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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Taylor v Lambert & Anor [2012] EWCA Civ 3 (18 January 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/3.html Cite as: [2012] EWCA Civ 3 |
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ON APPEAL FROM THE DONCASTER COUNTY COURT
HIS HONOUR JUDGE MOORE
Strand, London, WC2A 2LL |
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B e f o r e :
VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LORD JUSTICE LLOYD
and
LORD JUSTICE SULLIVAN
____________________
GARY TAYLOR |
Claimant Appellant |
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- and - |
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(1) TERENCE LAMBERT (2) MICHELLE LAMBERT |
Defendants Respondents |
____________________
Duncan
Macpherson
(instructed under the Bar Pro Bono Scheme) for the Appellant
Soofi Din (instructed by CA Law) for the Respondents
Hearing date: 20 December 2011
____________________
Crown Copyright ©
Lord Justice Lloyd:
Introduction
The conveyancing history
"All that messuage or dwellinghouse and saleshop with the outbuildings yard garden and conveniences thereto adjoining and belonging situate in High Street at Barnby Dun near Doncaster in the County of York known as Bridge Stores which said premises contain an area of 553.4 square yards or thereabouts and are for the purposes of identification only delineated on the plan annexed hereto and thereon coloured pink"
The position on the ground
"I am satisfied that the true boundary in fact and law between the properties conveyed between the parties in 1974, is shown approximately by the line in the plan with the conveyance that runs from the south west corner of Bridge Stores garages to the west wall of the property. In other words I find as a fact that the parties to the 1974 conveyance Mrs Green intended to sell and the purchasers intended to buy the area to the north of the boundary line at line B to C in the composite plan at page 90, supplementary bundle. She intended to sell that area, the buyers intended to buy it."
The relevant principles of law
"We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties."
"If, however, several different species of description are adopted, risk of uncertainty at once arises, for if one is full, accurate, and adequate, any others are otiose if right, and misleading if wrong. Conveyancers, however, have to do the best they can with the facts supplied to them, and it is only now and again that confusion arises."
"It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed."
"Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence [2003] EWCA Civ 1121; [2004] 1 P. & C.R. 176 at 187; c.f. Beale v. Harvey [2003] EWCA Civ 1883; [2004] 2 P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips [2003] EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. …"
"When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that that intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention, the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but insofar as the plan does not conflict with the parcels I can see no reason why, because it is described as being 'for identification only', it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be 'for the purposes of identification only' does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel."
"In my judgment, when a property, the subject matter of a conveyancing document, is described as "the property known as …" it is permissible, indeed inevitable, that recourse will be had to extrinsic evidence to identify the property so known. In Spall v Owen (1981) 44 P. & C.R. 36, in which there was a description of a property as "the property known as plot No. 1," I said, at page 43, that such a description cried aloud for evidence of the surrounding circumstances. That dictum was quoted by the Court of Appeal in [Targett v Ferguson (1996) 72 P&CR 106] with approval."
"In taking the objective approach [that is, in the construction of the conveyance and the plan], one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?"
"I would add this. The court of course can admit, and must admit, extrinsic evidence if it finds ambiguity or meaninglessness or the like, but the court should not be astute to go out of its way to find ambiguity or uncertainty where there is none. These documents are intended to affect not only the parties to them, but subsequent purchasers and surrounding land owners. Prima facie they are to be relied upon unless there is something fairly obviously wrong with them. There is nothing fairly obviously wrong with this one. It tells the Horns what they are going to get, 61 metres, and that is what they got. It tells others what the Horns got."
The expert evidence
i) The measurement of 553.4 square yards in the 1974 conveyance is unusual, and suggests that there must have been specific reason for it. The plan to the 1974 conveyance is not of good quality, not to scale and may have been derived from a plan used for a planning application. It shows the general intention of a boundary but should not be relied on in detail.
ii) If the northern part (Bridge Stores) is taken from a boundary running along and from the short western wall then its area is about 557.7 square yards. Normal measurement techniques in 1974 would permit a tolerance of up to 10 square yards in such a measurement. The area of the northern part on the basis of the more southerly boundary, along what I have called the boundary wall, is up to 88 square yards greater. This is outside the normal tolerance, and there must be a reason for it.
iii) The experts disagreed on several matters. Mr Wilson thought that although a measurement of an area specified in a conveyance does not necessarily define a boundary, if three boundaries are fixed the fourth should be taken as a line which fits with the measurement rather than one which makes the measurement seriously inaccurate. Mr Rowley thought that the fourth boundary could only be defined if the site is of even shape and the angle of the boundary known.
iv) Mr Rowley thought that whoever calculated the area on the 1974 plan made a mistake as to the plan he used for this purpose. Mr Wilson thought the measurement would have been correct and that it was the annexed plan that was used mistakenly for the conveyance.
Discussion
"Doing the best he could to scale off an area represented by the figure of 553.4 square yards, that is to say the number in the Parcels Clause, [Mr Rowley] produces three lines. The first and it is very approximate because even doing the best he can, he gets slightly different figures from 553.4 and the other expert Mr Wilson who did an academic exercise drawing on his chartered surveyor's experience and using the plans only, came up with slightly different figures. But doing the best he could, I am satisfied he was doing his best, Mr Rowley came up with 3 potentially different places for the boundary. The first was a line roughly approximating to the old wall and pigsty aforesaid [this is what I call Mr Rowley's red line]; the second was running from the south west corner of the garages at point B, he drew two blue dotted lines across to the eastern wall and within both of those he was able to get somewhere close to the 553.4. Thus it was not possible to determine the boundary from the area alone, so one was left in a quandary because the precision of the Parcels Clause is out of place, because it does not show us the boundary."
"the [premises known as Bridge Stores] with the outbuildings yard garden and conveniences thereto adjoining and belonging",
it is relevant, admissible and necessary to consider the evidence as to what, in April 1974, was the extent of the yard, garden and conveniences adjoining and belonging to Bridge Stores. In doing so, the objective test is to be applied, identified in Toplis v Green cited above: what would the reasonable layman (in the position of Mr and Mrs Stockhill, the intending purchasers) think he was buying as the yard and garden (and conveniences) adjoining and belonging to Bridge Stores?
"150. … I am satisfied that the area of 553 square yards in the conveyance is an error and was not checked by the parties to the conveyance who accepted it without question. It is wrong and should be disregarded.
151. [I have already quoted this paragraph of the judgment at paragraph [21] above.]
152. The solicitors erroneously put in a square yardage of 553.4, that was a miscalculation. I think what they have done and I find as a fact that this is what they did, is they scaled it off the original conveyance without actually checking that the actual boundary was further south than the position of those old walls and piggery walls and nobody ever double checked it. Accordingly it is an error; the true intention was to sell off the area marked by the factual boundary on that line B to C."
Lord Justice Sullivan
Lord Justice Maurice Kay