Case No: A3/2009/1243
Neutral Citation Number: [2010] EWCA Civ 1148
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
HHJ DAVID COOKE sitting as a judge of the High Court
CH/AP/334
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/10/2010
Before :

LORD JUSTICE MUMMERY
LORD JUSTICE AIKENS
and
LORD JUSTICE GROSS
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Between :

	SUSAN WILKINSON & THE ESTATE OF BRIAN WILKINSON 	Appellant	
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	FREDERICK FARMER	Respondent	

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MR WILLIAM HANSEN (instructed by Greens Solicitors) for the Appellant
MR DAVID STOCKILL (instructed by Norris & Miles) for the Respondent

Hearing date: 21st July 2010
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Judgment
Lord Justice Mummery:
Neighbour disputes and second appeals 
1.	This is an adjourned application for permission under CPR 52.13 to bring a second appeal in a neighbours’ right of way dispute. On the initial paper consideration I refused permission to appeal. At the hearing of a renewed application for permission I adjourned the matter to the full court with the standard direction that, if permission were given, the hearing of the appeal should follow immediately. The result was that the permission application was fused with the appeal and that, as Aikens LJ commented in the course of argument, the court has heard the whole appeal in order to decide whether the appeal should be heard. 
2.	The reason for the adjournment was that, on the renewed application, I still doubted whether the stringent CPR requirements for a second appeal were satisfied. It was submitted in support of the application that there was an important point of principle concerning the impact of the surrounding circumstances on the construction of a deed and, in particular, whether evidence of subsequent conduct and documentation were aids to construction, but it seemed to me that the legal principles were settled by decisions of the House of Lords. 
3.	However, it might be possible, as was submitted on the renewed application, to find a “compelling reason” for a second appeal. At the two levels of decision on the way to this court opinion was divided on the effect of the conveyance expressly reserving the private right of way in dispute. At first instance the Deputy Adjudicator to HM Land Registry construed the conveyance in favour of the servient owner. On the first appeal that decision was overturned by HHJ David Cooke, who construed it in favour of the dominant owner. I formed the provisional view that the first decision was probably correct. Although a “real prospect” of the success of a second appeal is not the CPR test for  granting permission, it might well become clear, with the benefit of full argument from both sides, that the first instance decision was right all along and that the overturning of it on the first appeal could not possibly be justified. The refusal of permission for a second appeal on the ex parte application would have brought earlier finality to this unfortunate litigation, but it would not, in my view, have produced a correct or just outcome.
4.	The whole exercise has been an uncomfortable experience of unsatisfactory aspects of the conduct and cost of neighbour disputes in the courts. Everybody agrees that, if at all possible, disagreements between neighbours about rights of way, boundaries or whatever should be settled without ever going near a court. In my view, professional advisers have a duty to warn their clients at an early stage about the downside of neighbour litigation, even for a successful party. If the case goes to court there is, as this case shows, some uncertainty about the ultimate outcome. The case does not always end with the trial. Appeals are possible.  What is certain is that, at the end of the day, one of the parties will lose and will usually finish up fixed with an order to pay very considerable legal costs. That is not good for the losing party or for the prospect of harmonious relations between neighbours who continue to live next door to each other after the case is over. The cost and stress of a court case will often result in the further deterioration of already damaged relationships. The parties might be horrified to discover that the litigation has blighted their properties, as well as their lives.
5.	These cases, which have increased with the rise in home ownership, present priority problems for an overstretched civil justice system. When a neighbour dispute gets to court, there is a risk of it looking relatively unimportant to everyone except the parties. Many other kinds of dispute seem to have a larger claim on limited and overburdened court resources. Sometimes neighbour disputes are trivial. Even then they are potentially ruinous, in financial and human terms, for both sides. It should be emphasised that in the civil justice system the parties to these local property disputes are just as entitled to have them decided according to the same high standards as parties in every other kind of case. Contested rights about property of modest value can matter as much to the parties as large sums or big issues matter to the parties in more complex cases. The cases are often as human in their impact on daily lives as those about the fundamental rights in the Human Rights Act 1998. The users of the civil justice system will rightly judge it on the quality of the courteous care and attention, the procedural fairness and the impartial adjudication that it aims to achieve in all proceedings.  
6.	The parties in this case are neighbours in Shropshire, at Rocks Green not far from Ludlow. They have fallen out about the precise width of an express right of way. The  appellant is Mrs Susan Wilkinson. Since the death of her husband Brian she has been the sole servient owner. The respondent Mr Frederick Farmer is the dominant owner. Their disagreement arises from the terms in which a right of way was reserved in a conveyance dated 24 December 1898 (the 1898 Conveyance). The width of the way depends on the construction of the reservation according to its language, taken in conjunction with the relevant surrounding circumstances, such as evidence of the probable width and other physical characteristics of the way at the time of the 1898 Conveyance. That much is agreed and is established in the authorities: see St Edmundsbury v. Clark (No2) [1975] 1 WLR 468 at 477D; White v. Richards (1993) 68 P. & C.R. 105 at 109 and 111-112; West v. Sharp (1999) 79 P& C.R.327 at 332.    
7.	Over a hundred and ten years on from the 1898 Conveyance not much solid evidence is available about the relevant circumstances of the reservation. The words chosen by the draftsman are still there in the 1898 Conveyance stating that the sale to Mr Harding of the servient tenement Nelson Cottage, which, with the retained dominant tenement, had been in common ownership of the late Mr Cooper,  was:- 
“   SUBJECT nevertheless to a right of road as heretofore used and accustomed to the owner or owners of the properties adjoining belonging to the Vendors (part of which is known as “The Nelson Inn”) and “Big Copthill Meadow” their tenants and servants over and along the road which traverses the said premises between the points marked A and B in the said Plan.”      
8.	The annexed plan does not provide precise information about the width of the road. The plan was not drawn to scale and contains no measurements. The whole parcel of land conveyed subject to the right of way was coloured pink, without any other colouring differentiating between the property sold and the track or road reserved over it. For part of its length from the main public road (“Wayside” running from Clee Hill to Ludlow) at point A parallel pecked lines were shown on the plan. For the rest of the way a single pecked line to point B ran parallel with what appears to be the eastern boundary of the land conveyed so as to form a narrow tapering strip. There was no indication in the 1898 Conveyance that the pecked lines were intended to denote the track or road.
9.	The premises “The Nelson Inn” and Mrs Wilkinson’s “Nelson Cottage” are shown on the 1898 plan close to the point at which the private road joins the public highway. The distance between those buildings at that key point of the road is agreed to be 11 feet 8 inches.     
10.	Three points on the wording of the reservation are noted at this stage. First,  “a right of road” is, in my experience, an unusual expression to find in a conveyance, but it is  not disputed that it is the same as a right of way over which a right to pass and re-pass is enjoyed. Secondly, the words “the track or road which traverses the said property” plainly indicate the presence of an existing track or road across the land sold between the points A and B. Thirdly, the right reserved was confined to “as heretofore used and accustomed” (i.e. as used before the 1898 Conveyance) and does not refer to subsequent use made of it. I will return to the construction of the reservation after first considering in more detail the proceedings and background facts.
The proceedings    
11.	The litigation, now in its third round, is modest. The costs of the case are not modest. The combined costs of the parties to date are estimated to exceed £100,000. This is of serious concern to the parties at risk of having to pay them. Mr Farmer has obtained a charging order absolute over Mrs Wilkinson’s property in order to enforce the costs order in his favour in the order under appeal. Both parties have informed the court through their counsel of their financial worries about this litigation. Mrs Wilkinson has entered into a conditional fee agreement in relation to the appeal. It is uncertain from correspondence between his solicitors and the Land Registry to what extent Mr Farmer, a man of limited means who has mortgaged his property to pay his costs to date, will be entitled to an indemnity from the Land Registry for costs incurred, or for costs awarded against him in connection with the correction of a mistake in the Land Register. 
12.	The court, which is concerned with the administration of justice generally, as well as  with access to justice in this particular case, expressed at the hearing some difficulty in understanding why the precise width of the road throughout its length mattered so much to the parties that it was worth running the real financial risks of losing this case. It appears from the correspondence between the solicitors for the parties in 2006 that the dispute escalated following (1) the claim by Mr Farmer that he is entitled to exercise his right of way over the full width as shown tinted brown on the Land Registry plan and (2) his complaint that he had been prevented by Mr & Mrs Wilkinson from using its full extent by obstructions in the form of sewerage from a septic tank leaking over the right of way, the tipping of soil, subsoil, building matter and other debris at the bottom end of the right of way and along the sides, and the parking of vehicles on the right of way. Mr & Mrs Wilkinson did not dispute the existence of Mr Farmer’s right of way or its length, but contended that there was a mistake in the Land Registry plan in showing the width of it as extending over the whole area tinted brown on that plan.         
13.	The parties are probably bewildered by the course that the proceedings have taken up to and including this third hearing. The case did not start in the ordinary courts. Mr & Mrs Wilkinson, as registered proprietors of Nelson Cottage, 10 Rocks Green, Ludlow since 1997, made an application dated 5 October 2006 to the Land Registry to alter the filed plan on the ground that the area shown tinted brown on that plan was nearly twice as wide as the track or road over which Mr Farmer was legally entitled to pass and re-pass under the 1898 Conveyance. They wanted the Land Registry plan altered to show the correct, reduced width of the road. Mr Farmer claims that the road widens out to as much as 21 feet 4 inches at about a third of the distance along it from the public highway at point A en route to a gate at the terminus point B.
14.	When Mr Farmer objected to the Wilkinsons’ application on that basis, the matter was referred to an Adjudicator. Mr Simon Brilliant, sitting as a Deputy Adjudicator to HM Land Registry, held a two day hearing in Ludlow. He heard oral evidence from the parties and 6 witnesses, plus some witness statements from people not called. As for documentary evidence he had some relatively recent photographs, an 1886 Ordnance Survey map showing the eastern side of the strip as bordered by a row of trees (which he regarded as the best evidence he had of the physical state of the strip in 1898) and documents relating to two subsequent conveyances - a plan to a conveyance of 29 September 1910, which included the dominant tenement, and a conveyance dated 3 December 1912 (with plan), which included The Nelson Arms and the dominant tenement.
15.	The Deputy Adjudicator granted the Wilkinsons’ application. In his decision dated 17 September 2008 he held that there was a mistake in the filed plans in the registers of both titles, as the 1898 Conveyance did not reserve a right of way over the whole of the land tinted brown on the Land Registry plan. There was no right of road over the land coloured green or over the land coloured blue on the plan   attached by him to his decision. He directed the Chief Land Registrar to exclude the blue land from the land tinted brown on the filed plans, though not the green land, as he took the view that Mr Farmer could claim a prescriptive right of way over it.
16.	On 13 May 2009 HHJ David Cooke, sitting as a High Court judge, allowed an appeal by Mr Farmer. He recorded that it was common ground that the Deputy Adjudicator correctly directed himself in law on the approach to the construction of the 1898 Conveyance; that the only question for his decision was as to the physical area over which the right of way was granted in 1898; and that the Deputy Adjudicator was correct in holding that the area over which the right was granted was the road that existed in 1898 and that the route and width were those established by customary use prior to that date.
17.	However, the judge went on to conclude that the Deputy Adjudicator’s decision was not supported by the evidence and that there was no proper basis for his decision that the Land Registrar made a mistake when registering the titles of the parties. In particular, he had placed insufficient weight on the plans attached to the 1898 and 1910 conveyances, which suggested that the width of the road extended to the full width of the strip, and the nature of the use of the right of way, as indicated by the 1912 conveyance: it included use by animals and pedestrians, who would not be constrained to follow the same path as vehicles. The Deputy Adjudicator had relied on evidence of an 1886 map, on evidence from witnesses and on later photographs that were insufficient to support his finding that the blue land on the eastern boundary was so overgrown that it was impassable in 1898 or at any earlier time.
18.	The judge referred in detail to the plan to the 1910 conveyance of the dominant tenement and to the conveyance of the dominant tenement in 1912. The judge said that it had been correctly held by the Deputy Adjudicator that they did not have the effect of enlarging the grant (i.e. the re-grant on reservation) made in 1898. However, the judge accepted the submission of Mr Farmer’s counsel that those documents were “near contemporaneous evidence of the physical extent and the nature of the customary use of the right of way…”  The use was of a wide nature indicating use for the driving of animals, which suggested that the road could not have been confined to part only of the width of the narrow strip of land running down to point B.              
19.	The judge summarised his conclusions that the Deputy Adjudicator fell into error in a number of respects in his construction of the 1898 Conveyance in the light of the surrounding circumstances.
“25…Firstly, it was wrong in my judgment to treat the plan attached to the 1898 and 1910 conveyances as providing no assistance in determining the width of the right of way, Secondly, it was suggested that he drew the conclusion from the 1886 map that it shows the existence of mature trees on the blue land and to that extent obstructing passage along part of the strip; if he did so that was in my judgment unjustified, thirdly he appears to have placed excessive weight on the existence of wheel tracks along one side of the strip in apparently concluding that passage along the road was limited to a strip following that line, and fourthly, in my judgment the evidence of the existence of trees and vegetation on the blue land from 1954 onwards, over half a century after the 1898 conveyance, without a finding as to their age, could not reasonably support a conclusion that the blue land was so overgrown  as to prevent passage along it prior to 1898.”     
20.	In order to decide whether those criticisms of the first instance decision were justified I need to refer in more detail to the facts and the submissions.
Further details and submissions 
21.	It is common ground that Nelson Cottage includes land over which a private road or track runs between the junction with the public highway “Wayside” and a field known as “Big Copthill Meadow.” The termini of the way are marked as point A, at which the width is 11 feet 8 inches, and point B at the far end of the tapering strip, where the width of the strip is 14 feet 6 inches and where there is a gate 10 feet wide to Big Copthill Meadow. The gate is attached to the western half of the strip. 
22.	Mr Farmer is the registered freehold proprietor of 4 Rocks Green and of various parcels of land, including a paddock about 1200 square yards in area which is agreed to be the dominant tenement. His title is noted on the Land Register as having the benefit of a right of way tinted brown on the filed plan. 
23.	The Wilkinsons’ contention that the road reserved was narrower than shown on the Land Registry plan was based on the physical characteristics of the land as at the date of the creation of the “right of road” by the 1898 Conveyance. The result was that the road was, at the date of the reservation, confined to the western half of the strip and was no wider than the width of the way passing between the buildings near the public highway.
24.	Mr Farmer’s response was that there was no such limitation in the language of the reservation or in the Conveyance plan and that the right of way extended over the full width of the land coloured pink on the 1898 plan. 
The Deputy Adjudicator 
25.	The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions. In this case the decision was given after 2 days of evidence and argument, plus a site view. On the basis of his findings the Deputy Adjudicator ordered the Chief Land Registrar to remove from the land tinted brown on the respective filed plans of the two titles the land shown coloured blue of the plan annexed. That was an area of land running down the eastern boundary of the strip of the servient tenement to point B on the plan to the 1898 Conveyance. 
26.	He concluded that all that was reserved was a right to use the road as was already established in 1898; that no cart or carriage wider than 11 feet 8 inches could ever use the road, as that is the width between the side of The Nelson Arms and the side of Nelson Cottage at the junction with the public highway; that there was a substantial row of mature trees along the eastern side of the strip; that only the brown land was used as road, not the whole strip coloured pink; that the right of way did not extend to the blue land;  that the owner of the paddock, which had been a cottage garden in 1898 and was property to which the right was reserved, did not have vehicular rights over the road and that access to it would have been by foot.
The first appeal 
27.	On allowing Mr Farmer’s appeal and setting aside the Deputy Adjudicator’s order directing the alteration of the Land Register HHJ David Cooke ordered Mrs Wilkinson to pay the sum of £25,000 as an interim payment on account of costs.  
28.	The judge considered the evidence relied on by the judge and also referred to the  1910 conveyance for its plan as relevant to the width of the road and to the 1912 conveyance for its reference to a right of way for horses, carts, wagons and carriages and the driving of cattle, sheep and other livestock. He regarded them as evidence of the nature of the rights that users of the road were accustomed to exercise prior to 1898.  
29.	As for the track marks he concluded that it was not necessarily the case that the road was confined to the track taken by wheeled vehicles and referred to customary use by livestock and pedestrians, who would not be constrained to follow the same path as vehicles. 

Grounds of appeal
30.	It is contended on behalf of Mrs Wilkinson that the judge erred in his construction of the 1898 Conveyance. In particular, he wrongly had regard to inadmissible evidence in the form of subsequent conduct and to subsequent conveyances and plans as aids to the construction of the 1898 Conveyance. He found in them evidence of surrounding circumstances in 1898. 	He in fact used them to enlarge the width of the road over which the right had been reserved. In law they were irrelevant and inadmissible for the construction of an earlier reservation. They were of no probative value.
31.	The judge had wrongly interfered with the Deputy Adjudicator’s findings of fact as to the width of the road and its locus in quo, in particular the width of the road between the side of the Nelson Inn and Nelson Cottage and the width of the gate at point B. As for the nature of the user of the road the Deputy Adjudicator did not in fact in his order limit the way to a way on foot. He only limited the width of the way by reference to the attached plan.   
Mr Farmer’s submissions    
32.	It is contended on behalf of Mr Farmer that the judge was right, that he is entitled to use the brown tinted land as a right of way over any reasonable route and that he can do so with vehicles.
33.	Mr Farmer’s case is that it is permissible to take account of the later conveyances, so far as they relate to proof of surrounding circumstances at the date of the 1898 Conveyance and that the pecked lines on the 1898 plan indicated the extent of the right of way. The later conveyances are not relied on as evidence of the intention of the parties in 1898, but as evidence of surrounding circumstances which showed that the road had been used for the purpose of driving livestock down it   in 1898. 
34.	Further, and in reliance on the 1898 Conveyance plan, there was no reason why the right of way should not extend to the eastern boundary line of the servient tenement. A strip between a track of less than the entire width and the boundary line would be of no practical use to the servient owner, while it would be of practical use to the dominant owner, such as for a turning circle or arc to gain entrance through an access way or gateway from the right of way into, for example, the paddock. Reliance is also placed on the position of trees on the eastern side as shown on the 1886 Ordnance Survey map. The narrowest point near to point A did not restrict the width of the right of way for the full length.             
Discussion and conclusion 
35.	I favour a cautious approach to the construction of the 1898 Conveyance. Of course, surrounding circumstances are taken into account in order to determine the width of a way for which no measurements are given in the relevant conveyancing documents. At a distance of over a century from the creation of the right, the safer and more sensible course is to put trust in the firm anchor of what is recorded and  known rather than to set out on an uncharted sea of speculation about all the possible circumstances surrounding the way in 1898. 
36.	As the Deputy Adjudicator himself said, he did “not have a great deal of evidence” about the extent of the right of way in 1898 and he added that “both sides accept that I must make the best of what I do have.” There was no contemporaneous direct oral or photographic evidence; the deeds contained no measurements; and the plans were not drawn to scale.  Much of the evidence referred to by the Deputy Adjudicator and by HHJ David Cooke was neither  contemporaneous in fact nor solid in quality. Both the Deputy Adjudicator and the judge attempted to do the best they could with the slender evidence. The main reservation that I have about their decisions is that perhaps both of them tried almost too hard to reconstruct, from thin materials, a convincing circumstantial picture of the locus in quo that would help on the key issue of the width of the way.     
37.	The position is that only three relevant facts about the road at the date of the 1898 Conveyance can be stated with confidence: first, the reference was to an existing track or road from the junction with the public highway to point B; secondly, the buildings Nelson Cottage and The Nelson Arms were situated at the junction with the public highway; thirdly, the distance between those buildings was 11 feet 8 inches, so that no cart or carriage wider than that could ever use the road to get to or from the dominant tenement.  On that basis it seems to me more probable than not that that narrower measurement of the width of access, rather than wider measurements asserted by Mr Farmer, represented the accepted width of the existing road traversing the servient tenement from point A down to point B. 
38.	Those solid facts and that probability outweigh counter indications relied on by the judge, such as the position of unexplained pecked lines on the plan or the evidence derived by him from the terms of the subsequent conveyances of the dominant tenement about the possible use of the road by livestock and pedestrians liable to stray from the measured confines of a narrow road. I agree with the judge that the Deputy Adjudicator relied on some rather meagre evidence of surrounding circumstances for his finding that the road followed a narrow route along the western side of the strip: the 1886 map, the presence and position of the two very clear track marks on the area tinted brown, the gate 10 feet wide at point B fixed to the western side of the track, the state of the row of mature trees, the overgrowth of vegetation and the raised ground along the eastern side, as recounted by a witness speaking of the position in 1954 (coloured blue on the decision plan), or the oral evidence from witnesses and photographs dating only from 1970 onwards and the late 1990s of the more recent condition of the properties and the way. 
39.	I would therefore accept that there were some grounds for differing from the Deputy Adjudicator’s treatment of aspects of the evidence about the trees and vegetation along the eastern boundary at the time of the 1898 Conveyance. However, the judge, who was hearing an appeal, and not re-trying the case, went too far in concluding that there was insufficient evidence for the decision that the Land Registrar had made a mistake when registering the titles of the parties by showing the width of the road as extending to the full width of the land tinted brown.  That was a decision that the Deputy Adjudicator, as the fact-finding tribunal, was entitled to reach on the construction of the reservation in the context of a reasonable assessment of all the evidence of the objective contemporaneous circumstances, in particular the facts known about the width of the road passing between The Nelson Arms and Nelson Cottage.      
Result
40.	I would give permission for a second appeal. I now see that the judge was plainly wrong on the first appeal to overturn the decision of the Deputy Adjudicator. He did so not on the ground of any misdirection or error of law, but because in his view there was insufficient evidence to justify the Deputy Adjudicator’s findings about the width of the road. In fact, there was sufficient evidence for the conclusion of the expert Deputy Adjudicator that the Land Registry plan mistakenly showed the width of the road as the whole of the land tinted brown.
41.	I would allow the appeal. For the reasons given above, there were no valid grounds for the judge to set aside the order of the Deputy Adjudicator.
Lord Justice Aikens:
42.	I agree. 
Lord Justice Gross: 
43.	I also agree.