Price & Anor v Nunn [2012] EWHC 1251 (Ch)

Case No 2BS30135[2012] EWHC 1251 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Bristol Civil Justice Centre, Redcliff Street, BristolDate 11/05/2012
Before
MR JUSTICE MORGAN
Between
CHRISTOPHER CHARLES PRICEClaimantsCHARLES FREDERICK PRICEClaimantJONATHAN JAMES NUNNDefendant
Mr Guy Adams (instructed by Phoenix Legal Group) for ClaimantsMr John Stenhouse (instructed on Direct Public Access) for DefendantHearing Hearing dates: 20 th, 21 st and 22 nd March 2012
Judgment

Introduction

[1]This judgment concerns an application to strike out parts of a Defence and Counterclaim. The relevant parts of this pleading assert the existence of a private right of way, or a public right of way, in either case with or without vehicles, over certain land owned by the Claimants. The Claimants say that there is a cause of action estoppel, or an issue estoppel, arising from two sets of earlier proceedings, binding on the Defendant, which prevents the Defendant putting forward these contentions. Alternatively, the Claimants say that the relevant averments in the Defence and Counterclaim involve an abuse of the process of the court.[2]The earlier proceedings ran their course between 1976 and 1983. The Defendant was not a party to those proceedings and he had no involvement with the matters in dispute in that period. The Defendant is now involved because, in 1991, he bought two properties which are in the vicinity of the Claimants’ land and which were owned, in the period covered by the earlier proceedings, by Mr and Mrs Close (or in the case of one of those properties, Mr Close alone) and Mr and Mrs Close were parties to the earlier proceedings.[3]The application raises some points, as to issue estoppel, which are far from straightforward, and in particular as to whether the Defendant is a “privy” of Mr and/or Mrs Close. A distinction may need to be drawn between the Defendant’s claim to a private right of way appurtenant to the Defendant’s property and his claim that there is a public right of way. Further, if there is no issue estoppel which prevents the Defendant defending a claim against him alleging trespass by him on the Claimants’ land but there is, or might be, an issue estoppel preventing the Defendant counterclaiming relief against the Claimants, whether by way of damages or an injunction, by reason of the Claimants’ obstruction of the claimed public right of way, does that exceptional state of affairs mean that there are special circumstances which prevent the Claimants relying upon an issue estoppel in relation to the Defendant’s counterclaim?[4]Mr Adams appeared on behalf of the Claimants and Mr Stenhouse appeared on behalf of the Defendant.[5]The property in question is in the village of Slad in Gloucestershire. Slad is the village to which the writer, Laurie Lee, moved when he was three years old. The village and his early life in it is the subject of his well known work, Cider with Rosie. Laurie Lee lived in Slad until the 1930s. In 1935, as the name of his second book records, he walked out one midsummer morning and went to Spain where he fought in the Spanish Civil War on the Republican side. As it happens, between 1959 and 1960, he lived in Woodside Bungalow, which is said by the Defendant in these proceedings to be the dominant tenement of a private right of way over the Claimants’ land. The bundle of documents before the court contains two documents in Laurie Lee’s own hand.

The properties in question

[6]This case involves paths or tracks. The different parts of the paths or tracks have been described as follows: the first part has been called “the lower track”, the second has been called “the Pitch” and the third has been called “the upper track”.[7]Title to the lower track is vested in the Claimants, to whom I will refer as “the Prices”. 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 a paddock now owned by the Defendant, Mr Nunn. He has the benefit of an express grant of a right of way (granted to a predecessor in title of Mr Nunn) 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.[8]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 claims to have title to the Pitch. The Definitive Map maintained under the Wildlife and Countryside Act 1981 shows a footpath along the Pitch.[9]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 earlier proceedings, to which I will later refer, 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.[10]The Prices are the registered proprietors of Painswick Slad Farm under Title Number GR281942. That land was conveyed to Charles Frederick Price by a conveyance dated 26th July 1967 and he transferred the land to himself and his wife in 1970. Later, on 13th May 2005, that land was transferred to Charles Frederick Price and his son, Christopher Charles Price (together described above as “the Prices”). 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.[11]Mr Nunn is the registered proprietor of Woodside Bungalow, Slad 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 had been built as a gardener’s residence in a corner of the large garden of Woodside House, which fronts onto the B4070. 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. Title to Woodside Bungalow was conveyed to Mr Close in 1967 and Mr Close transferred that title to Mr Nunn in 1991.[12]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 3rd 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 26th March 1923. The grant was of a right of way over the lower track with or without vehicles at all times and for all purposes. Mr Harry Teakle conveyed the paddock together with the appurtenant right of way to Mr and Mrs Close on 12th November 1975 and they conveyed that property to Mr Nunn in 1991.

The present proceedings

[13]In around April 2011, the Prices brought the present proceedings against Mr Nunn seeking various heads of relief in relation to the upper track. The Particulars of Claim referred to the fact that Mr Nunn had registered a caution against first registration in relation to the upper track. In the statutory declaration in support of the application to register a caution, Mr Nunn had stated that he was entitled to a right of way with or without vehicles over the upper track. In consequence, the Prices claimed a declaration that they were the freehold owners of the upper track, or at least one half in width of the upper track; they further claimed a declaration that Mr Nunn had “no right to pass” over the upper track with vehicles; and they claimed an injunction to restrain Mr Nunn from trespassing on the upper track by using vehicles upon it. The Prices accepted that there was a public right of way on foot along the Pitch and the upper track.[14]Mr Nunn has served a detailed Defence and Counterclaim. He denied that the Prices have title to any part of the upper track. He asserted 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. It is implicit in the pleading that this private right of way is for the benefit of Woodside Bungalow and possibly also the paddock. He also asserted 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. In addition to putting those matters forward by way of a defence to the relief sought by the Prices, Mr Nunn also counterclaimed for declaratory relief in accordance with his pleaded contentions. He also claimed an injunction to restrain the Prices from interfering with the claimed private and public rights of way. Finally, Mr Nunn claimed damages and interest. The Prices have served a detailed Reply and Defence to Counterclaim.[15]In the course of the pleadings in this action, both parties have referred to previous litigation between the Prices and Mr Nunn’s predecessors in title, Mr and Mrs Close. The Prices rely upon the outcome of that previous litigation and contend that Mr Nunn’s case that there is a public or private right of way over the lower track (with the exception of the express grant of a general right of way for the benefit of the paddock) is inconsistent with earlier findings of the court. The Prices say that Mr Nunn is subject to an estoppel per rem judicatem which prevents him putting forward such a case in relation to the lower track and/or that it is an abuse of the process of the court for Mr Nunn to put forward that case in relation to the lower track. The Prices’ application to strike out parts of Mr Nunn’s pleading is put forward on that basis. In the course of his Defence and Counterclaim, Mr Nunn has pleaded that the findings in the County Court and in the Court of Appeal in the previous litigation were wrong in law and on the facts.[16]Mr Nunn has also asserted in his Defence and Counterclaim that the contention now put forward by the Prices that they own all or one half in width of the upper track is contrary to the case they put forward in the previous litigation and that the Prices are estopped from so asserting and/or that the Prices’ assertion is an abuse of the process of the court. Mr Nunn has not, however, applied to the court to strike out the Prices’ claim to ownership in relation to the upper track nor has he asked the court to make any decision on whether there is a relevant estoppel or an abuse of process.[17]At the outset of the hearing of the Prices’ application to strike out parts of the Defence and Counterclaim, it was established that the application relates only to Mr Nunn’s allegation as to the lower track. Thus, it is accepted that the issue as to whether the Prices are the owners of all or part of the upper track and the issue whether there is a private or public right of way on foot and/or with horses and/or with vehicles over the upper track and the Pitch all remain to be determined on their merits in these proceedings. However, the Prices say that it is important to establish at this stage whether Mr Nunn is to be allowed to advance his case as to the existence of a private or public right of way over the lower track (apart from the express right of way granted for the benefit of the paddock). The Prices also suggest that if it is established at this stage that Mr Nunn cannot contend for a right over the lower track to gain access (by way of the upper track) to Woodside Bungalow then, for various practical reasons, the claim to rights over the Pitch and the upper track will become less important and such rights might even be of little practical utility if they are not accompanied by rights over the lower track.

The previous proceedings

[18]For the purpose of considering the Prices’ contentions as to estoppel and abuse of process it is necessary to describe the course of the previous litigation between the Prices and Mr and Mrs Close. There were two distinct phases to that previous litigation. The first phase began with proceedings being brought in the county court in 1976 by Mr and Mrs Close against Charles Frederick Price, his wife Pamela May Price and their son Christopher Price (then a minor). Thus the defendants to those proceedings included the persons who are now the Claimants in the present proceedings. Christopher Price was not then the owner of any relevant land and was not sued as an owner of any land but because he was involved in certain events which were the subject of that litigation. However, there is no dispute that, as successors in title of the then owner Charles Frederick Price and Pamela May Price, the present Claimants are privies to the then owner of the relevant land. I will use the phrase “the Prices” to describe the defendants in this earlier litigation, although those defendants also included Pamela May Price. This first phase continued until the order of the Court of Appeal in those proceedings on 23rd October 1979. I will refer to this first phase as “the 1976 proceedings”. The second phase of previous litigation began in 1980 and ended with the judgment on 16th May 1983 of the circuit judge (on appeal from the decision of the district judge). I will refer to this second phase as “the 1980 proceedings”.

The 1976 proceedings: the pleadings

[19]Mr and Mrs Close served their Particulars of Claim in the 1976 proceedings on or about 17th June 1976. They relied on the express grant of the right of way over the lower track, as granted in the conveyance of the paddock to Mr Harry Teakle on 3rd October 1960, which paddock had been conveyed to Mr and Mrs Close on 12th November 1975. Although a plan attached to the Particulars of Claim marked in red both the lower track and most of the upper track, the express grant was confined to the lower track. Mr and Mrs Close claimed a declaration that they had a right of way over the land marked in red on the plan but the basis of that claim 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]Although the documents which I have seen do not provide full details of what happened, it appears that Mr and Mrs Close applied for an interim injunction to prevent interference with the claimed right of way over the lower track and, on 13th July 1976 such an injunction was granted by HH Judge Elder Jones. Mr Close swore an affidavit in support of the application of interim relief. In paragraph 5 of that affidavit he stated that several people had confirmed to him that there was a public right of way, with or without vehicles, over the lower track. In paragraph 6 of the affidavit, he referred to “extensive researches” having been carried out by himself and his solicitors to establish the existence of a vehicular public right of way over the lower track. He said that in 1975 he was on the point of issuing proceedings claiming such a right of way when he had the opportunity of purchasing the paddock which carried with it the benefit of an express right of way over the lower track. As indicated above, the Particulars of Claim in the 1976 proceedings relied only on the express grant of a right of way in the conveyance of the paddock.[21]In the 1976 proceedings, the Prices served a Defence and Counterclaim. They 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.[22]In the 1976 proceedings, Mr and Mrs Close served a Reply and Defence to Counterclaim which they later amended and re-amended. They 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 asserted that they had been granted a licence by the predecessors in title of the Prices and so 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”. The pleadings served by Mr and Mrs Close were far from clear at various points as to precisely what length of track they were referring to (was it confined to the lower track or did it extend to the upper track?) and what land had the benefit of the claimed right (was it the paddock or did it include Woodside Bungalow?). However, that lack of clarity does not create a difficulty at the present time for three reasons. The first is that when the 1976 proceedings went to trial, it seemed reasonably clear that the right was asserted over the lower track only, not least because the case was fought on the basis that the Prices did not own the upper track. Secondly, it was reasonably clear that 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. Thirdly, in the application before me, the Prices do not contend that there is any issue estoppel or abuse of process in relation to Mr Nunn’s claims that there are private and public rights of way over the upper track.[23]On 6th January 1977, Mr and Mrs Close served interrogatories on the Prices and answers were provided on 1st July 1977. Amongst other things, the interrogatories concerned alleged use of the lower track by vehicles for the purpose of gaining access to Woodside Bungalow.

The 1976 proceedings: the trial

[24]The claim in the 1976 proceedings was tried by Mr Cridlan, sitting as a Deputy Judge in the Stroud County Court. Both sides were represented by counsel. The hearing lasted 7 days, with 5 days being taken up by evidence followed by 2 days of submissions. On 22nd May 1978, the Deputy Judge gave a lengthy judgment which, when transcribed, extended to some 50 pages. It is not necessary to refer to everything which was in dispute nor to everything that was determined. I will however attempt to summarise those parts of the judgment which are material for present purposes.[25]The judge referred to the express grant of a right of way over the lower track as contained in the conveyance of the paddock on 3rd October 1960. He also referred to matters of fact which related to the ways (apart from reliance on that express grant) in which Mr and Mrs Close put their case that they had a right to pass and repass over the lower track for the purpose of gaining access to Woodside Bungalow by means of the lower track and then the upper track.[26]At pages 10-11 of the transcript of the judge’s judgment, there is a reference to there being no known owner of the upper track. At pages 18-19 of the transcript, when the judge was referring to correspondence between the parties before the commencement of the 1976 proceedings, he referred to contentions put forward by Mr and Mrs Close that there had been user of “the track” by persons generally for a substantial number of years. At page 19 of the transcript, the 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 user of the track. The response from the Prices’ solicitors challenged the Closes to start proceedings to establish such a right of way, presumably based upon the alleged history of long use of the track. The judge commented:
“that challenge was not taken up”
.

The 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.”
[27]The 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 judge added: “that is what this case is all about”.[28]At page 34 of the transcript, as I read his remarks, the 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, 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 3rd October 1960 granted a right of way by referring to the terms used in the 1923 conveyance. The 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.”
[29]At page 36 of the transcript,

the 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.”
[30]The judge then considered a number of authorities. One of the points he 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 judge considered Bracewell v Appleby [1975] Ch 408, where that principle was applied. The 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 Harry Teakle. They relied on the very well known cases of Ives Investments Ltd v High [1967] 2 QB 379 and Crabb v Arun D.C. [1976] Ch 179, which gives some indication as to how the claim in equity was put. The 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 judge referred to two claims which were identified 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. The judge’s reasoning in these two respects was obviously that because there was an express right of way to get to the paddock, there was no different right of way granted in the conveyance of the paddock, whether under section 62 or by implication.[32]In the result, the 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 judge then considered the remedies which were sought by the parties. He distinguished between legal and equitable relief. He took a dim view of the behaviour of both Mr and Mrs Close on the one hand and the Prices on the other. He was prepared to award them relief to which they were entitled at law but not relief in equity. Amongst other things, the Prices asked for damages for trespass by Mr and Mrs Close on the lower track. The 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. This declaration was probably intended to amount to a declaration that Mr and Mrs Close did not have a right of way over the lower track for any other purpose. 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 judge in his judgment. Finally, there was no order as to costs, save for legal aid taxation.[35]The Order made following the trial of the 1976 proceedings is in an appropriate form for a final determination of the question whether Mr and Mrs Close had a right of way over the lower track. There is no suggestion in the order that the judge was trying what were in effect preliminary issues only, leaving for trial at another time a possible issue as to whether Mr and Mrs Close had a right of way over the lower track acquired by prescription. This particularly appears from the judge’s award of damages for Mr and Mrs Close’ trespass on the lower track. In order to make that award, the judge had to hold that the presence of Mr and Mrs Close on the lower track for the purpose of gaining access to Woodside Bungalow, rather than for the purpose of gaining access to the paddock, was a trespass on the lower track. Such an award is incompatible with the possibility that there remained to be decided a question as to whether Mr and Mrs Close had a right of way over the lower track, acquired by prescription, which entitled them to use the lower track to gain access to Woodside Bungalow.

The 1976 proceedings: the appeal

[36]On 30th June 1978, Mr and Mrs Close served notice of appeal against the order of 22nd May 1978. 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 judge ought to have held that the Prices were estopped from denying the existence of the claimed right of way by reason of acquiescence.[37]On 2nd August 1978, 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.[38]By notice dated 17th 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 trail of those proceedings it was made clear to the 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.[39]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 21st 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 23rd December 1970, the solicitors for the Prices replied rejecting this claim and inviting Mr and Mrs Close to take proceedings.[40]Mr and Mrs Close’s application for a postponement of the appeal was heard by the Court of Appeal on 14th May 1979 and was dismissed. The parties were not able to provide me with any note of what was said by the Court of Appeal. The order drawn up following the hearing does not refer to the reasons for the court’s decision; the order records that the hearing took some 19 minutes.[41]The appeal itself was heard in the Court of Appeal on 17th, 18th, 22nd and 23rd October 1979. The court consisted of Megaw, Shaw and Waller LJJ. Judgment was given on 23rd October 1979. The leading judgment was given by Megaw LJ. He described the layout of the Pitch, the upper track and the lower track. 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 it steepness. He referred to the right of way enjoyed by Mr and Mrs Close pursuant to their ownership of the Paddock and he described the judge’s finding that that right of way did not permit the lower track to be used for the purpose of getting to the public right of way in order to proceed along it to Woodside Bungalow. He recorded that there was no appeal against the judge’s findings so far as it was based on the construction of the express grant of a right of way contained in the conveyance to Mr Harry Teakle. Megaw LJ then 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.”
[42]Megaw LJ then described the further issue in the appeal as to whether the case was one in which the court should award the Prices damages in lieu of an injunction in relation to future use of the lower track by Mr and Mrs Close to access Woodside Bungalow and so that the Prices would then not be able to complain about that future use of the lower track. Finally, on the appeal by Mr and Mrs Close, Megaw LJ described that they wished to appeal against the award of damages on the basis that the judge’s findings of fact that Mr and Mrs Close were responsible for certain wrongdoing were not warranted by the evidence.[43]Megaw LJ then referred to the Prices’ cross-appeal by which the Prices sought injunctive relief and in particular an injunction restraining Mr and Mrs Close from using the lower track save for the purpose of gaining access to the paddock.[44]Megaw LJ then examined in detail the case put forward 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. He held that that contention failed. He then rejected the second ground of appeal holding that it was not appropriate to award damages in lieu of an injunction in relation to future trespasses by Mr and Mrs Close as a result of their using the lower track to gain access to Woodside Bungalow. He also rejected the third ground of appeal as to the evidence on which the judge relied to award damages against Mr and Mrs Close.[45]Lastly, Megaw LJ dealt with the cross-appeal by which the Prices sought an injunction to restrain Mr and Mrs Close from using the lower track for any purpose other than to gain access to the paddock. He held that such an injunction should be granted and that the previous conduct of the Prices was not sufficiently bad as to lead the court to refuse such an injunction. He also thought it appropriate that there should be injunctions against the Prices to prevent them interfering with the right which Mr and Mrs Close did have to use the lower track to gain access to the paddock.[46]Shaw LJ agreed with the judgment of Megaw LJ. Waller LJ gave a short concurring judgment. He gave his reasons for concluding that the case was not an appropriate one in which to award damages in lieu of an injunction in relation to future trespasses as a result of Mr and Mrs Close using the lower track to gain access to Woodside Bungalow.[47]The order made by the Court of Appeal on 23rd October 1979 gave effect to the judgments and 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”[48]This injunction against Mr and Mrs Close by the Court of Appeal was incompatible with the possibility that there remained to be decided a question as to whether Mr and Mrs Close had a right of way over the lower track, acquired by prescription, which entitled them to use the lower track to gain access to Woodside Bungalow.

The 1980 proceedings

[49]On or about 24th June 1980, Mr Close brought the 1980 proceedings, against the Prices. The Particulars of Claim in those proceedings 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. On 3rd June 1982, the Prices applied to strike out the 1980 proceedings on the ground that they were an abuse of the process of the court.[50]The application to strike out the 1980 proceedings came before Mr Registrar Lawrie. The hearing extended to two days and he gave a reserved judgment on the application on 31st January 1983 and approved a transcript of his judgment on 25th March 1983. He stated that the application had been made on the ground that the 1980 proceedings were an abuse of the process of the court and that an alternative argument as to res judicata would only be dealt with at a later trial, if there were ever to be a trial. He described the course of the 1976 proceedings. He referred to the passages (which I have quoted above) in the judgment of Deputy Judge Cridlan and in the Court of Appeal which referred to the fact that Mr and Mrs Close were not putting forward in the 1976 proceedings a claim to a right of way acquired by prescription. He recorded that the Prices had not agreed to Mr and Mrs Close proceeding in a manner which would allow them to bring a second action claiming a right of way by prescription. The Registrar then summarised the submissions made in support of, and in opposition to, the application to strike out. When summarising the submissions made to him on behalf of Mr and Mrs 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”. He had been told that before the 1976 proceedings, there had been research for some time about a public right of way but that matter had not been resolved when the 1976 proceedings were started. It was submitted to him that the 1976 proceedings were initially confined to a point as to the true construction of the express right of way in relation to the paddock in order to shorten matters. Counsel for Mr and Mrs Close appeared to accept that the Prices had never agreed to proceeding in two stages, leaving the question to prescription to be decided later if the need arose. The Registrar then 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 then 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. They had made a conscious decision in the 1976 proceedings not to make such a claim. Such a claim could and should have been brought in the 1976 proceedings. The 1980 proceedings were oppressive to the Prices and it was desirable that the litigation should now cease and there were insufficient grounds to allow it to continue. He struck out the 1980 proceedings as an abuse of the process of the court.[51]Mr Close appealed the Registrar’s order and the appeal came before Judge Braithwaite. He gave judgment, dismissing the appeal, on 16th May 1983. In his judgment, he referred to the history of the matter and to the two claims made in the 1980 proceedings. The first claim was to a right of way by prescription and the second claim was founded on section 62 of the Law of Property Act 1925 but in relation to a conveyance other than the conveyance which expressly granted a right of way for the benefit of the paddock. The judge noted that the claim put forward by Mr Close was in conflict with the injunction ordered by the Court of Appeal. The judge then considered whether the claim to a right of way over the lower track to access Woodside Bungalow was a claim to the same right as was claimed in the 1976 proceedings and whether the Registrar was right to strike out the 1980 proceedings. 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 referred to authority which included, but was not confined to, the Yat Tung case. He said that the 1980 claim for interference with a right of way could have been raised in the 1976 proceedings and so it was an abuse. He thought that the 1980 proceedings should be struck out as an attempt to have a second bite at the same cherry as before.

Mr Nunn buys Woodside Bungalow and the paddock

[52]In 1991, Mr Nunn bought Woodside Bungalow from Mr Close and the paddock from Mr and Mrs Close. It is apparent from the answers given to enquiries before contract that Mr Nunn was made aware of the earlier proceedings and of the injunction granted by the Court of Appeal. On 27th September 1991, Mr and Mrs Close transferred the paddock to Mr Nunn. The transfer 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 only to observe and perform the provisions contained in the decision of the Court of Appeal of 23rd 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 23rd October 1991, Mr Nunn was duly registered as proprietor of both Woodside Bungalow and the paddock.

The present application

[53]In support of their application to strike out Mr Nunn’s claims in relation to the lower track, the Prices say that the question as to whether such rights exist is res judicata and, further, that it is an abuse of the process of the court for Mr Nunn to assert rights of way over the lower track. Mr Adams’ skeleton argument referred to the principles as to cause of action estoppel and as to the type of abuse of process usually identified by reference to Henderson v Henderson (1843) 3 Hare 100. Mr Adams submitted that Mr Nunn, as a successor in title to Mr and Mrs Close, was their privy for the purposes of these principles and so that Mr Nunn’s position was the same as that of Mr and Mrs Close in all respects. Mr Adams drew no distinction between Mr Nunn’s assertion of a private right of way for the benefit of Woodside Bungalow and the assertion of a public right of way.[54]Mr Nunn contends that there is no principle of law whether by way of cause of action estoppel or issue estoppel or abuse of process which prevents him putting forward the contentions set out in his Defence and Counterclaim. Mr Stenhouse, on his behalf, submits that none of the factual and legal issues now raised by Mr Nunn have ever been tried by any court and so there is no judgment on any of those issues. In particular, the rights of way asserted by Mr Nunn are different rights of way from those asserted by Mr and Mrs Close. Conversely, Mr Nunn does not challenge the findings in the earlier litigation as to the extent of the easement expressly granted in the conveyance of the paddock. The application to strike out is therefore misconceived. Further, if the case would otherwise be one of issue estoppel, there are special circumstances which prevent the operation of the alleged issue estoppel. As to the decision made in the 1980 proceedings to strike out the 1980 proceedings as an abuse of process, the principles applied then were the principles identified in Yat Tung and it is clear from more recent authority that those principles were too strictly expressed in that decision. The judgments given in the 1980 proceedings would not be given today if the matter arose today for the first time. In his skeleton argument, Mr Stenhouse did not make any submissions as to whether Mr Nunn was a privy of Mr and Mrs Close and did not distinguish between Mr Nunn’s assertion of a private right of way for the benefit of Woodside Bungalow and the assertion of a public right of way.[55]At the beginning of the hearing, I raised with Mr Adams the possibility that there might be a difference between Mr Nunn’s assertion of a private right of way for the benefit of Woodside Bungalow and his assertion of a public right of way. As regards the former, Mr Nunn did indeed appear to be a privy of Mr Close as the former owner of Woodside Bungalow which was said to be the dominant tenement in question but as regards the claim to a public right of way, I questioned whether it could be said that Mr Nunn, as a member of the public, could be said to be a privy of Mr Close, another member of the public. Because Mr Stenhouse had not taken this point, Mr Adams did not have prior notice of it and at a later stage in his argument he addressed me on why Mr Nunn should be regarded as the privy of Mr and Mrs Close in relation to the claim to a public right of way. In brief summary, his argument was:(1) that Mr Nunn could only assert the existence of a public right of way over the lower track in these proceedings if he had a special interest in so asserting;(2) that Mr Nunn did have a special interest in so asserting because he was the owner of Woodside Bungalow;(3) because his special interest was derived from his ownership of Woodside Bungalow, as the successor in title of Mr Close in relation to Woodside Bungalow, he was a privy of Mr Close in relation to this assertion;(4) if Mr Close had remained the owner of Woodside Bungalow, he would have been estopped from asserting a public right of way over the lower track.[56]Mr Adams cited a number of authorities in support of his submissions and I will deal with the principal authorities later in this judgment. Once the point as to whether Mr Nunn was a privy of Mr and Mrs Close in relation to the claim to a public right of way was identified, Mr Stenhouse adopted the point and submitted that there could be no estoppel or abuse of process in relation to Mr Nunn asserting a public right of way over the lower track. Mr Stenhouse drew my attention to some of the earlier authorities referred to in the authorities relied upon by Mr Adams but he did not advance any analysis of his own in relation to the question whether Mr Nunn was a privy to Mr and Mrs Close in relation to a claim to a public right of way over the lower track.

Res judicata

[57]The speech of Lord Keith in Arnold v National Westminster Bank plc [1991] 2 AC 93 summarised the law as to cause of action estoppel and issue estoppel. He described cause of action estoppel at 104D – 105D. Cause of action estoppel 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. The discovery of new factual matter which could not have been found by reasonable diligence for use in the earlier proceedings does not permit the latter to be re-opened. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action: see Henderson v Henderson (1843) 3 Hare 100 at 114-115 per Wigram V-C.[58]Lord Keith described issue estoppel at 105E – 109F. Issue estoppel 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, involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue. Issue estoppel has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier. There may be special circumstances where the issue estoppel does not operate. In particular, there is an exception to issue estoppel where there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. Relevant material is not confined to matters of fact but may include a change in the law.[59]It appeared to me from his skeleton argument that the type of estoppel relied upon by Mr Adams was cause of action estoppel rather than issue estoppel. However, in my view it is more difficult to analyse the case as one of cause of action estoppel rather than issue estoppel. I will begin the analysis by considering the claim by the Prices against Mr and Mrs Close for trespass on the lower track. The cause of action in trespass related to the facts up to the time that the cause of action was asserted. Later acts of trespass would give rise to a new cause of action. It is true that the Prices claimed, and obtained, an injunction against future trespass by Mr and Mrs Close on the lower track. To obtain that injunction the Prices had to assert that there was a sufficient risk of future trespass which justified the grant of an injunction. If, later, Mr and Mrs Close (in breach of the injunction), or Mr Nunn (who was not directly bound by the injunction), committed further acts of trespass on the lower track then, in my view, those further acts of trespass would give rise to a further cause of action. As regards the claim by Mr and Mrs Close to a right of way or some similar equitable right over the lower track, it is open to argument whether the causes of action they relied upon were restricted to the particular ways in which they asserted they had a right to use the lower track, although I recognise it might be said that there was an extended cause of action estoppel based on Henderson v Henderson. The particular ways in which they asserted they had a right to use the track did not include a right of way, acquired by prescription, to Woodside Bungalow nor a public right of way over the lower track.[60]In this case, I do not think that I have to decide finally whether Mr and Mrs Close were bound by a cause of action estoppel. In my judgment, it is clear that they were bound by an issue estoppel.[61]The issue estoppel emerges most clearly from the outcome of the claim in trespass against Mr and Mrs Close. The trial judge awarded damages for trespass by Mr and Mrs Close on the lower track. The Court of Appeal granted an injunction against future trespass by Mr and Mrs Close on the lower track. Those orders were made on the basis that the only right which Mr and Mrs Close had to use the track was the express right of way for the benefit of the paddock. 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. The case therefore falls within the principles of issue estoppel as explained in Arnold. I incline to the view that there is a clear case of issue estoppel even before one goes on to consider the principle of issue estoppel as extended by the principle in Henderson v Henderson. The award of damages and the grant of the injunction determined the issue as to whether Mr and Mrs Close had a right to use the lower track. The orders made are on the basis that Mr and Mrs Close had no right to use the lower track (apart from the express right of way to the paddock). Thus the issue of whether they did or did not have any relevant right was determined. A claim that they had a private or a public right of way is contrary to the issue which has been determined. If that is wrong, then in my judgment there is no doubt that the case is within the principles of issue estoppel as extended by Henderson v Henderson. The claim to a private or a public right of way would (if established) have provided a defence to the claim in trespass. These claims could have been put forward in the 1976 proceedings. Further, in my view, given that Mr and Mrs Close were facing a claim in trespass, their claims should have been put forward. It does not make sense to hold back a defence and to be made the subject of a permanent injunction against trespass and then to assert in fresh proceedings that one had a defence all along. Further, a claim to a right of way acquired by prescription involved many of the same factual matters as were raised by Mr and Mrs Close in the claims they did put forward based on acquiescence or estoppel. The claim to a public right of way may have involved wider questions and evidence over a longer period of time but, nonetheless, in my judgment, that claim had to be put forward (if it was ever to be pursued) given that the Prices were claiming a permanent injunction against trespass. Further, there would have been no procedural difficulty in the way of putting forward these additional claims at the same time as the other defences to the trespass claim. If Mr and Mrs Close had been advised that it was suitable to take one or two issues as preliminary issues, for example, an issue as to the effect of the express grant in the conveyance of the paddock, they could have asked the court to agree to determine preliminary issues. If they had lost on the preliminary issues, then the court could not have made an award of damages against them, nor granted an injunction, until the further defences to the trespass claim were determined.[62]Mr Stenhouse contended that there was no issue estoppel. He pointed out that Mr and Mrs Close had never asserted a right of way acquired by prescription for the benefit of Woodside Bungalow nor had they asserted a public right of way. He pointed out that the courts in the 1976 proceedings had not considered those possibilities. He submitted that if the court in the current proceedings were to consider these new claims, it would be the first time that they had been considered. These submissions miss the real point. In my judgment, the claims which are now put forward as to a private or a public right of way are contrary to the earlier determination of the court that Mr and Mrs Close did not have a right to use the lower track (apart from the right to gain access to the paddock) and, further, are claims which could and should have been put forward in the 1976 proceedings. In my judgment, there was a clear issue estoppel binding Mr and Mrs Close, at least in relation to any claim to a private right of way over the lower track. I do not need to consider whether the issue estoppel which was binding on them extended to any future claim by them to a public right of way or whether it might be said that such a claim would be put forward in a different capacity from the capacity in which they were parties to the earlier proceedings. It will be seen that the scope of issue estoppel, in relation to a claim to a public right of way, arises in relation to Mr Nunn’s position and so I will consider his position in detail, rather than considering what the position of Mr and Mrs Close might have been in relation to a public right of way.

Privity: general

[63]The next question which arises therefore is whether Mr Nunn is bound by the issue estoppel which would have bound Mr and Mrs Close. Mr Adams referred me to L E Walwin Ltd v West Sussex CC [1975] 3 All ER 604. In that case, a landowner brought proceedings claiming a declaration that it was entitled to maintain a barrier across a public right of way. There had been earlier proceedings, involving the landowner’s predecessor in title, before quarter sessions, where it was held that the way had been dedicated as a highway. It was not suggested in the earlier proceedings that the dedication was qualified so as to allow the landowner to maintain a barrier across the way. It was held that the judgment of quarter sessions was a judgment in rem which was inconsistent with the contention now being put forward by the landowner so that he was estopped per rem judicatem from putting forward this contention. As the earlier judgment was held to be in rem, there was no need to show privity between the current landowner and his predecessor in title, although the judge (Plowman V-C) said at page 609c, that the current landowner was a privy of his predecessor in title. There was clearly privity in that case. The landowner’s claim was based on his ownership of the land in question. It was not a case, like the present, where a party is defending a claim or counterclaiming by relying on a public right.[64]In the present case, the earlier judgments were not judgments in rem, but in personam. Accordingly, those judgments do not bind all the world; they only bind the parties and their privies. This rule applies whether one is considering cause of action estoppel or issue estoppel. The question is whether Mr Nunn is a privy of Mr Close and/or Mrs Close.[65]An easement, such as the private right of way claimed in this case, cannot exist in gross. It must be appurtenant to a dominant tenement. In so far as Mr Nunn claims a private right of way for the benefit of Woodside Bungalow as the dominant tenement, then he is a privy of Mr Close, his predecessor in title in relation to that property. The case of a predecessor and a successor in title is a straightforward case of privity: see Halsbury’s Laws, 5th ed., Vol 12, Civil Procedure at para 1196 and Spencer Bower & Handley on Res Judicata, 4th ed. at paras. 9.38 – 9.41. In the present case, Mr Nunn became a successor in title to Mr Close after the judgments in question so it is not necessary to consider the special case where title has passed before judgment.[66]It is next necessary to consider the question of privity in relation to the assertion by Mr Nunn that there is a public right of way over the lower track. This is not an altogether straightforward point. Further, this point was not raised by Mr Stenhouse on behalf of Mr Nunn. When I raised the point, Mr Adams for the Prices was able to put forward a detailed argument supported by a considerable citation of authority. However, Mr Stenhouse did not seek to advance any analysis of the legal position but adopted the point when it had been identified. Accordingly, what follows has had to be my own thoughts on the question, assisted by the arguments put forward by Mr Adams.[67]Unlike a private right of way, a public right of way does exist in gross and can be exercised by any member of the public. A member of the public does not need to show that he owns land served by the public right of way before he can enjoy the right. If a member of the public were to be sued for an injunction and/or damages based on an assertion by the landowner that he is trespassing on land, the existence of a public right of way being exercised by such a member of the public would be a defence to such a claim.[68]I will now consider the circumstances in which Mr Nunn’s assertion of a public right of way could be material in the present dispute. First, if the Prices were to assert that Mr Nunn was trespassing on the lower track when he is using the lower track, otherwise than for the purpose of gaining access to the paddock, then Mr Nunn will wish to assert that he is not a trespasser on the lower track because, as a member of the public, he is entitled to benefit from the claimed public right of way. Secondly, Mr Nunn counterclaims a declaration that there is a public right of way, with or without vehicles over the lower track. Thirdly, Mr Nunn counterclaims an injunction restraining the Prices from interfering with the use of the claimed public right of way over the lower track by any member of the public, including Mr Nunn. Fourthly, Mr Nunn claims damages for nuisance caused by the Prices’ alleged interference with his use of the claimed public right of way.[69]I have referred above to the submission made by Mr Adams as to why Mr Nunn is a privy of Mr Close (in particular) in relation to the claim to a public right of way. It was submitted that Mr Nunn is only permitted to advance a claim to a public right of way over the lower track if he has a special interest in so doing. Mr Adams accepts that Mr Nunn does have such a special interest. The special interest which he identifies is his ownership of Woodside Bungalow. Mr Nunn owns that property as the successor in title of Mr Close and, accordingly, it is said that he is the privy of Mr Close in that respect. The only kind of privity relied on was privity of estate.[70]Mr Adams addressed me in detail on the need for Mr Nunn to show a special interest in order to advance a claim to a public right of way over the lower track. Mr Adams referred to the fact that where a member of the public is not able to show such a special interest, then he may not bring proceedings in his own name to establish the existence of a public right of way. It was necessary for such proceedings to be brought by the Attorney General, on the relation of the member of the public. Mr Adams also referred to the power of the local highway authority under section 130 of the Highways Act 1980 to bring legal proceedings in its own name to assert and protect the rights of the public to the use and enjoyment of a highway. This express statutory power is needed because, it was submitted, the local authority would not otherwise have such a power.[71]It was also pointed out that a member of the public is able to use the procedures under the Wildlife and Countryside Act 1981 to require the relevant authority to keep the definitive map and statement under review and, in particular, to include a highway which has not previously been shown in the definitive map and statement: see section 53 of and schedules 14 and 15 to the 1981 Act, but those procedures have not been used in this case. It seemed to be accepted that it would be open to Mr Nunn, notwithstanding the result of the 1976 and the 1980 proceedings to apply for a modification of the definitive map and statement under the 1981 Act.[72]Mr Adams cited a number of authorities to make good his submission that a member of the public, such as Mr Nunn, is not able to bring ordinary civil proceedings to establish the existence of a public right of way unless he has a special interest which the law will recognise as justifying such proceedings. Mr Adams cited Winterbottom v Lord Derby (1867) LR 2 Exch 316 (no sufficient interest for a claim in public nuisance), W H Chaplin & Co Ltd v Westminster Corporation [1901] 2 Ch 329 (sufficient interest but no public nuisance), Boyce v Paddington Corporation [1903] 1 Ch 109 (at first instance) (sufficient interest but no public nuisance), Stockwell v Southgate Corporation [1936] 2 All ER 1343 (frontagers had sufficient interest to seek a declaration against highway authority that road maintainable at public expense), Medcalf v R Strawbridge Ltd [1937] 2 KB 102 (there is a slightly fuller report at [1937] 2 All ER 393) (frontagers had sufficient interest to sue in public nuisance), London Passenger Transport Board v Moscrop [1942] AC 332 (no sufficient interest to claim a declaration where no private or public right asserted – not a highway case), Hampshire CC v Shonleigh Nominees Ltd [1970] 1 WLR 865 (highway authority did not have locus standi to sue in own name claiming a declaration against a landowner that the land was a highway – the law has since changed) and Shears Court (West Mersea) Management Co Ltd v Essex CC (1986) 85 LGR 479 (landowner could sue for a declaration that his land was not subject to a public right of way but the action was stayed pending the conclusion of proceedings under the Wildlife and Countryside Act 1981).[73]Mr Adams stressed the decisions in Stockwell v Southgate Corporation [1936] 2 All ER 1343 and Medcalf v R Strawbridge Ltd [1937] 2 KB 102. In Stockwell, two frontagers sued the highway authority for a declaration that a road was maintainable at public expense. The highway authority contended that the frontagers did not have locus standi to sue because the matter was one of public right and the frontagers did not have any special interest. It was held that they had a special interest. The frontagers’ properties would be worth less if the road was not maintainable at public expense; if they sold their land, it would be the purchaser who would then be affected: see at 1351-1352. I do not read these findings as involving any consideration as to cause of action estoppel or issue estoppel. The judge held that he ought not to make the declaration which was sought because it was more appropriate for the issue to be determined in proceedings under the Private Street Works Act 1892 where the result would be binding not only on the two frontagers but also all other affected frontagers. By way of contrast, if the court had made a declaration, that would not be binding on the other frontagers. It seems to me to be obviously right that the other frontagers would not be bound because their special interest as the owners of their properties did not make them privies of the two frontagers who had sued.[74]In Medcalf, the frontagers claimed in public nuisance. The defendant committed a nuisance by driving on the road in such a way as to damage the surface of the road. It was held that the frontagers had a special interest which enabled them to sue in their own names without bringing a relator action. The special interest included the fact that they could be liable to contribute to the cost of repairing the road under the Private Street Works Act 1892. Further, the value of the frontagers’ properties would be reduced if the road serving those properties was in a bad condition.[75]As to the need for a special interest to enable a member of the public to bring ordinary civil proceedings to establish the existence of a public right which is in dispute, Mr Stenhouse asked me to consider A. G v Thames Conservators (1862) 1 Hem & M 1, Lyon v Fishmongers’ Company(1876) 1 App Cas 662 and Fritz v Hobson (1880) 14 Ch D 542, 28 XXX 615, which had been discussed in some of the authorities relied on by Mr Adams.[76]The report of Fritz v Hobson in 28 XXX 615 is worthy of mention. Following the report of the judgment, there is a lengthy note extending to some 14 pages discussing a large number of cases, many in the United States, as to what is a sufficient interest to enable a claimant to sue in his own name in relation to an interference with a public right of way. The cases are divided into categories. One category is where the obstruction is immediately in front of the claimant’s premises; this is better seen as an interference with a private right which the claimant has to access the highway. Another category is where the obstruction is not in front of the claimant’s premises but it reduces the value of his premises; in such a case the claimant has a sufficient interest to sue in public nuisance. A third category is where the obstruction does not cause any financial loss but prevents the claimant accessing his premises by using the highway, requiring him to go by a less convenient route. The decisions in this third category are not easy to reconcile.[77]It is apparent from the authorities that the requirement of a special interest on the part of a person claiming relief in relation to a highway is essentially the same (and for the same reasons) as the requirement that a special interest must be shown when a litigant wishes to contend that he may sue in relation to a public nuisance. An interference with a public right of way is, of course, one example of a public nuisance.[78]The question of the requisite locus standi to sue in public nuisance where the particular nuisance is an interference with a public right of way was recently considered in Moto Hospitality Ltd v Transport Secretary [2008] 1 WLR 2822. That concerned a claim to compensation for injurious affection. As explained in the judgment of the Court of Appeal at [19], that required the court to consider whether the damage in question would have been wrongful in the absence of the relevant statutory powers. In practice, that required the claimant to show that he would have had a claim for public or private nuisance. The question of a possible public nuisance was considered at [59]-[74]. The cases on the common law requirement of a special interest in order to be able to sue for interference with a public right of way were referred to at [65]. It was said that it was:
“not easy to find a clear or consistent dividing line in the cases between particular damage, which founds a cause of action, and damage shared with the public in general, which does not”
. At [66], the court referred to two earlier cases which stated that the damage suffered by the claimant must be “particular, direct and substantial” or that the injury must be “of a substantial character, not fleeting or evanescent”.[79]Many of the authorities on the question of what is required to give a person sufficient locus standi to bring a claim for damages, or for an injunction, for public nuisance were considered in detail by David Steel J in Colour Quest Ltd v Total Downstream UK plc [2009] 2 Lloyds’ Rep 1. His judgment deals with the subject of obstruction to public highways at [435]–[459] and with the topic of proprietary rights in the vicinity of the public nuisance at [460]–[464]. The first passage focuses on the possibility of a claim for damages for loss of trade, as a result of the defendant’s interference with access by customers to the claimant’s premises. In the second passage, the judge cited Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 as authority for the proposition that where a public right of navigation (or therefore a right of way) is interfered with, a claim in public nuisance may be brought by someone who suffers special damage even where he did not have a proprietary interest in any nearby premises. The judge then concluded at [464] that there was no requirement for proximity in proprietary terms, although such considerations might have a bearing on whether the claimant’s damage is special in the sense of being “particular, direct and substantial”. This decision at first instance is not affected by the decision of the Court of Appeal in the same case: see Shell UK Ltd v Total UK Ltd [2010] 3 All ER 793.

Privity: the specific issues

[80]Before I finally consider whether Mr Nunn is a privy of Mr Close, in relation to the issues as to a public right of way, I will attempt to describe what Mr Nunn needs to show in relation to the various contentions he makes based on his assertion that there is a public right of way over the lower track.[81]The first thing that Mr Nunn wants to say is that he is not liable to the Prices in trespass when he uses the lower track because he is, as a member of the public, entitled to take advantage of the claimed public right of way. This contention is put forward by way of a defence to a claim in trespass. This contention does not involve Mr Nunn asserting that the Prices are committing a public nuisance. In my judgment, in order to put forward a defence to a claim in trespass, Mr Nunn does not have to show a special interest of the kind which he would need to show if he were to maintain a claim for a remedy based on public nuisance.[82]I have considered whether there is a claim in trespass, in relation to the lower track, made by the Prices against Mr Nunn which he needs to defend by relying on his contention that there is a public right of way over the lower track. This consideration was prompted by the fact that the prayer for relief in the Prices’ Particulars of Claim only seeks relief in relation to the upper track. That fact, taken on its own, might be said to suggest that there is no claim that use by Mr Nunn of the lower track is a trespass. However, in my judgment, that is not a fair reading of the issues in this litigation. The reason that the prayer for relief in the Prices’ Particulars of Claim only refers to the upper track is that that pleading avers that Mr Nunn is bound by the result of the 1976 proceedings in relation to the lower track. The Particulars of Claim make it clear that it is the Prices’ case that Woodside Bungalow has no right of way of any kind over the lower track. That pleading refers to the 1976 proceedings in relation to the lower track and avers that Mr Nunn is bound by the result of those proceedings holding that the only right of way over the lower track was a private right of way for the purpose of gaining access to the paddock. Mr Nunn’s Defence that he has a private or a public right of way over the lower track, which goes beyond the express grant for the benefit of the paddock, is denied in the Prices’ Reply. Accordingly, I consider that it is necessary for Mr Nunn to meet the case against him that his use of the lower track, otherwise than for the purpose of gaining access to the paddock, is a trespass.[83]As it is open to Mr Nunn to defend a claim in trespass, it seems to me to be well arguable that he should be able to claim a negative declaration to the effect that he will not be liable in trespass by using the lower track pursuant to what he claims is a public right of way. The general approach to a claim for a negative declaration is discussed in Messier-Dowty Ltd v Sabena SA [2000] 1 WLR 2040 at [34] – [42] per Lord Woolf MR. The modern approach to the grant of declarations is discussed in Rolls-Royce plc v Unite the Union [2010] 1 WLR 318 at [118] – [120] per Aikens LJ. It may be that a court would normally require a claimant, seeking a declaration as to the existence of a public right of way, to show a special interest in that question before considering that he had locus standi to bring such a claim. It may also be the case that, in other circumstances, a court would adopt a similar attitude when considering an application for a negative declaration that use of the lower track by Mr Nunn would not be a trespass by reason of the claimed public right of way. However, in the present case, where the Prices wish to prevent Mr Nunn using the lower track (otherwise than for access to the paddock), it is well arguable that the court would at trial grant a negative declaration to Mr Nunn. Looked at in this way, the legal reason why the court would be prepared to consider granting a negative declaration is not because Mr Nunn is the owner of Woodside Bungalow but because he is someone whom the Prices wish to prevent using the lower track. On this basis, Mr Nunn is not relying upon his ownership of Woodside Bungalow to found his claim to a negative declaration and he is not to be regarded as the privy of Mr Close in relation to such a claim. Accordingly, there is no issue estoppel which prevents Mr Nunn claiming such a negative declaration. Whether the court will grant such a negative declaration at trial will depend upon the court’s exercise of its discretion at that time but the claim should not be struck out by reason of the alleged issue estoppel.[84]In so far as Mr Nunn wishes to claim damages for interference with the claimed public right of way, such a claim will be a claim in public nuisance, for which he must show a special interest. Mr Adams accepts that Mr Nunn does have such a special interest, namely, his ownership of Woodside Bungalow; the fact that Mr Nunn wishes to use the lower track to access Woodside Bungalow is accepted as a special interest. In so far as Woodside Bungalow would be more valuable if there were a vehicular public right of way over the lower track and the upper track, then that fact would, in accordance with the authorities, give Mr Nunn a special interest in claiming that the Prices’ obstruction of the lower track is a public nuisance. A claim based on the diminution in the value of Woodside Bungalow would bring in a consideration of Mr Nunn’s proprietary interest in that property and he holds his interest as successor in title to Mr Close.[85]It could be argued that in order for Mr Nunn to want to access Woodside Bungalow he does not need to have a proprietary interest in that property; a licence to use or occupy that property would suffice. In the event, I do not need to determine whether that argument should prevail. Without finally deciding this point, I will proceed on the basis that there is strong argument that Mr Nunn is a privy of Mr Close in relation to a claim in public nuisance for damages for obstruction of the lower track.[86]In so far as Mr Nunn wishes to claim an injunction against the Prices’ future obstruction of the lower track, that too will be a claim in public nuisance, for which a special interest must be shown. This raises the same considerations as for the damages claim considered above.

Special circumstances: a preliminary point

[87]Mr Stenhouse contended that this case should be considered to be an exception to the principles of issue estoppel because there were special circumstances. The special circumstances put forward were that Mr Nunn wished to rely on material which (he said) would not have been available to Mr and Mrs Close in the course of the 1976 proceedings. Before considering that submission further, I ought to deal with a point about which I have been concerned. When I recounted the course of the 1976 proceedings and, in particular, referred to the remarks of the trial judge and of Megaw LJ in the Court of Appeal, I mentioned what they said about the fact that Mr and Mrs Close had not put forward a claim based on prescription and that the courts were, in effect, saying nothing about such a claim. Mr Stenhouse referred to those passages but, as I understood him, he did not go so far as to claim that there had been an agreement or an understanding between the parties to the 1976 proceedings that the issues in the 1976 proceedings were, in effect, preliminary issues only and that Mr and Mrs Close were free to make a subsequent claim based on prescription if the issues in the 1976 proceedings were determined against them. If the parties had expressly or impliedly agreed that Mr and Mrs Close would be free to make a subsequent claim based on prescription, then the Prices could not now rely upon an issue estoppel against the successor in title of Mr and Mrs Close. Similarly, if the Prices had made a representation or promise, or proceeded on the basis of a common understanding with Mr and Mrs Close, to that effect, then there could be an estoppel preventing the Prices from asserting an issue estoppel. Such a possibility is illustrated by the facts of Johnson v Gore Wood & Co [2002] 2 AC 1 (the possibility of an estoppel was discussed at 33C-G, 38H-41C and 60H-61A).[88]There was very little material before me, apart from the remarks of the trial judge and Megaw LJ, to enable me to consider whether Mr and Mrs Close could have asserted an agreement or an estoppel preventing the Prices from relying on the principles of issue estoppel. However, what I do have are the decisions by the Registrar and the County Court Judge in the 1980 proceedings. Those decisions are incompatible with there being any relevant agreement or estoppel; it will be remembered that the 1980 proceedings in which Mr Close claimed a right of way by prescription (amongst other things) were struck out as an abuse of the process of the court. Mr Stenhouse contends that the decisions in the 1980 proceedings were influenced by the statement of law in Yat Tung which has now been shown to be too strict (see Johnson v Gore Wood & Co at 59 per Lord Millett). That is partly true although the statement of law in Yat Tung was not the only source of the principles applied in the 1980 proceedings. In any event, the findings made in the 1980 proceedings are incompatible with there being an agreement or an estoppel based on the remarks made in the 1976 proceedings which prevented the Prices alleging that the 1976 proceedings gave rise to an issue estoppel.

Special circumstances: new evidence

[89]I can now deal with the submission that there were special circumstances in this case so that, exceptionally, issue estoppel does not prevent the present claim being put forward. As pointed out above, Arnold decided that the concept of special circumstances includes a case where a party has further factual and/or legal material which he could not, even with the exercise of reasonable diligence, have deployed in the earlier proceedings. Mr Stenhouse submitted that the legal test which should be applied in this context was a more relaxed version of the test as to the admission of new evidence on appeal. That submission appears contrary to principle. I would expect that, having regard to the policy underlying issue estoppel, the relevant test for an exception permitting a new action to be brought would be stricter and not more relaxed, than the test which applies on an appeal. In the former case, the first action has been conclusively determined; in the latter case, the action is the subject of a pending appeal. The former ought to be considered to be more final than the latter. In any event, Mr Stenhouse’s submission is contrary to authority. It has been held that the new factual material intended to be relied upon, which could not have been obtained earlier by the exercise of reasonable diligence, must be such that it “entirely changes the aspect of the case”: see Phosphate Sewage Co Ltd v Molleson (1897) 4 App Cas 801 at 814, per Lord Cairns; Hunter v Chief Constable [1982] AC 529 at 545B-F, per Lord Diplock. This is a stricter test than the test which applies on an application to adduce fresh evidence on appeal.[90]The suggested fresh evidence in this case is contained in a very lengthy witness statement by Mr Nunn exhibiting a substantial number of documents. It is clear from the exhibits to this witness statement that Mr Nunn has obtained some at least of the documents which were collected by Mr and Mrs Close in around 1970 when they were carrying out research into the use of the lower track (and indeed the upper track and the Pitch) over the years. The exhibits include some 9 letters, from 7 people, and 4 documents headed “Public Way Evidence Form” from 4 of these 7 people. One of the letters was from Mr Laurie Lee and he also filled in an evidence form. The existence of these documents is consistent with the statements which were made in letters and elsewhere by Mr and Mrs Close in the course of the 1976 and the 1980 proceedings as to the research which they had carried out as to the use of the lower track over the years. Plainly that material is not fresh evidence for the purpose of the present proceedings. Mr Nunn has himself obtained a letter dated 30th November 2011 from a Mr Simon, the son of the former owner of Woodside House. However, the material contained in that letter was available to Mr and Mrs Close also because in 1970 they had been in contact with Mr Simon’s mother who, on 4th May 1970 and 21st September 1970, wrote to Mr and Mrs Close about the relevant history.[91]Mr Nunn says in this witness statement that he has carried out considerable research of his own in particular in the archives at Gloucester and at Kew. He has produced a number of documents which he says are relevant. The Tithe Map of 1839 does not show the existence of the lower track. The documents prepared under the Finance (1909-1910) Act 1910 refer to the existence of a footpath. They do not support the contention that there was a public right of way with vehicles. Further, given that there is an admitted footpath over the Pitch and upper track, those documents do not add anything which suggests a reference to the lower track.[92]Mr Nunn also relies on a document dated 17th March 1866 served pursuant to the Land Registry Act 1862. The 1862 Act was enacted to facilitate the proof of title to land. The owner of the freehold (amongst others) of any land could apply for the registration of his title. Section 7 of the 1862 Act provides for the particulars to be furnished by the owner to the registrar. The owner had to give an exact description of the lands to be registered and a statement of the incumbrances on the land. This appears to be a reference to incumbrances burdening the land rather than the benefit of appurtenant rights. In any case, “incumbrances” was defined by section 27 so as to exclude public and private rights of way, although the registrar had power to enter a notice of the existence of such incumbrances. Section 10 appears to contemplate that an incorporeal hereditament could be registered, although without there being a need for a map or plan. Sections 11 and 12 provided for notice of the application to register to be given. Section 13 provided for cause to be shown against registration. Section 14 dealt with completion of registration.[93]The 1862 Act did not result in much land being registered. The reasons for this were examined by a Royal Commission whose essential conclusions are summarised in Ruoff & Roper, Registered Conveyancing, at paras. 1.004 and 5.009.[94]The document relied upon by Mr Nunn is dated 17th March 1866. It is given by a Mr Hastings, claiming to be the owner of the Vatch Mills Estate. That estate appears to have included the site of Woodside House and its grounds. The document was a notice under sections 11 and 12 of the 1862 Act. The document records that it was to be given to William Capel Esq of the Grove. It is Mr Nunn’s case that the Grove Estate included the land now owned by the Prices. The land which is the subject of the notice does not expressly include any easements. However, the notice refers to the land shown on a plan and the plan shows the existence of the lower track, the upper track and the Pitch. The plan is dated 22nd December 1865. The words “Right of Way” are written beside the lower track. The notice does not in terms refer to the lower track or to this descriptive wording. No other information is available as to the steps taken under the 1862 Act. Mr Nunn is not able to show that the land the subject of the notice was registered, much less that any such registration had any statutory effect in relation to rights over the lower track. In my judgment, the most that can be got out of this notice is the fact that the person preparing the plan had some reason to write the words “Right of Way” beside the lower track. The question then arises whether this plan “entirely changes the aspect of the case” in relation to Mr Nunn’s claim that there is a private or public right of way over the lower track.[95]I do not think that the plan is of much help in relation to the claim to a private right of way for the benefit of Woodside Bungalow. That bungalow did not exist at the date of the plan. Further, even if the right of way was a private right of way for the benefit of Woodside House and its grounds (within which the bungalow was later built), the evidence is all one way that any possible access into the grounds of Woodside House was some way away from Woodside Bungalow and would not entitle Mr Nunn to move further along the upper track to get direct access to his bungalow. I will deal with this matter further below when considering the question of the gate giving access to the grounds of Woodside House.[96]It can be more strongly argued that the 1865 plan is supportive of the case for a public right of way over the lower track. I think it is more likely that a marking on a plan such as this of a “Right of Way” is designed to refer to a public right of way rather than an easement appurtenant to land. Even then, I conclude that this plan does not entirely change the case which Mr and Mrs Close could have put forward in the 1976 proceedings. They had specifically researched the question of a public right of way over the lower track. They stated in the earlier proceedings that in 1975 they were on the brink of launching proceedings claiming a public right of way. This plan is one more piece of evidence which might have supported that claim. But I do not regard it, standing alone as it does, as entirely changing the case for a public right of way.[97]Further, many of the documents which have been produced by Mr Nunn (including those which were available to Mr and Mrs Close in the 1970s) deal with the question whether there was a vehicular right of way, whether public or private along the lower track leading to a gate giving access to Woodside House and its grounds. Assuming that that evidence supports the case for a right of way up to that gate and that (in so far as the right is a private right) the dominant tenement was all of the grounds of Woodside House (and therefore including Woodside Bungalow), that evidence does not establish a right of way all the way along the upper track as far as Woodside Bungalow. If Mr Nunn were to establish a right of way up to the gate to the grounds of Woodside House, that right would only enable him to access Woodside Bungalow if he had, in addition, a right of way through the grounds of Woodside House to Woodside Bungalow. He does not assert that he has such a right. Accordingly, whether Mr Nunn relies on this material for the purpose of claiming a right by prescription or a right granted by reason of the general words read into a conveyance under section 62 of the Law of Property Act 1925, any such right would not entitle him to go from the gate along the upper track for the purpose of gaining access to Woodside Bungalow.[98]My conclusion is that the suggested fresh evidence, whether considered separately or cumulatively, does not satisfy the test of special circumstances which operate as an exception to the application of an issue estoppel in this case.

Special circumstances: a further point

[99]It emerges from the above that Mr Nunn does not need to claim in public nuisance and therefore does not need to show a special interest in order to defend a claim in trespass in relation to the lower track, nor (I think) a claim to a negative declaration that his use of the lower track does not amount to a trespass. Conversely, if Mr Nunn claims damages or an injunction based on an allegation of public nuisance, he does need to show a special interest and there is a strong argument that the special interest which he is able to rely on in this case arises from his ownership of Woodside Bungalow. It seems to me to follow from this that, in so far as Mr Nunn relies on the claimed public right of way as a defence to a claim in trespass or as the basis of a negative declaration, he is not the privy of Mr Close but in so far as he claims damages or an injunction by reason of an alleged public nuisance, there is a strong argument that he is a privy of Mr Close.[100]In these circumstances, there is no issue estoppel preventing Mr Nunn from relying upon the claimed public right of way as a defence to a claim in trespass nor to a negative declaration as described above. If I were to accept the argument that Mr Nunn is a privy of Mr Close in relation to his claim to damages and an injunction, I would then have to consider whether I should strike out those claims at this stage.[101]In my judgment, I should not do so, for the following reason. If Mr Nunn’s defence to the trespass claim succeeds at trial, because he establishes the defence of a public right of way, then I consider that that will then be a special circumstance which would, exceptionally, prevent there being an issue estoppel against Mr Nunn claiming an injunction against the Prices obstructing the public right of way. I consider that the establishment, by way of a 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. 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. If (having defeated the claim in trespass against him) Mr Nunn suffers special damage as a result of the obstruction of a public right of way over the lower track, then there should not be an issue estoppel which prevents him claiming for such loss. It will be remembered that Mr Adams accepts that Mr Nunn would have a special interest for the purpose of bringing a claim in public nuisance, subject only to this question to issue estoppel.[102]In this way, I reach the conclusion that I should not strike out the claims for an injunction and damages. The decision on those claims should depend on the fate of the defence to the trespass claim. If Mr Nunn’s defence based on the claimed public right of way prevails, then I hold that there will be no issue estoppel preventing him advancing his claims in public nuisance. Of course, if that defence fails, then he will have no claim in public nuisance.[103]This reasoning applies only to the claimed public right of way over the lower track; it does not extend to the claimed private right of way over the lower track. As to the latter, there is prima facie an issue estoppel preventing Mr Nunn from contending for such a private right of way. At the hearing, I asked counsel if it were open to me to hold that the fact that there was going to be a trial in any event as to a private right of way over the upper track should be regarded as a special circumstance which excluded an issue estoppel in relation to a claim to a private right of way over the lower track. Although Mr Stenhouse, on behalf of Mr Nunn, suggested that I should indeed take that view, he did not (as I understood him) press that possibility. I consider 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. Further, in the 1980 proceedings the court has already ruled that an attempt to claim a private right of way over the lower track would be an abuse of process. Accordingly, I conclude that I ought not to regard the fact that there is a claim to a private right of way over the upper track (nor a claim to a public right of way over the lower track) as a special circumstance which frees Mr Nunn from what would otherwise be a very clear issue estoppel. Accordingly, I hold 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.

Abuse of process

[104]I have also considered whether, even though there is no issue estoppel, it is an abuse of process for Mr Nunn to contend that there is a public right of way over the lower track. It is clear that a case may involve an abuse of process even where there is no cause of action estoppel or issue estoppel. The principles to be applied for this purpose are those stated in Johnson v Gore Wood & Co [2002] 2 AC 1, in particular at 30H-31F per Lord Bingham and at 58D-60D per Lord Millett. Lord Bingham identifies a broad, merits-based approach. On the one hand, to allow Mr Nunn to raise the question of whether there is a public right of way over the lower track opens up again, many years after there was apparent finality as a result of the 1976 proceedings and the 1980 proceedings, the question whether the lower track is or is not subject to a right of way. That can be said to infringe the strong public policy in favour of finality in litigation and might be said to be oppressive to the Prices. On the other hand, the right claimed is a public right. Mr Adams accepts that any other member of the public, who is not a privy of Mr Close could raise that issue in ordinary proceedings, if that member of the public had a special interest. Further, Mr Adams accepts that any member of the public, including Mr Nunn, could seek a modification of the definitive map and statement by using the procedures under the Wildlife and Countryside Act 1981. Further, it is not said that there is any abuse of process as a result of Mr Nunn raising the question in ordinary civil proceedings, rather than pursuant to the 1981 Act. I do not see anything abusive in the issue being raised in these proceedings. These proceedings are more suitable as a means of determining that issue, not least because the question of whether there is vehicular right of way over the upper track is going to be determined in these proceedings. Balancing the rival considerations, I conclude that, notwithstanding the history of the litigation involving Mr and Mrs Close, 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 result

[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.[106]For the avoidance of doubt, I stress that I have not been asked to consider the merits of Mr Nunn’s contention that there is a public right of way over the lower track and I have not done so.[107]The parties should agree a minute of order to give effect to this judgment. If they are unable to agree a minute and/or if there is any issue as to costs, I direct that all matters consequential on this judgment which remain in dispute will be dealt with on written submissions, to be served within 14 days of the handing down of this judgment.

Cited in 2 later judgments