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Recorder Russell, sitting in the county court at Bristol, has today dismissed a counterclaim for a prescriptive right of way and granted an injunction restraining two householders from making any use of a neighbouring piece of land earmarked for development of three houses. The order was made following a three-day trial in proceedings issued as long ago as November 2020. The decision is interesting in that: (i) it is reminder of just how difficult it is for those who assert the enjoyment of prescriptive rights obtained over decades to discharge the burden of proving their existence and of the preciseness of the evidence required to do so; (ii) it shows the power of the reasoning of Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2020] 1 CLC in cases turning on the recollections of witnesses; (iii) it is a reminder that even in the wake of the Supreme Court’s decision in Coventry v Lawrence, the prima facie position in a trespass case is that a landowner is entitled to injunctive relief even where no harm is caused by the tort.
The Claimant was a property developer who owned a brownfield site in the centre of a conservation area in Wotton under Edge in Gloucestershire. He obtained planning permission for the construction of 3 houses on the land in 2019. The land included an accessway linking the development site to the adopted highway. The Defendants bought 24 Old Town, the side of which adjoined the accessway, in 2016. In 2020, the Claimant became aware that they were using the accessway to access the highway from a gate in their garden wall, to take their bins out, and for storage. He also noticed that there was a downpipe discharging rainwater directly onto the accessway. Concerned about the implications for his development proposals, he issued a claim for injunctions restraining that use. The Defendants counterclaimed for declarations that they had obtained prescriptive rights of way and drainage by virtue of twenty years of user by them and their predecessor in title (Mr Fellowes).
The claim for a drainage easement was abandoned at the start of trial, so that all that was in issue was whether a right of way existed pursuant to the doctrine of lost modern grant. The Defendants contended that the gate had been installed in the wall by their predecessor in title before 17 August 2000, the date twenty years before the Claimant’s letter before action, when Mr Fellowes extended the back of 24 Old Town.
After hearing the evidence of numerous witnesses, including the wife of the late Mr Fellowes, Recorder Russell found that the Defendants had failed to discharge the burden of proof. She particularly relied on plans supplied with the original planning application in September 2000, which showed no gate in place, and on the fact that planning permission was not granted until November 2000. In cross examination, Mrs Fellowes was adamant that her husband was not the sort of person who would have commenced development works without planning permission, which the Judge accepted.
Following cross examination of the First Defendant, she found that his witness statement contained evidence which he knew to be untrue when he signed the statement of truth and that his evidence was tainted by his opposition to the Claimant’s development proposals. After hearing the Defendants’ other witnesses cross-examined, Recorder Russell found that their recollections were too vague for her to find as a fact that the gate was installed any earlier than 2004. She relied on the observations of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2020] 1 CLC that an honest witness who is convinced that they are right may still be mistaken.
The Judge was invited to order nominal damages in lieu of an injunction in reliance on the decision of the Supreme Court in Coventry v Lawrence. Counsel for the Defendants submitted that a claimant who fails to adduce any evidence of loss as a result of a trespass on their land should not in equity be entitled to an injunction. The Judge accepted the Claimant’s submissions that special rules apply to physical incursions onto land such that the prima facie position is that a landowner whose title is not in doubt is entitled to an injunction restraining a trespass. To conclude otherwise would amount to the court sanctioning unlawful acts and would critically undermine the essence of property rights. The Judge accepted that she should follow the reasoning of the Court of Appeal in Patel v W. H. Smith (Eziot) Ltd [1987] 1 WLR 853, which survived Coventry v Lawrence.
Tom Morris acted for the successful Claimant, instructed By Dannielle Long and Martin Edwards at Shakespeare Martineau.
