Application for an order restraining the Council from revoking the licence for the claimant to occupy a pitch for the purposes of publicising the United Kingdom Independence Party and his candidature in the General Election.
Mowschenson QC HHJ
[2005] EWHC 1311 (QB)
England and Wales
Updated: 29 June 2022; Ref: scu.431739
(Madras)
[1880] UKPC 43
England and Wales
Updated: 29 June 2022; Ref: scu.418414
[2008] EWHC 2374 (QB)
England and Wales
Updated: 29 June 2022; Ref: scu.277122
Application for leave to appeal award of compensation by Lands Tribunal.
Sir Christopher Staughton
[2005] EWCA Civ 1096
England and Wales
Appeal from – Boland v Welsh Development Agency LT 18-Mar-2005
COMPENSATION – compulsory acquisition – valuation – cleared site – planning permissions for housing association development and for elderly persons units – value of land – claim for loss of profit from prospective development – held compensation . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.230026
[2005] EWCA Civ 354
England and Wales
Updated: 29 June 2022; Ref: scu.224078
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for rectification.
Held: The appeal failed. The restriction on rectifying the register contained in section 82(3) Land Registration Act 1925 does not apply to rectification ‘for the purpose of giving effect to an overriding interest or an order of the court’. Moreover as that subsection and section 70(3) Land Registration Act 1925 both show there is no prohibition on noting an overriding interest on the register.
Lord Justice Clarke The Vice Chancellor Lord Justice Parker
[2005] EWCA Civ 227
England and Wales
Appeal from – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Mentioned – Celsteel Ltd v Alton House Holdings Ltd ChD 1985
An equitable easement (a right of way), which was not protected by any entry on the register, was a right openly exercised and enjoyed as appurtenant, in this case to a garage, and it adversely affected registered land as an overriding interest. The . .
Cited – Bakewell Management Limited v Brandwood and others HL 1-Apr-2004
Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal . .
Cited – E R Ives Investments Ltd v High CA 14-Dec-1966
One exception to the requirement that an easement must be granted by a deed is that if permission to enjoy a right, capable of constituting an easement, is given by the landowner in terms likely to lead, and that do lead, the beneficiary of the . .
Cited – Birmingham Midshires Mortgage Services Ltd v Sabherwal CA 17-Dec-1999
An equity arising from a proprietary estoppel is not an ‘equitable interest’ capable of being overreached pursuant to section 2 of the Law of Property Act 1925. . .
Cited – Shiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
Cited – Saeed v Plustrade Ltd CA 20-Dec-2001
The court considered a parking management scheme imposed by freeholders on an estate. The result would be to reduce the number of parking spaces from 13 to 4.
Held: (Sir Christopher Slade) ‘The lease in terms conferred upon the lessee ‘the . .
Cited – Adealon International Proprietary Ltd v London Borough of Merton ChD 12-Apr-2006
The claimant had bought land originally bought from the defendant, but after a long series of events, the only available access was over the retained land. It sought a right of way of necessity.
Held: At the time of the grant, other access was . .
Cited – Chaudhary v Yavuz CA 22-Nov-2011
The court was asked ‘whether and if so how an easement arising informally and not protected by any entry at the Land Registry can be effective against a purchaser of the land over which the easement would be exercised.’ The parties respectively . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.223500
Application was made to register the ‘trap grounds’ as a village green.
Held: Carnwath LJ: ‘The 1965 Act created no new legal status, and no new rights or liabilities other than those resulting from the proper interpretation of section 10. Since that section only takes effect in relation to any particular land on registration, there is no legal basis for treating that land as having acquired village green status by virtue of an earlier period of qualifying use. The mere fact that it would at some earlier time have come within the statutory definition is irrelevant if it was not registered as such.’
Carnwath LJ
[2005] EWCA Civ 175, [2006] Ch 43
Commons Registration Act 1965 13
England and Wales
Cited – Regina v Suffolk County Council Ex Parte Steed and Another CA 2-Aug-1996
Customary rights over land were not defeated by failure to register as common. ‘As of right’ meant that the right must be exercised in the belief that it is a right enjoyed by the inhabitants of the village to the exclusion of all other people. ‘it . .
Cited – Regina v Suffolk County Council Ex Parte Steed and Steed Admn 1995
Judicial review was sought of the Council’s decision to refuse to register a park as a Town or Village Green.
Held: Carnwath J looked at the procedure to be followed by a council receiving an application for registration of commons right: ‘it . .
Appeal from – Oxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222939
The judge at first instance had been wrong to rely on a 1931 document as establishing an estoppel in favour of the claimant; there was in fact no clear and unambiguous wording in the claimant’s favour on which he could claim to have detrimentally relied.
Latham, Neuberger LJJ
[2005] EWCA Civ 120
England and Wales
Updated: 29 June 2022; Ref: scu.222860
Possession of house after breakdown of relationship
[2005] EWCA Civ 63
England and Wales
See Also – T Messer and Another v Messer CA 21-Dec-2004
Order for possession . .
See Also – T Messer and Another v Messer CA 21-Dec-2004
Order for possession . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222594
The court upheld a declaration by the trial judge that the claimant was an equitable chargee under an equitable charge of the defendant’s property, notwithstanding that the claimant relied on an oral agreement by the defendant for the grant to the claimant of a charge on the property and which therefore did not comply with s.2(1) of the 1989 Act. The claimant had established a proprietary estoppel which overlapped with a constructive trust, the same facts were capable of giving rise to both a proprietary estoppel and a constructive trust within s. 2(5) of the 1989 Act. Arden LJ: A claimant seeking to rely on proprietary estoppel as a basis for disapplying s. 2(1) of the 1989 Act is not prevented from relying in support of the case on the agreement which s.2(1) would otherwise render invalid. In order to succeed in establishing the estoppel it is not sufficient merely for the claimant to put the agreement in evidence. The essential requirements of the estoppel have to be satisfied in every case: in Kinane the claimant had to prove, and did prove, that the defendant encouraged the claimant to believe that the security agreement was valid and binding: ‘the cause of action in proprietary estoppel is thus not founded on the unenforceable agreement but upon the defendant’s conduct which, when viewed in all relevant respects, is unconscionable.’
Arden, Neuberger, Thorpe LJJ
[2005] EWCA Civ 45
Law of Property Act 1925 53(1), Law of Property (Miscellaneous Provisions) Act 1989 291)
England and Wales
Cited – In re Vandervell’s Trusts (No 1); Vandervell Trustees Limited v White and Others HL 15-Jul-1970
Practice – Parties – Joinder – Proceedings between subjects raising issues material to income tax – Joinder of Commissioners of Inland Revenue – Income Tax Act 1952 (15 and 16 Geo. 6 and 1 Eliz. 2, c.10), ss. 52 and 64 ; Income Tax Management Act . .
Cited – Cobbe v Yeomans Row Management Ltd and Others ChD 25-Feb-2005
Principles for Proprietary Estoppel
A developer claimed to have agreed that upon obtaining necessary planning permissions for land belonging to the respondents, he would purchase the land at a price reflecting its new value. The defendant denied that any legally enforceable agreement . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222612
Tenants occupied land next to land which was to be developed after compulsory acquisition. The tenants and the landlords asserted a right of light over the land, and sought an injunction to prevent the development. The developer denied that any right of light had been acquired. The sky contour diagrams projected that the reductions in available light as a result of the development would be very large. In general, the percentages would be reduced to single figures from figures prior to development which were in excess of 50%.
Held: The claimant had failed to establish sufficient enjoyment of the light to establish a right. Where a Local Authority relied upon the power to override under section 237, where the land has been appropriated for a planning purpose, the proposed development, which it seeks to impose on adjoining owners must be related to the planning purposes for which the land was acquired or appropriated. The authority could not rely upon the 1990 Act to override easements. It was argued that since modern offices would always be lit artificially, older standards of light level should be disregarded. This was rejected because it took no account of possible varying uses.
The Honourable Mr Justice Peter Smith
[2005] EWHC 33 (Ch), Times 14-Feb-2005, [2005] 14 EG 130
Prescription Act 1832 3, Law of Property Act 1925 62, Town and County Planning Act 1990 237
England and Wales
Cited – Gayford v Moffatt 1868
The enjoyment of a light or any other easement by a tenant is in law the enjoyment of the landlords. . .
Cited – Pugh v Savage CA 14-Jan-1970
The enjoyment of an easement by a succession of tenants may be sufficient to create a right by prescription for the landlord. . .
Cited – Morgan v Fear HL 1907
Two adjoining tenants held of the same landlord. One enjoyed access and use of light over the adjoing tenanted premises for a period in excess of twenty years and without interruption.
Held: An absolute right of light was acquired as against . .
Cited – Fear v Morgan CA 1906
. .
Cited – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
Cited – Tapling v Jones 1865
The land owner had a building with three stories. Each had a window with established rights of light. He extended the windows in the ground and first floor, and added two new stories. The neighbour built on his own land to an extent sufficient to . .
Cited – Maridive and Oil Services (SAE) and Another v CNA Insurance Company (Europe) Ltd CA 25-Mar-2002
The Civil Procedure Rules have allowed the Courts to accept an amendment to introduce a cause of action arising out of facts occurring subsequent to the commencement of the proceedings. There is no absolute rule of law or practice which precludes an . .
Cited – Halliard Property Co Ltd v Jack Segal Ltd 1978
The court considered a proviso for re-entry that: ‘forfeiture on the bankruptcy of the lessee is considered as a case of breach of condition.’
Held: It was clearly a condition rather than a mere covenant of the original protected tenancy that . .
Cited – Foster v Lyons and Co 1927
The lease contained a reservation which would allow the freeholder to build upon his neighbouring land whether or not it obstructed any rights of light in the demised premises.
Held: The reservation was effective to prevent a right of being . .
Cited – Willoughby v Eckstein ChD 1936
The parties were tenants of the same landlord, the Grosvenor Estate in adjoining premises at Balfour Mews in Westminster. The plaintiff claimed for an infringement of his right of light from ancient windows by his neighbour, and also that the height . .
Cited – Marlborough (West End) Ltd v Wilks Head and Eve ChD 20-Dec-1996
A dispute between neighbours was settled by a deed with the following clause: ‘IT IS HEREBY AGREED AND DECLARED that notwithstanding that the Building Owners have placed windows in that part of their new buildings which overlook the premises . .
Cited – Regina v City of London Corporation and Another Ex Parte Mystery of the Barbers of London QBD 28-Jun-1996
The authority acquired several plots of land at different times, some compulsorily, and others pursuant to purchase notice. It granted a lease to the second respondent who built on it. In 1969 the Council granted the applicants an area of adjoining . .
Cited – Stockport Metropolitan Borough Council v Alwiyah Developments CA 1983
There was to be a development of six flats on land subject to a restrictive covenant. The developer began without a modification being sought. The benefit of the covenant was attached to adjoining land owned by the local authority, which they . .
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Cited – Sheffield Masonic Hall Co Ltd v Sheffield Corporation 1932
In considering whether a right to light was infringed, and where a room had light from another source, which also could be potentially interfered with (but not by the Defendant), the amount and interference permitted by the Defendant is only that . .
Cited – Gafford v A H Graham and Grandco Securities Limited CA 8-Apr-1998
A land owner who was aware of his rights under a restrictive covenant, and who stood by whilst a riding school was erected in breach of the covenant, was not later to be allowed injunctive mandatory relief to enforce the covenant, by virtue of his . .
Cited – Co-Operative Insurance Society Ltd v Argyll Stores HL 21-May-1997
The tenants of a unit on a large shopping centre found the business losing money, and closed it in contravention of a ‘keep open’ clause in the lease. They now appealed from a mandatory injunction requiring them to keep the store open.
Held: . .
Cited – Fishenden v Higgs and Hill Ltd CA 1935
An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting . .
Cited – Bracewell v Appleby ChD 1975
The defendant wrongly used and asserted a right of way over a private road to a house which he had built.
Held: To restrain the defendant from using the road would render the new house uninhabitable. The court refused an injunction on the . .
Cited – Kennaway v Thompson CA 30-Apr-1980
The plaintiff’s property adjoined the defendant’s boating lake over which the defendant had, over several years, come to run more and more motor boat sports events. The trial judge had found that the noise created by the racing was an actionable . .
Cited – Shelfer v City of London Electric Lighting Company, Meux’s Brewery Co v Same CA 1895
The plaintiff sought damages and an injunction for nuisance by noise and vibration which was causing structural injury to a public house.
Held: The court set out the rules for when a court should not grant an injunction for an infringement of . .
Cited – Jordan v Norfolk County Council ChD 25-May-1994
An order to replace trees ‘as reasonably practical’ was to include cost considerations, and it could be varied where the costs exceeded those expected. The mandatory order was varied. When considering what was meant by ‘reasonably practical’ ‘. . . .
Cited – Pugh v Howells CA 1984
The court ordered a building to be demolished were the development had been speeded up and completed over a bank holiday weekend in order to present the plaintiff with a fait-accompli, having been warned that the proposed works would infringe a . .
Cited – Cowper v Laidler ChD 1903
Buckley J said: ‘The court has affirmed over and over again that the jurisdiction to give damages where it exists is not so to be used as in fact to enable the defendant to purchase from the plaintiff against his will his legal right to the . .
Cited – Isenberg v East India House Estate Co Ltd 1863
The court refused a mandatory injunction to compel the defendant to pull down part of a new building which interfered with the plaintiff’s light and exercised instead the Court of Chancery’s recently-acquired jurisdiction under the 1858 Act to order . .
Cited – St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) CA 1973
When looking at a contract ‘one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances.’
The contra preferetem rule can only come into play . .
Cited – Jaggard v Sawyer and Another CA 18-Jul-1994
Recovery of damages after Refusal of Injunction
The plaintiff appealed against the award of damages instead of an injunction aftter the County court had found the defendant to have trespassed on his land by a new building making use of a private right of way.
Held: The appeal failed.
Cited – Carr-Saunders v Dick McNeill Associates 1986
The claim was for interference with the plaintiff’s right to light.
Held: There is a need to approach infringements of easements of light with flexibility. The plaintiff’s subjective views as to the loss of light were not to the point. When . .
Cited – Regan v Paul Properties DPF No 1 Ltd and others ChD 27-Jul-2006
The claimant sought an injunction claiming that new building works were a nuisance in breaching his rights of light.
Held: The claim for an injunction failed. Whatever may be the position in cases of other wrongful conduct, in the case of an . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222047
In a claim for adverse possession, the court will readily infer the grant of a licence (so as to defeat an assertion that possession is adverse to the owner) during negotiations for the purchase or letting of land, where the negotiating purchaser or tenant is in occupation of the land concerned.
Lord Justice Rix Lord Justice Johnathan Parker
[2005] EWCA Civ 9
England and Wales
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.221720
[2002] EWCA Civ 1178
England and Wales
Updated: 28 June 2022; Ref: scu.217403
The plaintiff sought possession of a house. She had owned it with her late husband. The defendant lived in and had done much work on the house, but the deceased left it all to the plaintiff and the defendant’s wife who had since also died. She sought possession after the defendant paid no rent. At first instance it was held that D had acquired an equitable interest in the house for the repairs and the expectation under the wills.
Held: The will created no sufficient legitimate expectation to justify the claim. The plaintiff’s and defendants needs had to be balanced, and an equitable remedy should not be used to create an injustice. The plaintiff’s need was more pressing. D had lived in the house for 20 years rent free and the equity created by his expenditure had expired.
Roch LJ, Hobhouse LJ
[1996] 72 P and CR 196, [1996] CLY 4949, [1996] EWCA Civ 1305
England and Wales
Cited – Inwards v Baker CA 13-Jan-1965
An indulgent father had encouraged his son to build a bungalow on his, the father’s, land. The son had done so in the expectation, encouraged by the father, that he would be permitted to remain in occupation.
Held: The court formulated the . .
Cited – Crabb v Arun District Council CA 23-Jul-1975
The plaintiff was led to believe that he would acquire a right of access to his land. In reliance on that belief he sold off part of his land, leaving the remainder landlocked.
Held: His claim to have raised an equity was upheld. The plaintiff . .
Cited – Pascoe v Turner CA 1-Dec-1978
The defendant had been assured by the plaintiff that ‘the house is yours and everything in it.’ In reliance on that assurance she carried out improvements to the house. Although the improvements were modest, their cost represented a large part of . .
Cited – Jennings v Rice, Wilson, Marsh, Norris, Norris, and Reed CA 22-Feb-2002
The claimant asserted a proprietary estoppel against the respondents. He had worked for the deceased over many years, for little payment, and doing more and more for her. Though he still worked full time at first, he came to spend nights at the . .
Cited – Fisher v Brooker and Others HL 30-Jul-2009
The claimant sought a share in the royalties from the song ‘A whiter shade of pale’ but had delayed his claim for 38 years. He had contributed the organ solo which had contributed significantly to the song’s success. He now sought a share of future . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.183180
A plot of land had been originally sold after being pegged out, but the conveyance plan differed from the line pegged out. The land was again sold with a plan on both contract and conveyance still being incorrect. In each case the plan had been used ‘for identification purposes only’, and the purchaser knew the layout of the actual boundary.
Held: Since the plans were used for identification purposes only, and the parties knew of the actual position of the boundary, the court was entitled to take into account the surrounding circumstances to construe the contract. The actual layout on the land prevailed.
Mr Justice Foster
[1971] 1 WLR 635
England and Wales
Applied – Webb v Nightingale CA 8-Mar-1957
A boundary line which the parties had agreed and marked out could supersede a plan on a conveyance expressly said to be for identification only. Lord Denning: ‘It seems to me that the line of white stakes with the white peg in the south-east corner . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.174087
The testator occupied farmland and buildings. He was helped in maintaining the farm by his son, but gave the land to his grandchildren by his will. The son claimed to have been granted an informal written agricultural tenancy by his father before his death.
Held: The arrangement was not intended to create legal relations, and no tenancy was created. The agreement was sufficient to satisfy section 52, but in construing it, the court had to allow for the fact that the deceased had placed particular trust and confidence in the son, and a presumption of undue influence arose. The claimant had not displaced that presumption, and the tenancy agreement was set aside.
Mr Launcelot Henderson QC, sitting as a deputy judge of the division
Gazette 03-Oct-2002
England and Wales
Cited – Walsh v Lonsdale CA 1882
Lonsdale purported to grant to Walsh a seven year lease with rent payable in advance. The lease was not embodied in a deed, and when Walsh went into possession, an annual tenancy with rent payable in arrear was created. Walsh did not pay in advance, . .
Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.177316
In 1989, the taxpayer transferred property by means of a trust deed in favour of his son in consideration of his ‘natural love and affection’ for him. Four years later the commissioners investigated his tax affairs, and concluded that there were substantial undisclosed business profits. He died in 1997 owing substantial sums, and the commissioners sought to set aside the 1989 deed as being made in order to put his assets beyond reach.
Held: The possible dual purpose of the transaction did not prevent the inference, supported by the facts, that the statutory requirement was satisfied, and the deed was set aside. The execution of a deed transferring his beneficial interest in business premises to his son in consideration of ‘natural love and affection’ was a transaction at an undervalue.
Hart J
Gazette 25-Oct-2001, Times 02-Nov-2001
England and Wales
Appeal from – Inland Revenue v Hashmi and Another CA 3-May-2002
The question for the court was whether when there was more than one purpose of a transaction the proscribed purpose under the section had to be dominant or not.
Held: It was not necessary for the proscribed purpose to be the dominant purpose; . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.166698
An agricultural tenancy was varied by the addition of a small plot of land. The tenant argued that this led to a postponement of the review under the Act. The landlord appealed.
Held: The addition of a plot could not properly be seen as a variation of the boundaries, but the description of the land in the tenancy could properly be seen as one of its terms, and a small variation of the terms did not call into effect paragraph 4(1).
Neuberger J
Times 30-Oct-2002, Gazette 14-Nov-2002, [2002] EWHC 2116 (CH), [2003] 1 WLR 75
Agricultural Holdings Act 1986 Sch2 Para 4(1) 6
England and Wales
Appealed to – Ministry of Defence v Spencer and Another CA 22-May-2003
The parties had varied the agricultural tenancy. A small parcel had been added, and the rent increased to reflect only that additional land. The tenant claimed that, under the Act, this operated to skip the next rent review.
Held: The phrase . .
Appeal from – Ministry of Defence v Spencer and Another CA 22-May-2003
The parties had varied the agricultural tenancy. A small parcel had been added, and the rent increased to reflect only that additional land. The tenant claimed that, under the Act, this operated to skip the next rent review.
Held: The phrase . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.177840
Succession – Fee and Liferent – Liferent of Whole Amount Produced – Mineral Field opened after Testator’s Death
A testator who had opened up and wrought part of the minerals in his lands during his life, directed his trustees in the event (which happened) of his wife surviving him, to payover to her ‘the whole annual produce and rents of the residue and remainder of my estate, heritable and moveable, during all the days and years of her life.’ After the testator’s death his trustees opened a new mineral field. Held ( affirming judgment of the First Division) that the testator’s widow was not entitled to the rents derived from this mineral field.
This section gives trustees, where such act is not at variance with the terms or purposes of the trust, power to grant mineral leases of a duration not exceeding thirty-one years.
Observed ( per Lord Watson) that this provision merely gives power to trustees entitled under their trust to let minerals, to let them for the period allowed by the statute, and confers no new power of letting minerals upon trustees.
Lords Blackburn, Watson, Bramwell, and Fitzgerald
[1883] UKHL 748, 20 SLR 748
Scotland
Updated: 28 June 2022; Ref: scu.636764
Church – Glebe Boundaries – Decree of Presbytery – Ambiguity – Extent of Glebe Boundary – Excambion – Possession.
Held ( aff. judgment of the First Division) that a decree of Presbytery drawn up for the purpose of fixing the boundaries of a glebe was unambiguous, and that therefore its limits could not be extended by evidence of possession of a larger boundary.
Earl of Selborne, and Lords Watson, Bramwell, and Morris
[1891] UKHL 912, 28 SLR 912
Scotland
Updated: 28 June 2022; Ref: scu.636776
A Crown vassal executed in 1767 a disposition of certain lands in favour of the Crown, with procuratory of resignation ad remanentiam. The disposition contained a clause ‘in favour of His Majesty and his royal heirs and successors,’ of relief from certain specified burdens, and every other parish or public burden which might be demanded from them, for and in respect of the lands disponed. In an action raised by a successor of a disponee from the Crown against the representative of the original disponer, for implement of the obligation, the House ( aff. judgment of Second Division) assoilzied the defender on the ground that the obligation was one strictly and inalienably in favour of the Crown and the royal successors of the Crown in the lands, and therefore not transmissible to the effect of entitling the pursuer to enforce it against the defender.
Lord Chancellor, Lord Blackburn, and Lord Watson
[1884] UKHL 105, 22 SLR 105
Scotland
Updated: 28 June 2022; Ref: scu.636748
Revenue – Stamp Act 1870 (33 and 34 Vict. cap. 97), sec. 70 – Consideration for the ‘Conveyance on Sale’ – Lands Clauses (Scotland) Act 1845 (8 Vict. cap. 19), sec. 48 – Compensation for Loss of Business.
In a compulsory sale under the Lands Clauses Act 1845 a jury awarded the owners of the subjects, who were also the occupants, compensation as follows-(1) For the value of land taken, (2) for the value of buildings, machinery, and co., and (3) for loss of business previously carried on by them on the subjects taken. Held ( rev. First Division) that the compensation for loss of business was part of the consideration for the ‘conveyance on sale, ‘within the meaning of the Stamp Act 1870, and that the ad valorem stamp upon the conveyance was to be assessed upon the full amount of compensation.
Lord Chancellor (Halsbury), Lords Watson, Fitzgerald and Macnaghten
[1887] UKHL 534, 24 SLR 534
Scotland
Updated: 28 June 2022; Ref: scu.636752
Property – Sale of Heritage – Conditions
A theatre and the ground on which it stood were sold under burden of payment of certain annuities to a body of shareholders, who up to the date of the sale were proprietors of the subjects, and under stipulation that each of these shareholders should be entitled to free admission to the building then standing there, it being declared that this right was personal to the shareholders, and that the purchaser should not be entitled to convert the theatre to any other purpose. That theatre was burnt down and a new theatre built – the subject had also been conveyed more than once to new purchasers, the shareholders’ rights to payment of their annuities, which had been declared real burdens, being always reserved, and it being always provided that they should be allowed ‘the privilege to which they are entitled;’ and that privilege of admission they had enjoyed for several years. Held, in an action brought against the lessees of the new theatre by the shareholders to have it declared that they were entitled to the privilege of free admission, that their right being a mere personal right depending on contract, must be renewed with each successive disponee, and that neither the reservation of ‘the privilege to which they are entitled,’ nor the possession had by them, was habile to impose the obligation contended for on the disponees of the party, with whom they had originally contracted, and with reference to a theatre other than that mentioned in the deed by which their privilege was created.
Earl Cairns, Lord Blackburn, and Lord Watson
[1881] UKHL 454
Scotland
Updated: 28 June 2022; Ref: scu.636791
Superior and Vassal – Restrictions in Feu Charter – Right of Co-feuar to Insist for Enforcement of Obligation imposed by a Common Superior
In order to give one feuar right to insist against another feuar holding of the same superior for the enforcement of restrictions upon building imposed by the superior, there must be an undertaking by the superior to insert the same or similar restrictions in all feus given out by him, or a reference to a common building plan, or an agreement among the feuars themselves; otherwise there is no mutuality of rights and obligations among the feuars, and no one can enforce against another the restrictions contained in the feucharter.
Terms of a charter and circumstances which were held (rev. judgment of the Second Division) insufficient to bring a case under any of these categories.
Held (rev. judgment of the Second Division) that where the party bringing an action has no title to sue, this defective instance cannot be cured by obtaining the consent and concurrence of the person who has alone the right of action.
Lord Chancellor Selborne, Lords Blackburn and Watson
[1881] UKHL 571, (1881) 8 R (HL) 95, 19 SLR 571
Scotland
Updated: 28 June 2022; Ref: scu.636796
Superior and Vassal – Non-Entry – Superior’s Title
Held aff. judgment of the Court of Session, and following Innes v. Gordon, Nov. 20, 1844, 7 D. 141) that in an action by a superior for payment of a casualty against the singular successor of a vassal who has recognised the superior’s predecessors by taking entry from them, it lies upon the defender to establish that the superiority lies with some other than the pursuer if he denies the title of superiority.
Lord Chancellor Selborne, Lords Blackburn and Watson
[1881] UKHL 748, 18 SLR 748
Scotland
Updated: 28 June 2022; Ref: scu.636795
In an action by the burgh of Inverness and others for declarator of exclusive right of salmon fishing in a part of the river Ness from both banks from a stone C to the sea, the pursuers founded on a Crown title granted in 1591 to the town of Inverness, which conveyed the water of Ness and all partes and each bank with the whole salmon and other fishings, including the fishings in dispute. The defender was proprietor of the lands of Holme on the south bank, which lay partly above and partly below the said stone. His title was a Crown charter in favour of the Earl of Moray, granted in 1566, which conveyed half of the lands of Holme, with the salmon and other fishings ‘pertaining’ to the same. The defender held the other half of the lands of Holme under a title from Fraser of Balnain, which made no mention of fishings. The disputed part of the fishings was below the said stone, and was opposite part of the lands held by the Earl of Moray; the upper part of the fishings was not in dispute, and lay partly opposite the Earl of Moray’s feu and partly opposite Fraser’s feu. Under his title from Lord Moray the defender claimed a joint right of salmon fishing along with the pursuers in the Ness ex adverso of Holme below the stone C. It was proved that from 1840 to 1843 the lower half of the Holme fishings and the town fishings were let to the same tenant; in 1843 the defender had been unsuccessful in an attempt to interdict the tenant of the town fishings from fishing on the Holme side of the river. It appeared from the evidence in the interdict that one of the witnesses deponed that the defender’s predecessor had pointed out the stone C as the boundary of the witness’s tenancy; since 1843 the defender had granted successive leases of the Holme fishings, and that the tenants had unchallenged fished salmon with net and coble down to 1853, and since then with rod and line, to the lower boundary of Holme.
[1890] UKHL 393
Scotland
Updated: 28 June 2022; Ref: scu.636728
[2015] EWHC 1632 (Ch)
England and Wales
Updated: 28 June 2022; Ref: scu.548915
(Madras)
[1880] UKPC 45
England and Wales
Updated: 28 June 2022; Ref: scu.418420
(Oudh)
[1879] UKPC 2
England and Wales
Updated: 28 June 2022; Ref: scu.418580
Appeal from refusal to vary restrictive covenant.
Lord Justice Laws
[2007] EWCA Civ 1007
England and Wales
Updated: 28 June 2022; Ref: scu.470483
Victoria
[1879] UKPC 3, (1878-79) LR 4 App Cas 156
Australia
Updated: 28 June 2022; Ref: scu.418579
The plaintiff had bought land landlocked save over a bridge and a lane beonging to the defendant leading to the highway. He claimed a right of way relying on a conditional grant from 1906, section 62 of the 1925 Act, and also asserted a way by necessity.
Held: The defendant’s appeal succeeded. Public policy could play no part in the construction of a document between private parties, and the doctrine of necessity was derived from the factual circumstances only. The condition in the 1906 grant had not been fulfilled. The plaintiff was entitled only to the easements as they existed at the time of a 1922 conveyance and were therefore implied into it by section 62.
Megarry V-C said: ‘take as an example a case where Plot A consists of a footpath some 3 feet wide and 100 yards long, running from land near a public highway up to Plot B. If there is an express grant of a right of way to Plot A over land which lies between Plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of Plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to Plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means to access to Plot A. for the purposes for which Plot A is used, namely, as a means of access to Plot B. In the result, the way can be used a means of access to Plot B via Plot A, notwithstanding Harris v Flower. If Plot A is not used as an actual means of access to Plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply.’
Megarry V-C
(1981) 125 SJ 185, [1981] 1 Ch 246
England and Wales
Appeal from – Nickerson v Barraclough (2) ChD 2-Jan-1980
The Vice-Chancellor said: ‘if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the . .
See Also – Nickerson v Barraclough (1) ChD 1980
The court considered an assertion that a right of necessity was implied into a deed.
Held: ‘In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building . .
Cited – Harris v Flower CA 1904
The servient land-owner alleged an excessive user by which it was attempted to impose an additional burden on the servient tenement in the use of a right of way for obtaining access to a factory erected partly on the land to which the right of way . .
Cited – Campbell and Another v Banks and Others CA 1-Feb-2011
The court considered the creation by section 62 of the 1925 Act automatically of easements when land was divided. The claimants owned land bounded on either side by properties beloinging to the respondents. The properties had once been in common . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.429653
[1831] EngR 31, (1831) 5 Bligh NS PC 75, (1831) 5 ER 241
England and Wales
Updated: 28 June 2022; Ref: scu.319909
Obstruction of right of way
[2009] EWHC 607 (Ch), [2009] 28 EG 86, [2009] 17 EG 102
England and Wales
Updated: 28 June 2022; Ref: scu.341190
[1882] UKHL 1, (1882) 9 R (HL) 40, (1881-82) LR 7 App Cas 427
Scotland
Cited – Tulk v Moxhay 22-Dec-1848
Purchaser with notice bound in Equity
A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
Held: A purchaser from B, with notice of the covenant, was . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.279656
The court heard an argument that section 56 of the 1925 Act had not changed the law to allow a third party to sue under a covenant to which he had not been party.
Held: Simonds J rejected an argument that section 56 enabled anyone to take advantage of a covenant if he could shew that if the covenant were enforced it would redound to his advantage: ‘Just as under section 5 of the Act of 1845 only that person could call it in aid who, although not a party, was yet a grantee or covenantee, so under section 56 of this Act only that person can call it in aid who although not named as a party to the conveyance or other instrument is yet a person to whom that conveyance or other instrument purports to grant something or with which some agreement or covenant is purported to be made.’
Simonds J
[1937] Ch 610
England and Wales
Appeal from – White v Bijou Mansions CA 1938
The court heard an rejected an argument that s56 worked to allow a third party to sue under a covenant to which he had not been party: ‘before he can enforce it he must be a person who falls within the scope and benefit of the covenant according to . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.251040
A right of way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented.
Pearson J
(1886) 31 Ch D 679
England and Wales
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.258294
Land was transferred by a partnership to one of the partners and his wife. The consideration stated in the transfer was andpound;125,000, but each transferee had paid a similar sum into the partnership account. The respondents said that VAT should have been charged, and on a VAT inclusive price of andpound;250,000. The taxpayer appealed.
Held: A transfer of an interest in land is an exempt supply for VAT purposes unless the owner has waived exemption. The partnership had waived exemption. The transfer was not of the interest only of the retiring partner. The form as used was not the sole determinant of the issues. Given the circumstances, the tribunal was free to find as it had.
Kay, Lord Justice Kay Lord Justice Mummery The Honourable Mr Justice Gage
[2004] EWCA Civ 1591, Times 06-Dec-2004
England and Wales
Appeal from – Fengate Developments (A Partnership) v The Commissioners of Customs and Excise ChD 6-Feb-2004
. .
Cited – Commissioners of Customs and Excise v Reed Personnel Services Ltd QBD 13-Apr-1995
A company providing agency nurses was not itself providing nursing services and was not exempt from VAT. Where a tripartite contract was unclear on the liability for VAT, the tribunal was to look on it as a whole. It was the function of the Tribunal . .
Appealed to – Fengate Developments (A Partnership) v The Commissioners of Customs and Excise ChD 6-Feb-2004
. .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.220223
The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Held: Jewish law specifically provide that the decision of the Beth Din operated in personam only. Such an order could not be translated into an order in rem by seeking to enforce the award in the English Courts. Mr Jason’s submission to the Beth Din and its orders could not translate into a proprietary estoppel or constructive trust. English law is not relevant for the purpose of discovering a remedy which Jewish law does not provide.
Lord Justice Clarke The Lord Chief Justice Of England &Amp; Wales Lord Justice Rix
[2004] EWCA Civ 1599, Times 21-Dec-2004
England and Wales
Cited – Gillett v Holt and Another CA 23-Mar-2000
Repeated Assurances Created Equitable Estoppel
Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
Cited – Cretanor Maritime Co Ltd v Irish Marine Management Ltd CA 1978
A freezing order is relief in personam and creates no proprietary rights in the assets from time to time subject to it. Buckley LJ said that where an injunction required assets up to a stated value to be kept within the jurisdiction: ‘There must . .
Cited – Stockler v Fourways Estates Ltd 1984
The rule that an ordinary freezing order does not entitle a party in whose favour it was granted to say that he had a property or security interest in the respondent’s assets in question, applies where a freezing order fixes on a single specified . .
Cited – Palmer v Carey PC 1926
A lender financed a trader in goods, on the basis the proceeds of sale of the goods be paid into an account in the name of the lender, and that the lender recoup himself on a monthly basis in respect of sums advanced, with the balance being released . .
Cited – Commissioners of Customs and Excise v Barclays Bank Plc ComC 3-Feb-2004
The claimant had obtained orders against two companies who banked with the respondent. Asset freezing orders were served on the bank, but within a short time the customer used the bank’s Faxpay national service to transfer substantial sums outside . .
Cited – Coupland v Arabian Gulf Oil Co QBD 1983
The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here . .
Cited – Swiss Bank Corporation v Lloyds Bank Ltd CA 1981
An equitable charge is created when property is expressly or constructively made liable to the discharge of a debt or some other obligation, and the charge confers on the chargee a right of realisation by judicial process such as a sale order. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.220222
The Hon Mr Justice Lightman
[2004] EWHC 2815 (Ch)
England and Wales
Updated: 27 June 2022; Ref: scu.220212
The appellant loaned andpound;5000 to the respondent taking security of a andpound;30,000 mortgage debenture stock which would allow him to purchase any part of the stock at 40 per cent within twelve months. The company sought to repay the advance within the period of twelve months, whereupon the appellant claimed to purchase the whole of the stock at the agreed price. The company brought a redemption action, seeking a declaration that the option was void.
Held: The appeal failed. The company was entitled to the declaration. Lord Halsbury and Lord Macnaghten reached that conclusion with reluctance. If a court determined that a transaction was truly a mortgage, a court will strike down any term of the loan which prevents the mortgagor from getting back the property secured on repaying what was due to the mortgagee. A mortgage may not contain a clause that conferred on the mortgagee an option to buy the mortgaged property.
Lord Lindley said that the doctrine ‘Once a mortgage, always a mortgage’ was not confined to deeds creating legal mortgages; it applied to all mortgage transactions, and: ‘The doctrine . . means that no contract between a mortgagor and a mortgagee made at the time of the mortgage and as part of the mortgage transaction, or, in other words, as one of the terms of the loan, can be valid if it prevents the mortgagor from getting back his property on paying off what is due on his security. Any bargain which has that effect is invalid, and is inconsistent with the transaction being a mortgage. This principle is fatal to the appellant’s contention if the transaction under consideration is a mortgage transaction, as I am of opinion it clearly is.’
Earl of Halsbury, Lord Chancellor, Lord Macnaghten and Lord Lindley
[1904] AC 323, [1904] UKHL 2
England and Wales
Updated: 27 June 2022; Ref: scu.219904
The claimant sought leave to an appeal an order dismissing his claim for an interest in the property owned by his former partner and in which they had co-habited. This was the second such house. He sought an interest under a resulting trust, having contributed to the purchase costs.
Held: Though the judge had not addressed the issue now raised as to whether a resulting trust had arisen, had he done so, it would not have affected the order. Leave refused.
Lord Justice Peter Gibson Sir William Aldous
[2004] EWCA Civ 1515
England and Wales
Cited – Marsh v von Sternberg QBD 1986
In a constructive trust case, a discount from the open market price given to a sitting tenant by the landlord selling a flat was treated as a relevant contribution by the sitting tenant. . .
Cited – Huntingford v Hobbs CA 1-Mar-1992
The parties lived together in a property transferred to the woman after her divorce. That house was sold and the defendant contributed the capital. There was a joint mortgage, but the plaintiff alone had an income from which to make payments. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219664
Appeal against order to demolish extension erected in breach of right of light.
Lord Justice Peter Gibson Lord Justice Jacob
[2004] EWCA Civ 1514
England and Wales
Updated: 27 June 2022; Ref: scu.219658
plea of non est factum
[2004] EWCA Civ 1423
England and Wales
Updated: 27 June 2022; Ref: scu.219471
Neighbour dispute – parking.
[2001] EWCA Civ 1706
England and Wales
Updated: 27 June 2022; Ref: scu.218513
Dispute between an unmarried couple as to the beneficial ownership of a house in which they formerly lived together – cross appeals against order made.
Potter LJ, Sir Martin Nourse
[2002] 2 P and CR 15, [2001] EWCA Civ 1667
England and Wales
Updated: 27 June 2022; Ref: scu.218484
[2001] EWCA Civ 1601
White Herring Fisheries Act 1771
England and Wales
Updated: 27 June 2022; Ref: scu.218445
[2001] EWCA Civ 1658
England and Wales
Updated: 27 June 2022; Ref: scu.218406
Application for leave to appeal against mortgage re-possession order.
Robert Walker, Rix LJJ
[2001] EWCA Civ 1285
England and Wales
Updated: 27 June 2022; Ref: scu.218337
Defendant’s application for leave to appeal against mortgage possession order.
Mummery LJ
[2002] EWCA Civ 1895
England and Wales
Updated: 27 June 2022; Ref: scu.217870
[2001] EWCA Civ 817
England and Wales
Updated: 27 June 2022; Ref: scu.218064
[2002] EWCA Civ 1018
England and Wales
Updated: 27 June 2022; Ref: scu.217300
Second application for permission to appeal.
[2002] EWCA Civ 969
England and Wales
Updated: 27 June 2022; Ref: scu.217326
Timeshare arrangements
Mr Justice Richards
[2004] EWHC 1014 (Ch)
England and Wales
Updated: 27 June 2022; Ref: scu.196973
Mervin Davies J
Unreported, February 1985
England and Wales
Cited – Wrotham Park Settled Estates v Hertsmere Borough Council CA 12-Apr-1993
Land had been purchased under compulsory purchase powers. It had been subject to restrictive covenants in favour of neighbouring land which would have prevented the development now implemented. The question was how the compensation should be . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.186381
The servient owner granted a lease of easements to the dominant owner, to provide a means of access to the dominant land, and from the dominant land (an hotel) to the Silverstone racing circuit. Subsequently the hotel owner negotiated a more direct easement to the hcircuit, and was to pay for it. The dominant owner claimed that the people using the leased easements would, by exiting the dominant land over the new easement, be benefitting that land.
Held: Such ancillary use for the non-dominant land was a benefit outside the scope of an easement unless there was either no benefit or profit to the non-dominant land, or the exetent of the use of the non-dominant land was insubstantial. Here the proposed use of the ‘exit’ easement could not be described as insubstantial.
Gabriel Moss QC
Times 29-Mar-2003, Gazette 15-May-2003
England and Wales
Cited – Alvis v Harrison HL 1989
The dominant tenement lay on both sides of the servient land, a driveway running North South leading to the A73 highway. To the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new . .
Cited – Peacock and Another v Custins and Another CA 14-Nov-2000
The conveyance of a field constituting the dominant land to the claimants was expressed to be subject to the benefit of a right of way over land owned by the defendants, enabling the claimants to reach the dominant land ‘at all times and for all . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.180362
Appeal by the Defendants against an order declaring that the flank wall of 39HP which adjoins the Garden is a party wall within the meaning of section 38(1) of the 1925 Act and of section 20 of the 1996 Act. The issue on the appeal is whether the judge was right to make those declarations on the true construction of a transfer whereby Grosvenor transferred 39HP, and in particular clause 3(b) of the Transfer. The Claimant is the transferee’s successor in title.
Arnold J
[2018] EWHC 3048 (Ch)
Law of Property Act 1925 38(1), Party Wall etc Act 1996 20
England and Wales
Updated: 27 June 2022; Ref: scu.628966
Adverse possession case with a complicated procedural history, turning on a large amount of factual evidence. Applications cancelled.
[2018] UKFTT 449 (PC)
England and Wales
Updated: 27 June 2022; Ref: scu.623848
[2018] UKFTT 448 (PC)
England and Wales
Updated: 27 June 2022; Ref: scu.623856
Goulding J remarked that redundant words in a contract may sometimes serve the useful purpose of increasing clarity.
Goulding J
[1973] 1 All ER 843
England and Wales
Cited – Martin v David Wilson Homes Ltd CA 28-Jun-2004
The court considered the construction of a restrictive covenant, and was asked whether an indefinite article ‘a private dwellinghouse’ was to be construed as a limitation of number or whether it was to be construed as being as to the manner of use. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.421518
Scott J accepted Kirby as authority for the application of section 10 to works on land acquired by agreement. In an application for a declaration that land is not restricted by a covenant, the onus is on the plaintiff to prove that it is not so affected. It is not on the defendant to prove that it is affected.
Scott J
[1984] 1 WLR 1398, [1984] 3 All ER 632
England and Wales
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.259684
[2001] EWCA Civ 1114, [2002] CP Rep 2
England and Wales
See Also – Paragon Finance Plc v Noueiri CA 24-Apr-2001
Application for leave to appeal. . .
Cited – McKenzie v McKenzie CA 10-Jul-1970
Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
See Also – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.218334
The applicants applied to discharge or modify a restrictive covenant on land in their freehold ownership.
[2001] EWCA Civ 507
England and Wales
Updated: 27 June 2022; Ref: scu.218106
Application for leave to appeal – refused.
Sedley LJ
[2001] EWCA Civ 401
England and Wales
Updated: 27 June 2022; Ref: scu.218085
Application for leave to appeal.
Keene LJ
[2001] EWCA Civ 603, [2001] 1 WLR 2357
England and Wales
Cited – Harris and others v The Society of Lloyd’s ComC 1-Jul-2008
Refusal of ;lay representation in Commercial Court . .
See Also – Paragon Finance Plc v Noueiri CA 4-Jul-2001
. .
See Also – Noueiri v Paragon Finance Plc (Practice Note) CA 19-Sep-2001
Courts should be careful before allowing unqualified persons to represent other parties at court. Pleadings and similar documents must be signed by the party or their qualified legal representative. Others signing them may be in contempt of court . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.218124
Appeal from a judgment against the defendants/appellants for andpound;3,842.36 plus interest and costs. It raises some interesting points under the Thames Conservancy Act 1932 and under express or implied licence arrangements (known as ‘accommodation licences’) made between the parties.
Simon Brown LJ VP CA, Mance LJ
[2001] EWCA Civ 517
England and Wales
Updated: 27 June 2022; Ref: scu.218050
[2001] EWCA Civ 494
England and Wales
Updated: 27 June 2022; Ref: scu.218054
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’
Peter Gibson, Chadwick, Keene LJJ
[2001] EWCA Civ 119
England and Wales
Cited – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
See Also – Taylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.217958
The court considered a claim for the adverse possesion of land.
Held: Dyson LJ said: ‘to establish a claim of adverse possession for the requisite period of 12 years it is necessary to establish: (1) actual possession; (2) an intention to possess. That has two elements. First a subjective element requiring the person, the trespasser, to establish that he intended to possess the land, and also an objective element, namely an establishment of what Clarke LJ referred to as a possession which was apparent or would be apparent to the owner if he visited the site.’
Dyson LJ referred to Batt v Adams and said: ‘In this particular case, the purpose of the fence appeared to be, and Mr Baker said it was, to keep sheep in. It does not seem that he would have put that fence up if he had been grazing cattle rather than sheep. In those circumstances it was open to the judge to conclude that there was no intention of Mr Baker to possess the land.’
Dyson LJ
[2002] EWCA Civ 1733
England and Wales
Cited – Powell v McFarlane ChD 1977
Intention to Establish Adverse Possession of Land
A squatter had occupied the land and defended a claim for possession. The court discussed the conditions necessary to establish an intention to possess land adversely to the paper owner.
Held: Slade J said: ‘It will be convenient to begin by . .
Cited – J A Pye (Oxford) Ltd and Others v Graham and Another HL 4-Jul-2002
The claimants sought ownership by adverse possession of land. Once the paper owner had been found, they indicated a readiness to purchase their interest. The court had found that this letter contradicted an animus possidendi. The claimant had . .
Cited – London Borough of Lambeth v Blackburn CA 14-Jun-2001
The appellant had broken into an empty council owned flat, and subsequently occupied it. After twelve years the authority obtained a court order for possession. The court had held that the appellant had not had a sufficient animus possidendi since . .
Cited – Michael Batt Charitable Trust v Adams ChD 2001
The court looked at what was required to establish adverse possession in a claim for land. Laddie J said: ‘The only factor that appears, at first sight, to point in the direction to exclude anyone, is the fact that Mr Higgs maintained and repaired . .
Cited – Chambers v London Borough of Havering CA 20-Dec-2011
The defendant appealed against an order for him to surrender possession of land he had claimed by adverse possession. The Council was the registered proprietor. The defendant said he had used the land since 1981 for dumping of motor vehicle parts. . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.217832
[2002] EWCA Civ 1576
England and Wales
Updated: 27 June 2022; Ref: scu.217711
[2002] EWCA Civ 1473
England and Wales
Updated: 27 June 2022; Ref: scu.217697
[2002] EWCA Civ 1632
England and Wales
Updated: 27 June 2022; Ref: scu.217644
Ferris J
[2002] EWCA Civ 1177
England and Wales
Updated: 23 June 2022; Ref: scu.217373
Application for permission to appeal from a judgment of the Lands Tribunal in a compulsory purchase case.
[2002] EWCA Civ 984
England and Wales
Updated: 23 June 2022; Ref: scu.217308
The claimant wished to lay communications cables desired by the frontagers, but under private roadways owned by the defendant.
Aldous, Mance, Longmore LJJ
[2002] EWCA Civ 720
England and Wales
Updated: 23 June 2022; Ref: scu.217146
Application for leave to appeal against refusal of transfer to administrative court and stay.
Mummery, Dyson LJJ,Sir Swinton Thomas
[2002] EWCA Civ 713
England and Wales
Updated: 23 June 2022; Ref: scu.217138
Application for permission to appeal against possession order in mortgage action.
Ward LJ
[2002] EWCA Civ 518
England and Wales
Updated: 23 June 2022; Ref: scu.217047
[2002] EWCA Civ 363
England and Wales
Updated: 23 June 2022; Ref: scu.216988
Aldous LJ
[2002] EWCA Civ 394
England and Wales
Updated: 23 June 2022; Ref: scu.216879
Application for leave to appeal against mortgagee’s possession order.
Aldous LJ
[2002] EWCA Civ 453
England and Wales
Updated: 23 June 2022; Ref: scu.216877
Appeal from refusal of a declaration that a charge on land was void.
[2002] EWCA Civ 341
England and Wales
Updated: 23 June 2022; Ref: scu.216765
The claimant had brought a case that a strip of land was a highway maintainable at public expense, but had failed. After some time he requested the judge to state a case. The recorder refused saying that no error of law was identified and that the claimant had delayed unduly. He now sought judicial review of the refusal.
Held: The application was out of time, and no error had been demonstrated. The request for leave was refused.
[2002] EWCA Civ 186
England and Wales
Updated: 23 June 2022; Ref: scu.216772
New South Wales – A party requested to give his consent to a proposed transaction was entitled to be given sufficient information to make his assessment in full knowledge of the circumstances.
[1923] AC 435, [1923] UKPC 7
Australia
Cited – Arundel Corporation v Khokher CA 9-Dec-2003
The tenant had served a notice to review the rent. The tenent delivered a counter notice personally be posting it through the letter box. The lease provided that the notice was to be served at the last known business address of the landlord. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.216584
HHJ David Cooke
[2021] EWHC 21 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.657219
Claim for interest in farm
His Honour Judge Russen QC
[2019] EWHC 869 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.636135
Boundary dispute
Arnold J
[2018] EWHC 2743 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.628947
Morgan J
[2015] EWHC 3753 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.558292
[2018] UKFTT 440 (PC)
England and Wales
Updated: 23 June 2022; Ref: scu.623864
Where a grant of a right of way is ‘for all purposes’ its use will not be limited by the purposes for which the dominant land was used at the date of the grant. The very general expression was to be given its ordinary unvarnished meaning, as a formula for the grant of a right of way without any limitation on purpose.
Peter G Whiteman QC J
[1998] All ER (D) 703
England and Wales
Cited – Thompson v Bee and Another CA 20-Nov-2009
The parties disputed the extent and nature of the use allowed for an unregistered but express right of way. The track had been obtained by use for agriculture. The dominant owner appealed against a finding that it was limited to agricultural use, . .
Cited – Davill v Pull and Another CA 10-Dec-2009
The court was asked to interpret grants of rights of way over land. The claimant intended to increase the use of the right. The servient owners objected. The claimant appealed against refusal of relief.
Held: The appeal succeeded. There was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.381286
[2005] EWCA Civ 91
England and Wales
Updated: 23 June 2022; Ref: scu.222607
Appeal from order allowing modification of restrictive covenants.
Robert Walker LJ
[2001] EWCA Civ 380, [2002] 1 P and CR 4
England and Wales
Updated: 23 June 2022; Ref: scu.218053
[2001] EWCA Civ 437, [2001] 2 All ER (Comm) 900
England and Wales
Updated: 23 June 2022; Ref: scu.218074
The Hon Mr Justice Rattee
[2004] EWHC 2787 (Ch)
England and Wales
Updated: 23 June 2022; Ref: scu.220215
Appeal from refusal of application for suspending a warrant of possession in relation to home.
Pill LJ
[2001] EWCA Civ 208
England and Wales
Updated: 23 June 2022; Ref: scu.218025
The court considered a grant of rights to take water. Sir Wilfred Greene MR said: ‘It was a grant of the residue of what should reach them after the water had been taken by the persons entitled to takle water from those branches’
Sir Wilfred Greene MR
[1938] 1 All ER 595
England and Wales
Cited – Mitchell v Potter CA 20-Jan-2005
By a conveyance the owner of a spring granted to a neighbour the right to take and use water. He now said that the extent of water taken was excessive.
Held: No identical gtant was found from decided cases. The grant was not an easement but a . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.221718
Lindley LJ said: ‘In dealing with estates in land title is everything, and it can be leisurely investigated; in commercial transactions possession is everything, and there is no time to investigate title; and if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralyzing the trade of the country.’
Lindley LJ
[1895] 2 QB 539
England and Wales
Cited – Criterion Properties Plc v Stratford UK Properties and others CA 18-Dec-2002
The parties came together in a limited partnership to develop property. The appeal was against a refusal to grant summary judgment on a claim that one party had been induced to enter the contract by a fraudulent misrepresentation.
Held: In . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.194960
The court drew a distinction between an action on a debt which had been but was no longer secured, and a debt which had not been secured.
Denning LJ
[1952] 2 QB 47
England and Wales
Cited – Bristol and West plc v Bartlett and Another; Paragon Finance plc v Banks; Halifax plc v Grant CA 31-Jul-2002
The defendants resisted claims by lenders for the payment of mortgage debts. In each case the lender had exercised the power of sale before issuing proceedings for possession. The defendants queried the limitation period applicable.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.199719
The plaintiff sought damages after a relative died in the stairwell of an underground tube station taken over by the defendant for use as an air raid shelter. The steps down to the station were known to be unsafe, being wide without protective railings and subject to risks where a large flow of people used the steps at the same time. The defendant replied that it had not been negligent, that it had not altered the station, that it was exempt under the 1939 Act, and that it was an injury of war.
Held: The defendant was properly the occupier of the premises, and responsible. The dangers were known, and particularly at the start of an air raid, the dangerous conditions would arise. The injuries received were not war injuries, and the 1939 Act did not provide the exemption sought. The defendants were liable.
109 JP 72 CA, [1945] 1 All ER 135, [1945] 43 LGR 75
England and Wales
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.180680
[2002] EWCA Civ 1249
Trusts of Land and Appointment of Trustees Act 1996
England and Wales
Updated: 21 June 2022; Ref: scu.217278