Summary

Both Andrew Walker QC and his instructing solicitors, Shelter Cymru, (neither of whom had been involved at any stage at first instance) agreed to act pro bono at the appeal hearing, following the withdrawal of legal aid. Davis LJ paid “tribute to the careful and attractive way in which Mr Walker presented his arguments (both written and oral).”

Facts

A judge had not erred in concluding that the owner of a smallholding had a vehicular right of way for agricultural purposes over a track and bridge running over an adjoining farm which gave access to the smallholding.

The appellants (H) appealed against a declaration that the respondents (E) had a vehicular right of way for agricultural purposes over a track and bridge which ran over H's farm and gave access to E's adjoining smallholding.

A public footpath giving eventual access to the smallholding ran over the farm. E's case was that they had the right to use that path, and the bridge over a stream on the farm over which the path went, to gain vehicular access to the smallholding for agricultural purposes, and that there had been such use of the track and bridge for many years without objection. The title documents made no mention of such a right of way. H disputed that there had ever been any vehicular access over the track or bridge to the smallholding. In an open letter dated April 21, 2008 sent by H after proceedings had commenced, H indicated their agreement to the agricultural right of way as claimed. The matter was adjourned twice before it eventually came to trial, and at the second adjournment hearing on September 19, 2008 the judge ordered that the adjourned trial should deal only with a number of specific issues. Shortly before trial H indicated that they had not agreed and did not agree to a vehicular right of way in favour of E. As that point was not included in the list of issues for consideration, the trial judge decided not to have a sub-issue on whether they had agreed or not, but to hear and assess the evidence. The judge expressed concerns regarding the claim to a prescriptive easement, since the general rule was that user at a time when the servient tenement was let did not ordinarily operate to bind the freehold owner unless the owner had consented to that user. The point however was not pleaded by H, and the judge, having raised the point, rejected it. On the evidence, the judge found that the bridge had been removed by H a few years earlier in order to defeat the exercise of the right and until that point there had been use with vehicles along the bridge.

H submitted that the judge had no proper basis for his conclusions and sought to rely on the points raised and subsequently rejected by the judge. E submitted that, by reason of the letter of April 21, 2008 and the order of September 19, 2008, H's dispute as to the existence of a vehicular right of way should not be left as an issue.

Held

On the face of it, on all material points E's evidence had been preferred and there could be no viable challenge to the judge's findings of fact and his conclusions. The instant appeal rested on a point which H had never pleaded and which was raised by the judge himself, albeit only after the evidence had been concluded. Notwithstanding the judge's adoption of an approach of substantively addressing the question of whether there was an established vehicular right of way, the point was no longer open to him to decide. The issues at trial had to be confined to those contained in the order of September 19, 2008. H's letter of April 21, 2008 indicated their agreement to the agricultural right of way as claimed; it was quite clear and was plainly designed to delimit the issues at trial. The recital in the order of September 19, 2008 reflected that letter. Absent an appeal from that order the matter had been judicially determined (see paras 20, 26-29, 36, 49 of judgment).

Appeal dismissed