCJ)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HH Judge Pelling QC:
Introduction
These proceedings concern two adjoining plots of land. Annexed to this judgment marked “Appendix” is a coloured plan (“the plan”). The Claimant's land is shown on the plan outlined and shaded pink and is referred to in these proceedings as the land adjoining Park Farm, Ducks Hill Road, Northwood HA6 2NP. The Defendants' land is shown on the plan outlined and shaded in blue and is known as Park Farm House, Ducks Hill Road, Northwood HA6 2NP. I refer to these parcels of land hereafter respectively as the “Claimant's land” and the “Defendants' land”.
Originally the Claimant's land and the Defendants' land was owned (together with the land shown outlined and shaded in yellow on the plan) by Northwood Developments Limited who sold the land which was to become respectively the Claimant's and the Defendants' land to Park Farm (Northwood) Limited (“PFNL”) in January 2005.
By a transfer dated 17 th June 2005 (“the Transfer”) PFNL transferred the Claimant's land to the Claimant. It will be necessary to refer to the terms of the Transfer in detail hereafter. It is sufficient for present purposes to record that the Transfer contained an express grant by PFNL on behalf of itself and its successors in title of an easement securing the free and uninterrupted passage of various utilities (described in the Transfer as “Services”) through pipes and cables (referred to in the Transfer as “Service Media”) that had been or were to be laid within a defined period on the land retained by PFNL. The Claimant's land came with planning permission for the construction of an office building and it was contemplated at the time of the sale by PFNL to the Claimant (whose business is development) that the Claimant would construct an office building on the Claimant's land in accordance with the planning permission that had been granted. On 24 th January 2006, PFNL completed the transfer of the Defendants' land to the Defendants. The Defendants are brother and sister, they are solicitors and they practise in partnership as “ZSA Law” from the building that is and was at all material times on the Defendants' land.
After what can only be described as long drawn out and hostile negotiations, the Claimant in exercise of the rights conferred by the express easement referred to above, entered upon the Defendant's land and dug a trench in an agreed position across the Defendant's land in which gas and water pipes and conduits for phone and electricity cables were laid. The location of each is shown on the plan. The electricity cable conduit is shown as a broken red line. For reasons that will become apparent when I consider the statutory framework for the supply of electricity, the only organisation that can lay cables through the conduit in order to provide a connection for the Claimant's Building is EDF Energy Networks Plc (“EDF”). EDF is not obliged to provide a connection to the Claimant's building (the construction of which has been substantially completed) if that requires cables to be laid over or under land owned by a party other than EDF or the party seeking the connection. However EDF has a power and is willing to do so if but only if the Defendants grant EDF a separate easement in its favour by a Deed of Grant. In the event that the Defendants continue to refuse to sign the deed, there is a statutory procedure which can be invoked by EDF by which an appropriate way leave can be obtained from the Secretary of State. I refer to these provisions later.
The Defendants' position is that they are not under any obligation to execute such a Deed of Grant but are willing to do so as part of an overall settlement with the Claimant of a claim in damages which the Claimant has made against the Defendants. It is accepted that if the Defendants are entitled to refuse to execute the Deed of Grant then they are entitled to adopt the position that they have adopted. Equally however, if (as the Claimant contends) the Defendants are not entitled to refuse to sign the Deed of Grant then the Defendants' position is untenable and the Claimant would be entitled to succeed.
The juridical basis of the Claimant's case altered in the course of the trial. As the case was opened by Mr Jacob, it was contended that the Defendants were obliged to execute a Deed of Grant in a form satisfactory to EDF either because that obligation arose as a right ancillary to the express easement to which I have referred in outline above as being reasonably necessary for its use and enjoyment or alternatively by implication and/or by operation of Section 62 of the Law of Property Act 1925. Whilst it was true to say that Mr Jacob referred to non derogation from grant, he did so only as a basis for the implication of an easement the effect of which he maintained was to require the Defendants to execute the Deed of Grant in favour of EDF. Mr Boyd's response to this was to maintain that an easement could not be implied where an express easement had been granted and/or that it was heretical to suggest that the owner of a servient tenement could be required to do anything positive by the or the successor in title of the owner of the dominant tenement by reference to an express easement which was by its very nature negative in character. Even if that was wrong, Mr Boyd contended that any obligation to perform a positive act such as that contended for by the Claimant could only take effect in contract and as such could not survive the transfer to a successor of the servient tenement.
When closing submissions came to be made, Mr Jacob acknowledged that he had difficulties in relation to his case based on easement, but contended that he was entitled to succeed by reference to non derogation from grant on the basis that (1) the Claimant's land had been sold to the Claimant on the basis that the Claimant was to build an office building on it (2) it would have been an impermissible derogation from grant in those circumstances for PFNL to have refused to execute the Deed of Grant and (3) the Defendants (as successors in title to PFNL) were in no better position than PFNL.
Mr Boyd had no prior notice of this submission and was minded initially to argue that it was one that was not open to the Claimant on the pleadings as they stood. However, Mr Boyd in the end accepted that all the relevant primary facts had been pleaded, that there was no additional evidence that he could have adduced that was relevant specifically to what by now had become the Claimant's primary case and that the prejudice caused by the lack of notice could be catered for by me giving him permission to file supplemental written submissions addressing this point. I gave Mr Jacob permission to respond limited to anything new contained in Mr Boyd's supplemental submissions. Mr Jacob's supplemental submissions suggested that the Defendants had derogated from the transfer of the claimant's land to the claimant by alerting EDF to the fact that the Defendants land was not owned by the claimant and/or by suggesting that there was a dispute between the claimant and the defendant. Without this, it was submitted, EDF would by now have been provided with the connection it seeks and in those circumstances, even if the Defendants were not under an obligation to execute the deed, they came under such an obligation by reason of their conduct in relation to EDF which was in the circumstances a derogation from grant. It is to be noted that this formulation was not one which had been adopted by Mr Jacobs either in his opening or, indeed, in his closing submissions (written or oral) and thus appeared for the first time in his written supplemental closing submissions.
The Trial
The trial took place between 16 and 18 March 200I heard oral evidence from Mr Hussain, a director of and shareholder in the Claimant, Mr Shelton, a director of General Construction Limited, a company which has the same shareholders as the Claimant and was the contractor that carried out the construction of the office building on the Claimant's land as the Claimant's contractor, and I read the statement of Mr McAvoy the Claimant's solicitor who the Defendants did not require to be called. I also heard oral evidence from both Defendants and read a statement from Mr Levy, a chartered building surveyor who was engaged by the Defendants to assist them in the negotiations with the Claimant concerning the route to be followed by the pipes and conduits laid on the Defendants' land as described above. Aside from oral submissions made by counsel at the close of the trial (with Mr Boyd going first by agreement) I have received and read supplemental written submissions from Mr Boyd dated 20 th March 2009 and from Mr Jacob dated 24 th March 2009.
The trial was of all issues relating to liability. The Master directed that a list of issues be agreed between the parties. In the event no list of issues was agreed between the parties until after the trial had started. As agreed the issues to be determined were:
i) Upon its true construction, and in all the circumstances including considering whether EDF is legally entitled to insist that the Defendants execute...
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