[2025] EWHC 2899 (Ch)

The Statements of Case

Particulars of Claim

On 21 October 2021 the Appellant issued the Claim Form and in the Amended Particulars of Claim dated 9 March 2023 (the “Particulars of Claim”) the Appellant set out its case in relation to the scope of both the right to park in clause 2.1 and the right of way in clause 2.2 of the 2016 Transfer. The Appellant also advanced its claim in trespass as follows:

“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.”

There then followed 31 specific allegations of trespass all of which involved acts by Harris CM between 2 July 2021 and 20 October 2021 (followed by a sweep up paragraph in which the Appellant alleged that the acts of trespass were continuing and would be dealt with in its evidence). For example, the Appellant alleged that on 17 September 2021 Harris CM caused a black delivery van to park within the curtilage of 106 on the land shaded green on Plan 2 and that on 20 September 2021 it caused tools and building materials to be deposited within the curtilage of 106 and on the land shaded green on Plan 2.

The Defence and Counterclaim

On 20 December 2021 both Defendants served a joint Defence and Counterclaim. On 28 March 2023 the Respondent served an Amended Defence and Counterclaim (the “Defence”) in its sole name only. It is clear from the Defence that both Defendants had originally been represented by both solicitors and counsel but that after Harris CM had gone into administration and the claim against it had been stayed, Clarion Solicitors Ltd (“Clarion”) continued to act for the Respondent alone. The Amended Defence of the Respondent contained the traditional general traverse which had originally been pleaded by junior counsel in the joint Defence of both Defendants:

“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.”

In answer to paragraph 13 (above) the Respondent did not admit that the Appellant had locus standi to bring the claims in trespass because the Seller was the registered proprietor of 106 throughout the period during which they were committed. The Defence then addressed each of the 30 allegations on the facts. It was common ground that Harris CM was the Respondent’s contractor but the Respondent did not amend to deny the factual allegation that Harris CM committed the alleged acts of trespass at the direction of the Respondent or to deny the consequence which was averred by the Appellant to follow from this allegation, namely, that the Respondent was jointly liable for those acts of trespass.

The Trial

The evidence

Neither party addressed me in detail on the adequacy of disclosure or the extent to which the Respondent disclosed documents relating to its relationship with Harris CM. It is clear, however, from the Judgment itself that the Judge did not even have the benefit of seeing the contract for the design and build of the new development: see the Judgment, [6], footnote 2 (above). The Appeal Bundle also contained a request for specific disclosure of site minutes and correspondence between the Respondent and Harris CM served by the Appellant’s solicitors, Gunnercooke LLP (“Gunnercooke”) on 14 November 2022. In their response dated 24 November 2022 Clarion refused disclosure on the basis that neither category of document was relevant to the issues. This attitude was surprising to say the least.

I was not taken to any of the witness statements either. Mr Blaker took me briefly to the report of Mr Bruce Collinson FRICS dated 28 September 2022. Mr Collinson gave evidence as the single joint expert in relation to the quantification of negotiating damages. His evidence was that he had been asked to prepare a valuation on the basis that the Appellant succeeded in its claim for trespass and that the Respondent’s development of Lambert House was landlocked and could not be built lawfully without the use of the Appellant’s land.

Skeleton Arguments

In his Skeleton Argument for trial dated 14 February 2024 Mr Horne did not address the question whether the Respondent was liable for any trespass committed by Harris CM head-on. He addressed the Respondent’s liability in the following passage:

“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).”

Mr Horne then invited the Judge to consider the effect of the planning permission granted on 2 August 2017 (i.e. the revised planning permission for the development of Lambert House and not the Planning Permission granted before the 2016 Transfer). He then submitted:

“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 the Construction (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.”

Mr Blaker did not address this issue head-on either. In his Skeleton Argument for trial also dated 14 February 2024, he submitted that the only acts of trespass upon which the Appellant relied were committed by Harris CM and that there was no evidence before the Court that the Appellant had instructed it to commit those acts:

“54.

The first point to make in relation to this issue, is that the complaints about the use of the right of way were directed to D2’s actions. The examples given in the Amended Particulars of Claim are all instances where it is said that D2 or subcontractors stopped on the green land or dropped off materials on that land. D2 is not present at trial and there is no evidence that D1 provided any instruction to D2 to stop on the said land.”

Opening submissions

Given the oblique way in which the parties had addressed the question whether the Respondent was liable for the acts of Harris CM, it is unsurprising that the Judge raised it with the parties during their oral opening submissions. Mr Horne was making submissions about the Construction (Design and Management) Regulations 2015 (the “CDMR 2015”) and the frustration of Mrs Appleby, the director of his lay client, when the Judge asked for clarification:

“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”. At the looks of it, the reason being, there was very early contact in the summer of 2021 between Shane Tate, the directing mind of D1 and Mrs Appleby and, as it were, there’s been constant, sort of – if I can describe it – there’s been constant irritation on both sides since that point of contact. So, the first defendant has always known what has been going on on site and, in my submission, it would be very difficult for the first defendant to suggest that somehow, they don’t have knowledge of what’s going on in terms of D2-

JUDGE SAFFMAN: But that is not a trespass, is it?

MR HORNE: Well, it is when one looks at the construction design management regulations because, at the end of the day, the duty imposed upon an owner for the purpose of those regulations – if I could take you to the end of the authorities’ bundle?

JUDGE SAFFMAN: Yes.

MR HORNE: I think it is the fifth last page of the bundle; so, right at the end.

JUDGE SAFFMAN: Yes, health and safety construction regulations

MR HORNE: Yes, yes. That’s the one. In terms of the defined terms – I’ll do this quickly as opposed to wasting any time on it; “The client means any person from whom a project is carried out. The construction phase means the period of time beginning when construction work on the project starts and ends. Project means construction work and includes all planning, design and management or other work until the end of the construction phase”, and then, we turn over the page to part two, regulation four, which are the client’s duties. “A client must make suitable arrangements for managing a project, including the allocation of sufficient time and other resources. Arrangements are suitable if they ensure that the construction work can be carried out so far as reasonably practicable without risks to the health and safety or other person affected by the project and facilities as required by schedule two are provided”. Schedule two facilities are welfare facilities, effectively. So, that is a non-delegable statutory duty on the part of D1. It has got to ensure that there are suitable arrangements to manage the project in terms of sufficient time and other resources”

“JUDGE SAFFMAN: Well, in that case, you are alleging a breach of the construction design and management regulations?

MR HORNE: No, I’m not. Well, I’m alleging they are in breach of those regulations but I’m not, for the purpose of this case – my case is trespass. My point is that they’ve always know what’s been going on and whatever protestations have been made by my client, they’ve done nothing to stop their contractors

JUDGE SAFFMAN: Is that the – is that trespass? I mean, it might be procuring a trespass but that is a different tort.

MR HORNE: Well, it’s – what it is – at the end of the day, they ultimately are responsible for the project on site. It’s their project; it’s being done for them and insofar as they can ensure compliance by their contractors with

JUDGE SAFFMAN: Well, before you go on; it may be that Mr Blaker agrees with you and I am the one who is – I do not know; do you accept that if there has been a trespass

MR BLAKER: No.

JUDGE SAFFMAN: - by D2, D1 is responsible?

MR BLAKER: No, I don't accept that.

JUDGE SAFFMAN: You do not? Right.

MR BLAKER: And I also – not only do I not accept that but where this case seems to – and many of the – and I’m slightly veering into my own submissions now, where we seem to be morphing into by the claimant is complaints that are of a public law nature rather than private rights

JUDGE SAFFMAN: Well, that is the – yes.

MR BLAKER: And this is a trial where – and I think Your Honour clearly has the point, the focus has to be on whether the claimant’s private law rights and private law property rights have been infringed or not. Not whether there has been a breach of planning; that’s a matter for Harrogate Borough Council; not whether there has been some breach of construction regulations; that’s a matter for the Health & Safety Executive; and there has to be a relentless focus on boundaries and easements and rights of way and those matters that are in the pleaded case.

JUDGE SAFFMAN: Well, that must be right, must it not, Mr Horne?

MR HORNE: Not completely and the reason for that is this; part of my client’s claim is for exemplary damages – a sort of a cynical abuse of her rights. The cynicism is the treatment of her by the first defendant

JUDGE SAFFMAN: I understand – I understand; I just want to get down to basics of understanding this

MR HORNE: Yes, yes.

JUDGE SAFFMAN: - it is trite law, is it not, that a person who commissions an independent contractor – as long as they are an independent contractor – is reasonably conditioned – in other words, you know he is not a cowboy, is not responsible for the tort of the independent contractor

MR HORNE: Indeed.

JUDGE SAFFMAN: Right.

MR HORNE: But that changes with your knowledge.

JUDGE SAFFMAN: Does it?

MR HORNE: Yes, and that is my point in this; this is a very intimate development. From – within a couple of weeks of my client acquiring the site, there’s contact by Shane Tate because there are problems on site

JUDGE SAFFMAN: I just do not understand how failing to stop a trespass becomes a trespass?

MR HORNE: Because, effectively, you are authorising it because you know of the persisting problems and yet, do nothing to stop it.

JUDGE SAFFMAN: Well, that might be procuring a trespass but that is a separate tort. Procuring or inducing somebody to commit a tort is not the same as committing a tort itself.

MR HORNE: Well

JUDGE SAFFMAN: Is it?

MR HORNE: Well, it’s – it’s – in my submission, it’s – I’m going to admit, it’s ultimately a distinction without a difference because

JUDGE SAFFMAN: Well, it is – well, it then goes to the parameters of the pleadings, presumably? I mean, if you plead procuration of a tort – inducement by a third party to commit a tort, that is, in itself a wrong. But that has got to be a pleaded wrong. You cannot – I have difficulty – I say you cannot – I may be wrong; you may convince me or persuade me I am wrong but if I – if I tell you to go and trespass on somebody else’s land, you are the trespasser, not me. I am guilty of another tort; I am guilty of inducing you to do that.

MR HORNE: Well, or the other analysis is that you are effectively – you are the agent – you have trespassed on behalf of your principal and that’s how I would invite you to analyse it because then, the trespass is that of the principal and, in my submission, that’s the proper analysis. And that is why it does matter what knowledge D1 has because if D1 has constant knowledge of all these problems and he is just saying, “Well, forget about it; just get on with it, lads; it doesn’t matter”, those are trespasses for which the principal are responsible for

JUDGE SAFFMAN: Well, we might need some more discussion about this in submissions

MR HORNE: No, I understand.

JUDGE SAFFMAN: It seems to me, that is procuring a trespass

MR HORNE: I understand that, but

JUDGE SAFFMAN: Which is wrong but it is not a wrong with which I am concerned, I do not think at the minute

MR HORNE: No, but I would classify it the way I have classified it

JUDGE SAFFMAN: As a principal agent issue MR HORNE: Principal agent, yes, absolutely.”

Cross-examination

Neither Mr Horne nor Mr Blaker took me to any passages in the cross-examination of the witnesses of fact. Mr Blaker took me to the evidence of Mr Collinson and he relied on a passage in which the Judge put a number of questions to the witness. In the course of some questions from Mr Horne the Judge questioned whether Mr Collinson had gone beyond the remit of his instructions. The following exchange then took place:

“JUDGE SAFFMAN: I put this to you, Mr Collinson, because I am aware of the remit of your instructions and I understand exactly what you were instructed to do but if it is factually incorrect in the sense that you are talking about 44,000 square metres and you are talking about the need for D2 to negotiate a deal which is going to last for two years, your report is based on a complete misconception, is it not? A. It’s flawed in places. Yes, Your Honour. JUDGE SAFFMAN: So it would be difficult for me to rely on a flawed report, would it not? 18 A. Well, that’s for you to decide. JUDGE SAFFMAN: But it is flawed? A. Well, the flaws are in the maths and the maths are capable of being corrected, would have been capable of being corrected if challenged. JUDGE SAFFMAN: Well, the flaws are not just in the maths, are they? The flaws are in the length of time you say they have to negotiate a deal and the area, for example, over which they had to negotiate a deal, whether it is 500 square metres, 800 square metres or 4000 square metres? A. Well, it would involve a separate calculation based on what is now being alluded to. JUDGE SAFFMAN: Right. But the bottom line is, and I do not criticise you for this, as I say, because I understand where you are coming from and how you reach your conclusions, but it turns out as a fact that if those facts are correct, we have a flawed report here? A. Yes. JUDGE SAFFMAN: Thank you. Thank you very much. Thank you. Mr Collinson is released.”

Closing submissions

Finally, neither counsel took me to their closing submissions (whether written or oral) and the Appellant did not suggest that the Judge had wrongly summarised the evidence or arguments before him and, in particular, in relation to the evidence of those witnesses who gave evidence about the Respondent’s relationship with Harris CM.

The Judgment

The 2016 Transfer

After setting out the terms of the 2016 Transfer the Judge set out the relevant law. He cited the principles of construction set out in Gale on Easements21^st ed 2020 (“Gale”) (which was then the most recent edition). He also cited the decision of the Court of Appeal in Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 763, [2013] Ch 305, which is the leading decision on the admissibility and construction of documents registered at HM Land Registry. Finally, he cited the familiar decisions of the Supreme Court in Arnold v Britton [2015] UKSC 36, [2015] AC 1619 and Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] AC 1173.

The Judge then addressed the question of admissibility and concluded that both the Planning Permission and the November Plan were admissible as an aid to the interpretation of the 2016 Transfer. He also identified the following background facts at [53]:

“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.”

The Judge then addressed the first issue of construction which was whether the Respondent and those authorised by it were permitted to stop and unload on the Green Land. He cited Gale at 9—38, Bulstrode v Lambert [1953] 1 WLR 1064 and McIlraith v Grady [1968] 1 QB 468 before concluding that the right of way included a right to stop and load or unload for the following reasons:

“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”. In McIlraith for example, and I will be corrected if this is a misreading of the case, it looks like the grantee of the right of way put up a wall after he acquired the land which meant that vehicles had to stop and unload on the right of way whereas that was not necessary before the wall was built. Still it was held that the right to stop and unload was implied because it was necessary.

61.

There is another background factor here. For some reason the green land does not extend to where the roller shutters were on Lambert House. The route down what was the southern elevation of Lambert House is not within the green area. The plan attached to the planning consent seems to suggest that there were to be bollards at the end of the alley shaded green. In other words, the right of way appeared to lead to a dead end. I have to ask myself what would be the point of a right of way for vehicles which leads nowhere unless it included the right to stop on it for purposes connected with 108 which must include taking deliveries? Mr Horne says that the green land into the alley is only a turning point and nothing more. But there is nothing to support that contention. The right to pass and repass is for all purposes connected with 108 – not just turning around. If Mrs Cooney had wanted the green area to be used for such a limited purpose the 2016 Transfer could have made that clear. Mr Horne recognised that the reasonable person tasked with undertaking the interpretation process could consider what was not said as well as what was. In any event, I observe in passing, that turning a vehicle usually requires the driver to stop even if only for a very short time.

62.

There is yet a further point to aid interpretation. Additional provision 4.1 precludes the grantee from blocking or allowing others to block with vehicles or otherwise the area shaded green. That must imply there is a right to stop. As a general rule, if one cannot stop one cannot usually block. Blocking in my view envisages a stationary vehicle. If that is so the 2016 Transfer itself lends credence to the proposition that the right of way included the right to stop. One can, I think, also assume that there must be a purpose for such right to stop in a dead end and loading/unloading is one obvious one.

63.

For all these reasons I am satisfied, quoting from the passage in Arnold v Britton that I quote above in para 32, that a reasonable person having the background knowledge that I have specified would, in the light of (i) the natural and ordinary meaning of the clause, (ii) the presence of clauses 4.1 and 4.2, (iii) the overall purpose of the clause, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, understand clause 2.2 as extending to a right to stop and load/unload on the green land as long as it did not cause a blockage.

64.

I should make it clear though that the right to load and unload does not include a right to store materials on the green land. Mr Blaker did not suggest that it did and the obstacles to such a contention, had it been made are, in my view, insurmountable, if for no other reason than that, to the extent that materials are stored on the green land, they are blocking it – a course of action precluded by clause 4.1.”

The Judge then addressed the second question of construction which was whether the 2016 Transfer permitted the Respondent and those authorised by it unfettered passage to the entrance of the undercroft. Again, he answered this question affirmatively for the following reasons:

“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.”

The judge also held that the right of way extended to a right to stop at the entrance to the undercroft to open the roller shutter: see [79] to [81]. He then moved on to the final question of construction which was whether the right of way over the Pink/Green Land extended to an unrestricted right of way or was only appurtenant to a right to park on that area of land. Again, he held in the Respondent’s favour for the following reasons:

“84.

Mr Horne this time seeks to rely specifically on the wording of 2.1. In other words he promotes a literal interpretation of this clause over the contextual interpretation that he favours for Additional provision 2.2. As he says in para 42 of his skeleton argument “The literal language used in the 2016 Transfer is such that the right of way is granted over the area shaded green, and not the area shaded green and edged in pink.”

85.

Mr Horne then prays in aid the planning consent and the plan attached to it and argues that the latter shows that that part of the green/pink area which abuts the alley was to be planted. That is clear from that plan and is emphasised by the fact that the green/pink area is much larger than would be needed for the purpose of parking a car or small van. He argues that the planning consent itself has something to say about parking and anticipates, in the interests of character and appearance, that approval will be sought from the local authority for revised alterations to the car parking area. He argues that the reasonable individual interpreting this provision and armed with that knowledge, which was available at the time, would not think there would be a right of way over the planted area beyond a right of way to gain the parking area which was not planted.

86.

Finally, he argues that if there is a right of way for all purposes as well as a right to park in the green/pink area then the consequence would be that the grantor of the right would effectively be excluded from that area. That would mean that it is not a right of way at all. It would be a licence to occupy. He cites Gale para 9-125 in support of that proposition.

87.

More fundamentally though, he argues, that if the rights extend to both parking and a general right of way then, in effect, the servient owner (106) is left with no use of the area in question and that would make the right excessive. His authority for that is Gale para 9-123.

88.

With respect to Mr Horne, I am not persuaded by any of these arguments. First, in my view the literal interpretation does not help him. The green area within the pink edging is still a green area. The provision provides rights of way over the green area. It does not draw a distinction between that green area and the rest of the green area. In my judgment, the provision simply gives additional rights to the area edged in pink. It gives it a parking easement in addition to the rights of way. That is what the provision literally means.

89.

Mr Horne argues that if there is a parking easement there must inevitably be a right of way to get to it and the right of way should be confined to that. But the fact is that the land is coloured green and the right of way over the green land is for all purposes connected with 108. If the area edged pink was to be subject to different considerations than the rest of the green land then the draftsman (a professional draftsman I might add) could have made that clear by shading it in a different colour and making that area subject to a different regime.

90.

Secondly, it is true that the planning plan shows some planting in the green/pink area but, in fact, plan 2 attached to the 2016 Transfer does not. In so far as plan 2 is a stripped down version of the planning plan the draftsman has actually gone to the trouble of erasing the planting on the planning plan from plan 2.

91.

Finally, I do not accept that the servient owner is excluded from occupation of the green/pink area if there are general rights of way over it as well as a parking easement because that area is part of the green shaded area which clause 4.1 ensures cannot be blocked except by a parked car/van.

92.

I add, because it was raised by Mr Blaker that, since the green/pink area is still part of the green area it must enjoy the same rights to load/ unload as the rest of the green area. Hence, the servient owner could not validly complain if the dominant owner and those authorised by it for example spent time unloading the shopping from the car or removing a baby seat from it.”

Joint liability for trespass

For present purposes, the last issue which the Judge had to consider was whether the Respondent was liable for the acts of trespass of Harris CM. The Judge set out paragraph 13 of the Particulars of Claim and recorded that the Defence did not take issue with the allegation that Harris CM committed acts of trespass: “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 by CPR 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”. That principle is repeated in para 6-66. There is, as Lady Hale said in Barclays Bank Ltd v Various Claimants (2020) UKSC 13 at para 24 “a classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor on the other”.

108.

There are exceptions to this general rule. As Clerk and Lindsell put it at para 6–68 “If 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 responsible. If the employer has authorised or ratified the independent contractors torts, he will also be liable on normal principles on joint tortfeasance.”

109.

For completeness I would add that there are also certain duties which are non-delegable duties to which an employer is subject. Breach of those, however, make the employer liable in his own right and have nothing to do with vicarious liability. It was at some point suggested by Mr Horne that the first defendant was caught by the non-delegable duties that are set out in the CDMR. That is not the case however. The CDMR relates to health and safety and workers’ welfare neither of which are relevant here.

110.

So the question is “has the first defendant done any of the things referred to in para 108 above?”

Having reached the conclusion that it was appropriate to try the issue of the Respondent’s liability and having framed that issue in [108], the Judge then went on to decide it in the Respondent’s favour. He held that the Respondent had not selected an incompetent contractor: see [111] and [112]. He also held that the Respondent had not interfered with the manner in which it carried out the works. I set out his conclusions at [153] to [156]:

“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.”

Although the claim against Harris CM had been stayed and he had held that the Respondent was not liable for its acts of trespass, the Judge went on to decide whether any of the 31 allegations of trespass were made out. In deciding each of these issues, he took into account and applied the conclusions which he had reached on the construction of the 2016 Transfer. He concluded as follows at [162] and [163]:

“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.”

Finally, the Judge went on to consider what award of negotiating damages he would have made on the assumption that the Respondent was liable for the acts of trespass committed by Harris CM. He asked the following question and then gave the following answer:

“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.”

The Judge rejected the evidence of Mr Collinson that £150,000 was a reasonable sum because his evidence was flawed for a number of reasons (as he accepted): see [169] to [173]. He then returned to the only evidence that either Defendant would have been prepared to negotiate before concluding as follows:

“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.”