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This hotly contested claim concerned the extent of the Claimants’ right of way over a track some 155 metres in length in West Wales. The claim was of vital importance to the Claimants who used the track as their sole means of access to their farmhouse and sheep farm. Unfortunately, previous counsel was taken ill and David Nicholls was instructed only 3 ½ days before trial. The papers were voluminuous and the evidence extensive: the trial bundle comprised 18 lever arch files; there were over half a dozen experts; and nearly a dozen witnesses.
There was no dispute that the Claimants had a prescriptive right of way for all purposes. The issues at trial principally concerned (i) the width and weight of vehicles that could use the right of way; and (ii) the extent of the Claimants right to repair the right of way. Despite the volume of material, astute case management and focused advocacy ensured that the evidence and submissions were completed in two days, with judgment given on the third.
The decision of His Honour Judge Jarman KC was characteristically concise. The Court concluded that the right of way could accommodate vehicles 2.5 metres in width and of any weight, which was essential for the oil tankers that used the track to deliver to the Claimants’ farm, as well as for other large agricultural vehicles. The Court went on to decide that the Claimants had a right to repair the right of way, to cut back the branches of the hedges and trees growing either side of the right of way (insofar as they interfered with the exercise of the right of way), and a right to repair the embankments on either side of the right of way in the event they were damaged and the damaged caused an obstruction of the right of way. The Claimants also obtained a favourable costs order against the Defendant, as well as the benefit of the consequences set out in CPR 36.17 for a period of time.
However, both parties appealed, and the appeal was heard by Mellor J on 21 March 2023. The Judge gave a comprehensive judgment, which is of particular interest with regard to his comments relating to the extent of the right to repair and the principles that apply in relation to CPR Part 36.17.
Right to repair
It is well-established that the dominant owner of a right of way has a right to repair the way. The relevant propositions of law were set out by the Court of Appeal in Carter v Cole [2006] EWCA Civ 398. The question in this case was whether the right to repair could extend to carry out repair works on land adjacent to, but not subject to, the right of way. To understand why this was important, it is necessary to consider the topography of the track in question. Indeed, a quick glance in the diagram at pa. 54 of the judgment illustrates the position. In short, the track was effectively sunken below the ground level of the fields on either side, and it was contained within embankments that ran on either side of the track for its whole length. These embankments supported the fields on either side and out of the top and sides grew hedges and trees. The right of way ran along the track and within the air space between the embankments but it did not include a right to go onto the embankments themselves (which was in fact expressly excluded in the Order made at trial).
The Claimants contended that they should be entitled to repair the embankments as well as the track. They relied on the case of Jones v Pritchard [1908] Ch 630 at 638. The Judge at trial agreed and made an Order permitting the Claimants to go onto the Defendant’s land to repair the embankments, provided there was damage to the embankments and the damage was causing an obstruction to the right of way.
The Defendant appealed and this issue was considered at length by Mellor J. He concluded that the argument based on Jones was correct. Students of land law will remain that Jones concerned two houses that a shared a party wall containing chimney flues. Smoke from the fires of one neighbour came through the wall of the other and caused damage. Although the judge decided that there was no basis for a claim in damages, he helpfully set out certain principles relating to easements, which included “the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment”. In Jones, it was held that this would include the right of one owner to repair the other owner’s half of the wall in question, so far as was reasonably necessary for the enjoyment of any easement impliedly granted or reserved.
The Judge agreed that the same principle applied in this case and he rejected the Defendant’s appeal on the basis that the Judge was perfectly entitled to direct that the Claimants may repair the embankments in the event of damage, provided that damage obstructs the Claimants’ use of the right of way. This was clearly work within the scope of doing what is reasonably necessary for the enjoyment of the right of way, particularly owing to the fact that the clearance between the embankments and vehicles using the right of way was small and it was possible that damage to the embankments could be caused. In the alternative, the Judge also agreed that the Claimants could have acquired the same right on the basis of their argument that their right to abate a nuisance entitled them to do so.
CPR Part 36
The decision at trial held that the Defendant should pay 75% of the Claimants’ costs. In addition, for a period between September 2021 and March 2022, the costs consequences of CPR 36.17(4) should apply to the Defendant owing to the fact that:
(a) The Claimants achieved a judgment at least as advantageous as their Part 36 Offer that expired in September 2021.
(b) The Claimants should have accepted the Defendant’s without prejudice offer that was made in March 2022, with the effect that it would be unjust for the costs consequences of CPR 36.17(4) to continue thereafter.
Both parties appealed. The Defendant said that the Claimants had not been their Part 36 Offer and the Claimants said they should not have accepted the Defendant’s without prejudice offer.
The judgement is a useful reminder of the applicable principles. In relation to the question of whether the Claimants beat their Part 36 Offer, in cases such as this involving ‘non-money’ offers the Court should undertake a comparison of whether the relief obtained in the proceedings was in broad terms more advantageous to the claimant than its offer (as per Hildyard J in Re Lehman Brothers International [2022] EWHC 3366 (Ch)). In relation to the question of whether it would be unjust for the costs consequences of CPR 36.17(4) to apply, the assessment was an exercise of discretion, which could only be challenged on one of the usual grounds, but the discretion is much more circumscribed than the court’s broad discretion under CPR Part 44. Also, the court should take into account the fact that the unsuccessful defendant could have avoided the costs of the trial if it had accepted the claimant’s Part 36 offer, as it could and should have done (per Sir Stanley Burnton, Webb v Liverpool Women’s NHS Foundation Trust [2016] EWCA Civ 365). Applying those principles, the Judge decided that both parties’ appeals should be dismissed.
Proportionality
Finally, it is worth noting the Judge’s comments in relation to proportionality. Like the Judge at first instance, Mellor J commented that this dispute had been conducted in an entirely disproportionate way and at entirely disproportionate cost. Indeed, the total costs of both parties exceeded £600,000. That said, the importance of the right of way to the Claimants should not be underestimated. It was the sole means of access to their farm and their livelihood depended on it.
David Nicholls (instructed by JCP Solicitors Ltd) appeared for the Claimants.
The judgment may be accessed here.
