CDC2020 Plc v Ferreira [2005] EWCA Civ 611

Case No B2/2004/1822[2005] EWCA Civ 611
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE RICH QC)
Venue Royal Courts of JusticeDate Thursday, 5th May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE BROOKE
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE LATHAM
LORD JUSTICE LLOYD
Between
CDC2020 PLCRespondent-v-
Between
GEORGE FERREIRAAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR P HAMLIN (instructed by Messrs Paul Gromett & Co) appeared for AppellantMR R BANWELL (instructed by Messrs Laytons) appeared for Respondent
J U D G M E N TThursday, 5th May 2005

LORD JUSTICE LLOYD:

[1]This is an appeal from a judgment of His Honour Judge Rich QC sitting in the Central London County Court, given at a hearing on 13th July, the order being dated 19th July 2004. Permission to appeal was refused by the judge but granted by Neuberger LJ on 21st February this year.[2]In the action the claimant, CDC2020 Plc, succeeded in establishing, as against the first defendant, Mr George Ferreira, a right of way over the latter's land for access to part of the claimant's land. The second defendant took no part in the proceedings, so the contest was between the claimant and the first defendant only. The first defendant appeals.[3]The land in question is at Hove in East Sussex. The claimant's land is the former site of the Excelsior Hotel and is or was once known as numbers 205, 207 and 209, Kingsway. The land is shown on a plan which we have with the papers, which was annexed to the particulars of claim. That shows a corner at the junction between Kingsway and Carlisle Road. Carlisle Road runs northwards from Kingsway, roughly at right angles to Kingsway. The parcel of land which is actually on the corner is known as Dorset Court and is in the ownership of an entity which is not a party to these proceedings.[4]Next, eastwards along Kingsway, is the claimant's land. Fronting on to Kingsway, there are the buildings formerly numbered 205 to 209, which later became called the Excelsior Hotel, and which now take a different form altogether. Behind the building, to the north of it, is what I will call for convenience of reference "the garden". I have no idea whether it really was a garden at any relevant time. At some point it certainly seems to have been a car park, but I will refer to it as a garden simply as a convenient label.[5]To the north of that, on the eastern side of the claimant's property, is, as it were, an extension, which Mr Hamlin for the defendant has aptly called "the nib", which was the former site of three garages, and is again the site of three garages, but for a long time was not in that condition. Those three garages, as they originally stood, were the easternmost of a row of eight garages which appear to have been built in the late 1950s. The three to the western end appear to belong to the second defendant. The two in the middle are in separate ownership.[6]To the north of the site of the eight garages is an area shown blue on the plan which belongs to the first defendant. That is part of the way by which access is obtained between Carlisle Road and all eight of the garages. It appears to be clear that the owner of each of the garages has a right of way in similar terms over the blue land, the first defendant's land, and over the northern end of Dorset Court, the land on the corner.[7]The owner of Dorset Court is not a party to the proceedings because no issue arises between that owner and the claimant as to the ability of the claimant to get access to the site of the garages. The first defendant, however, contends that the claimant is not entitled to such access and his land is critical for the purposes of access.[8]It is an important feature, in terms of understanding the layout and the history, that the garages stand some 10 feet lower than the level of what I have called the garden. One has to understand that Carlisle Road, running northwards from Kingsway, also descends some way to produce that contour.[9]On 24th February 1964 a conveyance was executed of what is now the claimant's land, which included the following grant for the benefit of the purchaser (it is not clear to me whether this was the occasion on which the grant was first made, but that does not matter). The grant is in the following terms: "together with full right and liberty in common with others entitled to the like right, to pass and repass with or without motor cars or other vehicles over the land coloured blue on the said plan, for all purposes connected with the use and enjoyment of the three garages erected on the land coloured pink on the said plan, subject to the obligation to contribute towards the cost of repairing the said right of way as mentioned in a conveyance of 10th July 1959", the parties to which are mentioned. The pink land is what Mr Hamlin called "the nib" and what was the site of the three garages.[10]It is significant that it is only that land and not any other part of the claimant's title. The first defendant accepts that a right of way was validly and effectively granted for the benefit of that part of the claimant's land, and that if it still subsists the claimant is entitled to exercise it to get to the three garages that now stand on the pink land. But he contends that the right no longer exists because it has been abandoned.[11]The right, as I have read, is specifically granted for the purposes of the use of the three garages on the pink land, and that is an important feature of the case. At some point, (it seems to have been after 1964, though the date is not altogether clear) the three garages were demolished. It seems likely that this was at the same time as a change of use of the main building on the site from being a hotel to that of a police convalescent home, with car parks provided in connection with that use, both at basement and at ground level.[12]The evidence before the judge was mainly documentary and was introduced by one witness, the only witness who gave evidence at all, he being Mr Steven Dover, an employee of the claimant. The evidence included the planning register of Brighton and Hove City Council, then the local planning authority, from which, as Mr Dover said, one can see, first of all, that permission was granted for the construction of the eight lock-up garages in 1957; that then there were two unsuccessful applications for permission for the construction of a block of residential flats on the site in 1961; and that there were then two conditionally successful applications for the construction of a modern block of residential flats with garages and car park in 1962; and then in 1963, and further in 1964, there were conditional grants of permission for use as a police convalescent home. That is the grant that was implemented.[13]At that time the garages were demolished and, in order to provide access to the two car parks that I have mentioned, two ramps were constructed, partly on the site of the former garages and no doubt partly extending further south. One of them led down to the car park at basement level and the other led up to a car park at ground level on what I have called, for convenience, the garden.[14]The use as a police convalescent home continued for some while, but at a later stage, I think probably in the 1990s or by the end of the 1980s, hotel use was resumed. At some point in the 1990s it seems that the basement car park was discontinued and the use of the basement was converted to other purposes, to do with the provision of conference facilities.[15]The way, partly over Dorset Court and partly over the first defendant's land, continued to be used throughout this period for access to the ramps and thereby to the basement car park for as long as it was used as such, and to the ground level car park. The ground level car park seems to have continued in use until the hotel finally ceased trading in about 1998. The claimant acquired the site in 2002 for redevelopment and has been able to redevelop it, including, as I say, constructing three garages on the site of the pink land. As the judge said, for a period of over 30 years there were no garages on the pink land and such use as was made of the right of way was to lead not to the pink land for its own sake but by way of access over it to land within the site of the former hotel, on the garden at ground level and in the basement below it.[16]The first defendant's contention, advanced by Mr Hamlin before us attractively and succinctly, as he no doubt did at trial, is that the demolition of the garages and the later construction of the ramps and the car parks to which they led, compels an inference that the right of way, which existed solely in connection with the use of the garages, was abandoned forever at that time by the claimant's predecessor in title and accordingly is no longer in existence and exercisable by the claimant.[17]The judge did not accept that proposition. Nor do I.[18]One point of contention is whether the granted right of way is exercisable at all unless the garages, or one or more of them, are in place. I leave aside a case, which is purely hypothetical, where the garages were demolished for the purposes of clearance and for reconstruction in a different form. In such a case the right could no doubt be used on any basis during the hiatus period for the purposes of demolition and for the construction of the new garages.[19]That case apart, Mr Hamlin submits that the terms of the grant are such that if there are no garages there can be no access. The judge did not accept that. He took the view that the dominant tenement was the pink land and that the right could be used for the purposes of access to the pink land even if the garages were not there.[20]For present purposes I am prepared to proceed on the basis that Mr Hamlin is right about this and that the right could not legitimately be exercised at a time when there are no garages on the pink land, apart, as I say, from the case of using it in connection with demolition and construction.[21]In any event, it is clear that use of the way for access to the basement and ground level car parks was unlawful and not permitted by the terms of the grant. Such use, from the late 1960s for over 20 years, might have provided the basis for a claim to a more extensive right by way of prescription, but no such right was asserted by the claimant in the particulars of claim and so it is irrelevant.[22]On principles discussed in Harris v Flower (1904) 74 LJ Ch 127 and recently in Das v Linden Mews Ltd [2002] EWCA Civ 590, that use of the way was unjustified and, subject to any factors relevant to the exercise of the court's discretionary jurisdiction, might have been restrained by injunction at the suit of the first defendant or his predecessors in title.[23]Abandonment is a different question. The statement of the law relied on principally below, and by the judge, is that of Buckley LJ in Gotobed v Pridmore, decided by the Court of Appeal on 16th December 1970, which is available in a Court of Appeal transcript, and is also reported shortly at 115 Sol Jo 78. Having had the opportunity of comparing that report with the full judgment it is right for me to say that the essence of Buckley LJ's reasoning is fairly reflected in the short report.[24]As Buckley LJ puts it, the dominant owner must manifest an intention to abandon the right and, in order to do so, must make it clear that his intention is that neither he nor his successors in title should thereafter make any use of the right. He observes that abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property unless to do so is to their advantage, even if they have no present use for the property in question.[25]There are cases in which a physical change to the dominant tenant results in the right no longer being exercisable. One such case, which Mr Hamlin mentioned to us without citing it, is the striking one of National GuaranteedManure Co v Donald (1859) 4 H&N 8, where the right was to the supply of water from given sources to a canal, but the canal was later filled up and turned into a railway. It was held that upon the canal ceasing to exist so the right ceased to exist.[26]The facts in Gotobed v Pridmore were very different. Mr Hamlin relies fairly on a comment by Buckley LJ that the court was impressed by the ease with which the physical state of affairs could have been altered so as to restore the right of way.[27]Buckley LJ also referred in the course of his judgment in Gotobed v Pridmore, in a passage not summarised or referred to in The Solicitors' Journal report, to an earlier case, Cook v Bath Corpn (1868) LR 6 Eq 177, where the plaintiff owned a house, the back door of which had been bricked up for about some 40 years, up to 1864, at which time he reopened it and restored it to use. The defendant then began works obstructing or threatening to obstruct a passageway to which the door gave access. Sir John Malins, Vice Chancellor, held that there had been no abandonment of the right of way from the back door over the passageway despite the 40 years during which it had been bricked up.[28]Mr Hamlin does not rely on the demolition of the garages by itself. That, on his argument, would have suspended the right to use the way but not necessarily extinguished it. Rather, he relies on the demolition followed by the construction of the ramps and the car parks to which they led. He submits that these works were(a) substantial and(b) incompatible with the use of the pink land for which the way could properly be used.[29]He also says that the reconstruction of garages would sterilise the use of the car parks so that the then owners' acts showed to the world an intention to use this site entirely inconsistently with garage use of the pink land. Not least, to put the garages back would require not only substantial work and expenditure on the pink land itself, but would, in effect, require a quite different use of the site of the two car parks.[30]It is the case, however, that that is what has now happened. Of course Mr Hamlin is correct in submitting that the question of abandonment or not has to be tested at the time of the acts relied on as showing abandonment without reference to later events. But it seems to me that Mr Banwell for the claimant is entitled to comment that what has happened is something that could have been foreseen as a possible future change in the use of the site. The use of the building has changed in a number of ways over the years and the planning history indicates that a number of other changes have been proposed from time to time, albeit either unsuccessfully in planning terms or not taken up in fact.[31]Mr Hamlin contends that the claimant's predecessor's intention after the demolition of the garages was not to use the way for access to the garages or even to the garage land, but to use it illegitimately for access to the new car parks, and that this was inconsistent with use in accordance with the terms of the grant. He submits that the dominant tenement was effectively destroyed beyond restoration, the garage site being converted from a terminus to a way, and that it cannot have been contemplated that the right would ever be required for use to and from garages on the garage land ever again. He also points to the fact that the actual use was not only unlawful as being for the benefit of different dominant land, but also that it was significantly greater in volume because of the greater capacity of the car parks as compared with the three garages.[32]So far as the unlawful and excessive use is concerned, Mr Banwell relies on the case in this court of Graham v Philcox [1984] QB 747, in the course of which May LJ said this:
"However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement."
[33]He then refers to the then current edition of Gale on Easements. He continued:
"The owner of the servient tenement on which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained. The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement. Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant."
The judge did not expressly refer to that case, but it had been cited to him and it must have been in his mind as the basis of paragraph 8 of his judgment in which he makes a very similar point.[34]It is fair to say, as Mr Hamlin submits, that this was a very different case on the facts, without any element of significant structural alteration of the dominant tenement. The point as to excessive or unlawful use by itself is the same, but Mr Hamlin is entitled to submit that this does not help on the question whether, on the facts of this case, the works undertaken to the pink land, and to the rest of the claimant's predecessor's site, demonstrate an intention to abandon.[35]He is also entitled to submit that the judge refers, at paragraph 7 of his judgment as transcribed, to the question of "abandonment" as being based on the demolition alone, and that at paragraph 10 he perhaps brings into account later material which he ought properly not to have done in deciding what inference should be drawn as to the intention of the dominant owner at the time of the acts relied on to show abandonment.[36]Despite those points on which the judge misdirected himself, and even assuming that his construction of the grant was wrong in taking it as permitting access to the site of the former garages after demolition, one has to come back to the question whether the dominant owner's conduct was such as to make it clear that his firm intention at the relevant time was that neither he nor any successor in title should thereafter make use of the easement, an inference, as Buckley LJ says, not likely to be drawn.[37]In my judgment, substantial as the works were, and as reinstatement work would have been, and no doubt has been, they do not justify an inference that the then owner intended to abandon the right of way forever so that neither he nor his successors could ever resume its exercise. It is common ground that demolition of the garages, with or without failure to use the way, even for a long period, would not be enough. The fact that the way continued to be used unlawfully does not, as it seems to me, bear on the point either way.[38]Of course, it could have been the case that the original garage use of the pink land was never reinstated, in which case the question would not have arisen, or at least not in the form in which it has arisen. But in my judgment, on its facts, and accepting as Mr Hamlin submitted that it is ultimately a matter of impression, and that there may be cases in which second impressions are better than first impressions, my impression is that this is not a case in which the burden of showing an inference of abandonment was discharged by the first defendant. Accordingly, I agree with the judge's conclusion, though not with all of his reasoning, and I would dismiss the appeal.

LORD JUSTICE LATHAM: I agree.

LORD JUSTICE BROOKE:

[40]I agree. I am adding this short judgment of my own to address certain procedural difficulties that arose in this case. The judge gave judgment on 13th July 2004. On 2nd August the appellant's solicitors attempted to file a notice of appeal without seeking an extension of time. They thereupon set about obtaining the documents that needed to be filed for the purposes of the appeal. These included the order of Judge Rich QC and an approved transcript of his very short judgment. We have been told by the appellant's solicitor that he attended the Central London County Court personally in August and filled in the requisite forms.[41]When the court order and judgment transcript had not been forthcoming by 17th September, counsel advised him to ring the County Court enquiring about their whereabouts, which he duly did. On 3rd November, under heavy pressure from the Civil Appeals Office, he reported that he had been chasing the County Court for the court order and transcript to no avail, and that he was writing a further letter to them that day. On 4th November staff at the County Court asserted that they possessed no record showing that any party had asked for a transcript. Sadly, that court now has a bad reputation for misfiling documents and failing to record telephone messages. On 12th November the appellant's solicitor wrote to the County Court again requesting a transcript. By this time the County Court had at long last supplied him a copy of the court order, under cover of a letter dated 9th November. This had been completed and prepared for issue on 23rd August, over 11 weeks earlier. Nothing then happened. On 8th December he had to chase the County Court again. This elicited a letter written on 9th December acknowledging his letter written nearly four weeks earlier. The County Court then set about what he had asked them to do four months earlier.[42]A further delay now occurred while the transcribers were seeking and being paid a transcription fee before they were willing to start work. Eventually the very short transcript was sent to the judge for approval on 10th January, received back with amendments on 26th January, and filed on 2nd February 2005, six months after the first attempt to file the notice of appeal.[43]The problems besetting the Central London County Court are very well known to this court. There is a very high turnover of staff there each year and HM Court Service professes itself unable, with the resources currently provided to it, to correct the position to any significant extent. I am bound to say, however, that it is intolerable that litigants who pay the court fees required of them should be treated in this way. Despite the valiant efforts made by the staff and lawyers in the Civil Appeals Office to expedite matters, they were effectively thwarted by the non-availability of the judgment transcript so that it took six months before the papers could be placed before a Lord Justice to consider whether to grant permission to appeal.[44]In the meantime the marketing of this small residential development has been seriously prejudiced by the Central London County Court's delays. Because of the uncertainty arising from the fact that an appeal was pending, the developers were unable to market the three housing units for which the three garages had been erected. Since there was no stay on the judge's order they attempted to enforce that part of it which obliged the appellant to remove the obstacles from the right of way at his own expense by 24th August 2004. These attempts, however, ran into the sand. Fortunately this court was able to offer a reasonably early date for the hearing of the appeal.[45]I direct that a copy of this judgment be sent to the director within HM Court Service who is responsible for civil business in the London region and to the Master of the Rolls as head of Civil Justice. Somehow a way must be found of ensuring that the Central London County Court provides a service of the quality that litigants in that court and their legal advisers, and the staff, lawyers and judges of the Court of Appeal should be entitled to expect from those whose business it is to serve the courts and the members of the public who use them.[46]I now turn to a quite different matter. In my unreported judgment in Scribes West Ltd v Relsa Anstalt (No 1) [2004] EWCA Civ 835, I described in meticulous detail the new requirements of the practice direction to CPR Part 52 which had been substantially amended and were about to come into effect in their amended state. I ended my judgment in these terms at paragraph 31:
"31. It will have become evident that the judges of the Court of Appeal attach great importance to the need for all the papers for an appeal to be filed at least seven days before the hearing. Except in relation to very heavy cases, the judges are likely to do their own pre-reading for an appeal on any day within that seven-day period, and they cannot do this usefully if future papers are likely to meander in to the Civil Appeals Office after they have completed their pre-reading. This is why all the skeleton arguments must now be filed at least seven days before the hearing (see para 27 above) and the agreed bundle(s) of authorities must be lodged at least seven days before the hearing (see para 29 above). The great importance which the judges will attach to strict compliance with this timetable is underscored by para 15.11B (entitled 'Papers for the appeal hearing' which provides: '(1) All the documents which are needed for the appeal hearing must be filed at least 7 days before the hearing. Where a document has not been filed 10 days before the hearing a reminder will be sent by the Civil Appeals Office. '(2) Any party who fails to comply with the provisions of paragraph (1) may be required to attend before the Presiding Lord Justice to seek permission to proceed with, or to oppose, the appeal.' Practitioners who receive a summons to attend before a presiding lord justice during this final week would do well to ensure that all their documents have been filed before the encounter takes place. This rule will mean what it says."
[47]In the present case the respondent's counsel unilaterally filed a bundle of the authorities on which he intended to rely some weeks ago when his skeleton argument was filed. For whatever reason, Mr Hamlin, counsel for the appellant, did not file any bundle of authorities until two days ago and the three bundles had not reached the members of the court before they sat in court for the hearing of the appeal. This is a good example of the difficulties the practice direction was designed to mitigate. We did not enquire as to the reasons for the delay on the appellant's side, but on the evidence of this and other recent cases it is quite clear that standards are once again slipping.[48]As Vice President of the court I wish to make it clear that the requirements of the practice direction are there to be obeyed and that those who fail to comply with them may encounter an increasing unwillingness on the part of the judges of the court not to enforce the sanctions that are available to them. These include refusal to allow an appellant to proceed with an appeal.[49]Since I delivered this judgment orally I have been told by Mr Hamlin that he had been pressing his solicitors for the appeal papers ever since 3rd March 2005, when he learned that permission to appeal had been granted. He did not receive the correct appeal bundle until 29th April, six days before the appeal was due to be heard. It appears that his solicitor, in turn, had not been put in funds by his client to prosecute the appeal until this very late stage. Since we did not hear argument in relation to this dilemma, it is sufficient for present purposes to remind appellants' advisors of their obligations under CPR 1.3. The court's needs are very clearly set out in paragraph 31 of the judgment in Scribes West.[50]Practitioners who are unfamiliar with Court of Appeal practice would do well to acquaint themselves and their staff with the requirements of the practice direction to CPR Part 52. My judgment in Scribes West Ltd v Anstalt (Relsa)(No 1), although still unreported, is available on the Internet (see 2005 White Book volume 1, page 1453, paragraph 52.17), and its effect is now summarised in the 2005 edition of the White Book (see in particular volume 1, page 1466, para 52.4.5 and page 1480, paras 52.12.2 to 52.12.5). The text of the judgment is also set out in full in Volume 1 of the 2005 edition of the Civil Court Practice ("The Green Book") at pp 1024-1029. Ignorance of these provisions will to an increasing extent not be accepted very willingly by members of this court.[51]For the reasons given by Lloyd LJ, with which I also agree, this appeal is dismissed.

ORDER

appeal dismissed; £1,500 to be paid on account within 14 days; balance of respondent's costs to go to detailed assessment if not agreed; date of 13th May 2005 to be substituted in order of court below; liberty to claimants thereafter to enter the land for the purposes of removing all obstructions currently still on the first defendant's land, with the assistance of the court's bailiffs if necessary; action transferred to Brighton County Court.

Cited in 1 later judgment