Gary David Harry Hambling & Anor v Garry Lawrence Wakerly & Anor
[2023] EWHC 343 (Ch)
Mark Leonard Lamport & Ors. v Stanley Thomas Jones
24 March 2023
[2023] EWHC 667 (Ch)
High Court
Two neighbours fought over a path on their land. A judge decided who could use it and how, and how much each had to pay. Both neighbours appealed, but the judge's decisions were upheld because they were fair, even if not perfectly clear. The whole thing cost way too much money!
Key Facts
- •Dispute over a right of way (approximately 155m) over a track bordering the defendant's land.
- •Principal dispute concerned the width of the easement: claimant argued 2.5m, defendant 2.15m.
- •Defendant initially placed bollards obstructing the track, leading to an interim injunction.
- •Trial involved preliminary issues regarding easement width, repairs/improvements, vegetation cutting, and costs.
- •Judge found a 2.5m wide easement at ground level based on historical vehicle usage.
- •Judge ruled against claimants' right to improve the track, limiting repairs to necessary maintenance.
- •Judge granted a 3-year injunction and ruled on costs, including Part 36 offers and WPSATC offers.
- •Both parties appealed the Judge's order; the appeals concerned the scope of repair rights and cost decisions.
Legal Principles
Test for granting permission to appeal: real prospect of success or compelling reason.
CPR 52.6
Appeal court reviews lower court decisions, allowing appeals if decisions were wrong or unjust due to procedural irregularities.
CPR 52.21
Construction of court orders should consider the language used and relevant circumstances known to the court and parties; judgments' reasons are admissible when construing the order.
SDI Retail Services Ltd v The Rangers Football Club Ltd [2021] EWCA Civ 790 at [44]
Dominant owner of a right of way can maintain and repair, entering servient owner's land for necessary work in a reasonable manner.
Carter v Cole [2006] EWCA Civ 398 at [8]
Grant of easement includes ancillary rights reasonably necessary for its exercise or enjoyment.
Jones v Pritchard [1908] Ch 630 at 638
In costs appeals, the court distinguishes between errors of law and unjust discretionary decisions; intervention only occurs if the discretion exceeded reasonable disagreement.
AEI Rediffusion Music v PPL [1999] 1 WLR 1507, Islam v Ali [2003] EWCA Civ 612, Tanfern v Cameron-MacDonald [2000] 1 WLR 1311
For non-money claims, CPR 36.17(1)(b) requires a comparison of whether the judgment was broadly more advantageous than the offer; a wide-ranging review of facts and circumstances is permitted.
Re Lehman Brothers International [2022] EWHC 3366 (Ch), Carver v BAA Plc [2008] EWCA Civ 412
CPR 36.17(4) orders are made unless unjust; the objective is to encourage good practice and incentivize offers, potentially leading to non-compensatory awards.
McPhilemy v The Times Newspapers No. 2 [2001] EWCA Civ 933, OMV Petrom SA v Glencor International AG [2017] 1 W.L.R. 3465, PGF II SA v OMFS Company I Limited [2013] EWCA Civ 1288
Outcomes
Claimants' appeals dismissed.
Grounds of appeal regarding the right to repair were unarguable, based on misinterpretations of the judge's findings and the distinction between repair and improvement. The defendant's arguable ground concerning embankment repair was dismissed because the judge's decision was reasonable and practical given the track's nature and the ancillary right to repair to allow the easement's enjoyment.
Defendant's appeals dismissed.
Arguments that the judge's costs decision was wrong were rejected. The judge's approach was reasonable and within the bounds of discretion, considering all relevant factors (injunction, costs, and the overall fairness of applying CPR 36.17(4) consequences).
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