Sefton v Halliwell [2007] EWCA Civ 473

Case No B2/2004/1882[2007] EWCA Civ 473
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE MADDOCKS)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 2 nd May 2007
Before
LORD JUSTICE CARNWATHLADY JUSTICE HALLETT
Between
SEFTONAppellantHALLIWELLRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR C MACHIN (instructed by Messrs Pearson Hinchliffe) appeared for Appellant.MR P WHATLEY (instructed by Messrs Bromley Hyde & Robinson) appeared for Respondent.
Judgment
[1]This action arises from a dispute as to a short part of a boundary between two adjacent properties, formally known as Woodfield House in Wakefield Road, Stalybridge, Tameside. The dispute came before HHJ Maddocks, sitting as a judge of the High Court in Liverpool, as long ago as August 2004. Following a hearing lasting two days, in which both sides were represented by counsel, on 12 August 2004 HHJ Maddocks found in favour of the respondent to the present appeal. He made a declaration that the disputed boundary followed the line contended for by the respondent. This was marked as line E to R in red on a plan attached to the single joint experts’ report and as set out in the office copy plan. He dismissed the appellant’s counterclaim for rectification of the register to reflect the line for which she had contended.[2]It is necessary to rehearse some of the history in a little greater detail. The dispute arose because, in 1982, Mr Howard, the appellant’s predecessor in title, who owned Woodfield House, decided to divide his property. By a conveyance dated 9 December 1982, he conveyed the House to a Mr and Mrs Higham. However, he retained Woodfield Mews, part of the original stable block to Woodfield House, in which his elderly parents then lived.[3]Unfortunately the only plan that was produced for this division, what I will call the 1982 plan, was deficient in many ways. At paragraphs 24 and 25 of his judgment,

the judge described it in this way:

“… It was no more than a sketch plan drawn to no specific or consistent scale, showing very few features and these in a haphazard and inaccurate way. Woodfield House itself is not marked and the other buildings and features are poorly reproduced. There are three plots indicated: i) edged red, the Woodfield House (part of the land in the 1859 grant) ii) edged blue, (part of the adjacent land comprised in the 1972 conveyance) and iii) shaded grey, Woodfield Mews, (being the remainder of the land in the grant and in the 1972 conveyance), defined as “the retained land”
. The red edging crosses the lawn in a somewhat random fashion, curving from the centre of the stable block towards the house. There is no evidence that on the lawn itself, at any point, there was any physical feature to which this line could be related. 25. It is the same plan, the 1982 plan or copies of even poorer quality which are referred to in the conveyancing documents, which followed.”[4]The 1982 sale agreement between Mr Howard and the Highams described the land in this way:
“First all that plot of land situate and fronting to Wakefield Road, Stalybridge, Tameside in the County of Greater Manchester, for the purpose of identification only shown edged red on the Plan thereof, attached hereto (and is part of a larger plot of land contained in an Indenture hereinafter called ‘the Grant’) dated the 5th March 1859 …”
[5]The conveyance also described the second plot, which was the major “part of the adjacent land in the 1972 conveyance” to which the judge had referred. There was then a definition of “the retained land” for the purpose of certain easements. This was defined as follows:
“The plot of land shown shaded grey on the said Plan attached hereto immediately joining the properties first and secondly described the building or buildings erected thereon or on some part thereof being known as Woodfield Mews Wakefield Road Stalybridge aforesaid which said plot of land represents the remainder of the land comprised in the Grant and Conveyance as is hereinafter referred to as the retained land.”
The actual conveyance was expressed in similar terms, although the colours varied. Nothing turns on the colour variations.]”[6]At the same time, Mr Howard gave the Highams an option to buy the retained land, The Mews, after the death of both his parents or earlier, if he decided to sell. In late 1982, early 1983, the solicitor acting for the Highams, Mr Ross, applied for first registration of the land and to register their option agreement. Attached to the statutory declaration was the 1982 plan, but it was yet another copy of very poor quality. Given the lack of precision and the errors contained within the documents, the Registry, not surprisingly, required a survey of large sections of the boundaries. Following the submission of yet another deficient plan, the Registry produced what they called “a print with the northern boundary as the Registry feels it can plot it”. This is the plan which now forms the Land Registry plan, which I shall hereinafter call the filed plan.[7]The judge found that this plan was accepted by the solicitors. He did so on the basis of correspondence between solicitors and the Registry leading up to the production of the filed plan and the fact that the solicitor Mr Ross made no attempt, it seems, to argue about the boundary thereafter. Mr Machin, who appears and appeared on behalf of the appellant, has two complaints about this finding. First, he submitted that it was not a permissible inference from the solicitor’s apparent silence that the boundary, as set out in the fixed plan, was accepted. In the alternative, he argued that even if the solicitor did accept the boundary as fixed in the filed plan, this was an irrelevant factor, given what happened later.[8]On this issue, given the detailed correspondence leading up to the production of the filed plan and the fact that no complaint followed its production, for my part, I am satisfied the inference the judge drew was a perfectly proper and legitimate one. It was also a relevant one. The fact that the appellant’s predecessor-in-title agreed the filed plan must be at least part of the factual matrix for the judge to consider.[9]By a transfer dated 14 January 1985, the appellant acquired from the Highams the registered title to Woodfield House and the benefit of the option agreement. Mr Howard senior died and on 1 February 2001, the appellant purchased The Mews pursuant to the option agreement. Mr Machin invited us to note that, for a short time that day, she owned both plots of land. She was therefore in a position to dictate what land was transferred. It was on this basis that Mr Machin had argued that, to some extent, what had gone on before 2001 was irrelevant.[10]Mrs Halliwell immediately sold The Mews on to the respondents the same day. The transfers in 2001 are conveniently summarised in paragraphs 51 to 53 of the judgment:
“51 Taking these in turn, (1) the first described the property as Woodfield Mews and continued “The property, is shown edged brown on the plan attached to the 1982 conveyance, and the north-easterly boundary of the property as to the location and measurements thereof, is in part more particularly delimitated and described” and there is then a reference to the 1859 and 1972 deeds. 52. The second (2) described the property in these terms and this is the agreement “All that freehold land and dwelling house known as Woodfield Mews, Wakefield Road, Stalybridge, Tameside, Greater Manchester, SK15 3BY, more particularly described in the specimen transfer attached hereto. The specimen transfer was in the same terms as the actual transfer document, (3) which refers back to document (1): ”
The property is more particularly described in the prior transfer hereinafter mentioned”, that is the transfer of the house to Halliwell. 53. For the purpose of the easements it also contains a definition of “the retained land”, as that registered with title absolute under title number GM298190. That brings in the registered title under the Land Registry Plan, to Woodfield House.”[11]For the purposes of the sale between Mr Howard and Mrs Halliwell, the parties had instructed an expert to give a valuation of the property. He stated in terms that he had based his valuation on the filed plan. The solicitor acting for the appellant in the sale of The Mews to Mr Sefton, Mr Walkden, said that as far as he was concerned, he understood the sale to Mr Sefton was to be of the same land as the appellant had bought under the option agreement. He assumed that the filed plan correctly identified the boundaries of that land as shown or intended by the 1982 plan.[12]Mrs Halliwell’s ownership of Woodfield House has led to a number of disputes with her neighbours. There have been disputes with neighbours on at least three sides. In 1995 she had a dispute with a Mr and Mrs Noble, who lived in Woodfield Lodge on her southern border. She also had a dispute, at about the same time about the transfer to Mr Sefton, with a Mr Casey. This was on her north-eastern border. The judge noted that on each occasion, the dispute involved contact with the Land Registry and/or consideration of the registered titles and plans to Woodfield. However, at that time, no questions arose as to the boundary which is in dispute in this litigation.[13]The judge rejected Mrs Halliwell’s evidence that there were discussions between her and the respondent about the extent of the boundary. He rejected her assertion, which was her alternative case, that there had been an oral agreement between her and Mr Sefton as to the line of the boundary. This was yet another line boundary, not contained in the filed plan, and not contained in the 1982 plan.[14]On the judge’s findings the boundary in dispute here caused no difficulties, certainly as far as Mr Sefton was concerned, until the Halliwells began to build a fence along what he considered to be a false line. He sought injunctive relief and the appellant counterclaimed. Mr Sefton, we are told, no longer owns the property, save for the area in dispute, and the appellant now owns Woodfield House jointly with her husband.[15]As far as the disputed boundary is concerned, it begins from an agreed starting point, which is at the junction of what was a party wall and an external wall. The boundary then travels south or south east across the lawn, and turns east at the northern edge of the north driveway, near a finger or tongue of land created by a bend where the north and south driveways meets.[16]The respondent alleges that the boundary travels in a straight line almost due south and approximately 45 degrees from the external wall. The appellant’s primary case was that the boundary curved gently south or southeast and met the driveway opposite the finger of land. This is set out as a blue line marked E to B on Plan E attached to the joint experts’ report.[17]There is no need for me to consider further the appellant’s alternative case. This was based on her oral evidence, which was rejected by the judge, and in any event permission to appeal that part of her case has not been granted. Permission to appeal generally was initially refused on paper by Jacob LJ, but at an oral hearing where Mrs Halliwell represented herself, he gave permission limited to the grounds set out in a letter from her solicitors dated 18 October 2005. The grounds were as follows: 1) The judge should have placed primary reliance upon the 1982 plan. This was said to be the plan by reference to which Mr Howard conveyed Woodfield House to the Highams. The assignment to the appellant of the option agreement also referred to the 1982 plan. The 1982 plan was used when The Mews was sold to the appellant. The 1982 plan was the plan by reference to which the appellant sold and transferred The Mews to the respondent. 2) The judge ignored the experts’ report, to the effect that the filed plan contained a significant error. 3) He further ignored the effect of a letter from Messrs Stripes, the appellant’s solicitors, to North Ainley, the respondent’s solicitors, in the transfer, dated 9 January 2001. This was a letter which enclosed with it three plans. Plan A was a copy of the 1982 plan and was said to be a plan by reference to which the land would be conveyed. Plan B was a copy of the filed plan to Woodfield House and Plan C was a copy of the filed plan to Mr Casey’s property, lying to the north, north-eastern border.[18]Although it was stated in terms, in written submissions, that the judge had ignored this letter, he did not. He expressly referred to it in his rehearsal of the background. What he did not do was place any great reliance upon it, I presume because there was other correspondence to contrary effect and, in any event, at the time of the 2001 conveyance the parties all acted on the basis that the filed plan matched the 1982 plan. What the solicitors said in correspondence therefore, even if admissible, begged the question before the judge.[19]I do not need to deal with a fourth ground of appeal upon which permission was sought, which related to (or what was said to be) fresh evidence. This consisted of parts of documents that emanated originally from Mr Howard, the significance of which, it was said, had only recently come to the appellant’s notice, albeit she has had them in her possession throughout. We declined to receive that evidence.[20]Another possible ground of appeal also fell away during oral submissions. Mr Machin had intended to argue that the judge wrongly interpreted the General Boundaries Rule, namely rule 278 of the Land Registration Rules 1925, which was in force at the time of these registrations. However, Mr Machin very properly accepted before us that, on closer analysis, the rule took this appeal very little further. This was because, whatever view the judge took of the limitations of the rule, as Mr Machin conceded, the judge did in fact perform the task set for him by the parties in the way that both sides agreed that he should. He applied what are referred to as “the Wigginton principles”, namely the principles derived from the decision in Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462.[21]Mr Machin summarised those principles as follows: in fixing a boundary line, the first recourse is to the description of the property in the relevant conveyance. If the relevant conveyance, in normal circumstances the parcels clause, contains a verbal description of the property in question, sufficient to enable the disputed line to be ascertained; there is no need to refer to the conveyance plan. If, however, no definite conclusion can be reached from the parts or the whole of the description, the recitals and other parts of the deed can be considered for expressions of the intention of the parties. If these cannot be found, extrinsic evidence can, in some few cases, be used, for example to show to what property the description applies. Given those principles, Mr Machin, on the facts of this case, did not dispute that the judge was entitled to consider the filed plan as part of the evidence. His complaint is that the judge placed too great a reliance upon that plan. Stripped to its bare essentials, that is what this appeal is all about.[22]However, the judge, in my view, did not rely, as Mr Machin at one point suggested, exclusively, on the filed plan. He recognised that the filed plan, the Land Registry plan, must “yield”, as he put it, to evidence which would fix the line more exactly. Unfortunately for the appellant, the judge found that there was no reliable evidence to do that.[23]His first port of call was, of course, to the parcels clause of the transfer from the appellant to the respondent. This clause may have identified the property conveyed with reference to the 1982 plan, but even the appellant was forced to concede that the 1982 plan was of poor quality. It was fuzzy and virtually illegible. It lacked precision. It was not to scale. In fact, to say it was not to scale is to understate the position. Any attempt by the expert at producing a scale produced huge variations. This is particularly important when attempts are made to fix the boundary by reference to the finger or tongue of the land.[24]Because of those variations, the 1982 plan did not produce one clear boundary. The expert plotted, using the 1982 plan, at least two boundaries some at least two meters or so apart. The 1982 plan did not even include the main house. Further, it showed the party wall, as Mr Whatley for the respondents pointed out, as following a curve; something which, in the expert’s words, was unlikely. The possible boundaries for the 1982 plan, it should also be noted, contrasted very much with the appellant’s alternative case that there had been a straight line boundary in use for many years.[25]Following registration, the boundary between The Mews and the house seems to have been accepted as fixed. Problems arose, as I have indicated, in respect of other boundaries and Mrs Halliwell had her complaints about the filed plans in respect of them. But, no complaints were made in respect of the land that Mrs Haliwell later sold to Mr Sefton. It is also significant to note that Mrs Halliwell received title to The Mews, under the option agreement, by reference to the registered title and therefore the filed plan. She sold The Mews to Mr Sefton by reference to the registered title and no amendments were made to the filed plan. This was despite the fact that, in her latest dispute with Mr Casey, Mrs Halliwell had been put on notice as to the importance of the registry documents.[26]As far as the correspondence between the solicitors at the time of the transfer is concerned, that does not seem to have taken the matter any further, for the reasons I have given.[27]As far as the alleged error in the filed plan is concerned, for my part I would not attach any great significance to it. The error came to light in this way: the appellant relied upon the expert’s discovery that the office copy plan shows a finger of land opposite the junction of the disputed boundary with the north driveways being much closer to the buildings than it is in reality. The appellant adopted the expert’s conclusion that “the Land Registry have used the end of the verge as the point to which to interpret the deed line and, due to the error in the position of the verge on the Ordnance Survey mapping, have drawn the red line closer to Woodfield House than as shown on the 1982 plan”. That conclusion may or may not be a reasonable one, but it was not a conclusion for the expert to draw; it was a conclusion for the judge to draw if he thought appropriate.[28]Whatever the alleged error it did not mean that no reliance could be placed upon the filed plans. It was just part of the factual matrix. As Mr Whatley argued, there may be a number of explanations for why the alleged error occurred. There may be a simple explanation for the differences and it maybe that the finger or tongue of land has changed in shape over the years. In any event, in my view, the alleged error on the filed plan paled into insignificance when compared with the paucity of information and the deficiencies in the 1982 plan. These were all matters for the judge to bear in mind and to decide what he made of them.[29]True it is that he did not directly address this particular point in his judgment, but no trial judge is obliged to rehearse and refer to every argument put before him or indeed each piece of evidence. Perhaps with the benefit of hindsight, it would have been preferable had he referred to this particular piece of evidence, but this was a characteristically full and well-reasoned judgment by an experienced judge and, for my part, given the detail into which the judge has gone, I simply cannot accept that he has failed to consider a significant piece of evidence and certainly not to the extent that his judgment is thereby undermined.[30]In my view, given all the factors to which I have referred the judge has performed his task properly. He did his best to ascertain what had been agreed and transferred between the parities. He looked at the deeds, the conveyances, plans and all the relevant extrinsic evidence. Given the deficiencies in the 1982 plan and the assumptions made by the parties that the land transferred to Mr Sefton was the land as defined in the filed plan, it comes as no surprise to me that the judge preferred the filed plan. The evidence pointed overwhelmingly to the fact that the 1982 plan provided only a general guide to the boundary and the filed plan, on the facts of this case, provided the exact line of the boundary. This is the precise opposite of what the appellant had argued.[31]With respect to Mr Machin, as it seems to me, this whole appeal is an attempt to appeal against the judge’s findings of fact, which were based on sound evidence, and it was therefore doomed to failure from start.[32]I would dismiss this appeal.[33]I agree. It is trite law that the court seeks to find the common intention of the parties, but in a case like this, where there is an inherent discrepancy in a conveyance, which does not seem to have been spotted by anyone at the time, that is an elusive task. It does seem surprising that Mrs Halliwell did not spot the discrepancy, given that she had been involved in disputes over other parts of the boundary. However, she did not and nor , apparently, did her solicitors. So, in those circumstances, the court has to do the best it can with such material as is available.[34]In this case, the judge,Lady Justice Hallett said, has reviewed the material and reached a clear conclusion. The one point which did concern me was the possible mistake by the Land Registry. Mr Machin, in his skeleton, puts it this way. The 1982 plan clearly shows the interception point opposite the tip of the finger of land between the driveway from the east and the driveway from the south, such that if the line of the disputed boundary shown on the 1982 plan continued south eastwards, it would touch or come very close to the tip.[35]He says that this observation may have influenced HM Land Registry to draw the disputed boundary on the filed plans in the position it did, because the disputed boundary on the file plans also meets the northerly edge of the driveway opposite the tip. However, he says, the ordnance survey map contains a significant error, according to the expert’s report, paragraph 7.5::
“It is my opinion that the Land Registry have used the end of the verge as the point to which to interpret the deed line and due to the error of the position of the verge on the Ordnance Survey mapping have drawn the red line closer to Woodfield House than as shown on the deed plan.”
Mr Machin submits:
“The learned judge failed to give any or any sufficient regard to this error when deciding that the file plans would determine the position of the disputed boundaries.”
[36]The judge did not, in terms, deal with this point. He did, however, note the possibility that the shape and form of the tongue had changed in the course of time (see paragraph 50). In particular he noted that the drive itself had been relocated at some time, apparently to accommodate a tennis court. There was no actual evidence, one way or the other, as to whether the position of the tongue had in fact changed.[37]More significantly, he had more detailed evidence than the expert about the circumstances in which the Land Registry survey had been done. It starts with the solicitors for Mrs Halliwell’s predecessors submitting an application for a caution in respect of the option, based on the 1982 plan. The Land Registry said that they would need to do a survey “to clarify the position of the boundaries defining the land edged blue, red and brown”.[38]We then have various documents from the Land Registry, one of which is what is called a “revision trace”, in which are indicated the changes from the ordnance survey map, as plotted on the ground. It is significant there that there is no indication of any change in the position of the tongue. That in due course led, in January 1984, to them sending to Mr Ross, the solicitor, a plan which was proposed to be used in the registration. That was then substituted for the plan submitted by Mr Ross. There is no indication of any dissentby Mr Ross.[39]That material was not, as I read the report, considered by the expert. Given the purpose and detail of the survey it seems very unlikely that the Land Registry made a mistake on this point. More importantly, the judge was perfectly entitled to draw the inference that the registered plan thereafter recorded the position as accepted by Mrs Halliwell’s predecessor. Accordingly, he was fully entitled to treat that as a fixed factor in the subsequent transactions.[40]For theses reasons, and those given by Hallett LJ, this appeal must fail.

Order

Appeal dismissed.