[2023] UKUT 200 (LC)

As I noted above, the judge in the FTT carefully set out the factual background, much of which was not in dispute, and he made important findings of fact about the ownership of the application land at the start of 6 June 1918. He made a careful survey of the authorities relating to the construction of documents, in his paragraphs 40 to 59. He noted what was said in Network Rail Infrastructure about the high standard of proof required before the court can make a “corrective interpretation” of the document. He regarded Wesleyvale as less on point than other cases because it was about an easement, and did not think that he could adopt the solution that Lewison J devised on the basis that it did not extend beyond the “particular case” of an uncertain right of way.

In the judge’s paragraphs 91 and following he set out the reasoning that led to his conclusion.

First, although the conveyance of Westcott was relevant and admissible, the judge took the view that it did not assist Mr Dunlop because it did not answer the question: what was actually conveyed in law to Thomas Dunlop? The antecedent contract had “merged into the conveyance” and so it was the latter that was the key title document. The judge also referred to the 1933 conveyance (paragraph 31 above) and said that the wording of the conveyance was ambiguous as to whether it was the original grant of a right of way or merely conveyed the benefit of an existing easement. In any event he took the view that the conveyance was at best evidence that in 1933 Thomas Dunlop subjectively believed he owned the lane. The judge did not refer to the conveyance of 12 June 1918; in the appeal Mr Mills explained that the register of title to The Hundreds was in the bundle before the FTT, and was referred to in argument.

Second, he held that he could not ignore and discount the “very clear plan” which “more particularly delineated” what was conveyed. From just one look at the plan, the judge explained, it was clear that the application land was excluded. The acreage of 0.389 in the conveyance did not trump the plan. He accepted that that acreage was qualified by the phrase in the parcels clause “or thereabouts”, so that the acreage was not supposed to be definitive but must yield to the plan. He considered that the margin for error imported by “or thereabouts” was sufficient to indicate not just a marginal variation in the total of what was conveyed but also variations or reductions within individual plots. The judge was unmoved by the argument that where the parties intended that part of a plot was conveyed, they said so. He was unimpressed by the argument that the conveyance granted rights of way over land outside the area conveyed where a right was needed, as it certainly would have been if the application land was not conveyed, because the property would (as both counsel accepted) have had a right granted by section 6 of the Conveyancing Act 1881 (now section 62 of the Law of Property Act 1925) if Thomas Dunlop had used it when he was tenant of Lunsford Farm.

At his paragraph 95 the judge said:

“Whilst novelty is not necessarily a bar, no decision was cited to me in which any court or tribunal has rejected a plan on which the land conveyed was stated to be “more particularly delineated”, and where that plan clearly depicted what was and was not conveyed – so that it could be understood by anyone reading it, ‘plan in hand’ at the site, that certain land was included or excluded. No authority was cited to me suggesting that the summary of Mr Strauss QC in Network Rail Infrastructure was wrong so far as it suggests that such a plan will prevail “unless it is not clear enough to show where the boundary lies”, in which case recourse may be had to the wording of the parcels clause and other admissible factors.”

Nor did the judge consider that the position was so clear that the conveyance admitted of “corrective interpretation” so that this aspect of the plan could be ignored. He said at paragraph 97 that he considered that the red edging looked very deliberate, and that there might be a number of possible explanations for why it was drawn thus, other than mistake. The parties might have changed their minds at a late stage. Lt Lucas-Shadwell might have decided to retain the application land, either in order to keep it until the local authority adopted it or in order to retain control for the purposes of neighbouring development.

Furthermore, the conveyance plan did not produce an absurd or arbitrary result. The evidence and circumstances were not sufficient for the judge to reject the plan on the basis of a “clear mistake” or on the basis that “something must have gone wrong”.

For those reasons the judge rejected Mr Dunlop’s application on the basis of the 1918 conveyance.

Permission to appeal was granted by this Tribunal on the basis that it was arguable that:

I am going to address the first two grounds together. They are two different aspects of the central question about the construction of the conveyance, which is whether the judge was right in his paragraph 95 to find that the authorities required him to follow the plan in preference to the wording of the conveyance. As will be seen, in my judgment the appellant succeeds on the construction of the conveyance. The third ground refers to the judge’s paragraph 97 (summarised at paragraph 58 above) and is about the related question of “corrective interpretation”, with which I deal briefly under a separate heading below.