Monthly Archives: October 2015

Previous diversity of occupation not essential to rights claimed

The case below has had much interest in the national press as the Claimant Mr Wood MBE was a well known soldier who had spent well over £3m on a new equestrian centre which relied heavily on a claimed “right of way” across a neighbour’s. The neighbour said the horses affected his game bird breeding.

In the Court of Appeal case of Wood & Anor v Waddington [2015] the Claimants, Mr and Mrs Wood, said that they had rights of way over land owned by the Defendant, Mr Waddington.

The Woods’ and Mr Waddington’s property had been owned by a Mr Crooks prior to 1998.

Mr and Mrs Wood said:

1. that the rights claimed were expressly granted to their predecessors in title, Mr and Mrs Sharman by clause 12.3.3 of the transfer from Mr Crooks to Mr and Mrs Sharman. This said

“… the Property is sold subject to and with the benefit of all liberties privileges and advantages of a continuous nature now used or enjoyed by or over the Property…”.

Corresponding rights had been reserved out of the transfer to Mr Waddington by clause 12.5.3 of that transfer.

However at first instance the High Court had concluded that for the general words in those clauses, a right of way was not a liberty, privilege or advantage “of a continuous nature“. It gave those words their established conveyancing meaning not intending to deal with rights of way at all but instead things like pipes wires and drains.

2. Mr and Mrs Wood said the rights claimed were advantages enjoyed with the land transferred by Mr Crooks to the Sharmans, their predecessors in title, and became easements under section 62 of the Law of Property Act 1925.

The Claimants said that the rights which they claimed were, prior to the transfer to Mr and Mrs Sharman, “enjoyed with” the land so transferred under section 62.

However at first instance the High Court said section 62’s use of the word “with” suggested that before the conveyance, there must have been a relationship between the land to be conveyed and the land to be retained so that it could properly be said that the relevant advantage had been enjoyed with the land to be conveyed.

The leading case Long v Gowlett [1923] had said that there must be some diversity of ownership or occupation of the two parcels of land sufficient to attribute the acts relied on “not to mere occupying ownership, but instead to some advantage or privilege (however far short of a legal right) attaching to the owner or occupier of Whiteacre as such and de facto exercised over Blackacre.”

However the Court of Appeal said that:

1. there is no absolute bar to section 62 operating where land has been in common ownership and occupation. Diversity of occupation assist us to differentiate between cases where a landowner is just using their land as they wish, and cases where a use is in the nature of an easement or quasi¬easement enjoyed for the benefit of a particular part of the land. However, diversity of occupation is not essential and section 62 may be effective to transfer easements where the enjoyment of the rights claimed was continuous and apparent when the parcel of land was sold off.

2. The word “continuous” had become “all but superfluous” when the words “continuous and apparent” were juxtaposed with claims under the rule in Wheeldon v Burrows [1879] and under section 62.

Additionally under section 62 there was no requirement to show that the easement claimed was necessary for the reasonable enjoyment of the land (as is required under Wheeldon v Burrows).

What mattered was the extent to which there were visible signs of a track or road, and in this case there were adequate signs on the ground that the claimed routes had been continuous and apparent.

Section 62 only applies if the rights claimed are enjoyed with the land. So they must have been used for a reasonable period before the parcel of land was sold off.

The Court of Appeal then considered when, and how often, the tracks were used and said that the tracks being used approximately once per month met the requirements of section 62.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Contractual limitation clause did not trigger defence under Section 1(3) of the Limitation Act 1980

In a construction case a typical limitation clause in a collateral warranty said:

“Notwithstanding the date hereof no proceedings shall be commenced against the Contractor after the expiry of twelve years from the date of issue of the last written statement by the Client that practical completion of the Project has been achieved under the Contract”.

This presented a procedural bar to any right the beneficiary of the warranty may have against the contractor being enforced in proceedings brought by the beneficiary issued after the cut-off time.

In the case of Bloomberg LP v Malling Pre-Cast Ltd [2015] the High Court ruled that this clause did not of itself extinguish the underlying substantive right, which might remain.

So, in proceedings by the beneficiary of the warranty against them, the project’s engineers might issue Part 20 proceedings against the scheme’s contractor claiming a contribution under section 1 of the Civil Liability (Contribution) Act 1978 and the limitation clause did not prevent that.

So the contractor had not demonstrated that the engineer had no real prospect of succeeding in its Part 20 Claim.

Outwith the clause, it may be that issues of limitation would arise later in the Part 20 proceedings or even in the main action but it was too early in the proceedings to say.

If as a matter of general law, the contractor could be said to have “ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against” the contractor was based, this would entitle the contractor to a limitation defence under the proviso contained in section 1(3) of the Limitation Act 1980, quite independently of warranty’s limitation clause, in respect of the damage.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Time limits in negligence cases: appellants had insufficient actual or constructive knowledge to trigger limitation period

In a claim for damages for negligence the right to sue accrues at the date that damage occurs, even if no-one knows about the damage at the time.

To stop the limitation period for suing running prematurely section 14A of the Limitation Act 1980 disapplies the more general time limit in section 2 of the Limitation Act 1980 and provides for two alternative periods of limitation – 6 years from the date on which the right to sue accrued or 3 years from “the starting date” which is defined in subsection (5).

Section 14A only applies to claims in negligence and has no application to claims for nuisance, misrepresentation. or breach of statutory duty.

Section 14A (5) of the Limitation Act 1980 requires that the starting date is the earliest date on which the claimant had both:

1. the knowledge required for bringing an action for damages in respect of the relevant damage and

2. the knowledge required of their right to bring such an action.

Section 14A(6)(a) then says that “the knowledge required for bringing an action for damages in respect of the relevant damage” includes knowledge of “the material facts about the damage in respect of which damages are claimed”.

Section 14A(7) says “the material facts about the damage” are such facts about the damage as would lead a reasonable victim of such damage to think it serious enough to justify his starting proceedings for damages against a defendant who did not dispute liability and could satisfy a judgment.

In the Court of Appeal case of Blakemores LDP v Scott & Anor [2015] the trial judge had thought that the relevant “damage” for the purposes of section 14A(5)-(7) was the respondent law firm’s failure, in April 2009, to file an objection to the registration of two Land Registry titles affecting a village before the procedural deadline.

The appellants, Ms Carole Scott (“Ms Scott”), Mr Eric Walker (“Mr Walker”) and Mr Christopher Balchin, were villagers. Ms Scott alone knew that the law firm had been negligent in failing to file the objection, but even Ms Scott did not know the consequences of that failure.

So an issue was whether merely knowing that the firm had been negligent in not advising that the objection should be filed before the deadline was enough to lead a reasonable person to consider it sufficiently serious to justify his instituting proceedings for damages against the law firm, assuming it to be solvent and unwilling to dispute liability.

The court said knowing the firm’s failure to file the objection before the deadline was insufficient knowledge of a “material fact about the damage” to start time running for the purposes of sections 14A(6)(a) and (7).

The appellants needed to know that the effect of the failure to file the objection was to allow the Land Registry Adjudicator to make a discretionary decision against them in relation to a title.

There were two reasons why the material fact about the damage could not just be the negligent advice or the failure to file the objection before the deadline:

1. the appellants were not experts in land registration or manorial law. They could not be taken to have known the arcane consequences of a failure to file an objection in time without being told what they were.

The consequences of the non-filing of the objection by the deadline were “a fact only ascertainable with the help of expert advice” but the last part of section 14A(10) of the Limitation Act 1980 did not mean that they should “be taken … to have [“extended constructive”] knowledge of [that] fact” because Ms Scott and Mr Walker had in April 2009 and before, taken reasonable steps to obtain expert legal advice.

2. The relevant material facts about the damage have to be such as would lead a reasonable person to consider it sufficiently serious to justify his instituting proceedings for damages against a solvent firm, not disputing liability. On the evidence Ms Scott may not have known anything that would have led a reasonable person to sue:

– she had no reason to think she would be worse off. She understood that the costs were to be covered by the law firm and not reclaimed from her

– she had reason to think the case was going to be successful, and

– most crucially she seemed unaware that the firm’s negligence had turned a clear right to have the title closed into a matter for the discretion of the adjudicator.

So the starting date for limitation purposes was not April 2009 when the failure to object occurred. A trial of the facts would be needed before that date could be properly decided.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.