[2025] EWHC 2899 (Ch)

By Appellant’s Notice dated 20 May 2024 the Appellant, AJP Homes Ltd, applied for permission to appeal against the judgment dated 27 March 2024 in the County Court in Leeds (the “Judgment”) handed down by His Honour Judge Saffman (sitting as a Circuit Judge in retirement) (the “Judge”) in which he dismissed the Appellant’s claim for damages for trespass against the Respondent. In the action, the Respondent was the First Defendant and its building contractor, Harris CM Ltd (“Harris CM”) , was joined as the Second Defendant. The Second Defendant did not appear at the trial and was not a Respondent to this Appeal. However, the relationship between the First and Second Defendants did give rise to one of the Grounds of Appeal.

By Order dated 1 May 2024 (the “Order”) the Judge made five declarations in which he recorded the key findings which he had made. He dismissed the Appellant’s claim for trespass and awarded nominal damages on the Respondent’s counterclaim for interference with its right of way. He also ordered the Appellant to pay 90% of the Respondent’s costs of the claim together with a payment on account of £160,000, although he ordered the Respondent to pay the costs of the counterclaim. Finally, the Judge refused permission to appeal.

By Order dated 29 November 2024 Fancourt J, the then Vice-Chancellor of the County Palatine of Lancaster, granted permission to appeal limited to two grounds. The first related to the question whether the Respondent had admitted that it was responsible for the acts of Harris CM. The second involved four questions relating to the construction of the right of way. In relation to both Grounds of Appeal, Fancourt J stated that he was not convinced that there was a strong case on the merits but considered that the threshold for granting permission to appeal was met.

On 10 October 2025 I heard the Appeal and reserved judgment. Mr Wilson Horne, instructed by Gunnercooke LLP, appeared for the Appellant and Mr Gary Blaker KC appeared for the Respondent. Both appeared below and filed detailed Skeleton Arguments for the Appeal. I am grateful to them for both their written and oral submissions.