“1. The claimant, AJP Homes Ltd, was at the times material to this claim, the registered owner of 106 Station Parade, Harrogate. I shall refer to it hereafter as “106”
“2. The Seller grants to the Buyer for the benefit of the Property: 2.1 the exclusive right for the Buyer and its successors in title and those authorised by it or them to park one domestic vehicle or small van within the area edged pink on Plan 2 and/ or for such other use as authorised by planning, provided that the area edged pink shall not be used for the parking of more than one domestic vehicle or small van SUBJECT to maintaining (including any landscaping on) the area edged pink 2.2 a right of way for the Buyer and its successors in title and those authorised by it or them in common with the Seller and other persons having the same right to pass with or without vehicles over the area shaded green on Plan 2 for all purposes connected with the Property SUBJECT to the person exercising such rights paying a fair proportion according to user of the cost of maintaining repairing renewing or cleansing the same 2.3 a right for the Buyer and its successors in title and those authorised by it or them to construct a road (including pavements, lighting signage and other features) and landscaping on (provided that this shall not permanently materially affect access (including parking) to the other parts of the Adjoining Land) and to install Service Media within the area shaded green on Plan 2 and to remove and/ or reposition such part or parts of the wall bounding the Adjoining Property and Station Parade as may be required in order to comply with the requirements of any planning consent in respect of the initial development of the Property or by the Highway Authority and to enter upon the area shaded green for the purposes of doing so in each case and to inspect maintain repair and renew such road (including pavements, lighting signage and other features), landscaping and Service Media FOR THE AVOIDANCE OF DOUBT all costs incurred under this clause 2.3 shall be the sole responsibility of the Buyer and its successors in title and the Seller and its successors in title shall not be required to contribute to any such costs PROVIDED THAT the rights are subject to and conditional upon the Buyer and its successors in title: i) producing to the Seller all necessary consents from the highways authority or local authority or utility provider as the case may be; ii) carrying out all works in a good and workmanlike manner using good quality, materials which are fit for purpose for which they will be used and in accordance with any relevant planning permission iii) causing as little disturbance and inconvenience as is reasonably practicable to the Adjoining Land and the owners and occupiers of any neighbouring land and to provide reasonable notice of when works are to be undertaken iv) doing as little damage as is reasonably practicable and making good all damage forthwith” “The Buyer covenants with the Seller so as to bind the Property into whosoever hands it may come and to benefit and protect the Adjoining Land and each and every part of it which either remains unsold after the date of this deed or is transferred with the express benefit of this covenant: 4.1 not to block or allow others to block with vehicles or otherwise the area shown shaded green on Plan 2 other than as permitted by clause 2.1 of this Panel 10 4.2 not to use or allow the use of the Property for any purpose or in any manner which may be a source of nuisance or damage to the Seller provided that the works to be carried out in the Development of the Property shall be deemed not to constitute a nuisance or damage 4.3 to observe and perform the obligations on the part of Sophie Cooney under the Planning Obligation and to compensate Sophie Cooney in full on demand for any liability resulting from any failure to do so”
“11. The true meaning and effect of the right of way granted by clause 2.2 of the 2016 transfer, when construed together with clause 4.1 and the layout of the dominant tenement as shown on Plan 2 is, that it is a right of way for the Buyer and its successors in title in common with the Seller and other persons having the same right to pass with or without vehicles over the areas shaded green on the Plan 2 for all purposes connected with number 108. The true interpretation of that right of way is that (a) it does not expressly or impliedly confer upon the First Defendant the right to stop to load and/or unload on the same and (b) it does expressly or impliedly confer upon the First Defendant the right to gain vehicular access to number 108 at any point along its easterly boundary. 12. The car parking space granted under clause 2.1 of the 2016 Transfer only amounts to a right to park, and consequently an easement, within a defined area that falls within the curtilage of number 106. Further, clause 2.1 only authorises the parking of one domestic vehicle or small van, within the area edged in pink on Plan 2. Furthermore, the true interpretation of the right granted by clause 2.1 of the 2016 transfer is such that the Claimant retains possession and, subject to the reasonable exercise of such right to park, control of the servient land edged in pink on Plan 2. Acts of trespass 13. There is set out below particulars of the allegations of trespass made by the Claimant against both Defendants in respect of the misuse of the right of way, the misuse of the car parking space edged in pink on Plan 2 and other trespasses within the curtilage of number 106, without the necessary prior consent or licence of the Claimant. The Claimant avers that insofar as acts of trespass have been committed by the Second Defendants, they did so as the Defendant’s contractor and at its direction and consequently the Defendants are jointly liable for the same. Further, there is attached hereto a bundle of photographs in chronological order that relate to the description of trespass given below.”
“Save as hereinafter expressly admitted or not admitted, the Defendants deny each and every allegation contained in the Amended Particulars of Claim as if the same were set forth herein and specifically traversed seriatim.”
“Has D1 committed acts of trespass? 43. This answer must undoubtedly be answered in the affirmative, and in fairness to D1, it admits acts of trespass in the Amended Defence and Counterclaim (e.g. paragraphs 13.4.2, 13.5.3, 13.6.2, 13.14, 13.15.1, 13.18.2, 13.21.3, 13.24.2, 13.26.1, 13.27.2 and 13.28.2). 44. This issue is likely to be one that turns upon a question of fact when the Court has determined what rights have been granted by the 2016 Transfer. It will involve an analysis of the album of photographs and videos that have been prepared by C. A useful starting point for the Court is to consider the first 18 photographs attached to the Amended Particulars of Claim at A33 and a selection from C’s photographs. The types of acts of trespass on number 106 are summarised below. (i) The storing of goods within the car park, the private roads and the area edged pink and shaded green such a materials, tubs of concrete, site cabins and skips (Photographs 76, 77, 95, 97, 310, 313, 315, 316, 317, 345, 360, 462, 468, 486 and 523). (ii) The parking of various vehicles such as telehandlers, concrete lorries and large vans and domestic cars not parked in the parking space (Photographs 128 and 129). (iii) Rubble being dumped and not removed (photograph 13). (iv) Heras fencing trespassing over the western boundary of number 106 (see (i) above). (v) Continuous loading and unloading thereby causing the aforesaid Heras fencing to be opened out further on to number 106 on a weekly and from time to time daily basis and scaffolding overflying number 106 (Photograph 172, 180, 181 and 489). (vi) Wide materials oversailing number 106 when being transported by a telehandler (Photograph 199, 201).”
“46. On 5.5.2020, D2 prepared a Construction Method Statement for the purpose of D1 seeking the discharge of condition 7 of planning permission 17/00730/FULMAJ, which occurred on 19.8.20 (H1114), and probably also the satisfaction of theConstruction (Design and Management) Regulations 2015 (“the 2015 Regulations”). The 2015 Regulations impose statutory duties on D1 as the client and D2 as the main contractor, and in terms of D1 it must (pursuant to regulation 4) make suitable arrangement for the management of a construction project including the allocation of sufficient time and resources to ensure that the work is carried out without risks to the health and safety of any person affected by the project. The Court is referred to the Site Setup Plan at E573 that shows the location of the site parking in the undercroft, material storage in the undercroft and the site cabins on the continuation of Back York Place. What actually occurred on site during construction was completely different. It is obvious that the reality of construction was such that Ds breached the terms of the planning permission and the 2015 Regulations. C shall return to these matters on the question of exemplary damages. 47. In these circumstances, it is quite apparent that D1 committed continuous acts of trespass throughout C’s ownership of number 106.”
“JUDGE SAFFMAN: Well, I have another problem with this. Insofar as her complaint can only be if this is a trespass, of course MR HORNE: Yes. JUDGE SAFFMAN: - insofar as there has been trespass, it has been by the contractors, not by the first defendant, is it not? MR HORNE: Well, it is not. In reality, all these trespasses must be adopted by the first defendant. The reason why they must be JUDGE SAFFMAN: Well, you say that but is the law not that an independent contractor is responsible for any torts that he commits? MR HORNE: Yes, yes, save for this; it depends upon the directions he’s getting from the first defendant in terms of, you know, “Get on and do this”
“53. At the date of the 2016 Transfer the following was the position: a. 106 and Lambert House were both owned by Mrs Cooney. b. There was vehicular access into Lambert House. It was through the roller shutters I have referred to in para 5 above. The approximate location of these shutters is given on the plan at Appendix 1. They were approximately half way down the southern elevation of Lambert House and about three quarters of the way down the land coloured brown There was no vehicular access into Lambert House from anywhere else and, in particular, not from the alley. c. The planning permission shows that demolition of Lambert House and the building of a 6 unit residential development was envisaged following the sale to ECDL with parking along the southerly edge of the units replacing Lambert House. Indeed I remind myself that the 2016 Transfer itself recognises, in terms, that Lambert House is to be developed. One only has to read Additional provision 4.2 referred to above to see that.”
“55. Although the wording is wide and allows vehicular passage and repassage over the green land for all purposes connected with 108, Mr Horne argues that the wording does not allow any stopping. He argues that a right to stop would only arise if the grant had been to “use” the land rather than simply to pass over it. He supports that assessment by reference to para 9-38 of Gale which states: “ where however the grants is of a right to use the road as opposed nearly to pass or re-pass over it, it seems that will entitle the grantee to stop to load and unload and to use the road for other purposes by which property adjoining a street would normally be accommodated provided such user does not interfere unreasonably with the use of the road by its owner and those equally entitled.” 56. That however is not the sum total of what is said in para 9-38 and was not the view taken by the court in Bulstrode v Lambert(1953) 1 WLR 1064 , nor in McIlraith v Grady(1968) 1QB 468 . In these cases the court was faced with a right of way that employed the phrase “pass and repass” and not the word “use” but held that nevertheless the right included by implication a right to stop and unload. In both cases the right was held to extend to stopping and unloading because that was necessary for the enjoyment of the reserved right. 57. Mr Horne points out that the background facts that can aid interpretation can only be facts that existed at the time of the 2016 Transfer and at that point, in light of the existence of the roller shutter door and the parking that existed within Lambert House and the fact that the 2016 Transfer actually grants a parking easement, there is simply no necessity for the right to stop and unload on the green land to be implied. 58. However, I have already found that the background includes the fact that Lambert House was due for demolition and replacement. The fact that there were roller shutter doors on, and interior parking in, a building whose days were well and truly numbered, as was known at the time, is in my view neither here nor there. 59. In my judgment it is inevitable that it would be necessary for vehicles to stop on the green land to upload rubble to clear the site. It is equally inevitable that it would be necessary for vehicles to stop on the green land to deliver materials for the new construction. Even if vehicles could have stopped mostly within the curtilage of 108 (because the 6 units on the planning plan had an even narrower footprint that the current building) that would clearly not have been possible all the time because when the southern and eastern elevations of Lambert House were demolished the rubble would be at the extremities of the boundary. 60. Furthermore, it is clear that the courts in Bulstrode and McIlraith took a tolerant view of what was “necessary”
“65. This question also requires a consideration of Additional provision 2.2. 66. In my view it cannot be gainsaid that the words are very clear. There is a right to pass and repass along the green land with or without vehicles for all purposes connected with 108. If construction merely depended on the literal meaning of the words used then it would be axiomatic that the right extends to travelling to the undercroft. 67. Mr Horne is right though when he says that the words are only a piece of the jigsaw. He says that the background and physical features on the ground militate in favour of a different construction and one which only allows the green land in the alley to be used as a turning head. 68. His first argument is that the physical features on the ground at the date of the transfer, particularly the position of the roller shutter, show that access to the building was envisaged via a route along the southerly edge of the property. 69. Secondly, he argues that the plan attached to the planning permission which is incorporated into the 2016 Transfer by implication does not suggest that access to the interior of 108 will be gained from the alley. Indeed parking was envisaged to be within the southern curtilage of the boundary of 108. That is his basis for concluding that the right of way into the alley is simply to facilitate the turning round of vehicles so they can exit onto Station Parade front first. 70. I do not accept that the right of way is limited in the way Mr Horne suggests. The words used are very important even though, I accept, they are not determinative. I remind myself of the law that I summarise above regarding construction but in reality, I need only look at some of the factors Lord Neuberger identifies in Arnold and which are set out in para 33 above. I must recognise that: • The meaning is most obviously gleaned from the language. (factor a) • The clearer the natural meaning, the more difficult it is to justify departing from it (factor b) • There should be a reluctance to reject the natural meaning (factor d) 71. Secondly, I note that the 2016 Transfer is a professionally prepared document. That engages the observations of Lord Hodge in Wood at para 13 of his opinion which I recite at para 34 above. In the interpretation exercise that is a weight in the scales in favour of a more textual analysis. 72. Are the background facts which I have identified enough to tip the scales in the other direction? I do not think so. 73. I do not attach the same importance to the location of the shutter doors at Lambert House as does Mr Horne. Lambert House was going to be demolished, a fact that was known at the time. 74. Further, the fact is that the 2016 Transfer does not require Lambert House to be built in accordance with the planning consent. As I have said, the planning consent is not even mentioned. Plan 2 is clearly not there to influence the shape of the build, it is there only to record the extent of the rights that the 2016 Transfer grants to ECDL. 75. The planning consent is not, for reasons already explained, incorporated into the 2016 Transfer. I observe that even the s106 agreement gives no clue as to what the details of the planning consent were. It merely creates an obligation on Mrs Cooney to pay money to the local council. 76. Also, in my view, if the green land in the alley was only ever intended to be a turning head the 2016 Transfer could have made that clear. It would not have been difficult to do so. Instead the transfer states that the right of way is for all purposes. That is wholly at odds with the very limited purpose for which Mr Horne contends. 77. Taking all of this into account I find it impossible to believe that a reasonable person, even with the relevant background knowledge, would believe from reading Additional provision 2.2 that a right of way for all purposes only means a right of way to execute a turn and that it does not mean that the grantee can pass up and down the green land in the alley for any other purpose connected with 108. 78. In short, what Mr Horne suggests is, to me, not an interpretation of the grant but rather a wholesale redrafting of it. That is not what construction of a contract is about. That is a journey into the realms of rectification.”
“as the first defendant’s contractor and at its direction and consequently the defendants are jointly liable for the same”: see [93] and [94]. The Judge also directed himself that the Respondent was not required byCPR Part 16 to plead any points of law. He then stated as follows at [101] to [109]: “101. This issue was raised on the first morning of a 5 day trial. Both sides made themselves ready to deal with it. Much of Mr Horne’s cross examination of the first defendant’s witnesses was directed at establishing the extent to which the first defendant had control over the second defendant and/or authorised and ratified its acts of trespass. That is an issue which goes to the heart of the question of the first defendant’s liability for the acts of the second defendant. 102. This situation is far removed from the Lombard North Central case. This issue cannot be said to have taken Mr Horne by such surprise that he could not and did not deal with it. He did. Both sides, by reference to the evidence, have referred me to those parts of Clerk and Lindsell on Torts on this issue which suits their purpose. 103. Furthermore, it may well be questionable whether points of law have to be pleaded save to the extent specifically covered by Part 16. The Practice Direction merely says that a party “may” refer to a point of law – not that it “must”. 104. I do appreciate that any reader of the defence would have no clue that there is this fundamental defence to liability. In that sense, it does not only not plead it, it could be said that actually, in practical terms, it diverts attention away from that possibility. 105. Nevertheless, the fact remains that the claimant has not been taken by surprise to the extent it has not been able to deal with it. It has been dealt with, both with the witnesses and in law. It would, in my view, not least bearing in mind the wording of the PD and the albeit perhaps fairly oblique reference to the defence in the skeleton argument, be unjust for the court not to “entertain and decide the unpleaded issue”. 106. In determining whether the first defendant is liable I turn to chapter 6, Clerk and Lindsell 24th ed. to which I have been referred by counsel. 107. The starting point is para 6-04 which states “On Supreme Court authority, vicarious liability cannot be imposed upon an employer in relation to torts committed by an independent contractor”
“153. I have reviewed the evidence carefully and am satisfied that there is wholly insufficient evidence to suggest that the first defendant interfered with the manner of carrying out the work on site. Nor is there any evidence that the first defendant authorised any trespass. Indeed, the evidence would suggest the opposite. Mr Tate tells Gunnercooke that he has reminded the contractors of their obligations and at the meeting when there is a threat of suspension he goes along with handballing and even offers some labour to facilitate it. 154. As to ratification, I refer to Clerk and Lindsell para 6-92. It must be evidenced by “clear adoptive acts which must be accompanied by full knowledge of the essential facts” and there can be no ratification unless the party on whose behalf the acts complained of were done “ratified the acts of the agents with knowledge that they did them not according to authority, or unless he meant to take upon himself, without enquiry the risk of any irregularity which they might have committed, and to adopt all their acts” 155. Just because a person may benefit from the tort committed by another does not mean that he has ratified it. There has to be a clear adoptive act. I can see no clear adoptive act in the evidence. 156. In all the circumstances I conclude that the first defendant is not liable for any of the acts of trespass of the second defendant.”
“162. I am satisfied that, in so far as there have been breaches, except what I say below in para 163, broadly they were not significant. Where the Heras fencing transcended the boundary line it did so only to a small degree which did not appear to have precluded access through the alley (evidenced by the fact that in some of the photographs where the fencing does encroach still vehicles are using the alley). Additionally, for the most part the acts of trespass by misuse of the right of way was transient. 163. However, I except from that assessment the existence of the cabin and the skip. Their presence was from the date of acquisition of 106 by the claimant until the latter end of August when they were removed following the demand by Gunnercooke. I also except some incidents of storage. It seems, for example, that flooring may have been stored on the car park for days rather than hours and the walling stone also looked like it was an unwelcome feature for some days.”
“To the extent that the second defendant has trespassed and the first defendant is liable for that, what damages is the claimant entitled to and to what extent should they include negotiating and exemplary damages? 164. The first defendant is not liable so its obligation to pay damages, nominal or substantive does not arise. Unless the parties persuade me that it is necessary to do so I do not intend to extend an already very lengthy judgment by remaining in the realms of the academic. 165. What I think is not academic is the claimant’s claim for negotiating damages of£150,000 . At first sight that this should remain a live issue is counterintuitive in light of my findings but the second defendant had to operate in a very restricted area. That was clearly an inconvenience. I have found that in some respects it did trespass in the course of the build and it would have been easier to build if it had been allowed to encroach onto the green land for purposes not covered by the right of way such as for storage purposes. The question of how much the claimant could have demanded for that privilege remains, I think, a live one. 166. The first difficulty for the claimant, however, is that 108 was built with only marginal encroachment and, bearing in mind the extent of it, it is much more likely than not that it could have been built without such encroachment. This substantially reduces the extent to which the builder is “over a barrel” and thus the amount that it would pay to make life that bit easier. 167. The second difficulty is that this was a design and build contract. Essentially with such an arrangement the client abrogates to the contractor the obligation to build. The issues caused by the restrictive nature of the site were a problem for the contractor. The claim requires a leap in that it seems to be premised on the contention that it is more likely than not that the first defendant would pay to make the second defendant’s life easier. 168. Not only is that unlikely, such evidence as there is does not support that eventuality. I have mentioned that the second defendant entered into negotiations to use the parking spaces at 106 that were outwith the green land and a deal was tentatively done at£2750 . There is no suggestion that that was to be paid by anybody other than the second defendant. Certainly it was not suggested that the first defendant would be paying it or indemnifying the second defendant for it. Why then, I ask rhetorically, would the first claimant be prepared to pay the claimant the amount it now claims, or any amount, for negotiating damages? To put it bluntly the problems caused by the restrictive site were not its problem, they were the second defendant’s. That indeed was the evidence and, because it seems to have been prepared to make that payment of£2750 , it appears that it was also the second defendant’s view.”
“174. I do however recognise that the second defendant seems to have wanted to continue negotiations after it became clear that their offer totalling£2750 was not going to be taken forward. That suggests that it would have been prepared to improve its offer but assuming it would do by the margins that the claimant now has in mind would have meant such a rethink by the second defendant that it seems unlikely. However, I need not dwell on that. It seems clear that, whatever would have been paid if agreement could have been reached, would have been paid by the second defendant and not the first.”
“A. Ground 1 Serious procedural errors D1 was permitted to advance a defence based on the unpleaded assertion that D2 was its independent contractor and any acts of trespass established by the claimant committed in the course of the development of D1's site by D2 were those of D2 for which D1 was not responsible. The judgment sets out (particularly at paras 93 to 105) why the court permitted this defence to be advanced. The draft grounds of appeal do not offer any realistic basis for contending that the decision to allow this defence was wrong or involved serious procedural error…”
“1. The judge’s decision is unjust because of the following serious procedural errors. (i) The judge made findings on an admitted issue (“the admitted issue”), namely that D1 was not responsible for the acts of D2 as its independent contractor, despite the fact that D1 made no application to amend its defence to plead a defence to C’s allegation that Ds were jointly liable as any acts of trespass by D2 were carried out at the direction of D1, when the defence and amended defence (served on behalf of both Defendants) in fact contained no denial or non-admission to that allegation and hence admitted it due to the effect ofCPR 16.5 (3); and further or alternatively, no disclosure had been given in relation to the admitted issue.” “3. The judge’s decision was wrong in law in relation to the following matters. (i) The judge’s interpretation of the 2016 transfer that it conferred on D1 an implied right to stop and unload at any point. (ii) The Judge’s interpretation of the 2016 transfer that D1 was entitled to gain vehicular access to the undercroft car park. (iii) The Judge’s interpretation of the 2016 transfer that the pink edged area could be used, in addition to the express granted right to park one domestic vehicle or small van, as part of the right of way and also to stop on and load and unload at any point. (iv) The judge was wrong in law to dismiss C’s claim for damages for trespass. He should have found that C’s claim for trespass was established and that C was entitled to damages as pleaded in the Amended Particulars of Claim.”
“14. In my judgment the real procedural irregularity lay in the Judge deciding that the claim for possession could be dealt with summarily without a trial, (either then or after an adjournment) without first inviting and hearing submissions on the question, squarely raised by the claimant's trial skeleton argument and in Miss Jeavons' opening submission, whether the defendants' pleadings, amended to the extent which the Judge permitted, disclosed any defence to that claim. 15. There is in my judgment nothing procedurally irregular about a trial judge entertaining at the beginning of a trial a submission that the defendants' pleadings disclose no defence to the claim, even if no formal application to strike out has been made by the claimant if, on his pre-reading of the papers, it appears to him that there is a properly arguable case for strike out which, if established, would save the parties substantial further time and expense. Before entertaining such an application, the Judge would have to be satisfied that the defendants had a fair opportunity to respond to it. Before deciding such an application, it is an elementary and fundamental principle of fair procedure that he should first hear submissions on it from the defendants.”
“Thus, the agent who commits a tort on behalf of his principal and the principal himself are joint tortfeasors; so are the employee who commits a tort in the course of his employment and his employer (even if the employer became insolvent before the time of the trial); so are an independent contractor who commits a tort and his employer, in those cases in which the employer is liable for his independent contractor. Equally, a parent company and its subsidiary may be regarded as joint tortfeasors in respect of loss or injury suffered by employees of the subsidiary so long as a supervisory duty is borne by the parent company. However, the mere fact that a parent company appoints a director of the subsidiary who holds responsibility for health and safety matters in that company is not enough to attach liability to the parent company. He would need to be acting not just as a director of the subsidiary, but also on behalf of the parent in order for this to be the case. Finally, a company director and the company itself may be regarded as joint tortfeasors where the director “is sufficiently bound up in [the company’s] acts” to make him personally liable. This will certainly occur where the wrongful acts complained of arise from a director’s participation in a manner that goes beyond the mere exercise of his power of control through the constitutional organs of the company. An example is where he facilitates the breach of a design right with a view to enabling a breach of that right to occur. Apart from these instances, concerted action is required. Where one person instigates another to commit a tort, they are joint tortfeasors; so are persons whose respective shares in the commission of a tort are done in furtherance of a common design. However, it is important to appreciate that although mere facilitation of the commission of a tort will not suffice, a sufficient common design may nonetheless be held to exist where D1 makes a more than de minimis contribution to the commission of a tort by D2. The Supreme Court in Fish & Fish Ltd v Sea Shepherd UK found that while a common design would normally be expressly communicated between the principal and the accessory, it could be inferred. The assistance, however, had to be more than de minimis or trivial. Lord Neuberger advised that “once the assistance is shown to be more than trivial, the proper way of reflecting the defendant’s relatively unimportant contribution to the tort is through the court’s power to apportion liability, and then order contribution, as between the defendant and the primary tortfeasor”
“the agent who commits a tort on behalf of his principal and the principal himself are joint tortfeasors”
“(1) In general, if an agent is an employee or director of the principal, the principal is liable for loss, damage or injury caused by the wrongful act of the agent when acting in the course of employment. Partners are similarly liable for wrongful acts of one another. (2) A principal is liable in tort for loss or injury caused by an agent, whether or not an employee, and if not an employee, whether or not the agent can be called an independent contractor, in the following cases: (a) if the wrongful act was specifically instigated, authorised or ratified by the principal. (b) (semble) in the case of a statement made in the course of representing the principal within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal. (c)where the principal can be taken to have assumed a responsibility for the actions of the agent. (3) In some circumstances, the owner of a business or organisation may owe duties of care, usually in relation to the personal safety and wellbeing of others, that apply whether or not the owner performs the services personally or through employees, or by engaging independent contractors. Such duties are termed “non-delegable”
“The first question then is as to partnership. One partner has no right to involve another, or to pledge him to a fact, unless in the ordinary course of business. As here, in this case of trespass, one partner cannot involve another in the same mischief; yet there may be exceptions even to such a case as this, where, for instance, the trespass is in the nature of a taking, which is available to the partnership, more especially if the other partners afterwards agree and consent to the act. It is a question, therefore, for you, seeing that, in point of fact, the distress was made by Stewart only, whether Lamont and Matravers did consent to this wrongful distress, so that they agreed it should be made, or did they afterwards so give their assent as to shew that their minds were concurring. As to the defendant Matravers, there is another question, for it is yet matter of doubt whether he were a partner or not. This is not like a case in which the question is, whether A. B., and C. were partners on a just debt, but whether they were so as to concur in an unjust distress. The province of a jury, therefore, would be, not only to find, whether they were partners, but also by evidence before the transaction, that they all joined in ordering the doing of this act, or by evidence afterwards, that they concurred and received the benefit of it. The language of the distress warrant is this:—Stewart authorizes Parnham to distrain for rent due “to me,” he says, and then signs himself, “For Lamont, Stewart & Co.”
“(1) In the defence, the defendant must deal with every allegation in the particulars of claim, stating— (a) which of the allegations are denied; (b) which allegations they are unable to admit or deny, but which they require the claimant to prove; and (c) which allegations they admit. (2) Where the defendant denies an allegation— (a) they must state their reasons for doing so; and (b) if they intend to put forward a different version of events from that given by the claimant, they must state their own version. (3) If a defendant— (a) fails to deal with an allegation; but (b) sets out in the defence the nature of their case in relation to the issue to which that allegation is relevant, the claimant is required to prove the allegation… (5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.”
“12.2 A party may in a statement of case— (1) refer to any point of law; (2) give the name of any witness they propose to call, and may attach to it a copy of any document necessary to their case (including any expert’s report under Part 35).”
“The discussion set out above shows that the principal function of a statement of case is to state the facts relied on. The pre-CPR position was that pleadings were only to state material facts. That is no longer the case. Rule 16.4(1)(a) provides that particulars of claim must include a concise statement of the facts on which the claimant relies. But under the CPR there is no provision limiting the statement of case to material facts. This was a conscious decision intended to promote flexibility. In particular, there is no longer any objection to including references to evidence or legal argument in a statement of case. This point is considered further below. Foreign law is regarded as a question of fact in the English courts, and the general rule is that if a party wishes to rely on a foreign law he must plead it in the same way as any other fact.133 In practice, the statement of case will be supplemented by a detailed expert’s report on the applicable foreign law.” “The Practice Direction supplementing CPR Pt 16 provides “A party may … refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based.”
“A beneficial effect of the Civil Procedure Rules is that byCPR PD16 para.13.3(1) it is now made clear, as under the Rules of the Supreme Court it was not, that a party in his pleading may ‘refer’ to any proposition of law on which his case is based. It will often be valuable that he should do so, because parties, and the court, should not be left to speculate upon the relevance in law of a purely factual narrative.”
“The Claimant avers that: [A] insofar as acts of trespass have been committed by the Second Defendant, [B] they did so as the First Defendant’s contractor and [C] at its direction and [D] consequently the Defendants are jointly liable for the same.”
“The rule is unequivocal in its terms and application. Further, neither paragraph (3) nor (4) ofCPR 16.5 are applicable. Subparagraph (3) provides that where a defendant fails to deal with an allegation but sets out in the defence the nature of its case in relation to the issue an exemption to the general rule applies: this does not apply in the present case as the amended defence did not deal with this issue. Put simply, notwithstanding the very specific and clear nature of the allegation of joint liability between D1 and D2 for D2’s trespasses in the Amended Particulars of Claim, neither defendant engaged in the defence on this issue. Hence, the starting point for the Judge should have been that it shall be taken that the issue was admitted by D1 that if trespasses were proved at trial against D2, it was jointly liable for the same. Therefore, the Judge was in fact in a situation where he was actually dealing with whether or not it was appropriate for D2 to withdraw an admission in its amended defence. If the Judge had approached the issue in this way, C would have opposed such an application on the basis that it was too late and if allowed, C would suffer irremediable prejudice if the trial proceeded. The most obvious prejudice is the fact that there had been no disclosure on this issue such as minutes of site meetings that D1’s principal witness (Mr Tate) admitted to having attended frequently during the course of the development; who was also the controlling shareholder of both companies. The only time the potential for a defence to this admitted issue was considered was when it was raised obliquely in D1’s Counsel’s trial skeleton argument as referred to in paragraph 96 of the Judgment. By this time, C could not deal with the defence at trial.”
“37. It was suggested in the course of the hearing before your Lordships that a decision that there was an accessory right to park vehicles on the servient tenement could mean that very large numbers of vehicles belonging to all manner of people would be parked there, perhaps for long periods, resulting in an unacceptable burden on the servient tenement. There are however three reasons for discounting such an abuse of the right as a realistic possibility. 38. The first reason is that the right of access over the servient tenement is granted in favour only of the owner of the dominant tenement and her successors in title, not in favour of the public generally. Of course, as Lord Clyde said in Hogg v Campbell,2 April 1993 , unreported (1993 GWD 27–1712) in a passage quoted by Cusine & Paisley, Servitudes and Rights of Way , para 1.60, the proposition that the dominant proprietors are the only person interested cannot be taken too strictly. The right extends to the proprietors' guests, visitors, employees and others who come there for the purposes to which the land is being put. But, as he also pointed out, that use must be within the intended scope of the servitude and it must not impose an undue burden on the servient tenement. The servitude right of pasturage provides a useful analogy for the determination of the extent of the servitude. As Lord Grieve explained in Ferguson v Tennant 1978 SC (HL) 19, 25, the number of cattle that may be put on the lands of the servient tenement must not exceed that which is “proper to the dominant”-that, is, that the number that the proprietor of the dominant tenement can support from his own resources. 39. The second reason for discounting the possibility of abuse is to be found in the principle that, in Bankton's words, the servitude right must not be used “invidiously to the other's detriment”: An Institute of the Laws of Scotland, II, vii, 18. As Lord Marnoch said in the Extra Division, para 24, questions of how and precisely where the right to park is to be exercised are questions that ought to be capable of being resolved by the parties acting sensibly but can, if necessary, be decided under reference to the rule that the servitude right must be used civiliter. This point has been recognised by the terms of the declarator, which refers to the right to park “such vehicles as are reasonably incidental to the enjoyment of said access to the dominant tenement”
“In the Court of Appeal authority of Waterman v Boyle [2009] EWCA Civ iv 115, the Court of Appeal held that it was not right to imply a right to park as ancillary to a right of way, not least where the grant of the right of way also included a more limited express right to park. Further, the Court of Appeal described the facts of the Scots Law case of Moncrieff v Jamieson[2007] 1 WLR 462 , where an implied right to park was held to exist as “quite exceptional”