Druce v Druce [2003] EWCA Civ 535

[2003] EWCA Civ 535
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(Mr Roger Englehart QC )
(sitting as a Deputy High Court Judge)
Venue Royal Courts of JusticeDate Tuesday, 11th February 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE ARDEN
MR JUSTICE MORLAND
ALAN GERALD DRUCE
Appellant/Claimant
-v-
ROGER ELLIS DRUCE
Respondent/Defendant
(Computer-Aided Transcript of the Stenograph Notes of
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MISS J JACKSON Q.C.(instructed by Messrs Lawrence Hamblin, Henley-on-Thames) appeared on behalf of the Appellant.
MR C NUGEE Q.C. AND MR T SEYMOUR (instructed by Messrs Lennon & Co, Chesham, Bucks) appeared on behalf of the Respondent.
J U D G M E N T
(As Approved by the Court)
Crown copyright©
Between
DruceAppellantDruceRespondent

LADY JUSTICE ARDEN:

This

[1]is an appeal with limited permission given by Aldous LJ against the order of Robert Englehart QC, dated 24 April 2002, which effectively determined a boundary dispute between the appellant and his father in favour of the father. It was not an ordinary boundary dispute because the answer concerns a very valuable building plot.[2]The dispute has a long history. The appellant, whom I shall call Alan, and his father, whom I shall call Roger, both live on plots of land derived from a larger plot purchased by Roger’s father, Edwin, in 1953. In very approximate terms, Edwin then bought a rectangular piece of land which I will call The Parsonage Meadow. To assist the orientation of the reader of this judgment, I will describe it as consisting of two rows of four squares of land, with the lower row abutting a road known as Frieth Hill, Henley on Thames. I will give each of the squares to which I have referred a letter, starting with A on the bottom left to D on the bottom right, (that is going from west to east) and then from E on the top right to H on the top left (that is going from east to west). So the bottom row is A, B, C and D and the top row, starting on the right hand side is E, F, G, H. It is convenient to refer to the land as divided into a number of separate parts. Edwin lived in a house on plot D called Edrema.[3]By a conveyance dated 18 October 1962 Edwin gave Roger a plot which might roughly be described as the three squares next to plot D, namely plots C, F and E. He built a house (that is Roger) called Mallards. In 1974 an application was made for planning permission to erect a dwelling house on plots B and G. This was to be used in due course by Alan and his new wife, Virginia. Alan and his new wife, Virginia, were married in September 1975. In 1975 there was a letter agreement between Roger, Alan and Edwin, under which, so far as material, Edwin retained plots A and H.[4]By a conveyance dated 20 September 1976, Edwin gave part of the property to his grandson, Alan, in order that he could have the residence on it for himself and his wife. The house was already built and it was called Hillside. The sole issue on this appeal is whether Alan is entitled just to plot B or to plots A and B. There is also a question, if the answer is that Edwin gave Alan only plot B, whether Alan has become entitled to plot A by a Tomlin order or by virtue of estoppel by representation. The appellant's primary case is that Alan became entitled to plot A as a result of the Tomlin order, and I will take that point first after I have explained the background.[5]The relevant part of the parcels clause in the conveyance of 20 September 1976 states that Edwin conveyed to Alan “all that parcel of land situate at Frieth in the Parish of Hambledon in the County of Buckingham having a frontage to Frieth Hill of ninety feet or thereabouts a depth therefrom on the east side of one hundred and sixty two feet or thereabouts and on the west side of one hundred and fifty feet or thereabouts. All which said piece of land is for the purpose of identification only, more particularly delineated on the plan annexed hereto and thereon edged red TOGETHER with the dwellinghouse and outbuildings erected thereon or some part thereof.”[6]The plan annexed to the conveyance shows the plot, but it is not clear whether the plot on the westerly side of the plot conveyed is plots A and H or the neighbouring property which is called The Parsonage or sometimes The Old Parsonage. A further conveyance was executed dated the same day in favour of Roger, and this comprised of a plot immediately to the north of the property conveyed to Alan, and a similar ambiguity arises on the plan attached to that conveyance as well.[7]There is one point that I should explain about the plan now. The boundary between The Parsonage and The Parsonage Meadow had a distinctive outline just north of The Parsonage Meadow, and the boundary in question on the conveyance plan in each case has that outline.[8]Before the conveyance took place a chain link fence was erected on the westerly boundary of plots B and G. This was in compliance with a term of the planning permission obtained in 1975 which required the erection of a fence at that point. In addition, after the conveyance Edwin erected a fence and planted a hedge on the northern boundary of plot B. Edwin used plots A and H and on plot H kept rabbits. By an agreement dated 22 September 1982 Edwin purported to grant an option to purchase the land (that is A and H) to a Mr and Mrs Ray, but this option had subsequently to be abandoned when a dispute broke out between Roger, Alan and Edwin as to the ownership of plots A and H. In these proceedings Alan contended that he had always thought that Edwin had conveyed to him plot A, but the judge did not accept this (judgment, paragraph 9).[9]In 1983 Edwin brought proceedings against Alan and Roger for (among other relief) a declaration that plots A and H belonged to him; alternatively, for rectification of the 1976 conveyances. Alan and Roger defended the proceedings and counterclaimed for declarations that they owned plots A and H respectively. By a late amendment Roger pleaded that there had been a partnership between him and Edwin and that plots A and H formed part of the partnership assets. In defending Edwin’s proceedings, Alan and Roger made common cause and did not seek to raise any disputes between themselves. On 1st July 1991 the proceedings were settled by a Tomlin order, which, somewhat surprisingly, provided that Edwin should give all his assets, bar some minor exceptions, to Roger. In addition, it provided that the three parties accepted the settlement in satisfaction of their claim. The material clauses are as follows:- “(1) That the freehold of the property known as ‘Edrema’, Frieth, Henley on Thames, Oxford together with the freehold garages adjoining 'Edrema' be transferred to [Roger] …. (5) [Edwin] hereby undertakes to make the following further dispositions and transfers of his assets …. (3) to transfer all of his assets of whatsoever nature and whether real or personal … to [Roger] absolutely for his own absolute use and benefit. (8) It is hereby agreed and declared that this Agreement is in full and final settlement of [Edwin’s] claims against [Roger and Alan] and [their] claims against [Edwin] in and arising out of the action and counterclaim herein and for the avoidance of doubt [Edwin] withdraws his claim for rectification.” In paragraph 19 of his judgment the judge identified the following issues:- “(1) On the proper construction of the conveyance of 20 September 1976 in favour of Alan Druce did Edwin Druce convey to Alan Druce a parcel of Parsonage Meadow extending(a) for some 90 feet along the frontage of the Frieth main road or(b) along the entirety of such frontage up to the boundary with the Parsonage, that is for some 189 feet? (2) Was the effect of the Schedule to the Tomlin order of 1 July 1991 on its true construction an agreement or acknowledgement by all parties to the action that Alan Druce was the owner of the entirety of the southern part of the western land? (3) Is Roger Druce estopped from contending, as alleged in paragraph 11, 11A or 11B of the amended reply, that the road frontage of the land to which Alan Druce has title is some 90 feet rather than some 189 feet or from contending that the effect of the Tomlin order is as set out in (2) above?” These are also the issues arising on this appeal, save that issue 3 is on this appeal limited to estoppel by representation relied on in paragraph 11(1) and (2) of the reply.[10]The judge noted that in April 1975 the three parties had jointly instructed their solicitors on the way in which Parsonage Meadow was to be conveyed between them and that it was then envisaged that Edwin would retain plots A and H. However, the judge did not base his conclusion on that document because there was evidence that Edwin had changed his mind on several occasions. The judge then turned to the intrinsic evidence in the conveyance. He referred to the established rule that any inconsistency between the body of a deed and a plan must be resolved in favour of the body of the deed unless there is some express provision that the plan is to prevail. The judge held that the words “for the purpose of identification only more particularly delineated on the plan” were a form of words that might "appear to the literalist to amalgamate conventional forms of expression and thereby tend, as Megarry J said in Neilson v Poole [1969] 20 P& CR 909 at 916, towards “a mutually stultifying” conclusion. Nevertheless, even with such form of words Megarry J went on to say:
“Certainly I do not think that they give the plan any predominance over the parcels.”
[11]The judge referred to the observations of Buckley LJ in Wigginton Ltd v Winster Engineering Ltd [1978] 1 WLR 1462, where Buckley LJ held that the intention had to be ascertained from the conveyance as a whole and that the plan could be taken into account provided that it did not conflict with the parcels clause.[12]The judge held that the correct starting point was to construe the deed as a whole and that he should prefer a construction which did not produce inconsistency between the different parts of the deed. On that basis, the judge held that the plan was not inconsistent with the parcels clause since the line to the west did not necessarily represent the line with The Old Parsonage.[13]The judge held that if he was wrong in that conclusion, the precise measurements in clause 1 indicated that they were to prevail over the plan. The judge did not consider that it would be right to use the contemporaneous conveyance in favour of Roger in order to create an inconsistency in and override the express language of the conveyance to Alan.[14]The judge then turned to the Tomlin order. Alan’s case was that on a proper construction of that order, plot A was acknowledged as belonging to him and plot H was acknowledged as belonging to Roger. The judge held that there was no acknowledgment to that effect in the Tomlin order. Indeed, there was no reference at all to plots A and H unless the reference to Edrema in paragraph 1 included a reference to the whole of the western land (that is plots A and H). Indeed, when Edrema was subsequently conveyed to Roger by Edwin, it is clear that all Edwin’s interest in The Parsonage Meadow was conveyed together with the dwellinghouse known as Edrema (see the 1992 conveyance). As to the Tomlin order, the judge noted that it was not intended to settle the disputes between Roger and Alan. As to Alan’s attitude, the judge specifically found that probably his attitude at the time would have been that, with his grandfather out of the way, he would be likely to get what he wanted from his father in any event.[15]Finally, the judge turned to estoppel. I need only deal with the way in which he dealt with estoppel by representation. In his reply, the appellant Alan pleaded that Roger was estopped from asserting that the road frontage of his land was 90 feet rather than 190 feet. In support, he relied on the fact that the defendant (that is Roger) gave joint instructions with him to solicitors and counsel acting for them both in the 1983 proceedings, and that the correct frontage of the claimant's land was 190 feet as shown by the plans in the 1976 conveyance. In reliance on that conduct and representation, Alan pleaded that he did not pursue a separate defence or counterclaim and later had entered into the consent order. In the alternative, Alan contended that Roger was bound by estoppel by reason of correspondence passing between the parties' solicitors in June and July 1992. Roger's solicitors sought a right of way from Alan over plot A which he now asserts does not belong to Alan. In reliance, Alan did not seek any directions from the court as to the meaning of the consent order or seek rectification of the consent order.[16]The judge dealt with these points briefly. In paragraph 37 of his judgment he held that there was no representation by Roger that Alan owned plot A in the 1983 action. He held that they were together making a claim only. In any event, Alan did not rely to his detriment on the hypothetical representation by his father. There was no sufficient link between anything said or done by Roger and by what Alan did or refrained from doing. He did not make a separate defence and counterclaim, but by making common cause with his father Alan achieved the advantage of his father paying the majority of the costs and relying for his case not only to the partnership claim but also to a claim which was, on the wording of the 1976 claim, a stronger one than his own claim. Other advantages included the removal of the right of pre-emption which Alan had granted to Edwin in 1976 over Hillside. There was no evidence of any discussion between Alan and Roger about the terms of the Tomlin order on this point, and accordingly Alan could not say that he had relied on any representation by his father as to ownership of Plot A when he, Alan, entered into the Tomlin order.[17]As to the second claim of estoppel by representation, the judge was satisfied that Alan knew all along that, until the deed of rectification was concluded between himself and Roger, he did not actually have title to plot A. Moreover, Alan did not act in reliance on any representation by his father. In the circumstances, the judge dismissed Alan's case. The Tomlin Order[18]Miss Judith Jackson QC for the appellant points out that the Tomlin order dealt only with Edrema. She submits that paragraph 5(3) of the schedule to the Tomlin order could only deal with property which Edwin held after the Tomlin order took effect. She further submits that paragraph 8 on its true interpretation shows that the parties were proceeding on the footing that, irrespective of whether or not the 1976 conveyances included plots A and H, title was to be vested in Roger and Alan respectively. The judge was wrong to approach the matter on the basis of the 1976 conveyances. He should have asked what the true interpretation of paragraph 8 of the schedule to the Tomlin order was. The withdrawal of the rectification claim by Edwin indicates that plots A and H were not to be treated as vested in Edwin. There would have been adverse tax consequences if there had been a transfer of land from Edwin to Roger. Roger and Alan were both very concerned about inheritance tax payable on Edwin's death and advice had been taken as to how the action should be settled so as to minimise inheritance tax. The right approach, on Miss Jackson's submission, is to ask what would have happened if Edwin had sought to relitigate the ownership of plots A and H on 1 August 1991. On the judge’s reasoning, the schedule to the Tomlin order left that question unclear.[19]Mr Christopher Nugee QC for the respondent submits that the schedule to the Tomlin order left the question of the title to plots A and H unclear since there was simply no general release of claims. In any event, when the terms of the schedule to the Tomlin order were implemented in the 1992 conveyance, Edwin transferred the whole of his interest in Parsonage Meadow and not simply Edrema (see the 1992 conveyance). The 1976 conveyances conveyed what they purported to convey, no more and no less. In any event, if the 1976 conveyance did not convey plot A to Alan, and such was conveyed by the schedule to the Tomlin order, the requirement for the disposition of an interest in land to be in writing would have to be satisfied, and accordingly the disposition would have to be in writing or there would have to be rectification of the 1976 conveyance in favour of Alan.[20]In any event, the judge found that Alan’s attitude at the time was not that the Tomlin order gave him what he wanted, but that, given his good relations with his parents at that time, he would in due course achieve what he wanted from his father (judgment, paragraph 43).[21]In any event, the fact that a transfer of Edwin’s realty to Roger would have adverse tax consequences cannot change the construction. The explanation was, as the judge found, that Edwin was not willing to agree that plots A and H were not his and would not have agreed to any such provision in the order.[22]Mr Nugee submits that it is a false point to ask whether Edwin would have been able to relitigate the question of title to plots A and H on 1 August 1991. By that time the Tomlin order had been approved and Edwin had released all claims and in due course transferred all the property to Roger. Moreover, on the evidence, Alan appreciated that after the conveyance dated 1 July 1992 he needed to obtain a deed of rectification from Roger in order to obtain title to plot A.[23]I now set out my conclusions on the Tomlin order point. In my judgment, Mr Nugee's submissions are to be preferred. Alan and Roger were making common cause in the 1982 proceedings and the Tomlin order was designed to settle those proceedings. It was therefore outwith the Tomlin order to resolve any issue between Alan and Roger, and indeed they could not have acted through the same solicitors if there had been any conflict of interests between them. If they could not agree on any issue that arose between them following the implementation of the schedule to the Tomlin order, they would have to start proceedings against each other. Their claims as between themselves were not released by clause 8. I cannot spell out of the Tomlin order any acknowledgment that Alan and Roger were to obtain plots A and H if they did not already have title to them. Miss Jackson submits that significance attaches to the words "and for the avoidance of doubt Edwin withdraws his claim for rectification in clause 8 of the Schedule to the Tomlin order." She submits that this underscored that there was to be no claim by Edwin in the future. I do not see how this point assists the case on either construction of the Tomlin order (that is either the appellant's or the judge's). These concluding words have no meaning. They do not purport to have any dispositive meaning since they are inserted only "for the avoidance of doubt". All the argument amounted to is that the double underscoring was less unnecessary on the appellant's case than on the respondent's, but I do not myself think that that takes matters much further.[24]Miss Jackson's alternative approach is that the judge's construction of the Tomlin order undermined the tax savings which the parties were keen to achieve, but the fact that the parties desired to achieve inheritance tax savings cannot change the express wording of the Tomlin order. There is nothing in the order which grants Alan any right which he did not have before. If he had that right before it was under the 1976 conveyance. Therefore, on either basis the judge was right to go back to the 1976 conveyance. So far as Alan and Roger were concerned, the effect of the Tomlin order was simply to return the parties to a "as you were" position. This is supported by Roger's evidence in the action, which was that he did not make any claim in the action which conflicted with Alan's position. One also has to bear in mind that the received opinion at the time of the 1983 proceedings was that Alan's claim to plot A against Edwin was weak. The advice from tax counsel was as follows. In order to avoid a challenge on inheritance tax grounds, the dispute had to be bona fide and the compromise and settlement had to be "genuine and not masquerading as such". It is difficult to see therefore how the Tomlin order could have provided for Alan to have title to plot A and yet achieve the desired inheritance tax saving. The only consideration from Alan under the terms of settlement was the withdrawal of his claims against Edwin, and this was in the circumstances a release of little value. The 1976 conveyance[25]I now turn to the true construction of the 1976 conveyance. Miss Jackson submits that if the property was said to be more particularly described or delineated on a plan, the plan prevails: Eastwood v Ashton [1915] AC 900. In Moreton Cullimore v Routledge (unreported, February 11 1977), a decision of this court, the Court of Appeal held that the verbal description prevailed but, per Lord Denning MR, this was only because he treated the combined expressions as meaning no more than “for the purpose of identification only”. He did not approve of the statement by Megarry J that the plan should not have predominance over the parcels. I have already referred to that in my summary of the judge's judgment.[26]Woolls v Powling, 9 March 1999, unreported, concerned a case where the combined expressions were again used. The judge admitted extrinsic evidence, that is oral evidence, as to discussions between the parties regarding the boundary wall prior to the conveyance. The Court of Appeal allowed the appeal on the grounds that the plan did not conflict with the description of the property in the conveyance and so the judge had been in error in admitting this extrinsic evidence.[27]Miss Jackson submits that it is necessary to refer to the plan to the 1976 conveyance because, although the parcels clause contains measurements, it does not give the location of the eastern and western boundaries, so the description is by itself insufficient. Such reference is for the purpose of identification. The court must, therefore, look at the whole of the conveyance. This includes the fencing covenant in clause 2 which was to fence the boundary marked with a letter “T”. The “T” marks are against the north boundary of the land being conveyed and against the west boundary. There was already a fence on the western boundary of the plot, whether that was with The Old Parsonage or at the edge of the plots between plots A and B. In the circumstances, the reference to fencing is not, as I see it, helpful to Miss Jackson's case. In addition, in the conveyance there was an exception and reservation of easements and quasi-easements for Edrema. But Edrema did not adjoin Hillswood. It adjoined Mallards which had been built by Roger, and accordingly this reservation makes no sense unless the land conveyed is both plots A and B.[28]Miss Jackson further submits that, accordingly, the fencing covenant is consistent with the plan as is the exception and reservation. The measurement, on the other hand, is inconsistent with the exception and reservation but consistent with the fence erected in 1975. However, that fence is referable to the planning consent when the intention was to give Alan half the width of The Meadow but the full depth, i.e. plots B and G. Accordingly, she submits that extrinsic evidence is admissible: Scarfe v Adams [1981] 1 All ER 843, 847j. The intention at the time of the planning permission was not carried through. The contemporaneous conveyance to Roger shows that the parties split the land the other way, so that Alan on Miss Jackson's submission was to get A and B and Roger plots G and H. In any event, the western boundary of Alan’s land was to be that with the Old Parsonage.[29]Miss Jackson further submits that the judge's construction of the plan was incorrect for the following reasons: first, the shape of the area conveyed would be wrong if the width was only 90 feet. It would be more rectangular and not an approximate square as shown. Second, the far western boundary of Edwin's land was a straight line more or less and was not the distinctive shape of the western boundary with The Old Parsonage which contained both a fence and a wall because it had a kink in it. Accordingly, Miss Jackson submits that anyone familiar with the site could not, as the judge did, have looked at the plans for the 1976 conveyances and conclude that the western boundary thereon delineated with approximately half the width of The Parsonage Meadow. Third, the plan attached to the conveyances repeats the measurements of the northern boundary of Mallards as shown on the plan to the 1962 conveyance to Roger. This was 97 feet. If the width conveyed by the 1976 conveyances was only 90 feet, then the plan would show a narrower plot than the site of Mallards.[30]Miss Jackson also relies on the plans annexed to the conveyance to Roger. She submits that the judge should have had regard to that document and that if he had done so, he would have concluded that the reference to 90 feet in the parcels clause in the conveyance to Alan was incorrect and that by reason of the other evidence the western boundary shown on the plan was the boundary between A and The Old Parsonage.[31]Mr Nugee responds that there is no inconsistency between the plan and the parcels clause in the 1976 conveyance. He seeks to uphold the judge's judgment. The factual matrix includes the position on the ground at the time, which was that there was a chain link fence erected between plots A and B which continued between plots H and G. The judge omitted to refer to this point. There is no other internal line on the plan which could mark the chain link fence and suggests that the boundary line was The Old Parsonage boundary.[32]The plan does not specify the road frontage or the width measurement and so does not purport to conflict with the parcels clause. He submits that the appellant’s argument, based on the contemporaneous conveyance to Roger, fails to take into account the fact that the conveyance too was based on the same plan. Accordingly, the western boundary on his submission is not to be taken to be the boundary with The Old Parsonage.[33]Mr Nugee relies on the observations of Bridge LJ in Wigginton, that where a plan is said to be for the purpose of identification only, and shows a boundary which differs in detail from some physical feature, which the conveyance otherwise indicates as the intended boundary, the physical feature prevails over the conveyance plan.[34]I now state my conclusions on the 1976 conveyance point. I have already set out the words in the conveyance which refer to the plan which was attached. It is well established that if a plan is attached to a conveyance for the purpose of identification only, the verbal description in the conveyance will prevail over any other indication in the plan. On the other hand, if the property is described by reference to the plan, the plan prevails - Eastwood v Ashton [1915] AC 900 which concerned a conveyance where the property was "more particularly described in the plan". If both phrases are used, that is to say if the plan is for the purpose of identification only and in addition the property is described as more particularly described or delineated on the plan, as I said, it is a question of interpretation of the conveyance whether the plan prevails over the verbal description in the conveyance itself. Thus, it seems to me that in most cases the likely construction is that the verbal description is to prevail. It is because the combination that I have given is absolutely clear by the inclusion of the word "only" that the plan is for the sole purpose of enabling the parties or the court to identify the property. This particular problem arose in Neilson v Poole. The relevant extract is usefully set out and explained by Buckley LJ in Wigginton v Winster at page 1471. Megarry J said this:
"I return, then, to the plaintiff's conveyance. The essential parts of the first schedule contain two main features. First, what is conveyed is the land, dwelling house, garage and other buildings known as 'Brooklands South'. That verbal description raises a question of fact: what, at the date of the conveyance, could be said to be known as 'Brooklands South'? Secondly there are the words 'as the same are for the purposes of identification only more particularly delineated on the plan drawn hereon, and thereon coloured blue.' One question that arises from this language is whether the verbal description is to prevail over the plan, or whether the plan is to prevail over the verbal description, or whether they are to be co-equals. The collocation of the phrase 'for the purposes of identification only' with the words 'more particularly delineated on the plan drawn hereon' may be said to be unfortunate; and in that I think I speak temperately. The effect of a phrase such as 'for the purposes of identification only' or 'for the purpose of facilitating identification only', or 'only for the purpose of identification' seems to me to confine the use of the plan to ascertaining where the land is situated, and to prevent the plan from controlling the parcels of land in the body of the conveyance: see Hopgood v Brown [1955] 1 WLR 213,228, Webb v Nightingale, Court of Appeal (Civil Division) Transcript No 84 of 1957. On the other hand, phrases such as 'more particularly delineated' or 'more particularly described' or 'more precisely delineated' used in reference to a plan, are words which tend to show that in case of conflict or uncertainty the plan is to prevail over any verbal description: see, for example, Eastwood v Ashton, Wallington v Townsend. Where both forms of expression are used together, as in the present case, they may indeed tend to be mutually stultifying. Certainly I do not think that they give the plan any predominance over the parcel. Reading the conveyance as a whole, the most probable meaning, expressed as a paraphrase, seems to me that what is conveyed is whatever is known at Brooklands South, and that in order to discover the identity of Brooklands South (but for no other purpose) there is a more detailed delineation of it on the plan. Such language seems to negative any sense of the plan as showing the precise boundaries of the land."
Buckley LJ continued: "There, Brooklands South is a specific description of a piece of land, the boundaries of which could be established by extrinsic evidence. If the plan was not to control the parcels, the plan could not have any relation to the boundaries of what was known as Brooklands South, those being matters which were implicit in the explicit description of the parcel concerned as 'what was known as Brooklands South'; and the observation by Megarry J that words such as 'for the purposes of identification only seemed to him to confine the use of the plan to ascertaining where the land is situated, was I think an obiter observation on his part and not part of his decision at all, for he was not concerned merely with that phrase but with its use in conjunction with 'more particularly delineated'".[35]The same point is made in Moreton Cullimore (Gravels) Ltd v Routledge to which Buckley LJ referred in the same judgment. Here, too, the same expressions were combined. Lord Denning MR said:
"In this case we have the words 'for the purpose of identification only'. Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof."
The actual issue in Wigginton v Winster concerned whether or not the plan could be used to understand the description of the parcels or whether it could only be used to identify the location of the property. The Court of Appeal held that the former was the correct approach and decided the case accordingly.[36]In this case the first question is whether the document construed as a whole is clear. Mr Nugee supports the judge’s construction that it was, indeed, clear. The measurements were given in the parcels clause and, looking at the plan alone, there appeared to be no conflict. It is only if reference is made to the 1953 and 1962 conveyances that there is any doubt. The doubt arises from the fact that the distinctive outline of the land to the north of The Old Parsonage purport on the plan to be shown on the western boundaries of plots B and G, taking plot B to be a plot of 90 feet as required by the parcels clause. There is no doubt as to the eastern boundary of plot B. This had never been in dispute and in any event its location was made clear by the further words in the parcels clause, making it clear that the property sold included the dwelling house erected thereon, namely Hillside. However, the judge went on to deal with the position on the basis that the verbal description was not clear. It became ambiguous, as I have said, as soon as the 1953 conveyance plan or the 1962 conveyance plan was placed next to it. This ambiguity arose even when the conveyance was read as a consistent whole. In the event of ambiguity, at the least the court can have regard to extrinsic evidence. Even, however, when extrinsic evidence is admissible, it cannot be used to contradict any express provision of the conveyance. Nor does the function of the plan change simply because extrinsic evidence is being admitted. The function of the plan remains a document that can be looked at to determine the parcels.[37]In my judgment, Miss Jackson’s submissions in effect invite the court to treat the plan as the controlling document. She was inviting us to say that the plan can contradict the express measurement of 90 feet in the verbal description in the parcels clause. I am quite clear that this is not a permissible use of the plan.[38]I therefore turn to the various elements of the extrinsic evidence. First, I turn to the topographical features, namely the house and the fencing. I have already referred to the house and it would have been apparent to anyone visiting the site that the eastern boundary must be the boundary enjoyed with Mallards. The live question is whether or not the frontage is 90 feet or 190 feet. The physical features of the site would be relevant and form part of the extrinsic evidence. They would have shown, as at 1976, that there was a chain link fence between plots H and A on the one hand and plots B and G on the other hand. The installation of the fence had indeed been required by the planning permission. If Miss Jackson’s submissions are correct, then that fence, although present, was simply not shown on the plan, and that seems to me to be an unlikely conclusion. There was also a fence at the time of the conveyance between plots B and G on the one hand and F and C on the other side. So a site having a 90 foot frontage was neatly fenced at the time of the conveyance. If Miss Jackson’s submissions are right, a fence is shown on the conveyance plan which did not, in fact, exist at the time, namely a fence between plot A and plot H, and that is on the northern boundary of plot A. This boundary and the fence on the northerly boundary of plot B did not exist until after the 1992 conveyance. Accordingly, in my judgment, the extrinsic evidence of fencing is against Miss Jackson.[39]The next point respecting physical features to note is that the 1976 conveyance plan contains ‘T’ marks. They are against the boundary between B and G and between B and A. If Miss Jackson’s submissions are correct, the fences which Alan undertook to Edwin to maintain would be the fence between A and H and between H and A and The old Parsonage. It is difficult to see what interest Edwin would have had in the maintenance of these fences which, on Miss Jackson’s submissions, were not fences around any of Edwin’s land. I should say that during the course of the construction of Hillside there was a fence between B and G which was taken down before the 1976 conveyance, which was later replaced by Edwin by a fence and hedge. That was after the conveyance.[40]There are further important items of extrinsic evidence. There is the letter written in August 1975 and signed by Edwin, Roger and Alan, which shows clearly that Alan was to get plot B and Roger was to get plot G. The judge, however, did not rely on this because there was evidence that Edwin constantly changed his mind. The document therefore has less evidential value than it might at first appear. It was nonetheless of some value. I do not accept Miss Jackson's submission that the parties in fact came to some other agreement before the 1976 conveyance. There was simply no finding to support this. The judge drew attention to the fact that the solicitors responsible for the conveyance in 1976 had the plan attached to the 1975 letter in their possession.[41]Miss Jackson relies on the contemporaneous conveyance in favour of Roger. The parcels clause of Roger's conveyance again refers to the plan 'for the purposes of identification only more particularly delineated' on the annexed plan, but the annexed plan had a greater role because the parcels clause made it clear that the dimensions were as shown on the plan. Those dimensions for the westerly and easterly boundaries only were thus incorporated from the plan into the parcels clause, but the plan could not control the parcels clause. Neither part of the document gave the measurement of the southerly boundary. Accordingly, extrinsic evidence would again be admissible. There was no house in this case but there was the Hillswood conveyance and the location of the fences, so the same point that I have already made in relation to Hillswood apply in relation to Roger's conveyance. In my judgment, the reference to Roger's conveyance would not have assisted Alan. In short, the reference to that conveyance does not assist Miss Jackson's argument because it uses the same plan, but simply identifies plot G rather than plot B. It would simply have given rise to the same investigation of the same extrinsic evidence.[42]Miss Jackson relies heavily on the distinctive outline of the northerly boundary of The Old Parsonage beyond Parsonage Meadow. As I have said, this is shown as if it were the westerly boundary of Hillswood. That, of course, strongly supports Alan’s case. However, the error is explicable in terms of the conveyancer having used the plan attached to the 1953 conveyance and the 1962 conveyance, and there is no evidence that he necessarily knew that Edwin did not own The Old Parsonage. More importantly, however, the kink in the boundary on which Miss Jackson particularly relies is outside the area conveyed and was a peripheral detail. Accordingly, in my judgment, it must give way to the clearer extrinsic evidence to which I have already referred.[43]There is an exception and reservation in the 1976 conveyance in the following terms:
“EXCEPT AND RESERVING unto the vendor for the benefit of … ‘Edrema’ … all … easements now used and enjoyed over the land hereby conveyed and which would be implied by statute or by reason of severance and take effect as easements in favour of a purchaser of … ‘Edrema’ as if the same had been conveyed to such purchaser and the land hereby conveyed had been retained by the vendor …”
This is a somewhat mysterious provision as Edrema was not the adjacent property. It may be explicable on the grounds that as The Parsonage Meadow had been one plot in Edwin’s possession before the various conveyances, the whole of the property was known as Edrema, and what Edwin was doing was seeking to preserve rights in favour of other parts of The Parsonage Meadow which he had not already disposed of and were not to be disposed of to Alan. However, it is not known whether at this point the contemporaneous conveyance to Roger had been executed. Miss Jackson’s explanation is that the reservation referred to an easement across plot A at its westerly boundary, which was a track used to enable Edwin to reach a chalet in the north west corner of The Parsonage Meadow where he kept rabbits. However, that is inconsistent with Miss Jackson’s own case, since her submission is that Roger acquired the plot on which this chalet was built through the contemporaneous conveyance to him. There is no equivalent exception and reservation in Roger’s conveyance. In my judgment, the exception and reservation was probably an instinctive reaction of a conveyancer who was providing for the transfer of one part of a site, the remainder of which was being retained by the vendor. This, as I see it, is more consistent with plots A and H being retained by Edwin than with the construction applied by Miss Jackson. But I do not attach great significance to this point.[44]Miss Jackson made various submissions as to the nature of the plan, such as the fact that various measurements in the plan were out of proportion. As I see it, those points do not carry the matter much further because the plan was clearly not a scale plan and thus cannot be taken to have been precise in its measurements. Miss Jackson's points, as I see it, stand or fall by reference to the ambiguity in the plan. In my judgment, when the conveyance is considered as a whole, in the light of all the available extrinsic evidence, it is quite clear that the site being conveyed to Alan was only 90 foot in width.[45]I now turn to the issue on estoppel by representation. The appellant relies on a letter dated 18th June 1992, in which Roger's solicitors were seeking a right of way over the western land and this is only consistent with Roger not already owning plot A. They then submitted a plan showing the right of way required, and in answer to a request by Alan's solicitors on 29th July 1992, they replied:
"We would confirm that the land edged red is that which is and remains in our client's ownership."
That land was the land which I have called plots G, F, E, C and D. Miss Jackson submits that the judge wrongly failed to hold that the statement and plan were express representations by Roger to Alan that Alan's title included the front part of the western land (that is plot A) up to the boundary with The Old Parsonage. The judge further erred in what he held:
"I do not consider that there was any way in which Alan acted to his detriment in reliance on the hypothetical representation by his father."
The judge should have held that Alan had acted in reliance on the representation. He had lost the opportunity to seek rectification of the Tomlin order and confirm his title to the southern part or to seek a further conveyance of the said land before Edwin's death on 1st December 1993.[46]The respondent's argument is that correspondence from June and July 1992 have to be read in the light of the fact that the Tomlin order did not provide for plot A to pass to Alan but for all Edwin's realty to pass to Roger, and further that those representations had to be read in the light of the conveyance of 1st June 1992 under which Edwin conveyed all his property north of Frieth Hill to Roger pursuant to the Tomlin order. In addition, Mr Nugee relies on the judge's finding that Alan knew all along that he did not have title to plot A and that he could not acquire title to that plot unless and until he obtained execution of a suitable deed of rectification by Roger. Mr Nugee also relies on the fact that the statement by Roger was not a representation that Alan's title included plot A. It was made in contemplation of the subsequent execution of a deed in favour of Alan. Mr Nugee also submits that there was no question of Roger having been willing to transfer title to Alan at a stage when Alan had not indicated his willingness to agree to a right of way which Roger wanted to retain. As the judge found, Alan would not agree to to it even being discussed until he had acquired legal title, and so there was an impasse. There was a row between the family in October 1992 which led to a complete breakdown of relations between them and of negotiations with a view to rectification. In any event, Mr Nugee submits that Alan did not act to his detriment on any representation.[47]As I have said, the judge clearly decided that the joint instruction of solicitors was not any form of representation. He held that Alan knew that he had merely a claim to plot A. This was a finding of fact and there are no grounds, as I see it, for disturbing it. When the documents are examined it is apparent that Alan knew that his claim was not strong. He had had written advice from counsel as long ago as 1984 to that effect. Accordingly, if there was a representation there would have been no reliance on it, as indeed the judge held.[48]As regards the correspondence in 1992, it is the case that Roger confirmed that Alan was entitled to plot A, but this representation has to be read in the context, as Mr Nugee submits, that Roger was offering to transfer plot A to Alan. In October 1992 there was a row between Alan and Roger, after which it was clear that there would be no transfer. Alan’s alleged detriment is that, if the representation had not been made, he would have started proceedings for rectification of the Tomlin order. He argued that he could not do this after Edwin’s death in December 1993. The answer to this is that he had plenty of time to do so before Edwin’s death. Second, Alan argues that he lost the opportunity to reach some accommodation with Edwin which would have enabled him to obtain plot A. For this he would have been reliant on Edwin's co-operation and, moreover, as Edwin owned no land Edwin could make no transfer to him. In any event, Edwin was not of a mind to admit that Alan or Roger had any entitlement to the western lands. There was a clear finding to this effect by the judge in paragraph 43 of his judgment. The judge said that in his evidence Alan Druce maintained that this was his understanding of what the Tomlin order achieved; that is that it gave him plot A. He continued:
"I find it difficult to accept that this was his understanding. Not only do the schedule terms not say so, but I have particularly in mind Alan Druce's evidence that his grandfather could never admit that the western land was not his, Edwin Druce's, and that the only solution was for the grandfather to transfer everything to the son. In my view, Alan Druce's attitude at the time was not that the Tomlin order already gave him what he wanted but that given his good relations with his parents, he would in due course achieve what he wanted from his father."
Again, this is a finding of fact. Accordingly, in my judgment, the judge's rejection of the claim of estoppel by representation cannot be set aside. In all the circumstances, for the above reasons I would dismiss the appeal.

MR JUSTICE MORLAND: I agree.

LORD JUSTICE THORPE: I also agree.

ORDER

Appeal dismissed.

Cited in 2 later judgments