Greatorex v Newman & Anor

Where, on construction, a right of way is limited to the use made of it when created, its scope depends on that historical use. Whether a particular class of persons used the way at that date is a question of fact. A trial judge may draw reasonable and probable inferences from sparse evidence, using practical reason, good sense and general knowledge. The Court of Appeal will not interfere merely because another inference is possible. It may intervene only where no judge could reasonably have reached the challenged conclusion. On the evidence, retail customers of a shop using a rear passage were unlikely to have used it as access, so the right did not extend to them except in an emergency.

The respondents, owners of 2 The Quay, brought proceedings concerning patrons of the appellant’s bar at 23 Bridge Street using a covered passage over which the bar had a right of way created by a 1921 conveyance. The county court held that the words limiting the right to the way it was then used restricted its scope, and declared that it did not extend to retail customers except in an emergency. Limited permission to appeal was granted on the factual issue of historical use; the construction and gate issues were excluded. The central question was whether the judge was entitled to infer that the fishmonger’s retail customers did not use the passage in 1921.

The appeal was dismissed unanimously. Lord Justice Mummery gave the principal judgment. Lord Justice Sedley agreed and considered that the evidence made any contrary conclusion even less likely. Lord Justice Wilson agreed.

1. The construction issue was not open on the appeal. The words limiting the right of way by reference to the way it was then used were treated below as words of limitation. They restricted the right to the use actually made by Mr Collinson in 1921. An argument based on the words permitting use by persons authorised from time to time could not reopen that issue after permission to appeal on construction had been refused.
2. The extent of historical use was a question of fact, not construction. The trial judge was entitled to draw inferences from the proven or admitted facts. Such inferences involve practical reason, good sense and general knowledge. The judge had properly avoided relying on more recent use as evidence of use in 1921, referring to it only as supporting comfort for an inference already reached.
3. Under Civil Procedure Rules 1998, rule 52.11(3), the Court of Appeal could interfere with the factual conclusion only if it was wrong in the sense that no judge could have reached it by a process of reasonable and probable inference from the evidence.
4. The established facts supported the inference that Mr Collinson’s retail customers used the shop’s front entrance on Bridge Street. The rear passage was reasonably inferred to have been used by suppliers, trade customers and staff. The declaration that the right of way did not extend to retail customers, save in an emergency, was therefore upheld. It was unnecessary to decide whether the customers’ use was excessive.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 1318, dismissed the appeal.
• Cambridge County Court — HHJ O’Brien granted a declaration that the right of way did not extend to customers of the business at 23 Bridge Street, except in an emergency. No injunction was granted.