Oliver & Anor v Symons & Anor [2012] EWCA Civ 267

Case No A3/2011/1206/CHANF[2012] EWCA Civ 267
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
HIS HONOUR JUDGE BEHRENS sitting as a Judge of the High Court
9DH00066
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/03/2012
Before
LORD JUSTICE WARDLORD JUSTICE STANLEY BURNTONLORD JUSTICE ELIAS
Between
OLIVER & ANRAppellantSYMONS & ANRRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr James Thom QC and Mr Richard Selwyn Sharpe (instructed by Messrs Hodgson & Angus and Edwin Coe LLP) for AppellantMr Bruce Walker (instructed by Messrs Close Thornton) for RespondentHearing Hearing date: 16 January 2012
Judgment
[1]This is a dispute about the extent of a right of way on farmland in County Durham. The disputed part of the right of way is little more than 100 metres in length. The costs of the litigation are enormous and wholly out of proportion to the practical importance of the issue: the appellants alone have expended in the region of £150,000.00 for their costs. This is a case which was crying out for mediation, even assuming that it could not have been settled more informally than that. It ought never to have come near a court, and with a modicum of good will on both sides, it would not have done so. However, it did; the judge, His Honour Judge Behrens sitting as a Judge of the High Court, ruled on the dispute and each party now challenge certain aspects of his decision in this appeal.[2]The appellants were ably represented before us by Mr Thom QC (who did not appear below). The respondents appeared in person and Ms Symons made representations on their behalf. In addition to her submissions, we were considerably assisted by a very good and detailed skeleton argument on behalf of the respondents from Mr Walker of counsel.

The background

[3]On 20 May 1999 Mr and Mrs Walker sold their farm, partly to the appellants to this appeal Colin and John Oliver, who are brothers, and partly to their mother, Christine Oliver. Broadly, Mrs Oliver had the farmhouse and two acres of land to the north of it (described in the conveyance as the “adjoining paddocks”) and the appellants received the remaining farming land. Mrs Oliver was given a right of way over her sons’ land and they had a corresponding right over her land. In each case the rights over the land were described in the conveyance as follows:
“To go, pass and repass, with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the access way over the property shown coloured yellow on the said plan.”
[4]Subsequent to the original transfer, Mrs Oliver and the appellants agreed a land transfer whereby she transferred the northern part of her paddocks to the sons and they in turn gave her an equivalent and more convenient piece of land immediately to the east of the farmhouse.[5]Mrs Oliver’s land, together with the farmhouse, was sold to a Mr and Mrs Fletcher in September 1999. The evidence before the judge, which he accepted, was that the right of way was used regularly at that time, particularly at peak times such as lambing or calving, although there were some weeks when it was not used at all. The Fletchers, in turn, sold the farmhouse to the respondents in January 2001.[6]The track in its full length commences at Luke Avenue, Cassop and runs due east along the northern boundary of the appellants’ land (into what was formerly the mother’s land) until it reaches the north east corner. It then turns south, passing lengthways on the eastern boundary of the appellants’ land before entering the respondents’ land. It then travels in a south westerly direction so as to pass around the western side of the farm after which it runs due south before emerging again into the appellants’ land. Just beyond the southern tip of the respondents’ land, and to the east of the track, were farm buildings owned by the appellants which Mr and Mrs Walker had originally used for their farming activities.[7]In 2006 the appellants were granted conditional planning permission to convert these farm buildings into three dwellings. One of the conditions was that they should construct a new access to the development before starting the conversion of the buildings. This they did. In May 2007 they transferred land immediately to the south and east of the respondents’ land, together with the farm buildings, to a development company, Haswell Moor Development Limited (HMDL), which, however, remained under their control. The new road was constructed in early 2007 and the development commenced in April of that year and was carried on by HMDL. Three houses have since been completed.[8]The new road branches off from the track at a point to the north of the respondents’ northern boundary. It travels for a short distance to the south-west before running due south, parallel to the track. It later re-connects with the track well to the south of the respondents’ land.[9]One of the oddities in this case is that the appellants no longer need to use the right of way in order properly to be able to farm the fields in their possession. They can now use the new road. However, they do not wish to do so since they have concreted the relevant part of the new road and are concerned that it will become muddy if they use it for their farm equipment, to the detriment of the owners of the new houses.[10]HMDL constructed a wall going east-west which blocked the cart track at a point close to the northern boundary of its land. This has created some difficulties for the appellants’ agricultural vehicles which use the right of way. They have now to make a sharp right turn after passing through gate C, which is on their land, in order to avoid driving into the wall. The track then links with the new road. The presence of this wall prevents some of the larger vehicles from using the track. As Mr Thom accepted, this problem cannot be laid at the door of the respondents.[11]It appears that relations between the parties began to sour in July 2007 when Mr John Oliver said that Ms Symons had parked her car so as to block his right of way. A particular issue in the case concerns gates across the track constructed by the respondents. In fact, both parties have at different times put gates on the track. The appellants put up two gates in 1999 when the farm house was sold to the Fletchers. One is very close to the respondent’s southern boundary (gate C) and the other was well to the north of the northern boundary (gate A). These are respectively 4.47 and 4.57 metres wide respectively. The judge noted that the gate posts are on the grass on either side of the cart track and are wider than the track on the ground.[12]Ms Symons placed a gate on the appellants’ land and it had to be removed. She then placed another gate (gate B) on the track to the south of the farmhouse in September 2007. The judge found that this was 3.63 metres wide. Ms Symons said that this was constructed to prevent her two pet sheep from straying onto the development. The gate opens by being swung clockwise to the north and then it is kept open by being attached to a metal pole. Although the gate posts themselves were not on the track, the judge found that the metal pole was on the eastern edge of the track so that when the gate is open a significant part of the gate is over the track. When vehicles come from the north, there is a left hand bend immediately before the gate, and the judge found that this added to the difficulty of manoeuvring through it.[13]Ms Symons then placed two further gates on the track in 2008. Gate A was originally close to the appellants’ gate A but was narrower, being 3.95 metres wide. The respondents accepted that this was on the appellants’ land and moved it to a point D, which is still, however, just on the appellants’ land. The respondents have agreed to move it.[14]They then placed a gate at point C just to the north of the appellants’ gate at that point. The current width of the gate is 3.83 metres, but the judge found that this was because the gate post had been bent back; if that had not been the case, the gate would have been 3.70 metres wide.[15]There was evidence of a number of incidents concerning the exercise of the right of way and alleged obstructions of it. For example, it was alleged that the appellants had driven vehicles onto the respondents’ land and that Mr Oliver had driven into the respondents’ gate at B before opening it. In one case there was a clip on CCTV showing him opening it with his pick up truck. There were complaints about Ms Symons locking the gate and Mr Oliver removed the lock with a hammer in order to restore his right of access.[16]There was a whole series of points which the judge had to determine. These included whether the right of way had been extinguished as a result of the land swap between the sons and their mother in 1999; the extent of the right of way; whether the installation of the gates by the respondents interfered with the right of way; whether there was excessive user by the appellants; whether there had been an unlawful assault on an occasion when Ms Symons had sought to prevent the first appellant from exercising his right of way; whether there had been trespasses by the respondents on the appellants’ land; whether the appellants had caused damage to the respondents’ gates; and whether the respondents were entitled to claim the right to be linked to new water pipes constructed in relation to the development.[17]The judge made findings in relation to all these matters. His principal conclusions were that the right of way had not been extinguished; that the right of way was limited by the width of the track itself; that the respondents had materially interfered with that right by the construction of gate B, but that neither gates C or A taken individually constituted an unreasonable interference with that right, nor did the fact that there were three gates which the appellants had to open and close when using the right of way. The judge also found that there were numerous acts of trespass by both parties on the land of the other. As to the water connection, he refused to rule definitively on it because not all relevant parties were before the court. In view of his conclusions that both parties had been partially successful in the proceedings, he made no order as to costs.[18]The principal ground of appeal is that the judge wrongly construed the extent of the right of way. As a consequence it is alleged that he found acts of trespass which ought to have been characterised as the legitimate exercise of the right of way, and that there would need to be an adjustment of the costs position so as to allow the appellants at least a proportion of their costs. The appellants also submit that in any event the judge was wrong not to award them part of their costs given in particular that they had been obliged to go to court to establish that they had a right of way at all. A residual issue, raised by the respondents in a cross-appeal, is whether the judge dealt properly with the submissions relating to the right to connect to the new water pipe. I will briefly discuss that as a discreet issue at the end of this judgment.[19]The first issue is the extent of the right of way. The judge determined the actual physical dimensions of the track following a site visit, and he had the benefit of an expert’s report from each party. He noted that there were small differences between the route of the track as surveyed and the track as shown on the Transfer plan. For example, the plan shows the track as being immediately adjacent to the farmhouse on its western side, whereas in fact there are paving stones between the house and the track. The track was found to be less than 3 metres for a majority of its length although the width varied at different points. The maximum width was 3.25 metres. The judge accepted the evidence of the respondents’ expert that the width of the cart track in 1999 was the same as it is today.[20]The appellants contended that the gates put up by the respondents blocked the right of way. However, Mr Thom accepted that the problems with the gate at C were partly the result of the wall built by HMDL, and so he did not seek to rely on the difficulties resulting from the use of that gate.[21]The judge made a site visit and saw three sets of vehicles trying to negotiate the gates put up by the respondents at D, B and C. The first was a tractor and trailer combination the combined length of which was 13.6 metres. The tractor was 2.30 metres wide and the trailer 2.44 metres. The judge found that the combination was able to go through gates D and B, the latter with difficulty, but not gate C.[22]The second set of vehicles was a tractor and machio machine 5.2 metres long and 4.15 metres wide. This could not go through gate D and gates B and C were not even attempted.[23]The third vehicle set was a tractor and a Lloyd Fraser trailer which was 9.6 metres long and 2.38 metres wide. This went through gates D and C, but the latter with difficulty. It appeared to go over the grass when manoeuvring through gate C.[24]The appellants submitted that these results demonstrated that the gates had interfered with their right of way. The principal contention both before the judge and before us was that the right of way was not limited by the track itself. Whilst it was conceded that the wheel base must remain within the track, it was submitted that the right must include some tolerance for wide loads (which the judge below described as “swing space”.) The appellants submitted that either the width should be that reflecting the width of the appellants’ gates at A and C, or else it should be construed so as to allow any agricultural vehicle to use it, however wide. In addition, and as a separate point, it was contended that vehicles occasionally are bound to veer onto the grass verge. For example, it was submitted that trailers will sometimes need to do that when a tractor is manoeuvring around a bend. This “verge space”, as I will call it, should also be considered part of the right of way.[25]The judge rejected both these submissions. He first identified the appropriate principles of construction, relying on the following passage from the judgment of Morritt LJ, as he was, in Mills v Blackwell [1999] EWCA Civ.1852:
“Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties’ intention was as expressed in the deed. The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd [1993] 1 Ch 190, St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards [1993] 68 P&CR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert [1953] 1 WLR 1064, Keefe v Amor [1965] 1 QB 234 and Charles v Beach [1993] EGCS 124 they did not.”
[26]The judge noted that there were no special features or physical characteristics affecting the right of way which might prevent the words of the grant being given their natural meaning. He then summarised his conclusion as follows:
“If, as I think, the right is only over the cart track it means that the Claimants are not entitled to go over the grass verge when exercising it. It equally means that the tractor and machio machine 4.15 meters wide are not entitled to exercise the right of way as the width is greater than the width of the cart track.”
[27]In advancing the submission that the appellants should have the benefit of “swing space”, counsel had relied upon certain observations of Megarry J in VT Engineering v Richard Barland (1968) 19 P & C R 890 where he had dealt specifically with the issue of swing space, and tentatively suggested that the servient owner might have to allow some degree of tolerance for wide loads so that he could not fence right up to the edge of the right of way. The judge held that this tentatively proposed principle could no longer stand with the following observations of Millett LJ, as he then was, in Minor v Groves (2000) P & C R 136 at 143:
“… I know of no principle of law which precludes the owner of land from building right up to the boundary of his land. If this land abuts on a right of way, building right up to the end of his land does not interfere with the right of way. It is of course true that if he leaves the land unbuilt on, it may be that vehicles properly using the right of way may from time to time be able to deviate onto the adjoining land and temporarily trespass upon the land by driving over it, or commit a technical trespass by permitting part of the superstructure of the vehicles to intrude into the airspace over the adjoining land. But they have no right to do so. In the case of dispute, in my judgment, the dominant owner has no cause for complaint if he is restricted in his user of the way to the exact width of the way. …”
[28]I agree with that analysis. As I explain below, in my view the judgment of Megarry J, far from assisting the appellants, is inconsistent with their submissions.[29]Mr Thom submits that the judge erred in his approach to construction. Notwithstanding that the judge had said that he was having regard to all the surrounding circumstances, in fact he did not do so. In particular, a reasonable interpretation must have regard to the commercial purpose lying behind the grant, which in this case was to enable agricultural machinery to get to the appellants’ fields. Mr Thom relied upon a comment of Robert Walker LJ, as he then was, in an unreported case of Hillman v Rogers (19 December 1999) when he commented that:
“.. the question of construction must always be approached by reading the text of the grant in a practical way, looking at the geographical and commercial purposes.”
[30]Mr Thom submits that the judge failed to adopt a practical or realistic approach. The judge rightly concluded that there were no special features which entitled him to find that the right of way was more limited than the words of the grant would suggest. Thereafter, however, the judge applied a mechanistic approach and in effect treated the physical features of the track as decisive of the extent of the right of way. As a result he failed to consider whether, having regard in particular to the purpose for which the right was granted, the right should be construed as extending beyond the width of the track itself. Without construing the grant in that way, there is no possibility of taking many agricultural vehicles down the right of way, as the on-site tests demonstrated. The judge’s construction frustrated the purpose for which the right was given. The principal object of the grant was to permit agricultural machinery to be used in the fields on the far side of the farm house, as the express reference to agricultural machinery in the grant patently demonstrates. On any reasonable reading of the grant, it must allow for passage without undue difficulty of the kind of agricultural machinery which farmers typically use. On the judge’s construction of the grant, it does not do so.[31]As to the observations of Millett LJ in Minor v Groves, Mr Thom submitted that it is precisely because the servient landowner can build right up to the edge of the right of way that it is important to construe the extent of the right so as to allow the appellants to achieve the purpose for which the right was given.[32]If there had been no express grant, Mr Thom submits that there would necessarily have been an implied easement conferring the “swing space” on which he relies. In support of that proposition, Mr Thom relied upon another decision of the same judge, HH Judge Behrens, sitting in the Leeds County Court in Genn v Mason, decided after the judge had determined this case. In that case too there was a dispute about the extent of a right of way. It was a concrete roadway. As in this case, the grant was to pass with or without vehicles “over and along the roadway”. The servient owners contended that the concrete highway defined the sole extent of the right of way, whilst the dominant owners alleged that the right must include the verges on either side otherwise it was not possible for agricultural machinery required to gain access to the fields. The judge followed his decision in this case in holding that the right of way was limited to the identified road. However, he accepted that large agricultural vehicles were obliged to drive on the verges and that this would have occurred at the time of the grant. It was reasonably necessary in order for the fields to be farmed properly. In that case there was an express reservation of easements and quasi easements, and the judge held that the right to drive on the verges where it was reasonably necessary to do so was a quasi-easement of the kind envisaged in the well-known case of Wheeldon v Burrows 12 Ch. D 31 It was necessary for the reasonable enjoyment of the property granted.[33]In my judgment, it is important to distinguish between verge space and swing space. The former would permit the occasional use of the grass verge where that was reasonably necessary to ensure that, for example, trailers could navigate the right of way. The latter requires something far more significant and I will deal with it first.[34]If the appellants were correct, and the right extends to wide agricultural vehicles, it would mean that there would be a corridor of space extending horizontally beyond each side of the track. The respondents would be unable to build a fence intruding within that space. In my judgment, there are a number of difficulties with this submission. How wide should the space be? One submission advanced by the appellants was that it should be the width of the gates put up by them. However, there is no warrant for defining the extent of the right in that way. The gates were put up after the grant was made and can have no bearing on the extent of the right; and in any event it is an arbitrary measure fixed by the appellants themselves.[35]The alternative submission was that the grant should be defined by reference to the width of agricultural machinery, provided the wheel base remains within the bare patches of the track. However, this would mean that the right would vary depending upon changes in the specifications of the relevant machinery. As Mr Walker points out in his skeleton, some machinery, like crop sprayers, can be extremely wide indeed, with arms extending many metres beyond the edge of the track. I could see more force in the submission if the appellants had been able to demonstrate that machinery which habitually used the track before the original transfer in 1999 can no longer do so. But we have no evidence of that kind.[36]Moreover, in my view this submission is at odds with certain authorities. In White v Richards (1993) 68 P&CR 105 the following right was reserved on the sale of agricultural land:
“..to pass or repass on foot and with or without motor vehicles over and along the track coloured brown on the plan so far as the said right may be necessary for the use and enjoyment of the retained land.”
[37]The county court judge found that the track in question was on average 8 feet 10 inches. He held that only vehicles whose wheel base was limited to 8 feet and which were no more than 9 feet wide could use the track. Even this, as he noted, would allow an overhang of a foot or so, and was, in his words, “more than generous to the defendants”. (This case was before the observation of Millett LJ in Minor v Groves to which I have referred, and in view of that case, granting the defendant even this leeway would appear to be impossible to defend now.) The judge considered and expressly rejected a submission that the way could be used by agricultural vehicles which extended beyond the grass verges at the side of the track. This was so notwithstanding that it was plain at the time of sale that the use of the retained land was agricultural. The Court of Appeal (Nourse, Stewart-Smith and Mann LJJ) rejected an appeal. Nourse LJ, with whose judgment the other judges agreed, said:
“The judge was right to focus his attention on “the track”
. There was no other point from which he could start….Here the words of the grant, to the extent that they are clear, identify nothing but the track, so that it is only from the physical characteristics with (sic) the width of the way can be ascertained.”[38]In the light of this authority, it is in my view impossible to contend that the approach of HH Judge Behrens was wrong. Mr Thom submits that there are material points of distinction: the track in the White case was more made up than here; that the reference in that case was to “the track” whereas here it is to the “accessway”, which focuses more on function; and in this case there is an express reference to agricultural machinery. I do not find these distinctions to be material.[39]The judgment of Megarry J in VT Engineering is also inconsistent with Mr Thom’s submissions. In that case a tenant in possession of the dominant tenement claimed that the right of way must be extended in order to allow him, when loading and unloading goods, to extend beyond the strict boundaries of the road itself which mapped out the right of way. Megarry J rejected the submission in unambiguous terms:
“Mr. Mottershead went further; he claimed the right to the use of a sufficiency of space in which to swing or otherwise manoeuvre the goods that are being loaded and unloaded. During the argument I ventured to call this right by the convenient but inelegant name of a right to “swing space,” though I readily acknowledge that this has nothing save brevity to commend it. Mr. Mottershead could cite no authority to support him in this claim, but rested it on implication. This is a far-reaching contention. It seems to me that the alleged right ought to be analysed into the two sub-heads of lateral swing space and vertical swing space, the latter embracing only what is vertically above any part of the way, and the former extending horizontally beyond the vertical lines bounding the way. Let me take lateral swing space first, and assume as an example the grant of a right of way over a roadway eight feet wide. Let me further assume that there is no wall or hedge on either side. If there is an implied right of lateral swing space, the servient owner can never erect any wall or building abutting on the roadway lest it interfere with the dominant owner's rights. The dominant owner is, on this view, entitled not only to ingress and egress over the eight feet road, and to occupy it with stationary vehicles being loaded or unloaded, but also to have a strip on either side of the roadway, of indefinite dimensions which depend on the size and *895 manoeuvrability of the goods which he or some successor in title of his may later choose to receive on the dominant tenement or despatch from it, kept free from any obstruction which might hinder the loading or unloading. I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. It may perhaps be that he must allow some degree of tolerance for wide loads, so that he cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way. But that is very different from saying that the grant of a way may in effect sterilise a strip of land of indefinite depth on each side of the way, depending on the loads and methods of loading from time to time adopted. This seems to me to go far beyond any necessary or reasonable expectation or implication; and quite apart from the absence of authority on the point, it seems to me that such a right would or might subject the grantor to a quite unjustifiable burden. I accordingly reject such a claim.”
[40]The judge quoted part of this passage in reaching his decision. In my view it strongly supports his analysis. If the appellants were right it would in this case too sterilise corridors of land extending significantly beyond the boundaries of the track. Moreover, to the extent that the Megarry J considered that there may be an obligation to allow some degree of tolerance, that must now be considered unsound in view of the observations of Millett LJ in Minor v Groves.[41]It follows that, in my judgment, this argument for swing space fails. That is not to say that it could never be the case that a purposive interpretation of an express grant, having regard to the purpose for which the right was granted, could justify a construction extending the width of a track beyond its physical dimensions. But in my view before the court could consider this possibility there would need to be cogent evidence that a narrower construction, concentrating on the physical features of the land, would not achieve the objective which the parties must have intended. In this case there is evidence that some agricultural machinery can use the track without difficulty.[42]Further, there is no evidence, for example, that the construction of the judge renders the right of way any less efficacious than it was when originally granted, or that it means that vehicles which then habitually used the track can no longer do so. It seems to me that evidence of that kind would be the minimum required before the submissions of the appellants could hope to gain any traction.[43]This figured less prominently in the submissions before us. The argument was that it is inevitable that there will be some situations where the wheels will swing onto the grass verge, and that this must have been the case at the time of grant. I would accept that if this could be established in fact, there would be a powerful case for saying that the parties must have intended that the right should, at the points where the swing was inevitable, include the track made by the wheels of the vehicles.[44]However, it seems to me that there are two difficulties with this submission. The first is that if the vehicles regularly widened the track in this way, one would expect to see that reflected in the worn track itself, which identifies the contours of the right of way. In other words, the physical features on the ground would already have allowed for swings of this nature. But even if it is said that the vehicles are used too infrequently to mark out the track in that way, there would need to be evidence before the court that this was a practical problem, identifying precisely at what points on the track the difficulties arose and how much verge would be required. That may justify a widening of the right of way at those points. There was no such evidence before the judge. Indeed, the judgment below identifies only one situation where there was evidence of a tractor and trailer having to go onto the grass verge and that was when manoeuvring through gate C. But the problem there may have been the wall built by the developers, as Mr Thom conceded.[45]I do not think that the judgment of HH Judge Behrens in Genn v Mason assists the appellants. It was not argued below that the rights now claimed could be secured by way of an easement supplementing the right of way. Although Mr Thom suggested that he should if necessary be allowed to amend his case so as to permit this argument to be run, I would not have permitted this given that the point was raised for the first time at the appeal hearing and that the respondents were not legally represented.[46]However, Mr Thom’s main point was that the judge’s approach was illogical: if there is an easement or quasi-easement transferred under the principle in Wheeldon v Burrows, this would be on the premise that it was necessary so as to prevent any derogation from the rights which the parties must have intended to confer. However, the express grant should be construed so as to give effect to those intentions. I see the force of that analysis and it may be that it would have merited a different approach in the Genn case. In any event, there was extensive evidence in that case, lacking in this, that wide vehicles used the right of way at the time of the grant. For reasons I have given, I do not accept that the judge erred in construing the express grant in this case as he did.[47]For these reasons, therefore, in my view the appeal on this ground fails. It follows that the consequential complaints also fail.[48]Mr Thom did submit that in any event the judge’s conclusion that there should be no order as to costs was not sustainable, not least because the respondents were even denying that there was a right of way at all. However, that denial was only raised for the first time by way of defence to the appellants’ original claims that there had been an unlawful interference with the right of way. A judge has a broad discretion on costs, and in my view, in a case where both parties succeeded in part and lost in part, it was well within the judge’s discretion to make the order he did. Indeed, the respondents were successful on the majority of the issues before the judge and I do not think that the appellants can properly be described as “substantially the successful parties”, as Mr Thom claimed. I would therefore not interfere with the judge’s refusal to make a costs order.[49]This is a point raised in a cross appeal by the respondents. The issue was whether they were entitled to connect into new water pipes constructed over the appellants’ land as part of the development. The respondents submitted that they were by virtue of an express right granted at the time of the original transfer in 1999. The judge expressed the provisional view that they were so entitled but he was not willing to express a firm view because other adjoining landowners potentially affected by the connection, namely the appellants’ parents and HMDL, were not parties before the court. The appellants submit that in the circumstances the judge ought formally to have dismissed this part of the application. Although it was effectively conceded that nothing really turned on that. The respondents say that the judge was wrong to find that any other party was potentially affected by the exercise of the right.[50]Unfortunately, we heard virtually no argument about this aspect of the case. However, it seems to me that the judge was entitled to conclude that since the new pipes ran over land belonging to other parties, they might be affected by the connection and had a right to appear before the court, and no formal relief should be granted in their absence from the proceedings.[51]I would dismiss the appeal and the cross-appeal.[52]I agree.[53]I also agree. I wish particularly to associate myself with Elias L.J.'s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.

Cited in 3 later judgments