The court was asked whether the owners and landlords of a site known as Waters Edge prevented performance of an obligation by a Management Company to undertake and complete works on common parts of the site, an obligation which (it is said) came into effect on the liquidation and disappearance of the original developer.
[2018] EWCA Civ 1471
England and Wales
Updated: 24 April 2022; Ref: scu.618931
‘Should this court overturn the decision of the Upper Tribunal (Lands Chamber) (‘the Tribunal’) not to award successful claimants their costs of pursuing claims for compensation under Part 1 of the Land Compensation Act 1973 on the indemnity basis, where the compensation awarded to them had exceeded offers of settlement made by them before the hearing? ‘
[2018] EWCA Civ 1520
England and Wales
Updated: 24 April 2022; Ref: scu.618928
Community Right to Bid
[2018] UKFTT CR-2018-0001 (GRC
England and Wales
Updated: 24 April 2022; Ref: scu.618860
Disputes as to mooring rights
[2018] EWHC 1447 (Ch)
England and Wales
Updated: 24 April 2022; Ref: scu.618823
Hollington QC J
[2018] EWHC 1206 (Ch)
England and Wales
Updated: 24 April 2022; Ref: scu.618783
The claimant gypsy sought judicial review of a decision by the Council to proceed to enforce a possession order in respect of land on which she was encamped.
Tucker J
[1999] EWHC Admin 694
England and Wales
Updated: 24 April 2022; Ref: scu.139958
The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal succeeded. The risk of injury arose, not from any danger due to the state of the defendants’ premises, or to things done or omitted to be done on those premises, but from the claimant’s own misjudgment in attempting to dive in water that was too shallow. This was not a risk that gave rise to any duty on the defendants’ part and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the claimant protection. The dangers were signposted, and therefore the 1957 Act did not apply. Under the 1984 Act, the question was whether there was a difference between someone whose entry to the property was as a trespasser, and someone who having entered property lawfully, became a trespasser after by acting outside the terms of the licence. There should not be a difference, and nor should the authority be required to take greater steps than they had to prevent others taking risks which were obvious.
Lord Hoffmann said why the voluntary assumption of risk was a complete answer to his claim: ‘I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with an appropriate moderation my disagreement with the proposition of Sedley LJ that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.’
Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote
[2003] UKHL 47, Times 01-Aug-2003, Gazette 11-Sep-2003, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8
Occupier’s Liability Act 1984 1, Occupier’s Liability Act 1957 2
England and Wales
Appeal from – Tomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
Cited – Hillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
Cited – Donoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
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 . .
Cited – Staples v West Dorset District Council CA 5-Apr-1995
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see. . .
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Darby v National Trust CA 29-Jan-2001
The claimant’s husband drowned swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which . .
Cited – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Stevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .
Cited – Hastie v Magistrates of Edinburgh 1907
There are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’. . .
Cited – Glasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
Cited – Cotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
Cited – Karl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
Cited – Bartrum v Hepworth Minerals and Chemicals Limited QBD 1984
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck.
Held: The court dismissed his claim for damages saying ‘So far as the Act . .
Cited – Simonds v Isle of Wight Council QBD 23-Sep-2003
The claimant sought damages, having been injured at a school sports day. The school had carried out a risk asessment and acknowledged a risk of injury.
Held: Not every risk identified could or should be controlled. The injury occurred whilst . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Sandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
The claimant asserted a common law duty on the respondent to maintain a roadway free of frost.
Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Hampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
Cited – Keown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – Helena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
Cited – Cockbill v Riley QBD 22-Mar-2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
Cited – Uren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
Cited – Ovu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.185424
The claimants sought to recover for damages caused to their house foundations by trees growing nearby which were the responsibility of the defendants. The defendants replied that the damages was caused in part by roots from virgina creeper and wisteria grown by the claimants themselves and growing on the house.
Held: It is neither necessary nor appropriate to look for special causal rules applying to cases involving trees. The judge required the claimants to establish that the damage from the tree roots was the dominant cause, and had erred. The test is whether the trees were an effective and substantial cause of the recent damage.
Lord Justice Buxton, Lord Justice Chadwick
[2003] EWCA Civ 1490
England and Wales
Cited – Delaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – Paterson and Another v Humberside County Council QBD 19-Apr-1995
A local authority was liable for nuisance for damage (cracks to house) caused by tree roots once it could be shown that it knew of the soil condition, by virtue of the council’s own warnings to residents of the danger in the area meant that the . .
Followed – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Berent v Family Mosaic Housing and Others TCC 25-May-2011
The claimant sought damages for subsidence to her property allegedly caused by the roots of trees on the defendants’ properties. Two large plane trees stood in the pavement outside the house and about 12 metres from it. . .
Lists of cited by and citing cases may be incomplete.
Updated: 24 April 2022; Ref: scu.187283
‘The novel issue raised by this appeal is whether the doctrine of overreaching in section 2(1) of the Law of Property Act 1925 (‘LPA 1925′) is capable of operating in circumstances where the conveyance to a purchaser which is alleged to have the overreaching effect is the grant of an easement over land, and the equitable interest which is said to be overreached is not an interest in the easement itself, or even in the land conveyed to the purchaser with the benefit of the easement, but an interest in the servient tenement which the common vendor has previously contracted to sell to a third party, and which (following completion of that sale) the vendor holds as a bare trustee for the third party pending registration of his title with HM Land Registry.’
[2018] EWCA Civ 1126, [2018] WLR(D) 299
England and Wales
Updated: 22 April 2022; Ref: scu.616320
Boundary line
Morgan J
[2018] EWHC 926 (Ch)
England and Wales
Updated: 22 April 2022; Ref: scu.616128
Rights of way
Hildyard J
[2018] EWHC 918 (Ch)
England and Wales
Updated: 22 April 2022; Ref: scu.616133
Saffman HHJ
[2018] EWHC 500 (Ch)
England and Wales
Updated: 22 April 2022; Ref: scu.616137
[2018] UKUT 166 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614991
[2018] UKUT 140 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614990
[2018] UKUT 134 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614989
[2018] UKUT 160 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614992
[2018] UKUT 153 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614993
[2018] UKUT 149 (LC)
England and Wales
Updated: 20 April 2022; Ref: scu.614987
Whether the authority had vires to grant a particular lease.
[2018] EWCA Civ 1035
England and Wales
Updated: 20 April 2022; Ref: scu.614923
Appeal from grant of mortgagee possession order – claim of disability discrimination.
[2018] EWCA Civ 854
England and Wales
Updated: 20 April 2022; Ref: scu.614899
Powers of Magistrates to Allow New Use of Part of Common Good
[1879] SLR 17 – 225
Scotland
Updated: 20 April 2022; Ref: scu.614882
The freeholder charged the land in 1856. He remained in possession, and did not make any payments or give any acknowledgment of the mortgagee’s title. In 1870 the mortgagee presented a bill for foreclosure, and in 1874 a bill of redemption or foreclosure was granted, with foreclosure being made absolute in 1877, and possession sought in 1878.
Held: The action was not barred under the 1833 Act though brought more than 20 years after any acknowledgment. It is in the nature of the mortgage transaction that the mortgagor remains in possession, and is entitled to receive the rents from it. His possession is as of right and is not a wrong. A mortgagee taking possession is not entitled to recover rents paid to the mortgagor before he has taken possession. A mortgagor in possession of the mortgaged land is to be treated as being in possession with the consent of the mortgagee, unless the mortgagee has terminated the consent and there is then evidence to show that the mortgagor was a trespasser on the mortgaged land.
Lord Selbourne LC
(1881) 6 QBD 345, [1881] 50 LJQB 473, [1881] 44 LT 327, [1881] 29 WR 904
Real Property Limitation Act 1833
England and Wales
Cited – National Westminster Bank Plc v Ashe (Trustee In Bankruptcy of Djabar Babai) CA 8-Feb-2008
The mortgagees had made no payments under the charge for more than twelve years, and had remained in possession throughout. They argued that the bank were prevented from now seeking to enforce the charge. The bank argued that the possession had not . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.264290
Clause 1 of an agreement between a company and the District Council required that the land should be sold subject to the conditions restricting and regulating the development. A clause provided ‘An area of 1.3 hectares adjacent to the playing field and amenity open space areas shall be reserved for school purposes.’
Held: The paragraph was a restrictive covenant running with the land. Parker LJ: ‘It is said to be positive because it involved a positive obligation to define the area and reserve it. I have had some difficulty in following this argument and I reject it without hesitation. One only has to ask the question: ‘were the respondents free to build residential houses on the land?’ to get the answer: ‘No they were not!’ If that is not restrictive I do not know what is.’ Lawton LJ concluded that on a natural reading of the agreement the developers had covenanted with the District Council for the benefit of the land that 1.3 hectares should be not used other than for school purposes. He said that that covenant was just as restrictive as the seminal one in Tulk v Moxhay (1848) 2 Ph 774. Nourse LJ considered whether the parties intended that the term of the agreement should create a restrictive covenant whose burden was to run with the land or did they intend that its obligation should exist only in contract. He concluded that it was clear that it should run with the land and that, in the terms of the agreement, the land was to be subject to conditions and restrictions which regulated the development. He posed this question: ‘How then can it be said that such of those conditions as are negative in substance were not intended to run with the land, but to exist only in contract?’
Parker LJ, Lawton LJ, Nourse LJ
[1986] 1EGLR 24
England and Wales
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 . .
Cited – Blumenthal v The Church Commissioners for England CA 13-Dec-2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant.
Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.220273
It was argued that an easement of support, obtained by prescription, could no longer be enjoyed where the owner of the dominant land had extended his building so as to increase, indeed virtually to double, the weight thrown onto a wall on the building owned by the defendants.
Held: ‘I do not think that there is any room for doubt as to the law. The difficulty, as is not uncommon, is to apply a perfectly well established principle of law to the facts of the particular case. As I understand it, the principle dating back at least to Lutrell’s case, is that an easement is extinguished when its mode of user is so altered as to cause prejudice to the servient tenement. Whilst an easement of support in relation to a building may be extinguished if the building is so altered or reconstructed as to throw a substantially increased burden on the servient tenement to the prejudice of the owner thereof.’ and ‘It seems to me that there is all the difference in the world between an easement of light and an easement of support’. ‘Substantial prejudice’ in this context meant ‘A substantial additional restriction upon the use to which the servient tenement could be put or upon legitimate activities thereon. In my judgment, it is for the servient owner to establish this.’
Willmer LJ, Russell LJ, Fenton-Atkinson LJ
(1968) 20 P and CR 261
England and Wales
Cited – Lutrell’s Case 1601
A prescriptive right to a watercourse was not lost by the dominant owner demolishing two ancient fulling mills and erecting in their place two new corn grinding mills. The Exchequer Chamber held that the dominant owner ‘might alter the mill into . .
Cited – McAdams Homes Ltd v Robinson and Another CA 27-Feb-2004
The defendant blocked the line of a sewer. The claimant alleged that it had an easement and sought the cost of building the alternative pipe. The question to be answered was ‘Where an easement is granted by implication on the sale of a property, . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.194011
In an agreement under which the claimant went into possession of land, paying rent until a purchase was completed, it was held that a provision for payment of interest on the purchase money showed that the relationship of landlord and tenant was to cease on the contract becoming effective.
[1939] 4 All ER 370
England and Wales
Updated: 20 April 2022; Ref: scu.180047
A contract for the sale of land provided that, upon service of a notice to complete, the transaction should ‘be completed within 15 working days of service and in respect of such period time shall be of the essence’. The notices however substituted a period of 28 days for the period of 15 days. The purchaser, lacking the necessary funds, failed to complete within the period of 28 days; then, having obtained the necessary funds a few days later, sought specific performance of the contract. The vendor claimed that he had rescinded the contract on the purchaser’s failure to comply with the notice to complete.
Held: The notice was effective. There was only one sense in which any reasonable recipient would have read it, viz. that the vendor would not exercise the rights conferred by the contract (to rescind if the purchaser did not complete within 15 days), provided that the purchaser completed within 28 days. (Bingham L.J.) ‘The authorities show that a notice will be invalid and ineffective unless it gives the precise notice which the contract requires and leaves the recipient in no reasonable doubt as to the effect of the notice.’
Slade LJ, Bingham LJ
[1990] 1 WLR 445
England and Wales
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – York and Another v Casey and Another CA 16-Feb-1998
The plaintiffs let property to the respondents. The notice of shorthold tenancy issued prior to the tenancy commencing had obvious errors in the dates. The issue was as to its validity.
Held: The error was evident, the termination date . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.185086
W divorced H, and under a property adjustment order made by consent, the jointly owned matrimonial home was transferred to her outright. H was made bankrupt less than two years later, and the trustee sought a declaration that the consent order or its implementation was void under section 42 which protected only a settlement made to a purchaser in good faith and for valuable consideration. The court dismissed the application saying the wife was such a purchaser. The trustee appealed.
Held: The appeal was dismissed. The court accepted the submission of the wife’s counsel that the compromise of a bona fide claim for ancillary relief can constitute the claimant a purchaser for valuable consideration of what he receives under the compromise, even though no interest in property is transferred by the purchaser and the consideration provided by the purchaser is not measurable in money. The Vice-Chancellor agreed.
Peter Gibson J
[1983] 1 Ch 45
England and Wales
Cited – Harman v Glencross 1986
On the divorce, the wife applied for a property transfer order in relation to the jointly owned matrimonial home. A creditor of her husband then obtained a charging order on H’s interest. She sought its varation. The creditor said that there was . .
Cited – Re Kumar (A Bankrupt), ex parte Lewis v Kumar 1993
H had transferred his interest in the jointly owned matrimonial home to W for her promise to have sole liability for the mortgage debt. Nearly a year later her divorce claim for capital provision was dismissed by consent on the basis that H had . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 April 2022; Ref: scu.261928
ECJ Judgment – Reference for a preliminary ruling – Area of freedom, security and justice – Regulation (EU) No 1215/2012 – Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters – Scope – First subparagraph of Article 24(1) – Exclusive jurisdiction in matters relating to rights in rem in immovable property – Article 7(1)(a) – Special jurisdiction in matters relating to a contract – Action seeking the avoidance of a contract of gift of immovable property and the removal of an entry in the land register evidencing a right of ownership
ECLI:EU:C:2016:881, [2016] EUECJ C-417/15, [2016] WLR(D) 607
Regulation (EU) No 1215/2012 7(1)(a) 24(1)
European
Cited – Akcil and Others v Koza Ltd and Another SC 29-Jul-2019
The first claimant was an English company all of whose shares were owned by a Turkish company. The second claimant as director caused changes to the company’s constitution and share structure. The parties disputed the jurisdiction of the UK Courts . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 April 2022; Ref: scu.571775
Court of Session Inner House First Division – A Feucontract provided that the vassal should be obliged to build tenements of a certain kind on the land feued, and that such tenements should be covered with blue Scotch slates.
In a note of suspension and interdict presented by the superior to have the vassal interdicted from covering the tenements with slates of another kind, the vassal averred that the slates he was using were better in quality and dearer in price than blue Scotch slates, and pleaded that the superior had no interest to insist in the interdict.
Held (aff. judgment of Lord Pearson) that the superior was entitled to enforce the condition as to slates in the feucontract.
Lord Pearson, Ordinary
[1898] SLR 35 – 351
Scotland
Updated: 17 April 2022; Ref: scu.612162
A trader who decided to acquire property for letting could claim repayment of VAT on the cost of a right to acquire a building which had not yet been constructed, let alone tenanted.
C-268/83, [1985] ECR I-655
European
Cited – Schul v Inspecteur der Invoerrechten en Accijnzen (Judgment) ECJ 5-May-1982
A basic element of the VAT system is that VAT is chargeable on each transaction only after deduction of the amount of the VAT borne directly by the cost of the various components of the price of the goods and services and that the deduction . .
Cited – Royal and Sun Alliance Insurance Group plc v Her Majesty’s Commissioners of Customs and Excise HL 22-May-2003
The landlord had elected to waive exemption to charging VAT on its lettings. The tenant relet the demised premises, but at first without charging VAT. It later charged VAT on the sublease, but the commissioners objected to the attempt of the . .
Cited – Intercommunale voor Zeewaterontzilting v Belgium (Judgment) ECJ 29-Feb-1996
The principle that VAT was reclaimable on the cost of acquiring a right later to purchase land to be used for VATable trade was applied to allow deduction of VAT on the cost of a study undertaken by a company in order to decide whether to commence . .
Cited – Lex Services plc v Her Majestys Commissioners of Customs and Excise HL 4-Dec-2003
When taking a car in part exchange, the company would initially offer the correct market value. If the customer wanted, the company would agree a higher price. When cars were returned, the company at first reclaimed the VAT on the re-purchase price, . .
Cited – Revenue and Customs v Frank A Smart and Son Ltd SC 29-Jul-2019
The question was whether a taxpayer can deduct as input tax the VAT which it has incurred in purchasing entitlements to an EU farm subsidy, the Single Farm Payment. The taxpayer had used those entitlements to annual subsidies over several years and . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 April 2022; Ref: scu.133763
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: The appeal succeeded. There were difficulties in construing the contract. The contract came to be read after a period of sharp falls in value which were not reflected comfortably in the words used, and the phrase ‘additional residential payment’ made no particular commercial sense. It was necessary for it to be clear first that the language had gone awry, and second what a reasonable bystander would have understood the parties to have meant. Those conditions being satisfied, the appeal was allowed.
Evidence of negotiations can be given to establish that ‘a fact which may be relevant as background was known to the parties’. It was also argued that the course pre-contractual negotiations should be allowed and taken into account in construing the contract. There was however no clear case shown for departing from this exclusionary rule or changing what is now settled practice.
The court should consider ‘what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean.’
Lord Hoffmann noted that prior negotiations might be relevant for purposes other than the drawing of inferences about what the contract means.
As to the cases of East and KPMG, he said: ‘What is clear from these cases is that there is not, so to speak, a limit to the amount of red ink or verbal rearrangement or correction which the court is allowed. All that is required is that it should be clear that something has gone wrong with the language and that it should be clear what a reasonable person would have understood the parties to have meant. In my opinion, both of these requirements are satisfied.’
Lord Hoffmann said: ‘words used as labels are seldom arbitrary’
Lord Hoffmann (obiter) where the document of which rectification is sought is a written contract, the relevant test of intention is purely ‘objective’ – meaning by this what a reasonable observer with knowledge of the background facts and prior communications between the parties would have thought their common intention at the time of contracting to be.
Lord Hope of Craighead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe and Baroness Hale of Richmond
[2009] UKHL 38, Times 02-Jul-2009, [2009] 27 EG 91, [2009] BLR 551, 125 Con LR 1, [2009] 3 WLR 267, [2010] 1 P and CR 9, [2009] Bus LR 1200, [2009] NPC 86, [2009] CILL 2729, [2009] 4 All ER 677, [2009] 1 AC 1101, [2009] WLR (D) 223
England and Wales
At first instance – Chartbrook Ltd v Persimmon Homes Ltd and Another ChD 2-Mar-2007
The claimants had entered into an agreement with the defendant house-builder for the development of a site which the claimants had recently acquired. The structure of the agreement was that the developer would obtain planning permission and, under . .
Appeal from – Chartbrook Ltd v Persimmon Homes Ltd CA 12-Mar-2008
Owners of land (Chartbrook) made a contract with a developer (Persimmon) granting Persimmon a licence to develop the land for commercial and residential use. Planning permission was granted and the development was built. The sums payable to . .
Cited – A and J Inglis v Buttery and Co CA 1877
Surrounding circumstances are not admissible for any purpose of finding out which words the parties intended to use rather than did use in their contract. Lord Justice Clerk Moncreiff said that in all mercantile contracts ‘whether they be clear and . .
Cited – River Wear Commissioners v Adamson HL 1877
It was not necessary for there to be an ambiguity in a statutory provision for a court to be allowed to look at the surrounding circumstances.
As to the Golden Rule of interpretation: ‘It is to be borne in mind that the office of the judge is . .
Cited – Prenn v Simmonds HL 1971
Backgroun Used to Construe Commercial Contract
Commercial contracts are to be construed in the light of all the background information which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their . .
Cited – Birmingham City Council v Walker HL 16-May-2007
The tenant was the son of the former tenant. The tenancy had originally been in the ownership of his father and his mother. The father died in 1969, when the tenancy not yet a secure tenancy. On the mother’s death, the council argued that the first . .
Cited – A and J Inglis v Buttery and Co HL 1878
The presumption is that a contract document expresses all the terms in the contract with the effect that the court will only look to the document ‘in determining what the contract really was and what it really meant. Lord Blackburn preferred the . .
Cited – KPMG Llp v Network Rail Infrastructure Ltd CA 27-Apr-2007
The parties disputed the interpretation of a break clause in their lease. Carnwath LJ said that courts should not readily accept that parties have made mistakes in formal documents: ‘correction of mistakes by construction’ is not a separate branch . .
Cited – Alexiou and Another v Campbell PC 26-Feb-2007
(the Bahamas) . .
Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Cited – East v Pantiles Plant Hire Ltd CA 1981
The court considered the circumstances under which rectification could properly be ordered in respect of a deed. Brightman LJ said: ‘It is clear on the authorities that a mistake in a written instrument can, in certain limited circumstances, be . .
Cited – Jumbo King Ltd v Faithful Properties Ltd 2-Dec-1999
(Court of Final Appeal of Hong Kong) . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Countess of Rutland’s Case 1604
Popham CJ said: ‘it would be inconvenient, that matters in writing made by advice and on consideration, and which finally import the certain truth of the agreement of the parties should be controlled by averment of the parties to be proved by the . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Practice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
Cited – Partenreedesei Karen Oltmann v Scarsdale Shipping Co Ltd (The Karen Oltmann) 1976
The parties disputed the application of the word ‘after’ in a break-clause in a charter party which provided that ‘Charterers to have the option to redeliver the vessel after 12 months’ trading subject giving 3 months’ notice’. By their negotiations . .
Cited – Shore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Cited – Stevens and others v Bell and others CA 20-May-2002
Interpretation of the trustees’ powers with respect to surplus under the Airways Pension Scheme
Orse British Airways Pension Trustees Ltd v British Airways Plc . .
Cited – Sigma Finance Corporation, Re; (in administrative receivership) SC 29-Oct-2009
The court considered how the losses of the insolvent company were to be distributed as between secured creditors and preferential creditors, given the terms of the applicable trust deed.
Held: The court considered the interpretations of the . .
Cited – Westvilla Properties Ltd v Dow Properties Ltd ChD 15-Jan-2010
The owner sought specific performance of its contract to sell land to the defendant. The land was subject to a proposed lease which the defendant had concluded was uncertain and unattractive, and claimed to have rescinded the contract.
Held: . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd CA 15-Feb-2010
The parties had settled their disagreement, but now disputed the interpretation of the settlement. The defendant sought to be allowed to give in evidence correspondence leading up to the settlement which had been conducted on a without prejudice . .
Cited – Horwood and Others v Land of Leather Ltd and Others ComC 18-Mar-2010
The claimants sought to claim for personal injuries against the defendant company, now in administration, and their insurers using the 1930 Act. The insurers said they were not liable to indemnify the company. The parties disputed the standing of an . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd ChD 11-Mar-2010
The claimant sought summary judgment for a claim under Licensing agreements under which the defendants had marketed and sold the claimant’s products. The remaining disputes concerned differences as to royalties from digital downloads sold through . .
Cited – Ashcroft v Barnsdale and Others ChD 30-Jul-2010
The parties sought to rectify a deed of family arrangement varying a will. The variation deed had had several mistakes which in fact increased the sum of Inheritance Tax owed. HMRC refused to accept the rectification deed unless approved by the . .
Cited – Wickens v Cheval Property Developments Ltd ChD 8-Sep-2010
The buyer of land sought a reduction in the purchase price complaining of the removal of several items (worth possibly andpound;300,000) by intruders after exchange. The seller said that the fixtures had been excluded under the contract.
Held: . .
Cited – Oceanbulk Shipping and Trading Sa v TMT Asia Ltd and Others SC 27-Oct-2010
The court was asked whether facts which (a) are communicated between the parties in the course of without prejudice negotiations and (b) would, but for the without prejudice rule, be admissible as part of the factual matrix or surrounding . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Cited – Autoclenz Ltd v Belcher and Others SC 27-Jul-2011
Car Cleaning nil-hours Contractors were Workers
The company contracted with the claimants to work cleaning cars. The company appealed against a finding that contrary to the explicit provisions of the contracts, they were workers within the Regulations and entitled to holiday pay and associated . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – Campbell v Daejan Properties Ltd CA 20-Nov-2012
The tenant appealed against an order requiring the amendment of what was found to be an obvious error in the lease as to the responsibility of the lessor to make repairs to certain walls and rooves, and the apportionment of liability for payment of . .
Cited – AJ Building and Plastering Ltd v Turner and Others QBD 11-Mar-2013
An insurance company had engaged a main contractor to handle repairs to houses insured under its policies. The contractor had engaged the claimant subcontractor to carry out the works at the defendants’ homes, but then went into insolvent . .
Cited – Pink Floyd Music Ltd and Another v EMI Records Ltd CA 14-Dec-2010
The defendant appealed against an order made on the claimant’s assertion that there were due to it substantial underpayments of royalties over many years. The issues were as to the construction of licensing agreements particularly in the context of . .
Cited – Daventry District Council v Daventry and District Housing Ltd CA 13-Oct-2011
The appellant challenged refusal of rectification of its agreement with the defendant. They asserted either mutual or unilateral mistake. The parties had agreed for the transfer of housing stock and management staff to the respondents. The claimant . .
Cited – Marley v Rawlings and Another SC 22-Jan-2014
A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .
Cited – Sugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
Cited – Lloyds TSB Bank Plc v Crowborough Properties Ltd and Others CA 12-Feb-2013
The court was asked whether Lloyds TSB Bank Plc was entitled to rectify the terms of a compromise embodied in the schedule to a Tomlin order. . .
Cited – Arnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Not applicable – Jump and Another v Lister and Another ChD 12-Aug-2016
Omnibus Survivorship Clauses
Wills for two people hade been drafted with survivorship clauses which provided for others according to the order in which they died, but in the event, having died together it had been impossible to say which died first. The parties disputed the . .
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Cited – Wright and Another (Liquidators of SHB Realisations Ltd) v The Prudential Assurance Company Ltd ChD 6-Mar-2018
IVA is a special form of contract
Liquidators asked the court whether sums sought by the insolvent company’s landlords were payable and or provable. Under an IVA, the copany had been paying reduced rents, but the arrangement document provided that the full rents would be restored on . .
Cited – BNY Mellon Corporate Trustee Services Ltd v LBG Capital No 1 Plc and Another SC 16-Jun-2016
The Court was asked whether Lloyds Banking Group was entitled to redeem 3.3 billion pounds of loan notes which would otherwise carry a relatively high rate of interest, namely over 10% per annum. The loan notes are contingent convertible securities . .
Not Followed – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019
Rectification – Chartbrook not followed
Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
Held: The appeal failed. The judge was right to conclude that an . .
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .
Cited – Barnardo’s v Buckinghamshire and Others SC 7-Nov-2018
The Court considered the interpretation of a clause in a pension scheme trust deed which defines the phrase ‘Retail Prices Index’ and which allows the trustees of the pension scheme to adopt a ‘replacement’ of the officially published Retail Prices . .
Cited – The Financial Conduct Authority and Others v Arch Insurance (UK) Ltd and Others SC 15-Jan-2021
Many businesses, having been ordered to suspend business during the Covid-19 epidemic, sought to claim under business interruption insurance. The claims were rejected by the insurers and the insurers now appealed from a finding that they had been . .
Cited – R and S Pilling (T/A Phoenix Engineering) v UK Insurance Ltd SC 27-Mar-2019
The driver’s car failed its MOT., He took it to private premises to repair. In those repairs, inflammable materials ignited and the fire spread those premises and adjoining third party premises. The premise’ insurers paid the owners of both and . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Cited – London Borough of Lambeth v Secretary of State for Communities and Local Government and Others CA 20-Apr-2018
The parties disputed the validity of the time-limit condition (condition 1), which required the ‘development to which this permission relates’ to be begun within three years.
Held: The Court upheld the inspector’s decision that this condition . .
Cited – London Borough of Lambeth v Secretary of State for Housing, Communities and Local Government and Others SC 3-Jul-2019
The second respondent sought a certificate from the Council determining that the lawful use of its store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a . .
Lists of cited by and citing cases may be incomplete.
Updated: 16 April 2022; Ref: scu.368925
There was a covenant that the premises should not ‘be used for any art trade or business or profession whatsoever . . ‘ but should be ‘kept and used only for the purposes of the Grosvenor Housing Scheme as dwellings for the working classes . . ‘.
Held: A term in a restrictive covenant was now so vague as to render the covenant unenforceable. The first part imposed a restrictive obligation, but that the second part, obliging the premises to be used for the working classes, was a positive covenant enforceable by the Lessors which did not fall within the jurisdiction of the Lands Tribunal. ‘As I have said, the covenant falls into several parts. The first part is plainly restrictive. Mr Lightman argued that the second part is not restrictive but positive. He pointed to the words ‘shall be kept and used’ and said that those words amounted to a continuing obligation to carry out the purposes. That cannot, he submitted, be called a restrictive covenant. The law is familiar with positive covenants in leases, perhaps especially in user covenants. A covenant to use a particular shop for some particular trade requires the tenant not to leave the shop empty but to actively carry on the trade. Obviously a covenant to carry out some purpose, as here to provide dwellings for the working classes, does not require that every part of the demised premises should always be occupied by such persons. Premises can legitimately stand vacant between the tenancies. Premises may be required to be vacant for purposes of redecoration. It is even possible that a whole block of flats might be required to be empty for a considerable period of time if that were necessary for the purposes of repair to the block, or for better equipping the block to provide adequate dwelling. Such intervals would not mean that the City of Westminster was not keeping and using the blocks for the proper purpose. The City of Westminster merely needed an interval while the purpose was pursued. But in my judgment the obligation here undertaken is a positive obligation. The word ‘used’ carries to my mind a connotation of a duty to use. The whole phrase suggests to me, what in my view is shown by the heads of agreement and other material in evidence to be the case, that the purpose of the grant was to provide buildings in which the City of Westminster would keep tenants. It is not a covenant that could be performed by keeping the buildings empty with a view to reducing expenditure on maintenance. In my judgment the contrast in wording between the negative prohibition in the first lines of the covenant followed by the words ‘but that’ shows a clear shift of meaning from restraint to activity. It is of course true that a duty to use land for some purpose necessarily means that the land shall not be used for other purposes. Nevertheless the duty to use remains a positive obligation although a negative implication may flow from it . . It is not in dispute that the Lands Tribunal can only modify restrictive covenants. In my judgment this part of sub-clause (IX)(a) is a positive covenant and as such cannot be the subject of an application to the Lands Tribunal.’
Harman J
[1991] 4 All ER 136
England and Wales
Cited – Dano Ltd v Earl Cadogan and others ChD 21-Feb-2003
A conveyance contained a covenant from 1929 restricting use of the land to the provision of housing for ‘the working classes.’ The land owner sought a declaration that the covenant was no longer enforceable on the grounds of vagueness.
Held: . .
Cited – Blumenthal v The Church Commissioners for England CA 13-Dec-2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant.
Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 April 2022; Ref: scu.180092
Ouseley J
[2004] EWHC 2419 (Admin)
England and Wales
Cited – Attorney-General ex relater Sutcliffe and Others v Calderdale Borough Council CA 1982
The court discussed whether a terrace of cottages was within the curtilage of an old factory which was a listed building. At first instance, Skinner J had held that they were, and that permission could not be granted for their demolition. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 April 2022; Ref: scu.219215
Action for production and reduction of a pretended disposition of land.
[2018] ScotCS CSOH – 41
Scotland
Updated: 14 April 2022; Ref: scu.609368
[2018] ScotCS CSIH – 24
Scotland
Updated: 14 April 2022; Ref: scu.609369
The issue for determination by the court was: whether or not the defender is obliged to indemnify the pursuer, under and in terms of condition 12 of the pursuer’s terms and conditions, in respect of all costs incurred by the pursuer in carrying out remedial action in respect of subsidence damage at the site (where the defender carried out work) in performance of its statutory duties under section 2 of the Coal Mining Subsidence Act 1991?
[2018] ScotCS CSOH – 36
Coal Mining Subsidence Act 1991 2
Scotland
Updated: 14 April 2022; Ref: scu.609363
[2018] ScotCS CSIH – 14
Land Reform (Scotland) Act 2003
Scotland
Updated: 14 April 2022; Ref: scu.609341
This litigation is about the access rights given to everyone over land in terms of Part I of the Land Reform (Scotland) Act 2003; known colloquially as ‘the right to roam’.
[2018] ScotCS CSIH – 22
Land Reform (Scotland) Act 2003
Scotland
Updated: 14 April 2022; Ref: scu.609342
Claim for construction of deed of right of way.
Bowles M
[2018] EWHC 790 (Ch)
England and Wales
Updated: 13 April 2022; Ref: scu.609084
Generator appealed from a refusal of an equitable interest in land acquired by the responent
Longmore, Lewison LJJ, Rose J
[2018] EWCA Civ 396
England and Wales
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.605786
The claimant sought an injunction expressed to be against unknown persons.
Held: Morgan J expressed a degree of concern about orders having this effect, but concluded that (particularly in light of the South Cambridgeshire decision) this procedure was now open to claimants in cases outside section 187B of the Town and Country Planning Act 1990: ‘ I was concerned at the idea that the court might be asked to grant a quia timet injunction against persons who had not yet committed the acts which the injunction would prevent them from doing but yet they would be defined as defendants as Persons Unknown who have committed such acts. For example, the First Defendants are defined as Persons Unknown entering or remaining on specified areas of land but when the proceedings were issued and the ex parte injunctions were granted, no one had entered on the specified land as a trespasser (subject to the possibility that there might have been a trespass on Site 1). Proceeding in this way would seem to produce the result that at the time when the court made its order there were no persons within the defined category of Persons Unknown. How then, later, did some persons come within that category and become subject to the court’s order? Did they become parties by their unilateral action which was action forbidden by the court’s order?’
Morgan J
[2017] EWHC 2945 (Ch)
England and Wales
Cited – South Cambridgeshire District Council v Gammell CA 2005
The Council had taken out an injunction under section 187B of the 1990 Act to prevent unknown persons placing caravans on certain lands. The defendants acted in breach of those injunctions, and the Council requested their committal for contempt. The . .
Cited – Vastint Leeds Bv v Persons Unknown ChD 24-Sep-2018
The claimant company sought a final injunction to prevent others occupying its land in Leeds. It was a quia timet injunction anticipating future acts of occupation by caravans, fly-tipping and use of the land for illegal raves.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 April 2022; Ref: scu.601822
The claimants challenged the proposed sale of a former roller skating rink by the defendant authority.
Dove J
[2017] EWHC 254 (Admin)
England and Wales
Updated: 13 April 2022; Ref: scu.575302
Statutory tenancy after contractual one binding on mortgagee is also binding.
Times 12-Nov-1996
England and Wales
Updated: 13 April 2022; Ref: scu.84820
An owner of land had the right to prevent access to land in order to remove notices even where it was guilty of abuse of statutory power by posting notices which it knew to be under ultra vires regulations. Protesters had sought to enter land to remove notices they believed were deliberately misleading.
Times 11-May-1998
England and Wales
Updated: 13 April 2022; Ref: scu.89086
A father purchased a property for his daughter but kept the title deeds until his death.
Held: In deciding whether or not the executors of the father had rebutted the presumption of advancement, the Court took he view that there was ample evidence to justify that conclusion of the judge. The the father’s retention of the title deeds from the time of purchase to the time of his death was a very significant fact because the title deeds were ‘sinews of the land’. The Court did not state, however, that possession of title deeds was conclusive in the determination of a person’s property rights, but relied not only on the possession of title deeds to decide its case but also the fact that the father had paid for the full price and that there was contemporaneous declarations by the alleged donor as to his interest.
Morton LJ
[1944] 2 All ER 472
England and Wales
Updated: 12 April 2022; Ref: scu.570865
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking the law … The question in most cases is convenience or ‘cussedness’? …’
Dodd J
[1913] 2 IR 322
England and Wales
Approved – Geoghegan v Henry 11-Jan-1922
. .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.570357
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law.
Nicholas Strauss QC
[2006] AER (D) 106 (Sep)
England and Wales
Cited – Pettey v Parsons CA 1914
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which . .
Cited – Saint v Jenner CA 1973
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This . .
Cited – Christie v Davey 1893
A music teacher gave lessons at home and from time to time held noisy parties. He complained of nuisance when his neighbour retaliated by blowing whistles, banging trays and trying to disturb the music.
Held: The defendant’s actions were . .
Cited – Flynn v Harte 1913
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .
Cited – Geoghegan v Henry 11-Jan-1922
. .
Cited – Hollywood Silver Fox Farm v Emmett 1936
The plaintiffs farmed silver foxes for their fur. During the breeding season, they were nervous, but the neighbour defendant farmer deliberately encouraged his son to fire guns near the pens in order to disturb the breeding and cause economic loss. . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.570356
[1922] 2 IR 1
Ireland
Approved – Flynn v Harte 1913
Dodd J said: ‘Each case depends upon its own facts. Whether a gate is or is not an obstruction of the right is a matter of fact. He who acts in a neighbourly way may be sure he is within the law. He who acts in an unneighbourly manner is breaking . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.570358
A vehicular right of way had been acquired by long use with horse-drawn carts. It was held to be legitimately enjoyed, much later, by mechanically propelled vehicles.
[1939] 1 Ch 861
England and Wales
Updated: 12 April 2022; Ref: scu.570355
Kerr LJ considered the exercise of an easement over land (a sweep of a curve over a driveway) by force, saying: ‘In my view, what these authorities show is that there may be ‘vi’ – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word ‘vi’ or ‘force’, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner.’
Kerr LJ, Eastham J
(1987) 56 PandCR 8
England and Wales
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.569658
Dispute as to payment of excess of proceeds of sale of land after repayment of legal charge.
Tim Kerr QC
[2014] EWHC 1746 (Ch)
England and Wales
Updated: 12 April 2022; Ref: scu.550159
David Cooke HHJ
[2011] EWHC 4048 (Ch)
England and Wales
Updated: 12 April 2022; Ref: scu.515339
Roth J
[2011] EWHC 3432 (Ch)
England and Wales
Updated: 12 April 2022; Ref: scu.515342
Cestuy que use for life (after the statute of 1 R 3, which enables cestuy que use to make leases, and before the statute, of 37 H 8, of uses) makes a lease to A. for the life of A cestuy que use dies : A. is only a tenant at sufferance. An act of parliament cannot work a wrong ; and this Act guides this conveyance, and does not suffer it to extend beyond tbe estate of him who made the lease. ‘Tis otherwise of a lessee for life, who makes a feoffment, at common law he has gained a fee-simple : and this case is, and remains at common law, not directed by any Act of parliament. An attorney has power to make a lease for the life of the lessor; he makes a lease for the life of the lessee : this lease is void : in this case, if the lessee enters, he is a disseisor- ‘Tis otherwise in the principal case : for the said attorney had only a power, and exceeded it ; in the principal case, the interst of the use is accoupled with the power of the statute As where the statute of 32 II 8 gives a power to devise to any person two parts of land holden by knight’s service ; a man devises the whole : this is good for two parts, by reason of the interest and power in the same person, in the devisor.
[1220] EngR 456, (1220-1623) Jenk 201, (1220) 145 ER 135 (C)
England and Wales
Updated: 12 April 2022; Ref: scu.461368
A. by deed grants a way to B. in fee over the land of A. in Dale, from a certain place to a certain place There ought to be a specialty of this grant ; and if A deforces him of it by stopping or any obstruction, covenant lies : not an assise of nuisance.
[1220] EngR 305, 3 2 Ass pl 1 Case 26 Chimin 27 H 8, 72, (1220-1623) Jenk 20, (1220) 145 ER 15 (B)
England and Wales
Updated: 12 April 2022; Ref: scu.461217
The dominant user used a right of drainage to drain foul water when the right was to drain clean water.
Held: The Court of Exchequer observed that where a party has a limited right in the nature of drainage and exercises the right excessively so as to produce a nuisance, the only remedy is by stopping the whole use.
(1856) 26 LJ Ex 34
England and Wales
Updated: 12 April 2022; Ref: scu.427788
Covenant to make further assurances, by counsel of the covenantee, on request made, shall be advised the counsellor should give his counsel to the covenantee, and the covenant must give notice thereof to the covenantor.
[1572] EngR 188, (1572-1616) 5 Co Rep 19, (1572) 77 ER 79
England and Wales
Updated: 12 April 2022; Ref: scu.432154
A copyholder dies, leaving a son and a daughter by one venter, and a son by another venter ; the premises being in lease for years by licence ; the eldest son dies before admittance; held that the daughter should inherit, not the son. Held also, lst, That though a copyholder has, in judgmerit of law, but an estate at will, yet custom has so established his estate that it is descendible, and his heirs shall inherit, and so his estate is not merely ad voluntatem domini, but ad voluntatem domini secundum consuetulinem manerii. 2nd. That since custom has created such inheritance, the descent shall be directed according to the rules of the common law, as in the case of uses: but it does not partake of the collateral qualities of descent of other inheritances; not being assets, nor subject to dower or curtesy, without a special custom, nor tolling entry by descent cast. 3rd. That the heir before admittance may enter, and take the profits; and there may be a possessio fratris, and his surrender is good, but without prejudice to the lord’s fine.
The Lord may enter on his copyholder for non-performance of his services : but if he ousts him without a cause, the tenant may have trespass.
AIienation by a copyholder is a disseisin of the lord, and a forfeiture of his estate.
A copyholder cannot have a writ of false judgment on an erroneous judgment against him, but may sue to the lord by petition.
A surrender may be on condition reserving rent.
Grants by copy by bishops bind their successors, and the King, when the temporalties are in his hands, and the grantee may have aid of the King.
The admittance of a particular tenant is the admittance of the remainder-man, but without prejudice to the lord’s fine.
An admittance to a copyhold may be pleaded as a grant.
A copyhold in fee is but a particular estate.
[1581] EngR 13, (1581) 4 Co Rep 21, (1581) 76 ER 911
England and Wales
Updated: 12 April 2022; Ref: scu.429391
The claimants appealed against refusal of a declaration that a neighbouring access road and land was held on a constructive trust. They said that an agreement bewteeen the parties should have been effective to impose a trust on the defendants. The land had been retained as an access road when the estate was built, but then purchased by the defendants.
Held: The judge had a proper basis for his conclusions on the evidence presented. The appeal failed.
Patten LJ
[2010] EWCA Civ 338
England and Wales
Cited – Pallant v Morgan ChD 1952
The agents of two neighbouring landowners orally agreed in the auction room that the plaintiff’s agent would refrain from bidding at auction and that the defendant, if his agent’s bid was successful, would divide the land according to an agreed . .
Appeal from – Clarke and Another v Corless and Another ChD 8-Jul-2009
The parties disputed whether one could retain for his own benefit land on an estate reserved for an estate road. A trust was claimed under Pallant saying that the parties had made an informal agreement before the property was purchased.
Held: . .
Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Cited – Banner Homes Group Plc v Luff Developments and Another CA 10-Feb-2000
Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
Held: Although there was no formal . .
Cited – Kilcarne Holdings Ltd v Targetfollow (Birmingham) Ltd and Another CA 16-Nov-2005
The defendant had brought in the claimant in order to assist in satisfying its own obligations under a lease. The joint venture was not recorded in a formal agreement. The appellant asserted that a constructive trust had been created. The judge had . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.406677
A court of equity will not assist a copyholder against a forfeiture, which is found such at law, unless in cases where compensation can be made.
[1721] EngR 367, (1721) Prec Ch 568, (1721) 24 ER 255
England and Wales
See Also – Sir Harry Peachy v Duke of Somerset 1720
Lord Macclesfield said: ‘The true ground of relief against penalties is from the original intent of the case, where the penalty is designed only to secure money, and the court gives him all that he expected or desired: but it is quite otherwise in . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.390392
If tbere be a special custom in a parish, that the adorning of the inside of the chancel of the church shall be done at the charge of the owners arid occupiers of ancient houses, yet they are not bound by such a custom both to ornament and to repair the chancel ; for the parson is bound to repair of common right, and the custom does not release him: nor can the owners and occupiers of mills or racks be rated towards such ornaments ; for where a temporal inheritance is to be charged by a particular custom the custom must be strictly pursued.
[1794] EngR 806, (1794) 5 Mod 389, (1794) 87 ER 723
England and Wales
Updated: 12 April 2022; Ref: scu.369738
Case for disturbing a watercourse which of right ought to flow into plaintiff’s close to irrigate it, On the trial it appeared that the watercourse was not ancient, but that the water had flowed in its present muree for more than twenty years, past plaintiff’s close. There was evidence that during that period plaintiff, and those under whom he claimed, had been constantly in the habit of drawing off the water to irrigate his close, and that the owners of the watercourse resisted it. On one occasion, when plaintiff’s servant drew off the water, he was summoned before a justice for so doing; plaintiff’s son by his direction attended and defended the servant, and paid a fine of 1s. The conviction was under a local Act, from which there was a power of appeal. The conviction was tendered in evidence, and rejected. In summing up, the Judge explained that the enjoyment to defeat an adverse right must be for twenty years, without interruption acquiesced in for a year. One of the jury asked what would be the effect in law of a state of perpetual warfare between the parties? which question the Judge did not answer. The jury found that ”the watercourse had been enjoyed as of right for twenty years, and without interruption for a year,’ and were directed to find for Plaintiff. Held that the evidence was improperly rejected, as the conviction, unappealed against, was, under the circumstances, evidenoe of an acknowledgment by the plaintiff, that the usage, to draw off the water for irrigation, was not as of right: Held also that interruptions, though not acquiesced in for a year, might shew that the enjoyment never was of right, but contentious throughout ; though, if once the enjoyment as of right had begun, no interruption for less than a year could defeat it : and consequently that the manner in which the question was left, and the verdict found, was not satisfactory ; and a new trial was granted.
[1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282
England and Wales
Cited – Winterburn and Another v Bennett and Another CA 25-May-2016
The court was asked as to the steps which an owner of land must take to prevent others, who were using the land without permission, acquiring rights over the land. The claimants here had ignored clear signs placed on the land which asserted the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.296875
(1880) 5 QBD 346
England and Wales
Cited – Gibson v Manchester City Council HL 8-Mar-1979
The plaintiff sought specific performance of what he said was a contract for the sale of land.
Held: The appeal succeeded. In a case where a contract is alleged to have been made by an exchange of correspondence between the parties, in which . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.272802
A mortgagor in possession continues to have a legal right to receive the rents in his own name. However since he had no legal interest in the reversion, he could not forfeit for breach of covenants in the lease.
Alderson B
(1853) 9 Exch 14
England and Wales
Cited – Scribes West Ltd v Relsa Anstalt and others CA 20-Dec-2004
The claimant challenged the forfeiture of its lease by a freeholder which had acquired the registered freehold title but had not yet registered its ownership. The second defendant had forfeited the lease by peacable re-entry for arrears of rent, and . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.276787
A vendor’s right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract.
(1878) 8 Ch D 588
England and Wales
Cited – Alchemy Estates Ltd v Astor and Another ChD 5-Nov-2008
The parties disputed the effect of a contract between them for the sale of a leasehold property. After exchange the solicitors failed to obtain the landlord’s consent to the proposed assignment as required by the lease. In the meantime the proposed . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.277559
The court had found that, after railway works cut off highway access, and, notwithstanding the provision of a deviation road, the value of the claimant’s properties as shops had been ‘greatly diminished’ by the reduction in the number of people passing them.
Held: The court accepted, on the basis of the umpire’s finding, that the claimants’ houses had been depreciated in value ‘because the highway was stopped up, and the easy access which before existed was taken away’.
Erle CJ
(1862) 2 BandS 617 (Ex Ch)
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: 12 April 2022; Ref: scu.259683
The dominant owner had been exercising his vehicular right of way over a domestic drive by driving at excessive speeds. The servient owner installed speed bumps. The dominant onwer alleged interference with the right of way.
Held: This unreasonable use, a use not consistent with the principle of civiliter, entitled the servient owner to erect speed bumps along the drive but did not justify the erection of speed bumps of such severity that a motor car moving at, say, 10 to 15 mph would be unable to cross the bumps without the bumps striking the car’s undercarriage.
Stamp LJ said: ‘the learned judge found that as originally planned and laid down the ramps were not a substantial interference with the right of way. In this connection it is to be observed that in deciding what is a substantial interference with the dominant owner’s reasonable user of a right of way, all the circumstances must be considered, including the rights of other persons entitled to use the way: here the rights of the defendants in connection with their property and riding activities; and there was, in our judgment, evidence on which the judge could properly hold, as he did, that the ramps as originally planned and constructed did not constitute a substantial interference.’
Stamp LJ
[1973] Ch 275, [1973] 1 All ER 127
England and Wales
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.260028
In considering whether an article was a fitting and could be removed from its locaion, the court looked to the mode and extent of annexation of the articles: ‘The only question, therefore, is, whether the machines when fixed were parcel of the freehold; and this is a question of fact, depending on the circumstances of each case, and principally on two considerations: first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integre, salve, et commode, or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usus causa, or in that of the Year Book, pour un profit del inheritance (a), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel’.
Parke B
(1851) 6 Exch 295
England and Wales
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Cited – Botham and others v TSB Bank Plc CA 30-Jul-1996
A flat had been repossessed by the bank. The parties disputed whether items were fixtures and charged with the land or not.
Held: The judge had correctly analysed and applied the law of fixtures and fittings. The appeal failed save to a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.240421
The court asked what was meant by a fixture: ‘By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be machinery, using a generic term; and in houses, grates, cupboards, and other like things.’
(1855) 5 De G M and G 403
England and Wales
Approved – Boyd v Shorrock 1867
. .
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.240418
Sir W. Page Wood V.-C
(1867) LR 5 Eq 72
England and Wales
Approved – Ex parte Barclay 1855
The court asked what was meant by a fixture: ‘By ‘fixtures’ we understand such things as are ordinarily affixed to the freehold for the convenience of the occupier, and which may be removed without material injury to the freehold, such will be . .
Cited – Elitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.240417
Hobhouse LJ, adopted at least part of Denning LJ’s approach in Fairey, holding that the absence of intention to dedicate had to be ‘objectively established by overt acts of the landowner’, and that ‘This is not a subjective test. The absence of intention must be objectively established by overt acts of the landowner.’ It was for the objectors to persuade the Inspector that the owners of the land had during the material period sufficiently demonstrated an intention not to dedicate the footpath.’
Hobhouse LJ, Staughton LJ and Millett LJ
Unreported, 31 July 1996
England and Wales
Cited – Fairey v Southampton City Council CA 1956
The landowner denied that a public right of way had been created over his land. Under the 1932 Act, 20 years user expiring at any time, even before the Act came into force, was capable of giving rise to a deemed dedication of a public highway under . .
Cited – Godmanchester Town Council, Regina (on the Application Of) v Secretary of State for the Environment Food and Rural Affairs CA 19-Dec-2005
The court considered whether a pathway had become a public highway.
Held: ‘The main question for the Court is whether sufficiency of evidence of an intention not to dedicate necessary to satisfy the proviso requires, as a matter of law, that . .
Cited – Godmanchester Town Council, Regina (on the Application of) v Secretary of State for the Environment, Food and Rural Affairs HL 20-Jun-2007
The house was asked about whether continuous use of an apparent right of way by the public would create a public right of way after 20 years, and also whether a non overt act by a landowner was sufficient to prove his intention not to dedicate the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.236556
A land transfer had contained a clause requiring a restrictive covenant agreeing not to erect any building without the approval by the neighbours of plans.
Held: The term ‘transferors’ was to be read to include the transferors’ successors in title. There was to be implied into the covenant a condition that approval was not to be unreasonably withheld. The purpose of the covenant was to protect the retained land of the covenantees which might be affected by any change. The structure of the clause allowed the possibility of the erection of a garden shed or domestic garage. Because, in the opening words of the covenant itself, the words ‘and their successors in title’ were to be implied under section 78 after the words ‘the Transferors’ then it was possible to construe the words ‘the Transferors’ later in the same clause as also referring to ‘the Transferors and their successors in title’.
Hart J
Times 16-Jun-2005, [2005] 3 EGLR 67
England and Wales
Cited – Cryer v Scott Brothers Sunbury Ltd 1986
A covenant had been taken on the sale of building land to require all building plans to be submitted to the transferors for their approval before building work was commenced.
Held: There was an implication that the transferors would not . .
Cited – Price v Bouch 1986
The power to approve building plans on an estate had been passed to a committee of all estate owners. The plaintiff said that a term should be implied to say that approval should not be unreasonably withheld.
Held: A term that consent would . .
Cited – Re Jilla’s Application 2000
. .
Cited – Davies v Dennis and Others CA 22-Oct-2009
The land owner appealed against an injunction given to prevent him carrying out building works which the neighbours said would breach a restrictive covenant. The covenants negatived a building scheme.
Held: The appeal failed. Covenants of the . .
Cited – Margerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.228505
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 easement.’
Buckley J
[1903] 2 Ch 337
England and Wales
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 – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.222600
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 occupied by the adjoining owner no right or easement of light or air exists in respect thereof or has been or shall at any future time be acquired by the Building Owners or any one deriving title through or under them and the adjoining owner and the Freeholders and all persons deriving title through or under them or either of them shall have the right to intercept light and air coming to the said windows.’
Held: the second and third limbs of this clause entitled the adjoining owner to redevelop in a way that would interrupt light. Accordingly the proviso to s.3 was triggered and the building owner did not acquire by prescription rights to light across the land of the adjoining owner. The nature of restrictive covenants was discussed. The judge also drew attention to the difference between acquisition by grant at the date of the disposition and acquisition by prescription based on actual enjoyment after that date.
Lightman J said: ‘Whether or not a document constitutes such a consent or agreement is a question of construction. In this context, care must be taken to distinguish between provisions designed to protect the servient owner by negativing the implication of a grant of an easement or the grant of analogous rights under the doctrine of non-derogation from grant or to establish by agreement the existing legal rights of the parties; and provisions designed to authorise the servient owner at a future date to carry out works or build as he pleases unrestricted by any easement of light in favour of the dominant land and notwithstanding any resultant injury to the light enjoyed. Provisions of the former character do not constitute either consents or agreements by the servient owner licensing or consenting to the future enjoyment of the access to light and accordingly do not prevent acquisition of light by prescription (see Mitchell v Cantrill (1887) 37 Ch D 36); but provisions of the latter character may be construed as consents or agreements permitting the enjoyment of light during the interim period and accordingly (as provided in Section 3) preclude any easement arising by prescription under the Act (see Willoughby v Eckstein [1937] Ch 167).’
Lightman J
Unreported, 20 December 1996
England and Wales
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 – Mitchell v Cantrill CA 1887
In 1864 Sir Humphrey de Trafford granted a 999 year lease of a dwelling house ‘with all rights and appurtenances, legal, used, or reputed, to the said plot of land, except rights, if any, restricting the free use of any adjoining land or the . .
Cited – Midtown Ltd v City of London Real Property Company Ltd ChD 20-Jan-2005
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 . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another CA 12-Mar-2008
A right to light is an unusual form of easement in the sense that it exists only with regard to the access to light to defined apertures in a building (as opposed to the dominant land generally) and its acquisition depends on actual enjoyment, not . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Cited – RHJ Ltd v FT Patten (Holdings) Ltd and Another ChD 13-Jul-2007
The court was asked whether the grant of a lease including a clause reserving: ‘All rights to the access of light or air from the said adjoining property known as Victoria House and Graham House to any of the windows of the demised property.’ . .
Cited – Salvage Wharf Ltd and Another v G and S Brough Ltd CA 29-Jan-2009
The claimant had agreed with a developer in 1999 to allow a development which would have a minor affect on his light. The developer later extended the development, to increase the interference with the right to light, relying on the earlier . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.222586
Mr Parsons (the defendant) owned a parcel of land on the junction of two roads in Bournemouth, called Charminster Road and Alma Road. In the middle of the parcel there was a footpath which ran from Charminster Road westwards to a private road which ran roughly north-south. This parcel of land was then subdivided and within it and next to the footpath on its southern side was No 93 which fronted onto Charminster Road. The land of No 93 ran back to the private road. Mr Parsons sold No 93 to Mrs Pettey (the plaintiff). It was agreed between them that the footpath to the north of No 93 should be widened, so the existing fence on the north side of the footpath was set back a further 6 feet. That footpath/road was also conveyed to Mrs Pettey in the same conveyance. But Mr Parsons reserved to himself as vendor, and as owner of the land lying to the north of the footpath/road, a right of way to himself, his tenants, servants and all others authorised by him or them ‘to pass and repass . . with or without animals, carts and carriages’ over and along the pathway/road, but no vehicle was to remain stationary on it.
Mr Parsons then built new shops on the land which he had reserved to himself to the north of the footpath/road. The shops nearest the footpath/road were not built right up to it but set back a little and the fronts of them were in an arc, leaving a roughly triangular space between the shops and the footpath/road which, at this point, had no fence on it. This triangular-like open space between the footpath/road down to Charminster Road was about 16 feet 2 inches (or very nearly 5 metres) long on the footpath/road side of it. Mrs Pettey then put up a fence along this 16 feet 2 inch stretch ie. on her land but at the boundary of her land and that of Mr Parsons. She also put up a gate at the eastern end of the footpath/road which could be fastened back to the wall of No 93. Both were removed (one way or another) by Mr Parsons.
Mrs Pettey sought declarations that she was entitled to erect the gate and the fence, but she said that she was prepared to put a gate in the fence so that Mr Parsons could have reasonable access to the footpath/road from his land.
Held: The erection by the servient owner of a building that encroached by, say, one foot on to a ten foot wide domestic driveway would not constitute an actionable interference with a right of way over the driveway. Where a right of way was granted over a roadway, but no point of access specified, the only limitation should be that of reasonableness.
The erection of a gate across the right of way was not necessarily a sufficiently substantial interference with the right of way to be actionable. Whether there was a substantial interference was a question of fact in each case.
Lord Cozens-Hardy MR said that the issue of whether there was a right to enter on the footpath/road ‘merely by defined gates or passages’ or whether there was a right to enter ‘at any other place where it is desired’ was a question of the construction of the deed itself. He regarded Mr Parson’s case as a ‘wholly untenable proposition’ at least after the construction of the shops.
Pickford LJ, Lord Cozens-Hardy MR and Swinfen-Eady LJ
[1914] 2 Ch 653
England and Wales
Cited – Well Barn Shoot Limited and Well Barn Farming Limited v Shackleton and Another CA 22-Jan-2003
The defendants had been tenant farmers of the plaintiff company which retained shooting rights over the land when part was sold to the defendants. The defendant object to the use of a roadway by the plaintiff. The plaintiff sought to repurchase the . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Cited – Emmett v Sisson CA 3-Feb-2014
Appeal against judgment in boundary dispute involving a private driveway.
Held: The appeal failed. ‘The respondents are entitled to exercise the ‘relative luxury’ of the ample right to gain both vehicular and pedestrian access to their land . .
Cited – Owers v Bailey ChD 2006
Nicholas Strauss QC dealt with the interference on a right of way by the erection of a gate, summarising the law. . .
Cited – Bramwell and Others v Robinson ChD 21-Oct-2016
Interference with right of way
Neighbour dispute as to right of way.
Held: The defendant had failed to establish the ‘swing space’ he asserted, but otherwise the claimant had in several ways behaved unreasonably and interfered with the use of the right and harrassed the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.220697
Lord Clyde
[1960] SC 53
Scotland
Cited – Ryde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.199730
[2001] EWCA Civ 1084
England and Wales
Appeal from – Ipswich Borough Council v Moore and Another ChD 4-Jul-2000
Historically, powers had been granted to the authority, as riparian owners of the port, but powers had also been given to what had since become the Port Authority. The Authority had been given power to regulate traffic in the river, and to charge . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.201147
The jurisdiction given to the magistrates under the order was one concurrent with that of the Verderers. The 1877 Act had given the verderers power to impose fines which could be collected summarily, and that gave jurisdiction to the magistracy.
Rose LJ, Jackson J
Times 29-Jan-2004
New Forest (Confirmation of the Bylaws of the Verderers of the New Forest) Order 1999 (1999 No 2134), New Forest Act 1877 25(4)
England and Wales
Updated: 12 April 2022; Ref: scu.194067
The statutory powers given by the Act are not exercisable against the public generally or any class or group of persons which forms part of it. The purpose of the Act was to abolish proceedings in ecclesiastical courts for enforcing the liability to repair. The only person against whom the liability may be enforced is the person who, in that obscure phrase, ‘would, but for the provisions of this Act, have been liable to be admonished to repair the chancel by the appropriate ecclesiastical court in a cause of office promoted against him in that court on the date when the notice was served.’
Lord Hanworth MR
[1935] 2 KB 417
England and Wales
Questioned – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.184040
The mortgagees had obtained an Order for possession with the intention, not of proceeding to sell the property but of waiting in the hope that the market might improve. The mortgagor was anxious that the property should be sold so that the proceeds would reduce the mortgage debt, on which interest was accruing at an alarming rate.
Held: Since the mortgagees could buy the property themselves if they wished to speculate on an increase in its value, in the interests of fairness the property should be sold. The duty to take reasonable care of the property secured requires the mortgagee to be active in protecting and exploiting the security, maximising the return, but without taking undue risks. In such a case the mortgagor might obtain an order for sale even though the proceeds of sale would be insufficient to discharge the mortgage debt.
Nicholls V-C said: ‘I have given two examples where the law imposes a duty on a mortgagee when he is exercising his powers: if he lets the property he must obtain a proper market rent, and if he sells he must obtain a proper market price. I confess I have difficulty in seeing why a mortgagee’s duties in and about the exercise of his powers of letting and sale should be regarded as narrowly confined to these two duties. In addition to the mortgaged property, a mortgagee normally has a right of recourse against the borrower personally. He may also have the benefit of a guarantee from a third party. There is no problem when the borrower or guarantor can raise the necessary money, or the security available is adequate and readily realisable. Then the borrower should arrange to pay off his debt in full. The difficulty arises when that is not possible. Then the borrower is in the mortgagee’s hands. Whether in that situation a mortgagee is at liberty to exercise his rights of leasing and sale in a way that in all likelihood will substantially increase the burden on the borrower or guarantor beyond what otherwise would be the case is not a question I need to decide on this appeal . . That he should act in such a cavalier fashion is not a proposition I find attractive. That is a question which may call for careful examination on another occasion . .’
Sir Donald Nicholls V-C
[1993] Ch 330, [1993] 2 All ER 481, [1993] 2 WLR 415, [1993] ANZ Conv R 588
England and Wales
Cited – China and South Sea Bank Limited v Tan Soon Gin PC 1990
A mortgagee’s decision on sale is not constrained by reason of the fact that the exercise or non-exercise of the power will occasion loss or damage to the mortgagor. He can sit back and do nothing. He is not obliged to take steps to realise his . .
Cited – Silven Properties Limited, Chart Enterprises Incorporated v Royal Bank of Scotland Plc, Vooght, Harris CA 21-Oct-2003
The claimants sought damages from mortgagees who had sold their charged properties as receivers. They said they had failed to sell at a proper value. They asked whether the express appointment in the mortgage of receivers as agents of the mortgagor . .
Cited – Lloyds Bank Plc and others v Cassidy CA 1-Dec-2004
The defendant sought leave to appeal against orders for possession. The trial had been transcribed by the claimant. At the start of the application, a copy of the transcript was given to the judge but not the defendant despite his application.
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Silven Properties Ltd and Another v Royal Bank of Scotland Plc and Others CA 21-Oct-2003
The claimants complained that the receivers appointed by the bank had failed to get the best price for properties charged to the bank and sold, in that they had failed to obtain planning permissions which would have increased the values of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.187033
cw Proposed amendments to a plaintiff’s pleadings were insufficient to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or to introduce a new cause of action which was statute barred and did not derive from the same, or substantially the same, facts.
Unreported, 13 December 1996
England and Wales
Appealed to – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Appeal from – Bristol and West Building Society v Baden Barnes and Groves CA 2000
cw Proposed amendments to a plaintiff’s pleadings failed to prevent a striking out. The amendments either sought to advance by a different route the earlier claim which was bound to fail, or sought to introduce a . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.184541
ACQ/10/1999
Updated: 12 April 2022; Ref: scu.168582
LT COMPENSATION – simplified procedure – compulsory acquisition of grassland with hardstanding and shed – whether undertaking given at CPO inquiry that compensation would be assessed on cost of reinstatement – whether compensation to be assessed under r(5) of s 5 Land Compensation Act 1961 – whether compensation for reinstatement can be claimed as disturbance – alternative assessments of compensation agreed – compensation of andpound;3,500 awarded for the value of the land with the hardstanding and shed under r(2) of s 5 of 1961 Act – Land Compensation Act 1961, s 5 rules (2) and (5); Compulsory Purchase Act 1965, s 7 – sealed offer in excess of award – costs of hearing awarded to Authority.
ACQ/141/1997
England and Wales
Cited – Hughes v Doncaster Metropolitan Borough Council HL 1991
A claimant’s claim for compensation on the compulsory acquisition of his land is but one claim for all those losses which flow from a compulsory acquisition of which the value of the land taken and any injury to retained land is but part of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.168578
ACQ/32/1997
England and Wales
Updated: 12 April 2022; Ref: scu.168570
A statute in 1950 granted to the port authority powers, inter alia, to grant licences for moorings on the foreshore. These powers overrode the ancient Royal Charter which vested the foreshore in the local authority. Accordingly licences issued by the port authority were effective and binding as against the local authority.
The court considered whether the Council, as owner of the foreshore was able to control licensing for the deep water moorings adjacent.
Lord Justice Peter Gibson, Lord Justice Chadwick and Lord Justice Kay
Times 25-Oct-2001, [2001] EWCA (Civ) 1273, [2001] EWCA Civ 1273
Ipswich Docks Act 1950 12, Charter of Henry VIII of 1518/19
England and Wales
Appeal from – Ipswich Borough Council v Moore and Another ChD 4-Jul-2000
Historically, powers had been granted to the authority, as riparian owners of the port, but powers had also been given to what had since become the Port Authority. The Authority had been given power to regulate traffic in the river, and to charge . .
Cited – Regina on the Application of Dart Harbour and Navigation Authority v the Secretary of State for Transport Local Government and the Regions QBD 26-Jun-2003
Captain Wyatt owned land near the harbour and wanted to moor his boat by it. The Harbour authority said he needed a licence. The Harbour authority requested him to move the boat as a danger to navigation. The Captain sought a judicial review of the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.166709
The claimant sought rescission of a consent order for specific performance made in an earlier action. The purchasers had not complied simply with the order, but had sought to bring back certain parts of the original contract.
Held: Once an order for specific performance has been made, the matter of how the contract is to be performed lies with the court, not the parties. The consent order itself referred back to the contract, and the remaining conditions still applied. The consent order should not be rescinded on these grounds. The seller had refused to complete without delivering a deed of rectification, nevertheless that would not in the circumstances pose any practical problem.
Lord Justice Laws, Lord Justice Mummery, Sir Anthony Evans
[2001] EWCA Civ 1220
Land Registration Act 1925 110(2)
England and Wales
Cited – Singh v Nazeer 1979
Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.159907
The defendant sought leave to appeal against an order disallowing his use of a stretch of the River Wye for his boat which he wanted to use as a floating restaurant. The claimants were an angling association who claimed that his use infringed a deed granting them angling rights. The judge had found that though there was a navigation right, the use was a substantial interference with the fishery, and was not for the purpose of navigation. Judgment had eventually been obtained by default.
Held: The judge may have applied the wrong test when refusing an adjournment ‘in considering whether there was an arguable defence before deciding whether to grant an adjournment, when the purpose of seeking the adjournment was to have time to seek and put before the court the material to suggest that there was an arguable defence. ‘ Did the defendant have an arguable defence? The answer was yes, and the judgment was set aside.
[1997] EWCA Civ 987
England and Wales
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.141383
Re-classification of public path on definitive map.
[1998] EWHC Admin 615
Wildlife and Countryside Act 1981 54
Updated: 12 April 2022; Ref: scu.138736
[1997] EWCA Civ 2029
England and Wales
Appeal from – Regina v Secretary of State for the Environment, ex parte Andrews Admn 1996
. .
See Also – Andrews, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs CA 1-Jul-2015
The claimant appealed against rejection of his request for judicial review of the decision by the respondent not to amend the definitive map to show two sections of public bridleway across an arable field.
Lord Dyson MR considered the purposive . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 April 2022; Ref: scu.142426
Appeal against order stopping up public footpaths.
Laws J
[1997] EWHC Admin 298
England and Wales
Updated: 12 April 2022; Ref: scu.137243
Judge Hodge QC
[2012] EWHC 4050 (Ch)
England and Wales
Updated: 11 April 2022; Ref: scu.472530
(Jamaica) The purchaser at an auction had been obliged under the terms of the auction contract to pay a deposit of 25%. He failed to complete, and the vendor took the deposit by way of forfeit. The standard deposit payable would be 10%. The Court of Appeal of Jamaica ordered the return of the excess above 15%.
Held: A penalty was ‘a contractual provision which requires one party in the event of his breach of the contract to pay or forfeit a sum of money to the other party is unlawful as being a penalty, unless such provision can be justified as being a payment of liquidated damages being a genuine pre-estimate of the loss which the innocent party will incur by reason of the breach. One exception to this general rule is the provision for the payment of a deposit (customarily 10% of the contract price) on the sale of land. ‘ A deposit in excess of 10% of the purchase price (25%) was not properly described as ‘earnest money’ and may be treated rather as a penalty. As such, the whole deposit taken was repayable to the defaulting purchaser.
Lords Keith, Jauncey, Donaldson, Browne-Wilkinson, Sir Christopher Slade
Gazette 07-Apr-1993, [1993] 2 WLR 702, [1993] 2 All ER 370, [1993] AC 573, [1993] UKPC 7
England and Wales
Cited – Commissioner of Public Works v Hills PC 24-May-1906
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
Considered – Stockloser v Johnson CA 1954
Romer LJ said that, in the absence of pressure or duress, or other vitiating elements, there was no jurisdiction to provide for relief against forfeiture in the event of the purchaser’s default in contracts other than those relating to land.
Cited – Linggi Plantations v Jagatheesan 1972
( Hong Kong Final Court of Appeal – from Malaysia) Lord Hailsham suggested that where, on investigation, the real nature of an initial payment, which was termed a deposit, was shown to be the imposition of a penalty, it might be recovered by the . .
Cited – Cine Bes Filmcilik Ve Yapimcilik and Another v United International Pictures and Others CA 21-Nov-2003
The parties entered into agreements licensing the exclusive distribution of encrypted television channels within Turkey. A clause provided a calculation of damages for a breach amounting to the balance of licence fees due, and other penalties, . .
Cited – MIDILL (97Pl) Ltd v Park Lane Estates Ltd and Another CA 11-Nov-2008
Refusal to return Land Contract Deposit
The court was asked as to whether a seller could retain a deposit paid by the claimant on a sale where contracts had been exchanged but the buyer had proved unable to go ahead.
Held: The appeal against refusal of return of the deposit failed. . .
Cited – Bidaisee v Dorinsa Yusidai Sampath and Others PC 1993
(Trinidad and Tobago) The parties contracted for the sale of a half share of land to the co-owner for TT$2 million. A 10% deposit was paid. A notice to complete was not met. The vendor sold the share to others for more. Arguments as to the validity . .
Cited – Union Eagle Limited v Golden Achievement Limited PC 3-Feb-1997
(Hong Kong) The parties had contracted with each other for the sale of land. Completion was to take place on the appointed day at 5:00pm. A ten per cent deposit had been paid, and time had been made of the essence. The seller sought to rescind the . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 April 2022; Ref: scu.90608
Inability of devisee to convey land until vested does not stop contract to do so.
Times 25-Oct-1996
Updated: 10 April 2022; Ref: scu.90630
A deed altering the priorities of two mortgages limited the amount of the prior loan to a capital sum together with interest. The party with priority claimed to be entitled to compound interest, and the second resisted it. The court said that the word ‘interest’ must refer to that payable under the loan agreement secured by the deeds, and not to interest generally, and therefore the compounded interest was given priority.
Times 22-Jun-2000, Gazette 29-Jun-2000
England and Wales
Updated: 10 April 2022; Ref: scu.90452