Russell & Ors v Finn

The Court of Appeal allowed the appellant's appeal and held that the right of way granted by the conveyance dated 11 October 1978 extended along the existing driveway into the curtilage of the Coach House and did not terminate at the stone gateposts marked "Y". The court applied the established principle that construction of an instrument must take account of its words together with relevant surrounding circumstances, but held that the judge below erred by omitting the most obvious surrounding circumstance — the historical use of the driveway as the means of access to the Coach House prior to 1978 — and by over-emphasising the import of a copied 1921 plan and the use of the words "Brook Avenue" in earlier conveyances.

The Court of Appeal further found it was implausible to impute to the parties an intention to confine vehicular access to a difficult, rarely used northern route unless compelled by express words or necessary implication. A point based on section 62 of the Law of Property Act 1925 was raised on appeal but not decided because it had not been pleaded or argued below. As a result the declaration and injunctive relief granted below were discharged and replaced by a declaration recognising the right of way over the driveway.

Background and parties: The claimants (trustees of settlements who owned Brook House land) sought a declaration and injunction that the defendant's right of way was limited to Brook Avenue between points X and Y. The defendant (owner of the Coach House land and adjoining field) contended that his right of way extended to the south side of the Coach House, alternatively claiming a prescriptive right (lost modern grant) and seeking reinstatement of access.

• Nature of the claim/application: Claimants sought a declaration of limitation of the defendant's right of way and an injunction restraining entry; defendant counterclaimed for a declaration of a broader right of way, for prescriptive rights, and for re-instatement of access works.
• Procedural posture: The case was tried in the Chancery Division; His Honour Judge George gave judgment for the claimants on 7 June 2002. The defendant obtained permission to appeal (granted by Lord Justice Carnwath) and appealed to the Court of Appeal which heard the matter on 20 February 2003.
• Issues framed by the court: (i) Proper construction of the 11 October 1978 conveyance and the extent of the Coach House right of way; (ii) whether surrounding circumstances supported a construction terminating the way at the gateposts; (iii) whether a prescriptive right or lost modern grant had been established; (iv) ancillary remedies including injunction, reinstatement and costs.

Court's reasoning: The Court of Appeal accepted the analytical approach in St Edmundsbury v Clark that construction requires consideration of both the instrument and surrounding circumstances. It concluded the judge below erred by failing to treat the prior use of the driveway to access the Coach House as a relevant surrounding circumstance and by giving undue weight to the 1921 plan and the mere recurrence of the name "Brook Avenue". The appellate court considered it improbable that the parties intended to confer access only by an awkward and seldom-used northern route across land not owned by the Coach House purchaser. A submission based on section 62 of the Law of Property Act 1925 was raised during argument but was not decided because it was not advanced at trial and would have been unfair to decide upon at appeal without earlier notice. On that basis the appeal was allowed; the prior judge's orders were discharged and a declaration recognising a right of way along the driveway to the Coach House was to be made. The appellate court did not need to decide the prescription/lost modern grant issue.

Appeal allowed. The Court of Appeal held that the 11 October 1978 conveyance granted a right of way along the driveway into the curtilage of the Coach House (not terminating at the gateposts). The judge below had misapplied the surrounding-circumstances approach by omitting the decisive surrounding circumstance of historical use of the driveway and by over-emphasising the 1921 plan. A Section 62 argument was noted but not decided because it had been raised too late on appeal.

Appeal from the High Court, Chancery Division (His Honour Judge George), trial judgment given 7 June 2002 for the claimants. Permission to appeal was granted by Lord Justice Carnwath. The Court of Appeal ([2003] EWCA Civ 399) allowed the defendant's appeal on 20 February 2003 and discharged the orders made below, substituting a declaration that the right of way extends along the driveway to the Coach House.