[2025] EWHC 2899 (Ch)

In the Grounds of Appeal accompanying the Appellant’s Notice, the Appellant contended that the Judge had made a number of serious procedural errors, that he made a number of findings of fact which were wrong and that he made a number of errors of law. The Judge himself refused permission to appeal on all grounds and his reasons for refusing permission to appeal in relation to Ground 1 (serious procedural errors) and Ground 3 (errors of law) were as follows:

“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…”

C. Ground 3 Errors in law in respect of the construction of the 2016 transfer and in dismissing claim for trespass by D1.

It was not thought that there was a real prospect of a successful appeal on the approach adopted to the construction of the transfer and the conclusions reached. It was not clear on what basis it was suggested that the law had been misapplied. The claim for trespass by D1 was dismissed because of the finding that in so far as D2 trespassed on the claimant's land D1 was not responsible. There was insufficient evidence to establish trespass after August 2022 (see para 158 of the judgment).”

Fancourt J gave permission to appeal on the grounds set out below only and I will refer to them as “Ground 1(i)” and “Ground 3(i), (ii), (iii) and (iv)” respectively. As I have already stated, he doubted whether there was a strong case on the merits but considered that the threshold for a successful appeal had been met. The Grounds of Appeal for which he gave permission were as follows:

“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 of CPR 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.”

Ground 1(i)

CPR Part 52.21(3) provides that an Appeal Court will allow an appeal where the decision of the lower court was either (a) wrong or (b) unjust because of a serious procedural or other irregularity in the conduct of the proceedings in the lower court. In the present case, the Appellant did not seek to argue that the Judge’s findings were wrong and that he either misdirected himself as a matter of law in relation to the question whether the Respondent was jointly liable for trespass with Harris CM or that his findings of fact were so perverse that this Court ought to interfere with them. The only issue for this Court, therefore, was whether the Judge’s decision to dismiss the claim for damages for trespass against the Respondent was unjust because of a serious procedural or other irregularity.

Mr Horne cited the decision of the Court of Appeal in Dunbar Assets plc v Dorcas Holdings Ltd [2013] EWCA Civ 864 as an example of a case where the Court of Appeal had exercised the jurisdiction in CPR Part 52.21(3)(b) to allow an appeal and order a retrial. In that case, a claim for possession was listed for a one day trial and when it became impossible to hear it, the judge made a possession order on a summary basis. Briggs LJ described the irregularity at [14] and explained what the judge should have done at [15]:

“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.”

Mr Blaker relied on the decision of Kerr J in Samuels v Laycock [2023] EWHC 1390 (KB) as an example of a case in which the Appeal Court declined to exercise the jurisdiction in CPR Part 52.21(3)(a). The facts of that case are very different from the facts of the present case and its principal significance for this Appeal is that it confirms that the Court may dismiss an appeal and affirm the decision of the lower court where there has been a serious procedural irregularity but it has not led to an injustice: see [34].

Vicarious liability

I begin my analysis of Ground 1(i) with some observations on the law. It is trite (as the Judge observed in argument) that an employer who has engaged an independent contractor to perform work is not vicariously liable for any tort committed by that contractor in the execution of that work: see Barclays Bank plc v Various Claimants [2020] UKSC 13, [2020] AC 973 at [24] (Lady Hale PSC). It is possible that an employer may be held vicariously liable for the torts of an individual who is not an employee where the relationship between the parties is “akin to employment”: see Clerk & Lindsell on Torts 24^th ed (2023) (“Clerk & Lindsell”) at 6—35. But the Appellant did not allege such a relationship or that the Respondent was vicariously liable for the torts committed by Harris CM.

Non-delegable duties

There are also a number of well-recognised exceptions to the general principle that an employer is not liable for any tort committed by an independent contractor. The basis for liability in those cases is generally stated to be that the employer has assumed a non-delegable duty to the third party. These exceptions are listed by the editors of Clerk & Lindsell at 6—66 to 6—82. But they also include the negligence or personal fault of the principal or employer which exposes the victim to harm by the independent contractor. After stating the general principle and discussing Barclays Bank plc v Various Claimants (above) at 6—66 the editors continue as follows at 6—67 (footnotes excluded): (Footnote: ¹)

“The employees of a contractor, whilst acting as such, stand in the same position as their employer. However, the employer of the contractor is not automatically liable for the torts committed by the contractor’s employees. Of course, even though the damage complained of may have been caused by the wrongful act or omission of an independent contractor or his employee, it may also be attributable to the negligence or other personal fault of the employer. If, for example, the employer has negligently selected an incompetent contractor, or if he has employed an insufficient number of men, or has himself so interfered with the manner of carrying out the work that damage results, he will himself have committed a tort for which he can be held liable. If the employer has authorised or ratified the independent contractor’s tort, he will also be liable on normal principles of joint tortfeasance.”

Joint liability

The last sentence of 6—67 (above) is not concerned with the direct liability of the employer for exposing the victim of the tort to harm but with joint liability for torts which parties combine to commit. The editors of Clerk & Lindsell deal with this topic in much greater detail in Chapter 4. They state that two parties will be jointly liable for a tort which they both commit or for the commission of which they are both responsible (but not where each is independently responsible for a separate tort and the two torts combine to produce the same damage): see 4—03. They devote section 4—04 to providing numerous examples of joint tortfeasors before summarising the general principle upon which these examples are based (my emphasis and footnotes omitted):

“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”. For this reason, any case of unlawful means conspiracy could be explained in terms of joint tortfeasance where the unlawful means used constitute the commission of a tort. However, since the unlawful means in this tort can also include other wrongs, such as the commission of a common law crime, it cannot be said that unlawful means conspiracy is an otiose cause of action. “All persons in trespass who aid or counsel, direct, or join, are joint trespassers.” Similarly, according to the decision of Mackay J in Daniels v Commissioner of Police for the Metropolis, there may be joint tortfeasance under the Protection from Harassment Act 1997 where the harassment on at least two occasions has been perpetrated by more than one person, each acting on separate occasions, in furtherance of some joint design. Anyone complicit in the commission of a deceit may likewise be regarded as a joint tortfeasor so long as there is a common design. However, an alleged joint tortfeasor cannot have actively co-operated to bring about the relevant act of the primary tortfeasor if he (the alleged joint tortfeasor) did not know about that act.”

The editors of Clerk & Lindsell provide no authority for the proposition that: “the agent who commits a tort on behalf of his principal and the principal himself are joint tortfeasors”. If they intended to say no more than that both principal and agent will be liable if the principal instructs or authorises the agent to commit the wrong, then I respectfully agree. If they intended to go further and state that the principal is liable for any tort committed by the agent whilst acting as agent, then I respectfully disagree. In my judgment, the editors of Bowstead & Reynolds 23^rd ed (2024) accurately state the law in Article 90 at 8—177 (again footnotes omitted):

“(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”. These duties do not necessarily invoke agency concepts.”

(4)

Where principal and agent are both liable for a wrongful act committed by the agent they are joint tortfeasors.

(5)

In this Article, save where the context requires, act includes “omission”.”

The only reference in either textbook to one party being jointly liable for “directing” another to commit a tort is in the sentence which I have highlighted in 4—04 above. Those words are taken from the summing up given to the jury by Tindal CJ in Petrie v Lamont (1841) 174 ER 424, and, although they suggest that there might be a special rule for joint liability in trespass, the report itself shows that the judge was concerned to direct the jury that they had to be satisfied that the members of a partnership had consented to an illegal distress and that an employee of the partnership was sufficiently involved to be personally liable:

“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.” The question is, Can he do this? One partner cannot drag another into a trespass without his previous consent or without his after concurrence. Then, for the fourth defendant, Jones: All persons in trespass who aid or counsel, direct, or join, are joint trespassers. The question is, did Jones do more than as a clerk to Stewart, or was he so implicated, as to make himself a principal trespasser?”

It may be that the sentence which I have highlighted in Clerk & Lindsell provided the basis for the case which the Appellant pleaded in paragraph 13. But whether it did or not, I am satisfied that there is no special rule in the law of trespass that an employer who engages or directs an independent contractor to carry out works (e.g. under a building contract) is jointly liable for trespass which the contractor commits in the course of carrying out those works. Petrie v Lamont (above) is not authority for the proposition. It does no more than confirm the general rule that a partner or principal will be liable for the torts committed by another partner or agent if they have instigated, authorised or ratified that tort.

CPR Part 16.5

CPR Part 16.5 sets out the basic rules for pleading a defence. It provides that a defendant who denies an allegation must state their reasons for doing so and, if they intend to advance a positive case, must plead that case. It also provides that if a defendant “fails to deal” with an allegation they will be taken to admit it:

“(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.”

The editors of Civil Procedure (2025 ed) Vol 1 cite a decision of mine at 16.5.8 for the proposition that CPR Part 16.5(5) is automatic and that in the absence of any application for permission to amend, a defendant runs the risk of being held to have admitted allegations at trial: see Re BHS Group Ltd [2023] EWHC 2875 (Ch) [66]. However, I also stated in that case that in the absence of an application to an amend, the Defendant could expect an application for judgment on admissions or summary judgment: see [67].

Mr Blaker did not seek to argue that the Respondent had complied with CPR Part 16.5(1) or (2) by including a general traverse in the Defence. Nor did he argue that CPR Part 16.5(5) did not apply because the Respondent had “dealt” with the allegation in the second sentence of paragraph 13 even if it had not fully complied with CPR Part 16.5(2). For my part, I am not entirely satisfied that the Respondent should be taken to have admitted any of the allegations in that sentence once it had pleaded the general traverse at the beginning of the Defence. But for the purposes of this Appeal, I will assume in Mr Horne’s favour that the Respondent failed to comply with CPR Part 16.5(3) and as a consequence CPR Part 16.5(5) applies.

Practice Direction PD16

CPR Part 16.5 does not distinguish between allegations of fact and allegations of law. However, PD16, paragraph 12.2 (upon which the Judge relied) implies that even if the Claimant pleads a proposition of law in the Particulars of Claim, the Defendant is not bound to answer it in the Defence:

“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 Judge considered that it was “questionable” whether it was necessary to plead a point of law. I would go further. In my judgment, it is not a strict rule of pleading that a Defendant must expressly deny that a proposition of law and the sanction for the failure to do so is not that they are taken to have admitted the point, but that the Court may strike out the Defence or order summary judgment if it is bad in law. As PD16 recognises, it may be good practice to plead a point of law but it is not a strict requirement of pleading. The editors of Bullen, Leake & Jacob’s Precedents of Pleading 19^th ed (2020) confirm the view which the Judge took that this is not a rule but a matter of good practice only. They state as follows at 1—30 and 1—31 (footnotes omitted):

“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.” As Buxton LJ has stated: “A beneficial effect of the Civil Procedure Rules is that by CPR 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.” Although detailed legal argument is best set out in skeleton arguments, it will often be good practice to identify the point of law concerned in the statement of case. This is because the statement of case should clearly state what the case is about; that is its function. Without necessarily requiring the details of the argument to be set out, points of law should be clearly identified where to do so is necessary to give adequate notice to the other side. Reference to case law is not generally appropriate. On the other hand, where reliance will be placed on legislation, the legislation and relevant sections should be identified.”

Finally, I draw attention to PD16, paragraph 8.2 which provides that a claimant “must” set out particulars of any allegation of notice or knowledge of a fact “where they wish to rely on them in support of the claim”. This is a very familiar rule of pleading and I am bound to observe that one of the curiosities about this Appeal is that the Appellant relies on a single sentence in the Particulars of Claim of which it gave no particulars at all but which it is now said that the Respondent was not entitled to dispute.

What did the Respondent admit?

Mr Horne relied on the Respondent’s failure to plead to the second sentence of paragraph 13. I break down that sentence in the following way: “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.” In my judgment, that sentence consisted of four separate allegations and I will refer to them as “Allegations [A], [B], [C] and [D]” respectively.

There is no issue that the Respondent pleaded to Allegation [A] by either admitting or denying each of the 31 particulars of trespass under paragraph 13. As for Allegation [B], there was no dispute either that Harris CM was acting as the Respondent’s contractor when it committed the acts of trespass which the Judge found proved at [157] to [163]. In my judgment, Allegation [D] was a point of law which the Respondent was not required to answer (although it would have been good practice to do so). No new facts are pleaded in that part of the sentence and it is clear that it was intended to set out the legal consequence of what has gone before because it is introduced by the word “consequently”. This leaves Allegation [C], namely, that Harris CM was acting at the Respondent’s direction. This was undoubtedly an allegation of fact and, in my judgment, the Respondent must be taken to have admitted it.

Was there a serious procedural irregularity which led to injustice?

Mr Horne argued in both his Skeleton Argument and in his oral submissions that the Judge ought to have held that if the Appellant proved the allegations of trespass at trial, the Respondent had admitted that it was jointly liable for them and should have been held liable for damages on that basis. He also submitted that it would have been far too late for the Respondent to withdraw the admission. He put the argument in the following way in his Skeleton Argument:

“The rule is unequivocal in its terms and application. Further, neither paragraph (3) nor (4) of CPR 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.”

Although Ground 1(i) turns on the significance to be attached to the four words “and at its direction” in the second sentence of paragraph 13, I confess that I have found this the most difficult aspect of the Appeal. Nevertheless, I have reached the conclusion that the Judge’s decision to try the question whether the Respondent was jointly liable for the acts of trespass which Harris CM committed did not involve a serious or other procedural irregularity for the following reasons:

Furthermore, even if Mr Horne had taken the CPR Part 16.5 point and either applied for judgment on admissions or to strike out the Respondent’s defence to liability for trespass, I am not fully satisfied that the outcome would have been any different. Again, I have reached this conclusion for the following reasons:

Was the decision unjust?

But even if I am wrong and the Judge ought to have held that the Respondent had admitted joint liability for the acts of trespass of Harris CM and also refused to grant permission to amend to withdraw that admission, I am satisfied that no injustice was done for the following reasons:

Finally, even if I had been persuaded to allow the Appeal on Ground 1(i), it would only have made a significant difference to the overall outcome if I had been satisfied that the Judge’s decision was wrong on one or more of the issues of construction which are the subject of Ground 3. If the Appellant had succeeded on both Ground 1(i) and Ground 3, then I accept that it would have been necessary to remit the decision to the County Court for a retrial. As it is, however, I am satisfied that the Judge was correct for the reasons which he gave. I therefore dismiss Ground 1(i).

Ground 3

The Judge set out the relevant law relating to the interpretation of the 2016 Transfer in the Judgment at [29] to [53]. He accepted Mr Horne’s submission that he was entitled to have regard to the extrinsic evidence at [39]. He also accepted Mr Horne’s submission that the Planning Permission and the Plan were admissible as aids to construction of the 2016 Transfer. Finally, he identified three additional key background facts which were relevant to its construction at [53]. There is no criticism of any of the Judge’s reasoning in these paragraphs in either the Grounds of Appeal or Mr Horne’s Skeleton Argument.

Further, in addressing each of the three issues of construction, the Judge carried out a careful analysis of the 2016 Transfer. In each case, he construed the relevant words of clauses 2.1 and 2.2 against the admissible background before reaching a conclusion about the meaning of the words. As Mr Blaker submitted, the Judge did not stop there. He also stood back and tested his conclusion against the principles set out in Arnold v Britton (above) before reaching a final conclusion: see, in particular, [63] and [77]. Again, there is no criticism of the Judge’s methodology in either the Grounds of Appeal or Mr Horne’s Skeleton Argument.

Indeed, Mr Horne did not criticise the Judge because he had failed to direct himself correctly in relation to the law or that he failed to admit admissible evidence or to exclude inadmissible evidence or even about the way in which approached the construction of the 2016 Transfer. In substance, his real criticism of the Judge was the weight which he gave to the background evidence. This was pre-eminently a matter for him as the trial Judge. Moreover, he had the advantage in the present case of seeing the site itself and, although I accept that this was of limited importance given that the development of 108 has now been completed, the site visit provided him with one real advantage. He was able to gauge very much better than I can the spatial limitations of the site and the challenge which this would have provided to a developer.

For example, Mr Horne’s principal criticism of the Judge’s decision that clause 2.2 permitted the Respondent to stop and unload vehicles on the green land was that, having accepted his own submissions on the admissibility of extrinsic evidence, the Judge then attributed too much weight to the fact that it was known that at the time of the 2016 Transfer that Lambert House was due for demolition and too little weight to the fact that the means of access to Lambert House was through roller shutter doors into a loading or parking bay. These were matters of weight for the Judge which he weighed up carefully in the Judgment, [58] and [59]. In doing so, he made no error of law. This is sufficient to dismiss Grounds 3(i) to 3(iii). However, in deference to the careful submissions of Mr Horne, I briefly set out my own views on the three issues of construction.

Ground 3(i): right to stop and load or unload

As Mr Horne put it in his Skeleton Argument, the issue which the Judge had to decide was “a relatively hackneyed area of law”. The issue of construction for the Judge was whether the words in clause 2.2 “a right of way…to pass with or without vehicles for all purposes connected with the Property” included a right to stop and also to load or unload. Mr Horne’s argument was that the right to “pass” does not include the right to stop for any length of time or to load or unload and if such a right had been intended, the right word was “use” not “pass”.

The right of way in clause 2.2 is expressed to be a right of way “for all purposes”. Furthermore, there is clear authority that a right to pass and repass may include a right to stop to load and unload depending on the physical attributes of the way at the time of grant or re-grant: see Bulstrode v Lambert[1953] 1 WLR 1064 and McIlraith v Grady [1968] 1 QB 468. Mr Horne had to persuade the Judge, therefore, that the physical attributes of the way in the present case were so different from the physical attributes in those cases that it was appropriate to construe clauses 2.2 restrictively.

The Judge concluded that there was no grounds of distinction and, in my judgment, he was right to do so. I respectfully agree with the Judge that the key background fact in the present case was that it was known to both parties that Lambert House was due to be demolished and that they could not have intended the only means of access to be the roller shutters: see [58]. I also agree with the Judge that the fact that the right of way led nowhere other than to Lambert House (subject to whatever use could be made of the Alley) was an equally important factor: see [61]. The purpose of the right of way was, therefore, to give access to Lambert House which was at the time commercial premises. Further, a marketing report dated 8 December 2015 to which Mr Horne took me showed that Lambert House extended right up to the boundary. It is impossible, therefore, to see how the process of demolition could have been begun without vehicles stopping to load and unload on the Green Land: see [59].

I accept that it might have been theoretically possible for the Buyer to produce a method statement for the demolition of Lambert House which enabled it to access and demolish the site without using the Green Land. I also accept that the Buyer was not bound to implement the Planning Permission. But I ask myself why the parties would have agreed to such a limitation on the right of way in clause 2.2 if demolition and development was within their contemplation. It is much more likely that if they had expressly considered the issue, the parties would have agreed that the Buyer should have the right to stop on the Green Land for the purpose of loading or unloading materials provided that the Buyer did not block it permanently or cause a nuisance. I agree with the Judge that clause 4.1 supports the conclusion that this is what they agreed and that clause 2.2 conferred such a right subject to compliance with the covenants in that clause: see [62]. For these reasons, therefore, I dismiss Ground 3(i).