IDC Group Ltd v Clark

A professionally drafted deed is ordinarily construed according to the proper legal meaning of its language. The expression grant licence, used for a right to pass over land, points to a personal licence rather than an easement unless the instrument contains sufficiently clear contrary indications. Wording extending clauses to successors in title, the importance and indefinite character of a fire-escape right, and the omission of a termination provision do not by themselves alter that conclusion. Authorities treating an instrument called a licence as a tenancy concern exclusive possession and do not change the analysis of a mere right of passage.

The plaintiffs claimed the benefit of a 1969 deed concerning adjoining properties in St James's Square. The deed granted a right, described as a licence, to pass through an opening and doorway in case of fire. The defendant, an underlessee of part of the adjoining property, refused to reopen the blocked doorway.

On a preliminary issue, Sir Nicolas Browne-Wilkinson, Vice-Chancellor, held that the deed created no rights capable in law of binding the defendant and dismissed the action. The plaintiffs appealed. The central issue was whether the deed created an easement or merely a personal licence.

Lord Justice Nourse delivered the leading judgment. Lord Justices Stocker and Beldam agreed.

1. Disposition. The appeal was dismissed. The deed created a personal licence and not an easement capable of binding the defendant.

2. Proper meaning of the language. The court treated the deed as professionally drafted. Where a legal document uses a term with a proper legal meaning, that meaning should ordinarily be given effect. A licence properly so called is permission to do something on or over land which creates no interest in the land. The expression grant licence was therefore the starting point in construing the deed.

3. Construction of the deed. Although since 1925 it had been unnecessary to use the word grant or words of limitation to create an easement, an experienced conveyancer intending to grant an easement would ordinarily have used wording appropriate to a grant to successors in title, together with a holding provision. The deed did not use that form of language. Clause 4, referring to successors in title and assigns, did not provide a sufficiently clear contrary indication. Applied literally, it produced difficulties in relation to other provisions and was unnecessary given the express reference to occupiers for the time being.

4. Contextual arguments and authorities. The importance of a fire-escape right, its apparently indefinite duration, and the absence of an express power of termination were relevant considerations, but they could also be explained by a licence likely to continue indefinitely in practice. The authorities on transactions described as licences but amounting to tenancies, including Addiscombe Garden Estates Ltd v Crabbe [1958] 1 Q.B. 513 and Street v Mountford [1985] AC 809, depended mainly on exclusive possession. That consideration could not arise from a mere right to pass and repass. The argument based on clause 3 and section 79(1) of the Law of Property Act 1925 did not overcome the deed's language.

5. Order. The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): Dismissed the plaintiffs' appeal with costs and refused leave to appeal to the House of Lords.
• High Court of Justice, Chancery Division: Sir Nicolas Browne-Wilkinson, Vice-Chancellor, answered the preliminary issue negatively, dismissed the action and ordered costs against the plaintiffs.