Hayes & Anor v London Borough of Merton

An appellate court should avoid determining a construction issue where the decision would not bind or resolve the rights of the persons who are the real parties to the underlying dispute. A Tomlin order made between two parties cannot settle the position of a third party whose land is affected, since that party remains free to dispute it. Where the real issue concerns the combined effect of earlier transfers and may require declarations or trespass proceedings between neighbouring landowners, that issue should be litigated between them in the appropriate court. The appellate court may instead stay enforcement of the existing Tomlin order and give the parties liberty to apply.

Mr and Mrs Hayes owned the rear part of a property whose driveway was owned by the purchasers of the front part, the Pedersens. The Borough’s 1983 transfer and its 1989 transfer to the Hayes appeared to create a mismatch between the right of way reserved and the easement granted. The Hayes sued the Borough, without joining the Pedersens, and the proceedings were compromised by a Tomlin order defining an agreed route. The High Court later construed that order in the Hayes’ favour, while recognising that the Pedersens were not bound by it. The Borough sought permission to appeal and a further determination of the order’s effect.

1. Disposition. The Court formally granted permission to appeal, treated the appeal as before it and allowed the appeal only to vary the order below. Further proceedings to enforce the Tomlin order were stayed, with liberty to apply. The Borough was ordered to pay the Hayes’ costs assessed at £2,158.50. There was no order as to the Pedersens’ costs.
2. Lack of practical utility. The proposed appeal concerned the meaning of the agreement in the Tomlin order. It did not determine the real issue, namely the combined effect of the 1983 and 1989 transfers. Because the Pedersens were not parties, they had not been heard and were free to dispute the route over their land. Any appellate ruling might therefore have no practical value to the actual parties to the right-of-way dispute.
3. Proper forum and future proceedings. If the Hayes and the Pedersens remained unable to agree, the dispute could be resolved by proceedings between them in the county court, either for a declaration as to the true route or for trespass. An agreement between the Borough and the Hayes about the route had little practical value without corresponding agreement with the Pedersens. The parties could then decide whether there was any purpose in maintaining a Tomlin order inconsistent with the position determined in the county court.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 1712, the court granted permission, allowed the appeal for the limited purpose of varying the order and stayed further enforcement proceedings.
2. High Court of Justice, Chancery Division: On 19 May 2003, His Honour Judge Rimer construed the Tomlin order in favour of the Hayes as against the Borough, while noting that the Pedersens were not parties and could dispute the route.