Price & Anor v Nunn [2013] EWCA Civ 1002

Case No A3/2012/1882[2013] EWCA Civ 1002
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE MORGAN
2BS30135
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 31 st July 2013
Before
THE CHANCELLOR OF THE HIGH COURTLORD JUSTICE KITCHINLORD JUSTICE UNDERHILL
Between
Price & AnrAppellantNunnRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Guy Adams (instructed by Phoenix Legal Group) for AppellantMr John Stenhouse (instructed by Direct Public Access) for Respondent
JudgmentThe Chancellor (Sir Terence Etherton) :Introduction
[1]This is an appeal and a cross-appeal from an order of Morgan J dated 15 June 2012 on an application to strike out parts of the Defence and Counterclaim on the grounds of cause of action estoppel or issue estoppel or abuse of the process of the court. The Judge ordered that part of the Defence and Counterclaim be struck out on the ground of issue estoppel but he refused to strike out other parts of the Defence and Counterclaim. There is also an appeal and a cross-appeal from his order for costs.[2]The litigation concerns three different paths or tracks, over a relatively short stretch of private land at Slad, Gloucestershire. In parts they are very narrow and not made up. They are called “the Lower Track”, “the Pitch” and “the Upper Track”, all of which converge at one point. The dispute is as to whether there is appurtenant to the property known as Woodside Bungalow, owned by the Defendant, Jonathan James Nunn, a right of way by foot and vehicle over the Lower Track and the Upper Track or there is, alternatively, a public right of way by foot and vehicle over the Lower Track and a public right of way by vehicle over the Upper Track. It is not in dispute that there is a public footway over the Upper Track.[3]The Lower Track is on land forming part of Painswick Slad Farm. That farm was owned by the Claimants, Charles Price and Christopher Price (“the Prices”), at the commencement of these proceedings, and they also claim to be the owners of the Upper Track or one half of it. Charles Price has since died, but permission has been granted for the proceedings to be continued by Christopher Price alone.[4]Whether or not Woodside Bungalow has the benefit of a pedestrian and vehicular right of way over the Lower Track was the subject of two sets of proceedings between 1976 and 1983 between the Prices and Mr Nunn’s predecessor in title, Donald Arthur Close. The first set of proceedings (“the 1976 Proceedings”) was commenced by Mr Close and his wife against the Prices in 1976 in the Stroud County Court. Following a seven day trial Mr F.J. Cridlan, sitting as a deputy County Court judge, dismissed the proceedings in so far as they claimed a right of way for the benefit of Mr and Mrs Close other than one for the benefit of a parcel of land called the Paddock, which was and is separate and distinct from Woodside Bungalow. The Deputy Judge’s judgment ran to 50 closely printed pages. Mr and Mrs Close appealed. The appeal was heard over four days in October 1979 by the Court of Appeal, which, in effect, dismissed the appeal on the point of substance. The judgments ran to 25 closely printed pages.[5]Further proceedings were commenced in the Stroud County Court in 1980 by Mr Close against Charles Price and his wife claiming a right of way with or without vehicles over the Lower Track for the benefit of Woodside Bungalow by virtue of lost modern grant or prescription under the Prescription Act 1832 or section 62 of the Law of Property Act 1925 or by implication (“the 1980 Proceedings”). In March 1983, following a two day hearing, the proceedings were struck out by Registrar J.S. Laurie on the ground of abuse of process in the light of the 1976 Proceedings. Mr Close appealed. The appeal was dismissed by HH Judge Braithwaite in May 1983.[6]In 1991 Mr Close transferred Woodside Bungalow to Mr Nunn.[7]The present proceedings were commenced by the Prices in April 2011 for, among other things, a declaration that Mr Nunn does not have a vehicular right of way over the Upper Track and for an injunction. Mr Nunn has defended the claim and has counterclaimed for, among other things,(1) a declaration that there is attached to Woodside Bungalow a right of way with or without vehicles over the Lower Track, the Upper Track and the Pitch,(2) a declaration that he has, as a member of the public, a right of way without or without vehicles over the Lower Track, the Upper Track and the Pitch, and(3) injunctions restraining interference with those rights of way. The Defence and Counterclaim run to 34 pages.[8]In October 2011 the Claimants issued an application to strike out the allegations in the Defence and Counterclaim relating to the Lower Track on the grounds of estoppel and abuse of process of the court.[9]The hearing of the application took place over three days before Morgan J. His judgment runs to 32 pages and 107 paragraphs. He held that Mr Nunn is bound by an issue estoppel which prevents him from asserting that Woodside Bungalow has the benefit of a private right of way over the Lower Track, and he struck out Mr Nunn’s pleaded claim making that assertion. He refused the application to strike out other parts of Mr Nunn’s Defence and Counterclaim, including, in particular, those parts asserting and relying on a public right of way.[10]The appeal and cross-appeal to the Court of Appeal lasted over a day and a half. There were four lever arch files containing 94 authorities and extracts from statutes and legal books.[11]CPR Part 1.1, which states that the civil procedural rules have the overriding objective of enabling the court to deal with cases justly, provides that dealing with a case justly includes, so far as practicable, allotting to the case an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. The above introductory account of the litigation history of the rights of the owners of Woodside Bungalow over the Lower Track gives cause to wonder and concern at the appropriateness of the amount of the court’s resources which have been deployed on that issue.

The background

[12]I gratefully acknowledge that much of the following account of the background is taken from the Judge’s judgment. It is restricted to what is strictly necessary in order to understand and to decide the appeal and the cross-appeal.

The properties

[13]As I have said, until the death of Charles Price after the commencement of these proceedings, the Prices owned the land over which the Lower Track runs. The northern end of the Lower Track starts at the public highway, the B4070 which leads from Slad to Birdlip. The Lower Track then proceeds in a roughly southwards direction. On the east side of the Lower Track there is the Paddock, now owned by Mr Nunn. He has the benefit of an express grant of a right of way (granted to one of Mr Nunn’s predecessors in title) over the Lower Track for the benefit of the Paddock as the dominant tenement. The southern end of the Lower Track is at the point where it meets both the Upper Track and the Pitch.[14]The Pitch is a steep path or track which leaves the west side of the B4070 and proceeds in a roughly westwards direction to where it meets the southern end of the Lower Track and the beginning of the Upper Track. Neither the Prices nor Mr Nunn claim to have title to the Pitch. The Definitive Map maintained under the Wildlife and Countryside Act 1981 shows a footpath along the Pitch.[15]The Upper Track begins at the point where the Lower Track meets the Pitch. In the present proceedings, the Prices claim that they own the Upper Track. That claim is disputed by Mr Nunn. In the 1976 Proceedings the Prices did not claim that they owned the Upper Track. The Upper Track runs in a roughly westwards or north-westwards direction until it enters a field known as the 16 acre field. The Definitive Map shows a footpath along the Upper Track. That footpath continues across the 16 acre field.[16]The Prices are the registered proprietors of Painswick Slad Farm under Title Number GR281942. That land was conveyed to Charles Price by a conveyance dated 26 July 1967 and he transferred the land to himself and his wife in 1970. Later, on 13 May 2005, that land was transferred to the Prices (viz. the claimants Charles Price and his son, Christopher Price). It is not in dispute that the Prices’ title includes the Lower Track but, as indicated above, their claim to own the Upper Track is disputed by Mr Nunn.[17]Mr Nunn is the registered proprietor of Woodside Bungalow under Title Number GR1026. Woodside Bungalow adjoins the Upper Track and has a frontage of about 60 feet running along the Upper Track. Originally there was a continuous wall along this frontage so that access to Woodside Bungalow was not available from the Upper Track. Woodside Bungalow was occupied by Mr Close and his family from around 1960. Around that time, Mr Close made an opening or openings in the wall fronting onto the Upper Track to enable him to access Woodside Bungalow from the Upper Track. Although, as I have said, Mr Close and his family occupied Woodside Bungalow from around 1960, title to that property was not conveyed to Mr Close until 1967. Mr Close transferred that title to Mr Nunn in 1991.[18]Mr Nunn is also the registered proprietor of the Paddock referred to above, under Title Number GR142222. So far as material, the Paddock was conveyed to Mr Harry Teakle by a conveyance dated 3 October 1960. That conveyance was by a party who retained title to the Lower Track and the 1960 conveyance contained an express grant of a right of way over the Lower Track for the benefit of the Paddock. The grant was expressed by reference to the terms of an earlier grant in a conveyance of 26 March 1923 (“the 1923 conveyance”). The grant was of a right of way over the Lower Track with or without vehicles at all times and for all purposes. Mr Teakle conveyed the Paddock together with the appurtenant right of way to Mr and Mrs Close on 12 November 1975. They conveyed that property to Mr Nunn in 1991 at the same time as the title to Woodside Bungalow.

The 1976 Proceedings

[19]In the 1976 Proceedings Mr and Mrs Close relied on the express grant of a right of way in the conveyance of the Paddock to Mr Teakle on 3 October 1960. As I have said, the Paddock had been conveyed to Mr and Mrs Close on 12 November 1975. A plan attached to the Particulars of Claim marked in red both the Lower Track and most of the Upper Track. Mr and Mrs Close claimed a declaration that they had a right of way over the land marked in red on the plan. The basis of that claim, however, was confined to the express right which was over the Lower Track only. They also claimed injunctions to prevent interference with their right of way and damages for such interference in the past. In addition, they claimed injunctions against future assault and nuisance by the Prices and damages for past assaults and nuisance.[20]In their Defence and Counterclaim in the 1976 Proceedings the Prices denied that there had been an effective grant of a right of way over the Lower Track in the conveyance of the Paddock. In the alternative, they pointed out that any such right of way over the Lower Track was for the benefit of the Paddock and could not be used for the benefit of the Upper Track or Woodside Bungalow. They claimed a declaration that Mr and Mrs Close had no right of way over the Lower Track and an injunction restraining them from entering on the Lower Track and they also claimed damages for trespass and assault.[21]In their re-amended Reply and Defence to Counterclaim in the 1976 Proceedings Mr and Mrs Close stated that they would rely on section 62 of the Law of Property Act 1925 and they also asserted an easement of necessity for the purpose of access to the Paddock. They also alleged that the Prices were estopped from asserting that Mr and Mrs Close were not entitled to use “the way”. Finally, they contended that they possessed an equity in relation to the use of “the said way”. Despite some obscurities in Mr and Mrs Close’s pleadings it is reasonably clear that at the trial(1) the right of way asserted by them was in relation to the Lower Track only, not least because the case was fought on the basis that the Prices did not own the Upper Track; and(2) Mr and Mrs Close contended that the rights they had over the Lower Track were not just for the benefit of the Paddock but allowed them to use the Lower Track to gain access to Woodside Bungalow by means of the Upper Track.[22]Mr and Mrs Close served interrogatories on the Prices, to which answers were in due course provided on 1July 1977. Amongst other things, the interrogatories concerned alleged use of the Lower Track by vehicles for the purpose of gaining access to Woodside Bungalow.[23]As I have said, the claim in the 1976 proceedings was tried by Mr Cridlan, sitting as a deputy county court judge. Both sides were represented by counsel. The hearing lasted seven days, with five days being taken up by evidence followed by two days of submissions.[24]In his 50 page judgment delivered on 22 May 1978 the Deputy Judge referred to correspondence between the parties before the commencement of the 1976 Proceedings. In that connection, he referred to contentions put forward by Mr and Mrs Close that there had been use of “the Track” by persons generally for a substantial number of years. The Deputy Judge referred to a letter from the solicitors for Mr and Mrs Close in which they stated that they had obtained statements from a number of witnesses about use of the Track. The response from the Prices’ solicitors challenged Mr and Mrs Close to start proceedings to establish such a right of way, presumably based upon the alleged history of long use of the Track. The Deputy Judge commented:
“that challenge was not taken up”
. The Deputy

Judge then said:

“This case is restricted to Mr Close’s rights at common law and by virtue of a conveyance to which I will refer and so he has called no evidence of any prescriptive rights going back 20 years or longer. Nothing I say is to be taken in any way today as being to do with the acquisition of prescriptive rights. That is [an] issue outside these proceedings.”
[25]The Deputy Judge then continued by referring to the fact that there was considerable local interest as to whether Mr and Mrs Close had rights over the Lower Track. The Deputy Judge added: “that is what this case is all about”.[26]The Deputy Judge referred to the interpretation of the express grant of the right of way in the conveyance of the Paddock as “the principal issue”. He suggested that the evidence of the witnesses would help him to decide that matter. At page 35 of the transcript of his judgment, having referred to a particular piece of evidence, he said “But we have to be careful about drawing the line between prescriptive rights with which I am not concerned and rights derived from the 1923 conveyance.” The reference to the 1923 Conveyance is explained by the fact that the relevant conveyance of 3 October 1960 granted a right of way by referring to the terms used in the 1923 Conveyance. The Deputy Judge then referred to a further witness and said:
“That is relevant evidence if the issue of prescriptive use is to be argued. But I do not think that he assisted me on the instant issue.”
[27]At page 36 of the transcript, the Deputy

Judge said:

“There are two principal issues. Firstly, to what extent is the right of way up the red lane capable of extending beyond the Paddock? And secondly, does there exist any proprietary estoppel, equitable right or the like as distinct from the grant of a right of way created by Deed, the former taking effect in equity.”
[28]The Deputy Judge then considered a number of authorities.[29]On the question whether Mr and Mrs Close had an equity based on acquiescence to use the Lower Track for the benefit of Woodside Bungalow, the Deputy Judge found that the Prices’ predecessors in title had done no more than allow or license occasional use to various people who wanted to use the Lower Track.[30]Another point the Deputy Judge had to consider was the application of the principle that an easement which is granted for the benefit of a dominant tenement is not available to be used for the benefit of other land, sometimes called the principle in Harris v Flower & Sons (1904) 74 LJ Ch 127. That case was not cited but the Deputy Judge considered Bracewell v Appleby [1975] Ch 408, in which that principle was applied. The Deputy Judge also considered the claim in equity which had been put forward by Mr and Mrs Close. They contended that they had acquired rights in equity to use the Lower Track to gain access to Woodside Bungalow as a result of alleged promises or representations which had been made to them by Mr Teakle. They relied on Ives Investments Ltd v High [1967] 2 QB 379 and Crabb v Arun D.C. [1976] Ch 179. The Deputy Judge considered whether the evidence relied on by Mr and Mrs Close amounted to the giving of a permission by Mr Teakle or to acquiescence by the owner of the Lower Track.[31]At page 45 of the transcript, the Deputy Judge referred to the two claims advanced in the Reply served by Mr and Mrs Close. He said that section 62 of the Law of Property Act 1925 had no application in view of the express grant in the conveyance of the Paddock. He also said that there was no implied easement of necessity.[32]In the result, the Deputy Judge held that the express right of way granted by the conveyance of the Paddock was for the benefit of the Paddock as the dominant tenement and could not be used to gain access to the Upper Track and Woodside Bungalow. He also rejected Mr and Mrs Close’s claims based on estoppel or in equity.[33]The Deputy Judge then considered the remedies which were sought by the parties. He distinguished between legal and equitable relief. He took a poor view of the behaviour of both Mr and Mrs Close, on the one hand, and the Prices, on the other. For that reason, while he was prepared to award them relief to which they were entitled at law, he was not willing to grant them any equitable relief. Amongst other things, the Prices asked for damages for trespass by Mr and Mrs Close on the Lower Track. The Deputy Judge held:
“They did trespass on the way and should not have used it except in connection with the Paddock.”
[34]The order which was drawn up following judgment contained a declaration in favour of Mr and Mrs Close that they were entitled to an unimpeded right of way over the Lower Track, but limited to access for purposes connected with the Paddock. Mr and Mrs Close were also awarded damages for the Prices’ interference with the right of way and damages for assault and for nuisance. The order also awarded damages to the Prices for the matters explained by the Deputy Judge in his judgment.[35]Mr and Mrs Close appealed the Deputy Judge’s order. They asked the Court of Appeal to make an order declaring that they were entitled to a right of way over the Lower Track for the purpose of gaining access to Woodside Bungalow. The grounds of appeal included the contention that the Deputy Judge ought to have held that the Prices were estopped from denying the existence of the claimed right of way by reason of acquiescence.[36]For their part, the Prices served a Respondent’s Notice in which they asked the Court of Appeal to grant an injunction against Mr and Mrs Close entering upon the Lower Track.[37]By notice dated 17 April 2009 Mr and Mrs Close applied to the Court of Appeal for an order that the hearing of the appeal be postponed until a date after the final determination of intended new proceedings claiming a right of way over the Lower Track. The application was supported by an affidavit from their solicitor. Paragraph 5 of that affidavit stated that Mr and Mrs Close had originally contemplated proceedings claiming a right of way acquired by prescription or by implication and also a public right of way. Paragraph 6 of the affidavit stated the 1976 Proceedings relied upon the express grant of a right of way but that, at the commencement of the trial of those proceedings, it was made clear to the Deputy Judge that Mr and Mrs Close were “relying solely” upon the express grant in order to limit the volume of evidence which would otherwise be necessary. It was then explained that the claims in the 1976 Proceedings extended beyond reliance on the express grant. The affidavit then stated that Mr and Mrs Close intended to bring new proceedings relying upon “their former intended pleas”. On this basis, it was submitted that the appeal should not be determined until the conclusion of the new proceedings.[38]Mr and Mrs Close’s application to the Court of Appeal for a postponement of the appeal was opposed by an affidavit from the Prices’ solicitor. That exhibited an exchange of letters between the solicitors for the parties in 1970. On 21 December 1970 solicitors for Mr and Mrs Close had written stating that they had obtained witness statements from 10 witnesses and their client would claim a right of way, with or without vehicles, acquired by prescription. On 23 December 1970 the solicitors for the Prices replied rejecting this claim and inviting Mr and Mrs Close to take proceedings.[39]Mr and Mrs Close’s application for a postponement of the appeal was dismissed.[40]The appeal itself was heard in the Court of Appeal on 17, 18, 22 and 23 October 1979. Judgment was given on 23 October 1979. The leading judgment was given by Megaw LJ. He said the following, among many other things which it is not necessary to mention for the purposes of the present appeal. He referred to there being a public right of way over the Pitch and the Upper Track. He stated that the extent of the public rights was not an issue which arose on the appeal although he referred to a practical difficulty in driving vehicles up the Pitch by reason of its steepness. He recorded that there was no appeal against the Deputy Judge’s findings so far as they were based on the interpretation of the express grant of the right of way contained in the conveyance to Mr Teakle. He stated that the claim by Mr and Mrs Close to a right of way over the Lower Track for the purpose of accessing Woodside Bungalow was, in the Court of Appeal, put on the basis that there had been acquiescence in the past by which the Prices were bound. The case on appeal was also based on a claimed estoppel. Megaw LJ then said:
“I should make it clear at this stage that in the action from which this appeal is brought the plaintiffs did not claim on the basis of what I may describe generally as prescriptive right. Their claim was limited, so far as the right of way was concerned, to the construction of the reservation and the claim in acquiescence or equitable estoppel. The plaintiffs have made it clear that they may hereafter start proceedings on the basis of prescriptive right. As to that I say nothing except to mention that it is not a part of this appeal and nothing which I may say relates to such a claim, since it was not before us, as it was not before the learned deputy judge.”
[41]Megaw LJ rejected the case of Mr and Mrs Close that there was acquiescence or permission or an equitable estoppel which prevented the Prices from asserting that the right of way vested in Mr and Mrs Close was restricted to a right for the purpose of gaining access to the Paddock. On the cross-appeal, he held there should be an injunction to restrain Mr and Mrs Close from using the Lower Track for any purpose other than to gain access to the Paddock.[42]Shaw LJ agreed with the judgment of Megaw LJ. Waller LJ gave a short concurring judgment.[43]The order made by the Court of Appeal on 23 October 1979 gave effect to the judgments. In particular it was ordered that there be:
“An injunction restraining [Mr and Mrs Close] by themselves their servants or agents or otherwise howsoever from entering upon [the Lower Track] save for the purposes of passing between the paddock Ordnance Survey number 1239 and the [Birdlip] to Slad Road”

The 1980 Proceedings

[44]In June 1980, some eight months after the conclusion of the 1976 Proceedings, Mr Close commenced the 1980 Proceedings against Mr and Mrs Price. Mr Close claimed a right of way by prescription over the Lower Track for the benefit of Woodside Bungalow and, further or alternatively, a right of way over the Lower Track and the Upper Track for the benefit of Woodside Bungalow, which right of way was said to have been granted by implication by a conveyance of 1919 or by virtue of the general words introduced by section 62 of the Law of Property Act 1925 into that conveyance. Mr Close claimed damages for interference with these rights of way and a declaration that Woodside Bungalow enjoyed a vehicular right of way over the Lower Track, alternatively over the Lower Track and the Upper Track. The 1980 Proceedings were brought by Mr Close alone because he alone was the owner of Woodside Bungalow. Mr and Mrs Price applied to strike out the 1980 Proceedings on the ground that they were an abuse of the process of the court.[45]As I have said, the application to strike out the 1980 Proceedings came before Mr Registrar J.S. Lawrie who, in a reserved judgment delivered in January 1983 following a two day hearing, ordered that the proceedings be struck out. When summarising the submissions made to him on behalf of Mr Close, he stated that he was told that the decision not to allege a right of way by prescription in the 1976 Proceedings was a “deliberate and open decision”. The Registrar was told that, before the 1976 Proceedings were commenced, there had been research for some time by Mr and Mrs Close about a public right of way but that matter had not been resolved when the 1976 Proceedings were started. The Registrar referred to authority which included, but was not confined to, the decision of the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. The Registrar concluded that it was an abuse of process for Mr and Mrs Close to bring the 1980 Proceedings claiming a right of way by prescription over the Lower Track since they had made a conscious decision in the 1976 Proceedings not to make such a claim; such a claim could and should have been made in the 1976 Proceedings; the 1980 Proceedings were oppressive to Mr and Mrs Price; it was desirable that the litigation should now cease and there were insufficient grounds to allow it to continue. He, therefore, struck out the 1980 Proceedings as an abuse of the process of the court.[46]Mr Close appealed the Registrar’s order and, as I have said, the appeal came before Judge Braithwaite. He dismissed the appeal on 16 May 1983. He noted that the claim put forward by Mr Close was in conflict with the injunction ordered by the Court of Appeal. He upheld the decision of the Registrar and said he could not think of a stronger case for such an order to be made. He too referred to authority which included, but was not confined to, the Yat Tung Investment Co. case. He said that the claim in the 1980 Proceedings for interference with a right of way could have been raised in the 1976 Proceedings and so it was an abuse.

Transfer of Woodside Bungalow and the Paddock to Mr Nunn

[47]In 1991 Mr Nunn bought Woodside Bungalow from Mr Close and the Paddock from Mr and Mrs Close. The answers given to enquiries before contract informed Mr Nunn of the earlier proceedings and of the injunction granted by the Court of Appeal in the 1976 Proceedings. The transfer of the Paddock dated 27 September 1991 was expressed to be subject to the injunction granted by the Court of Appeal as to the exercise of a right of way over the Lower Track, such right being limited to purposes connected with the Paddock and for the purpose of passing between the Paddock and the main road. Further, Mr Nunn covenanted with Mr and Mrs Close by way of indemnity to observe and perform the provisions contained in the decision of the Court of Appeal of 23 October 1979 and to indemnify Mr and Mrs Close against any costs which might arise in relation to the order of the Court of Appeal. On 23 October 1991 Mr Nunn was duly registered as proprietor of both Woodside Bungalow and the Paddock[48]In May 2005 Mr Nunn registered at the Land Registry a caution against first registration of the Upper Track. His application was supported by a statutory declaration in which he claimed to be entitled to a right of way with or without vehicles over the Upper Track.

The present proceedings

[49]The Prices commenced the present proceedings in April 2011. They seek various heads of relief in relation to the Upper Track. They claim, among other things,(1) a declaration that they are the freehold owners of the Upper Track, or at least one half in width of the Upper Track;(2) a declaration that Mr Nunn has “no right to pass” over the Upper Track with vehicles; and(3) an injunction to restrain Mr Nunn from trespassing on the Upper Track by using vehicles upon it.[50]Paragraphs 9 and 10 of the Particulars of Claim are as follows:
“9. Any use of the Upper Track by the Defendant and his predecessors in title with vehicles has at all material times been contentious having been objected to by the Claimants and obstructed from time to time. In particular access to the Upper Track from the Paddock has been obstructed by the Claimants since 11th April 2004. Further in so far as it is alleged that access was obtained from the highway via the Lower Track to Woodside Bungalow such use was a colourable breach of the injunction and/or unlawful. 10. In the circumstances any use by the Defendant of the Upper Track with vehicles is a trespass.”
[51]As I have already said, Mr Nunn has served a lengthy and detailed Defence and Counterclaim. He denies that the Prices have title to any part of the Upper Track. He asserts that he has the benefit of a private right of way on foot and/or with horses and/or with vehicles over the Lower Track, the Upper Track and the Pitch. He also asserts the existence of a public right of way, on foot and/or with horses and/or with vehicles over the Lower Track, the Upper Track and the Pitch. Mr Nunn counterclaims for declaratory relief in accordance with those assertions and also for an injunction to restrain the Prices from interfering with the claimed private and public rights of way. He also claims damages for harassment, unlawful interference with his rights of way and nuisance.[52]The Prices have served a detailed Reply and Defence to Counterclaim, in which they say that the assertions by Mr Nunn that he is entitled to a right of way over the Lower Track should be struck out on the ground that Mr Nunn is estopped from raising them by reason of the 1976 Proceedings and the 1980 Proceedings or they are otherwise an abuse of the process of the court. They deny that there is any public right of way over the Lower Track, and they assert that the public right of way over the Pitch and the Upper Track is limited to passage on foot. They deny that Mr Nunn is entitled to the relief counterclaimed or any relief.[53]As I have said the Prices issued an application in October 2011 for an order striking out the assertions in Mr Nunn’s statements of case relating to the Lower Track on the basis that his claim to rights over the Lower Track is precluded by an estoppel or is an abuse of the process of the court. That application came before Morgan J on 20 March 2012 and was heard by him over three days. He delivered his judgment on 11 May 2012.

The judgment of Morgan J

[54]The Judge said (at [60]) that he did not have to decide finally whether Mr and Mrs Close were bound by a cause of action estoppel because it was clear that they were bound by an issue estoppel. He reasoned (at [61]) that in the 1976 Proceedings the Deputy Judge’s award of damages for trespass and the Court of Appeal’s grant of an injunction against future trespass by Mr and Mrs Close on the Lower Track were made on the basis that(1) the only right which Mr and Mrs Close had to use the Lower Track was the express right of way for the benefit of the Paddock, and(2) those orders were incompatible with a claim by Mr and Mrs Close to have a right of way over the Lower Track for the benefit of Woodside Bungalow or a claim that there was a public right of way over the Lower Track. He said that the case therefore falls within the principles of issue estoppel as explained in Arnold v National Westminster Bank plc. [1991] 2 AC 93. He considered that that there is a clear case of issue estoppel, but, if that was wrong, then there is no doubt that the case is within the principles of issue estoppel as extended by Henderson v Henderson (1843) 3 Hare 100. On that aspect, he reasoned that the claim to a private or a public right of way would (if established) have provided a defence to the claim in trespass and so could and should have been put forward in the 1976 Proceedings.[55]The Judge then considered whether Mr Nunn is bound by the issue estoppel which would have bound Mr and Mrs Close. He held, first ([64] and [65]), that, insofar as Mr Nunn claims a private right of way for the benefit of Woodside Bungalow, he is a privy of Mr Close, his predecessor in title in relation to the same property.[56]The Judge then turned to consider the question of privity in relation to Mr Nunn’s assertion that there is a public right of way over the Lower Track. The Judge referred at length (at [69] to [79]) to the argument, on behalf of the Prices, that Mr Nunn must show a special interest in order to advance a claim to a public right of way over the Lower Track and that special interest is his ownership of Woodside Bungalow, which he owns as successor to Mr Close and so he is the privy of Mr Close in that respect. The Judge referred to the many cases cited in argument to him showing that the requirement of a special interest on the part of a person claiming relief in relation to a highway - as distinct from the Attorney General, on the relation of a member of the public - is essentially the same (and for the same reasons) as the requirement that a special interest must be shown when a private litigant wishes to contend that he or she may sue in relation to a public nuisance.[57]The Judge said (at [82]) that, on a fair reading of the issues in the present proceedings, it is necessary for Mr Nunn to meet a case against him that his use of the Lower Track, otherwise than for the purpose of gaining access to the Paddock, is a trespass. The Judge said (at [81]) that Mr Nunn’s defence that he is entitled as a member of the public to take advantage of a public right of way does not require him to show a special interest of the kind which he would have to show if here were to maintain a claim for a remedy based on public interest.[58]The Judge then held (at [83]) that, as it is open to Mr Nunn to defend the claim in trespass on the ground of a public right of way, he should be entitled to counterclaim for a negative declaration that he will not be liable in trespass by using the Lower Track pursuant to a public right of way. The Judge reasoned that Mr Nunn is not relying on his ownership of Woodside Bungalow to found his claim to a negative injunction and so is not to be regarded as the privy of Mr Close in relation to such a claim, and he is therefore not precluded from advancing such a counterclaim by reason of issue estoppel.[59]The Judge then addressed the question whether Mr Nunn is precluded by issue estoppel from counterclaiming damages for public nuisance for obstruction of the Lower Track and for an injunction against future obstruction of the Lower Track by Mr and Mrs Price. He said (at [85] and [86]) that he proceeded on the basis that there is a strong argument that Mr Nunn is a privy of Mr Close in relation to those claims.[60]The Judge rejected (at [98]) the argument, on behalf of Mr Nunn, that the availability of new evidence constitutes special circumstances justifying an exception to the principles of issue estoppel in the present case. He held (at [101]), nevertheless, that, if Mr Nunn’s defence to the trespass claim succeeds at trial because he establishes his defence of a public right of way, then that in itself will be a special circumstance which would, exceptionally, prevent there being an issue estoppel against Mr Nunn counterclaiming in public nuisance an injunction and damages.[61]He held (at [103]) that the same reasoning does not apply to Mr Nunn’s claim for a private right of way over the Lower Track. His reasoning was that the category of special circumstances should be reserved for exceptional cases and that the public policy considerations which justify a finding of issue estoppel should not be too readily undermined; the issue estoppel in relation to a claim to a private right of way is very clear in this case as a result of the 1976 Proceedings, and in the 1980 Proceedings the court has already ruled that an attempt to claim a private right of way over the Lower Track is an abuse of process. He concluded that Mr Nunn is indeed bound by an issue estoppel which prevents him asserting that Woodside Bungalow has the benefit of a private right of way over the Lower Track.[62]Finally, the Judge addressed the application of the principles of abuse of process, as stated in Johnson v Gore Wood [2002] 2 AC 1, to Mr Nunn’s reliance in the present proceedings on a public right of way over the Lower Track. The Judge held (at [104]) that it is not an abuse of the process of the court for Mr Nunn to raise in these proceedings the question whether there is a public right of way over the Lower Track.

The Judge summarised the result of his conclusions as follows (in [105]):

“The result is that I hold that: (1) there is an issue estoppel which prevents Mr Nunn from asserting that Woodside Bungalow has the benefit of a private right of way over the lower track; (2) there is no issue estoppel which prevents Mr Nunn from relying on the claimed public right of way to defend a claim that he is a trespasser when he uses the lower track for reasons other than gaining access to the paddock; (3) there is no issue estoppel which prevents Mr Nunn from relying on the claimed public right of way to seek a declaration that he is not a trespasser when he uses the lower track for reasons other than gaining access to the paddock; (4) it is not appropriate to strike out Mr Nunn’s claim (in public nuisance) to damages or for an injunction against future obstruction of the lower track.”

The legal principles: res judicata and abuse of process

[64]Mr Adams and Mr Stenhouse referred to a great many authorities in their written and oral submissions. As I said in my introductory remarks above, we were provided with three bundles containing no less than 94 authorities.[65]I consider that the applicable principles of estoppel and abuse of process are clear and can be shortly and simply stated. Their application in any particular case may, of course, not be straightforward and will be highly dependent on the particular facts.[66]The law in relation to res judicata has very recently been summarised by Lord Sumption in Virgin Atlantic Airways Limited v Zodiac Seats UK Limited [2013] UKSC 46, [2013] 3 WLR 299. The other members of the Supreme Court agreed with his summary. Having regard to what was said there and the cases cited by Lord Sumption, it is sufficient for the purposes of this appeal to state the relevant principles as follows.[67]Cause of action estoppel is a form of estoppel precluding a party from challenging the existence or non-existence of a cause of action where that has already been decided in earlier proceedings. It arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case, unless fraud or collusion is alleged such as to justify setting aside the earlier judgment, the bar is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of the cause of action. Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised.[68]Issue estoppel is a form of estoppel precluding a party from disputing the decision on an issue reached in earlier proceedings even though the cause of action in the subsequent proceedings is different. It may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties or their privies to which the same issue is relevant one of the parties seeks to re-open that issue. In such a situation, and except in special circumstances where this would cause injustice, issue estoppel bars the re-opening of the same issue in the subsequent proceedings. The estoppel also applies to points which were not raised if they could with reasonable diligence and should in all the circumstances have been raised, but again subject to special circumstances where injustice would otherwise be caused.[69]Res judicata operates as a substantive rule of law. It is to be distinguished from the court’s exercise of its procedural powers to control the court’s processes from being abused. They are juridically very different even though there are overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. In the case of the exercise of the court’s procedural powers to prevent abuse the court should take a broad, merits-based judgment taking account of the public and private interests involved and all the facts of the case, focusing on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

The appeal – public right of way: discussion

[70]Mr Guy Adams, the Prices’ counsel advanced the appeal on a variety of grounds, some of which were easier to follow than others.[71]Mr Adams submitted that Mr Nunn is barred by issue estoppel from raising in his Defence and Counterclaim an allegation that he has the benefit of a public right of way over the Lower Track. At one stage he appeared to be contending that the Prices could rely on what he described as a cause of action estoppel “in an equitable sense” because the relief granted in the 1976 Proceedings included an injunction and a declaration. As I understood his argument, however, he ultimately pinned his colours to the mast of issue estoppel. He endorsed the conclusion of the Judge (in [60] and [61]) that the issue determined in the 1976 Proceedings was Mr and Mrs Close’s rights over the Lower Track, and that a claim by them that they had the benefit of a public right of way would have been relevant to the issue determined in the 1976 Proceedings and so would have fallen within the principles of issue estoppel, or, at any event, as extended by Henderson v Henderson.[72]Mr Adams submitted that Mr Nunn, as the privy of Mr and Mrs Close, should be in no better position than them. He emphasised that, aside from a highway authority, proceedings to establish a public right of way can usually only be brought either by the Attorney General, acting on behalf of the public, or by a member of the public with a special interest recognised by the law as justifying such proceedings (viz. a person affected in a manner over and above that suffered by the public at large): see the cases and the commentary of the Judge in paragraphs [69] and following of his judgment. Mr Adams submitted that the only special interest of Mr Nunn justifying his standing to claim the existence of and the Prices’ interference with a public highway along the Lower Track is Mr Nunn’s ownership of Woodside Bungalow. The rights of the owner of Woodside Bungalow to a right of way along the Lower Track were, however, the very subject matter of the 1976 Proceedings.[73]Accordingly, Mr Adams reasoned, there is an inconsistency between the Judge’s decision that Mr Nunn, as the privy of Mr and Mrs Close, is barred from litigating in the present proceedings his claim to a private right of way along the Lower Track for the benefit of Woodside Bungalow but is not barred from asserting a right, as a member of the public, to use a public right of way along the Lower Track relying on his special interest as the owner of Woodside Bungalow. In both cases, he submitted, Mr Nunn was litigating in his private interest, as contrasted with an action by the Attorney General acting in the public interest leading to a universally binding determination.[74]Mr Adams further contended that the determination in the 1976 Proceedings of what he described as “the umbrella issue” of the extent of the rights of way over the Lower Track for the benefit of the owner of Woodside Bungalow was final in the sense that, absent fraud, it could only ever have been subsequently challenged by Mr and Mrs Close by an application to the Court of Appeal to re-open the 1979 Appeal pursuant to what is now CPR 52.17 or the jurisprudence underlying that Rule. He argued that the award of damages to the Prices and the injunction ordered against Mr and Mrs Close by the Court of Appeal reflect that finality. He said that Mr and Mrs Close would never have succeeded in an application to re-open the appeal to assert a public right of way, and Mr Nunn, as their successor in title to Woodside Bungalow, could be in no better position. Mr Adams submitted that, in principle, there is no reason why Mr Nunn cannot be joined to the 1976 Proceedings and why the injunction should not be enforceable against him.[75]Mr Adams emphasised, as I have said, that in the answers to enquiries before contract, when Mr Nunn was in the process of purchasing Woodside Bungalow, specific reference was made to the 1976 Proceedings and the 1980 Proceedings, and the transfer of Woodside Bungalow to Mr Nunn stated expressly that it was subject to the injunction granted by the Court of Appeal in 1979. There is, therefore, he argued, no injustice in barring Mr Nunn from claiming a public right of way over the Lower Track.[76]Mr Adams criticised the Judge’s analysis (at [81] and 82]) that Mr Nunn is not estopped from asserting a public right of way along the Lower Track because(1) properly interpreted, the Prices’ statements of case in the present proceedings allege that his use of the Lower Track, otherwise than for the purpose of gaining access to the Paddock, is a trespass and(2) Mr Nunn is entitled to defend that allegation without having to show any special interest of the kind he would need to show if he were to maintain a claim based on public nuisance.[77]It was that reasoning which led the Judge to the next step in his analysis (at [83]), namely that, since it is open to Mr Nunn to defend a claim in trespass, he should be able to claim a negative declaration to the effect that the will not be liable in trespass by using the Lower Track pursuant to what he claims is a public right of way.[78]The Judge’s reasoning that Mr Nunn is entitled to defend the trespass claim also provided the basis for the Judge’s conclusion (in [101]) on the existence of special circumstances preventing there being an issue estoppel barring Mr Nunn’s counterclaims for damages and for an injunction for public nuisance. The Judge’s analysis was that, even if Mr Nunn is a privy of Mr Close in relation to those claims, his establishment, by way of defence to the trespass claim, that there is a public right of way over the Lower Track must prevail over the suggestion that Mr Nunn is estopped from so asserting for the purpose of his claim for an injunction. As the Judge explained, the court cannot at the same time uphold Mr Nunn’s defence that there is a public right of way when considering the Prices’ claim in trespass and then hold that it is against public policy for Mr Nunn to be able to put forward a claim in public nuisance for interference with the public right of way.[79]Mr Adams submitted that the Judge was wrong in the first building block of his analysis in concluding that the present proceedings contain a claim by the Prices that Mr Nunn has committed a trespass by using the Lower Track otherwise than for the purpose of gaining access to the Paddock. He emphasised that the substantive relief claimed in the Particulars of Claim relates only to the Upper Track. He also pointed out that, aside from the issue of ownership of the Upper Track, the substantive relief is restricted to the use of vehicles on the Upper Track, which provides the link with the allegations in paragraph 9 of the Particulars of Claim. He said that the whole of paragraph 9 is about vehicular access, and that, in any event, the words “in so far as it is alleged” in paragraph 9 do not amount to a positive averment or allegation at all. He submitted that the reference in paragraph 9 to the 1976 Proceedings is only as part of the factual background and to counter any suggestion that there could be any lawful use of the Lower Track for the purpose of access to Woodside Bungalow.[80]Mr Adams submitted that there is no basis in the present case for applying the “special circumstances” exception to issue estoppel. He emphasised the finality of the declaration and injunction granted in the 1976 Proceedings. He referred to Edgerton v Edgerton [2012] EWCA Civ 181, [2012] 1 WLR 2655 at [34] and submitted that, as in that case, even though the estoppel is technically issue estoppel, the court should approach any question as to its effect substantially as if it were a case of cause of action estoppel. He emphasised again in this context that Mr Nunn bought the Paddock and Woodside Bungalow with full knowledge of the 1976 Proceedings and the 1980 Proceedings and the injunction granted against Mr and Mrs Close in 1979.[81]I would reject this part of the appeal for reasons which I can state shortly. It is clear that the judgments and orders in the 1976 Proceedings and the 1980 Proceedings did not give rise to a cause of action estoppel. So far as relevant, the cause of action in those proceedings was for, among other things, damages and other relief for, or arising out of, nuisance caused by wrongful interference with a private right of way appurtenant to Woodside Bungalow. By contrast, the relevant cause of action in Mr Nunn’s counterclaim in the present proceedings is for damages and other relief for, or arising out of, public nuisance caused by wrongful interference with Mr Nunn’s use of a public right of way.[82]Not only are those causes of action quite distinct, but, unsurprisingly, so are their essential ingredients. Accordingly, contrary to the view expressed by the Judge, I do not consider that the 1976 Proceedings or the 1980 Proceedings gave rise even to an issue estoppel binding on Mr and Mrs Close in relation to any interference with their use of a public right of way. As extended by Henderson v Henderson, issue estoppel only arises where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided, or could and should have been raised and litigated, and in subsequent proceedings between the same parties (or their privies) involving a different cause of action to which the same issue is relevant one of the parties (or their privies) seeks to re-open that issue: Arnold at p. 105E-106B. Other than the fact of ownership of Woodside Bungalow to provide the status to make the claim, the ingredients of a cause of action for public nuisance were of no relevance to the establishment of Mr and Mrs Close’s claim for damages and other relief for wrongful interference with a private right of way appurtenant to Woodside Bungalow. Indeed, it could be said that a public right of way along the Lower Track would have undermined the claim to a co-existing private right of way of equivalent ambit, that is to say with or without vehicles. Mr and Mrs Close’s ownership of Woodside Bungalow was not in issue in the 1976 Proceedings or the 1980 Proceedings and nor is Mr Nunn’s ownership of Woodside Bungalow in issue in the present proceedings.[83]Whether or not, short of estoppel, it would have been an abuse of the process of the court for Mr and Mrs Close to have brought proceedings alleging a public right of way along the Lower Track and wrongful interference by the Prices with that right of way is a different matter. As Lord Sumption emphasised in Virgin Atlantic Airways at [25], res judicata and abuse of process are juridically very different: the former is a rule of substantive law, whereas abuse of process is a concept which informs the court’s procedural powers.[84]If I am wrong about the non-application in principle of issue estoppel to Mr Nunn’s counterclaims for, or arising out of, wrongful interference with his use of a public right of way along the Lower Track, then I agree with the Judge’s conclusions that, for the reasons he gave, Mr Nunn’s counterclaims are nevertheless not barred by issue estoppel. In particular, I agree with the Judge that the Prices have put in issue in these proceedings Mr Nunn’s use of the Lower Track. The final sentence of paragraph 9 of the Particulars of Claim states that, insofar as it is alleged that access has been obtained from the highway via the Lower Track to Woodside Bungalow, such use was “a colourable breach of the injunction and/or unlawful”. The reference to the injunction embraces the causes of action in the 1976 Proceedings. The words “or unlawful” are sufficiently wide to embrace any other basis that Mr Nunn might seek to put forward to justify his use of the Lower Track to gain access to the Upper Track. The assertion goes beyond the 1976 Proceedings and the 1980 Proceedings and constitutes an allegation that any use of the Lower Track by Mr Nunn has been a trespass whether that use is sought to be justified on the basis of a private right of way appurtenant to Woodside Bungalow or otherwise.[85]It is not surprising that Mr Nunn’s rights over the Lower Track have been put in issue. The most convenient means of vehicular access from the main road to the Upper Track is by use of the Lower Track. It is inevitable that, at the trial, examination of the use of the Upper Track as a public right of way will involve an examination of the use of the Lower Track for the same purpose.[86]The rest of the Judge’s reasoning on Mr Nunn’s counterclaims relating to a public right of way over the Lower Track proceeded from the basis that the Prices have alleged that any use of the Lower Track by Mr Nunn has been, is or will be a trespass. I agree with the Judge’s analysis and conclusions that flowed from that starting point. In particular, I agree with him that Mr Nunn cannot be prevented by estoppel from raising a defence to a claim for trespass on the ground that he was merely exercising a public right of way. Far from being an abuse of the process of the court to raise such a defence, it would be unjust to bar Mr Nunn from relying in his defence on a public right of way enjoyed by him as a member of the public, which had never been put in issue in previous litigation, merely because a previous owner of Woodside Bungalow had chosen to claim, unsuccessfully, a private right of way for the benefit of Woodside Bungalow.[87]If that is correct, then, as I have said, the Judge was right to hold that Mr Nunn should be entitled to counterclaim relief relating to, or arising out of, interference with his use of the public right of way, whether because issue estoppel is simply not engaged or because of special circumstances.[88]For the same reasons, I also agree with the Judge’s conclusion (in [104]) that, if there is no issue estoppel, it is not an abuse of the process of the court for Mr Nunn to contend that there is a public right of way over the Lower Track.

The cross-appeal – prescription for a private right of way: discussion

[89]Mr John Stenhouse, counsel for Mr Nunn, advanced a range of submissions in support of the cross-appeal against those parts of the order of the Judge which declare that Mr Nunn is bound by an issue estoppel preventing him from asserting that Woodside Bungalow has the benefit of a private right of way over the Lower Track, and which ordered that Mr Nunn’s pleaded claim that Woodside Bungalow has the benefit of a private right of way over the Lower Track be struck out. I was not always clear whether arguments deployed by Mr Stenhouse in opposition to the Price’s appeals were also deployed in support of the cross-appeal. There appeared to be a substantial overlap.[90]As I understood them, Mr Stenhouse’s submissions in support of the cross-appeal (other than as to costs) may be briefly summarised as follows. He said that the crucial question is whether or not Mr Nunn is abusing the Court’s procedures by advancing a claim to a prescriptive right to a right of way for the benefit of Woodside Bungalow which has never been tried before. It was never advanced or considered in the 1976 Proceedings, as was expressly recognised in the judgment of the Deputy Judge at first instance and Megaw LJ in the Court of Appeal. It was advanced in the 1980 Proceedings, but was struck out as an abuse of process on what Mr Stenhouse criticised as the very narrow basis that the proceedings were oppressive to the Prices because the claim based on prescription could have been raised in the 1976 Proceedings. He noted that the judgments in the 1980 Proceedings were based on Yat Tung Investment Co. His argument was that the statement in that case (at p. 590B) of Lord Kilbrandon (giving the advice of the Judicial Committee of the Privy Council) that it is an abuse of process to raise in subsequent proceedings matters which could and therefore should have been in litigated in earlier proceedings was disapproved as “too dogmatic an approach” in Johnson v Gore Wood at page 31C-D (Lord Bingham): see also Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14 at [35]), and Henley v Bloom [2010] EWCA Civ 202, [2010] 1 WLR 1770 at [16]-[28].[91]Mr Stenhouse relied upon Lord Bingham’s statement in Johnson v Gore Wood there that “Henderson v Henderson abuse of process” should be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case. He criticised the Judge for adopting the same narrow approach as was taken in the 1980 Proceedings in relation to Mr Nunn’s claim to a private right of way based on prescription.[92]In addressing the broad merits test described by Lord Bingham, Mr Stenhouse said that a clear decision was taken by Mr and Mrs Close to limit the scope of the 1976 Proceedings for reasons of economy and efficiency in the court process, and that limitation was clearly acknowledged in the judgments both at first instance and appeal without any criticism. He said that Mr and Mrs Close had focused on the grant of an express right of way, and, whatever might have been the position in 1980, there is no abuse now in permitting Mr Nunn many years later, and with the benefit of further research on the available evidence, to run a case based on prescriptive use.[93]Mr Stenhouse emphasised that it is inevitable that evidence of use of the Lower Track will be relevant in the present case since there are no obvious physical features marking the end points of the Lower Track, the Upper Track and the Pitch where they all converge and, moreover, as I have said, the Lower Track is the most convenient route for vehicular access to the Upper Track.[94]Mr Stenhouse also observed that the present proceedings were commenced by the Prices and not by Mr Nunn. He said that the Prices had not argued before the Judge that the proceedings are oppressive, and nor could they since they had themselves instituted them. He said that it is as easy for the Prices to deal now with a case based on prescription as it would have been in 1976 since nothing material had changed in the meantime other than the ownership of Woodside Bungalow.[95]Mr Stenhouse submitted that, if Mr and Mrs Close had been successful in the 1980 Proceedings, or if Mr Nunn was to be successful in his prescriptive claim in the present proceedings, the injunction granted in the 1976 Proceedings would not pose any problem. He said that the injunction is to be interpreted as limited to the claim in the 1976 Proceedings to the grant of the express right of way for the benefit of the Paddock, and, if that is wrong, there would be no difficulty in making an application to the Court of Appeal pursuant to (what is now) CPR 52.17 to re-open the appeal in the 1976 Proceedings and vary or set aside the injunction.[96]If and insofar as Mr Stenhouse is wrong in his submission that the court is only concerned with the single broad question of abuse of the court’s process and that principles of res judicata do not raise different considerations, he relies upon all or some of the same matters as well as the enactment of the Human Rights Act 1998 (“the HRA”) as bringing the allegations about a private right of way within the “special circumstances” exception to issue estoppel. He contended that it would be contrary to the HRA and the European Convention on Human Rights (“the Convention”) to prevent Mr Nunn advancing a claim to a private right of way based on prescriptive use.[97]I would dismiss the cross-appeal in relation to those parts of the Judge’s order dealing with the allegations and relief claimed in Mr Nunn’s Defence and Counterclaim based on prescriptive use of a private right of way. Those allegations and that relief fall plainly within the principles of res judicata and abuse of the process of the court.[98]It is not in dispute that Mr Nunn is the privy of Mr and Mrs Close for the purpose of any estoppel by way of res judicata relating to the claim to, and interference with, a private right of way over the Lower Track for the benefit of Woodside Bungalow.[99]Contrary to the view of the Judge and Mr Adams, I would regard the relevant estoppel as cause of action estoppel. As I have said earlier, the cause of action in the 1976 Proceedings by Mr and Mrs Close was for, among other things, damages and other relief for, or arising out of, nuisance caused by wrongful interference with a private right of way appurtenant to Woodside Bungalow. That is the same cause of action as is now advanced by Mr Nunn in his Defence and Counterclaim. Proof of the existence of a private right of way is a necessary ingredient of that cause of action.[100]The injunction granted in the 1976 Proceedings is a reflection of the finality of the decision that there was no private right of way over the Lower Track save for the benefit of the Paddock. I do not consider Mr Stenhouse’s submission that the injunction granted in the 1976 Proceedings is somehow to be interpreted as limited to the extent of the express right of way to the Paddock, and so inapplicable to any exercise of a right of way established by prescription, as seriously arguable. It seems to me quite clear that it would have been necessary to vary or set aside the injunction before the Lower Track could have been used by Mr and Mrs Close for the benefit of Woodside Bungalow pursuant to a private right based on prescription. I see no reason why the same is not equally true in relation to Mr Nunn, as their successor in title with knowledge of the injunction.[101]That is in itself sufficient to bar Mr Nunn’s allegation in the present proceedings of a private right of way over the Lower Track for the benefit of Woodside Bungalow. Even if that were not correct, cause of action estoppel also bars the raising in these proceedings of points essential to the existence or non-existence of the cause of action for nuisance for wrongful interference with any such private right of way if they could with reasonable diligence and should in all the circumstances have been raised in the 1976 Proceedings. It is not in dispute that the claim to such a private right of way appurtenant to Woodside Bungalow based on prescription could with reasonable diligence have been raised in the 1976 Proceedings. It seems to me clear that it should in all the circumstances have been raised.[102]Counsel for Mr Close in the 1980 Proceedings told Registrar Lawrie that there had been a deliberate decision not to pursue prescription in the 1976 Proceedings because that would have involved several further witnesses and added extra days to the trial. It was also pointed out that Mr and Mrs Close were in receipt of legal aid in the 1976 Proceedings. On the other hand, the Prices never agreed to that limitation of the scope of the 1976 Proceedings. In any event, the claim to a private right of way in the 1976 Proceedings was not based solely on the terms of an express grant. Mr and Mrs Close also relied upon acquiescence or proprietary estoppel, which necessarily involved evidence of use by Mr and Mrs Close and those authorised by them. It is also clear from what the Registrar was told and what we were told on the hearing of this appeal and the documents before us that considerable efforts had been made by Mr and Mrs Close and their solicitors prior to the commencement of the 1976 Proceedings to obtain evidence from others about actual use of the Lower Track. It has not been suggested by Mr Stenhouse that Mr Nunn has been able to obtain further evidence relating to a private right of way based on use which could not have been obtained by Mr and Mrs Close with reasonable diligence. I do not consider, therefore, any more than did the Registrar and HH Judge Braithwaite in the 1980 Proceedings, that Mr and Mrs Close were justified in withholding a claim based on prescription until such short or long time as they might decide upon to bring a fresh claim based on use.[103]If, as the Judge considered in the present case, the relevant estoppel is not cause of action estoppel but issue estoppel, then I agree with the Judge that Mr Nunn’s allegation in the present proceedings of a private right of way over the Lower Track for the benefit of Woodside Bungalow established by use is barred by issue estoppel. In the absence of an express grant of a right of way or a right based on section 62 of the Law of Property Act 1925, establishment of a right of way by use would be a necessary ingredient of the cause of action both in the 1976 Proceedings and the present proceedings. For the reasons I have already given, that could with reasonable diligence and should in all the circumstances have been raised in the 1976 Proceedings.[104]I do not consider there is any basis for excepting Mr Nunn’s claims based on a private right of way from the bar of res judicata on the ground of special circumstances. As was found in the 1980 Proceedings, it was a plain abuse of process for Mr and Mrs Close to bring separate proceedings based on prescription. I do not accept Mr Stenhouse’s submission that the decision in the 1980 Proceedings can be treated as irrelevant and wrong because, as he submitted, it was based on a now-discredited narrow approach in Yat TungInvestment Co. Those proceedings, commenced only eight months after the conclusion of the 1976 Proceedings, were plainly oppressive in subjecting the Prices to a second action based on wrongful interference with a private right of way appurtenant to Woodside Bungalow. I see no good reason why, in all the circumstances, Mr Nunn should be in any better position that his predecessor in title, Mr Close.[105]The oppression of the Prices and the need to give effect to the public policies underlying the principles of res judicata are not displaced by the fact that the present proceedings were initiated by the Prices themselves rather than by Mr Nunn. The oppression remains and the policies are engaged to the extent that Mr Nunn has chosen to raise by way of Defence and Counterclaim the very same matter of the existence of, and interference with, a private right of way appurtenant to Woodside Bungalow as was the subject matter of the 1976 Proceedings. Nor do I consider that this conclusion is any way inconsistent with allowing Mr Nunn’s claim to be entitled to use a public right of way to proceed to trial. While it is true that the court, when examining that issue, will inevitably consider the physical configuration of the various tracks and their convergence and also the use of the Lower Track, the court will be doing so in the context of Mr Nunn’s claim that there has been general access by the public unattributable to the ownership of any specific property. The existence or, let alone ownership of, Woodside Bungalow will be irrelevant.[106]Finally, on the question of the special circumstances exception to res judicata, I should note that Mr Stenhouse did not take us to any new evidence unearthed by Mr Nunn, which had not been obtained by Mr and Mrs Close (whether or not it could have been obtained by them with reasonable diligence), and which would have a decisive effect on the prospects of successfully establishing a claim to a private right of way for the benefit of Woodside Bungalow over the Lower Track or would even materially improve the prospects of success of such a claim.[107]As I have explained above when summarising the applicable legal principles, the substantive law of res judicata is not to be confused with the court’s broad discretionary procedural or management powers to prevent abuse of its process. I do not accept Mr Stenhouse’s submissions insofar as they conflated them and criticised the Judge for failing to apply a broad merits-based approach. For the reasons I have given, I agree with the Judge that Mr Nunn is precluded by the substantive law of res judicata in the present case from re-opening the issue of a private right of way over the Lower Track for the benefit of Woodside Bungalow. The exercise of the court’s discretionary power to control abuse of its process does not arise.[108]I cannot see any basis for Mr Stenhouse’s submission that the barring of Mr Nunn’s claim to, and of interference with, a private right of way appurtenant to Woodside Bungalow is contrary to the HRA and the Convention. As Lord Bingham said in Johnson v Gore Wood at page 31A, the underlying public policy is that there should be finality in litigation and that a party should not be twice vexed in the same matter. I would add that another important public policy, which is relevant and which is now reflected in the description of the Overriding Objective in CPR 1.1, is that there should be a fair allocation between litigants of the resources of the court. All of those policy considerations are legitimate matters qualifying Mr Nunn’s rights under the HRA and the Convention. The right under Article 6 to a fair hearing is not an unconditional right to bring and have determined any proceedings any person may chose to bring irrespective of other competing policy considerations.

Appeal and cross–appeal on costs

[109]The Judge ordered that the Prices pay the costs of the hearing before the district judge on 6 December 2011. Subject to that, he ordered that Mr Nunn pay one third of the Prices’ costs of the strike out application.[110]The Prices appeal the Judge’s order as to the costs of the hearing on 6 December 2011. Mr Nunn appeals the Judge’s order insofar as he refused to make an order in Mr Nunn’s favour for part of the remainder of his costs of the strike out application. Mr Stenhouse submits, consistently with his submissions before the Judge, that Mr Nunn should recover 80 per cent of his assessed costs of the application and there should be a set off of the costs in favour of the respective parties.[111]I consider that both the appeal and the cross-appeal on costs are quite hopeless. The parties made detailed submissions to the Judge in relation to costs. Mr Nunn’s submissions ran to 21 pages and 47 paragraphs. The orders made by the Judge were well within the proper exercise of judicial discretion.[112]The Judge accepted the submissions on behalf of Mr Nunn relating to the costs of the hearing on 6 December 2011, namely that those acting for the Prices maintained up to that hearing that the strike out application could be dealt within the three hours allotted, but this was strongly disputed by those acting for Mr Nunn, who gave a time estimate of between one and two days; and, on the day, the district judge took the view that the application would have to be adjourned because there was insufficient time to hear it and, in any event, he was concerned that the application was appropriate for a more senior level of the judiciary than a district judge.[113]Mr Adams continued to maintain before us that the application could and should have been dealt with summarily within three hours before the district judge. He emphasised that much of the time before the Judge had been spent on matters raised by the Judge himself. He further contended that, in any event, it was ultimately the decision of the district judge, fully aware of the disagreement between the parties as to the time estimate, to keep the application in the list for 6 December 2011.[114]We were referred to the contemporaneous correspondence and the orders made by the district judge. In the light of those, I consider that the Judge was plainly entitled to take the view that the costs of the hearing on 6 December 2011 were wasted because a wholly unrealistic view was taken and persisted in by those acting for the Prices as to the likely duration and complexity of the application and the willingness of a district judge to hear it on that day.[115]As to the cross-appeal, Mr Stenhouse repeated the submission he made to the Judge that the order for costs should reflect the fact that Mr Nunn was substantially successful on the strike out application – indeed, arguably more so than the Prices – and had been put to great expense in opposing the application and accordingly he should have been awarded 80 per cent. of his costs to be set off against the costs awarded to the Prices. The short answer to the cross-appeal on this point is that it was entirely a matter for the Judge, in the exercise of his wide discretion, to decide how properly to reflect in his order the fact that both sides had been partly successful and partly unsuccessful. He could have made an issues based order for costs, reflecting, on the one hand, the success of Mr Nunn on the public right of way allegations in the Defence and Counterclaim and, on the other hand, the success of the Prices on the private right of way allegations in the Defence and Counterclaim. Alternatively, he could, and in the event did, take a view of the overall success of the application and apply a discount to the Prices’ costs to take account of Mr Nunn’s partial success in opposing the application. It impossible to say that such a course was an impermissible exercise of judicial discretion, and it is equally impossible to say that the Judge was plainly wrong in applying a discount of two-thirds.

Conclusion

[116]For those reasons, I would dismiss both the appeal and the cross-appeal. Lord Justice Kitchin[117]I agree. Lord Justice Underhill[118]I also agree.

Cited in 10 later judgments

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