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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Price & Anor v Nunn  EWCA Civ 1002 (31 July 2013)
Cite as:  EWCA Civ 1002
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ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE MORGAN
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE UNDERHILL
| Price & Anr
|- and -
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Mr John Stenhouse (instructed by Direct Public Access) for the Respondent
Crown Copyright ©
The Chancellor (Sir Terence Etherton) :
The 1976 Proceedings
"This case is restricted to Mr Close's rights at common law and by virtue of a conveyance to which I will refer and so he has called no evidence of any prescriptive rights going back 20 years or longer. Nothing I say is to be taken in any way today as being to do with the acquisition of prescriptive rights. That is [an] issue outside these proceedings."
"But we have to be careful about drawing the line between prescriptive rights with which I am not concerned and rights derived from the 1923 conveyance."
The reference to the 1923 Conveyance is explained by the fact that the relevant conveyance of 3 October 1960 granted a right of way by referring to the terms used in the 1923 Conveyance. The Deputy Judge then referred to a further witness and said:
"That is relevant evidence if the issue of prescriptive use is to be argued. But I do not think that he assisted me on the instant issue."
"There are two principal issues. Firstly, to what extent is the right of way up the red lane capable of extending beyond the Paddock? And secondly, does there exist any proprietary estoppel, equitable right or the like as distinct from the grant of a right of way created by Deed, the former taking effect in equity."
"They did trespass on the way and should not have used it except in connection with the Paddock."
"I should make it clear at this stage that in the action from which this appeal is brought the plaintiffs did not claim on the basis of what I may describe generally as prescriptive right. Their claim was limited, so far as the right of way was concerned, to the construction of the reservation and the claim in acquiescence or equitable estoppel. The plaintiffs have made it clear that they may hereafter start proceedings on the basis of prescriptive right. As to that I say nothing except to mention that it is not a part of this appeal and nothing which I may say relates to such a claim, since it was not before us, as it was not before the learned deputy judge."
"An injunction restraining [Mr and Mrs Close] by themselves their servants or agents or otherwise howsoever from entering upon [the Lower Track] save for the purposes of passing between the paddock Ordnance Survey number 1239 and the [Birdlip] to Slad Road"
The 1980 Proceedings
Transfer of Woodside Bungalow and the Paddock to Mr Nunn
The present proceedings
"9. Any use of the Upper Track by the Defendant and his predecessors in title with vehicles has at all material times been contentious having been objected to by the Claimants and obstructed from time to time. In particular access to the Upper Track from the Paddock has been obstructed by the Claimants since 11th April 2004. Further in so far as it is alleged that access was obtained from the highway via the Lower Track to Woodside Bungalow such use was a colourable breach of the injunction and/or unlawful.
10. In the circumstances any use by the Defendant of the Upper Track with vehicles is a trespass."
The judgment of Morgan J
"The result is that I hold that: (1) there is an issue estoppel which prevents Mr Nunn from asserting that Woodside Bungalow has the benefit of a private right of way over the lower track; (2) there is no issue estoppel which prevents Mr Nunn from relying on the claimed public right of way to defend a claim that he is a trespasser when he uses the lower track for reasons other than gaining access to the paddock; (3) there is no issue estoppel which prevents Mr Nunn from relying on the claimed public right of way to seek a declaration that he is not a trespasser when he uses the lower track for reasons other than gaining access to the paddock; (4) it is not appropriate to strike out Mr Nunn's claim (in public nuisance) to damages or for an injunction against future obstruction of the lower track."
The legal principles: res judicata and abuse of process
The appeal – public right of way: discussion
The cross-appeal – prescription for a private right of way: discussion
Appeal and cross–appeal on costs
Lord Justice Kitchin
Lord Justice Underhill