Bradford & Anor v Keith James & Ors

A conveyance plan is important contemporaneous evidence of a boundary, but it is not conclusive where its markings create genuine uncertainty. Extrinsic evidence may then be admitted to clarify the plan and construe the conveyance, though it cannot contradict or vary it.

Surrounding circumstances and subsequent conduct must be approached cautiously. They may nevertheless assist where they have probative value in identifying the parties’ original intentions. The evidence must be assessed cumulatively, including plans, later physical use and the absence of objection where relevant.

In 1976 the owners of Great Jumps Farm conveyed the Farm while retaining an unconverted barn. The plan to that conveyance marked the Farm boundary in red. A dog-leg feature beside the barn gave rise to a dispute over a 3.7-metre cobbled strip providing access to the barn.

The barn was conveyed in 1977 on a plan showing the cobbled area as part of it. The appellants, later purchasers of the barn, sought a declaration of title. HHJ Ibbotson in the Halifax County Court held that the 1976 plan clearly included the cobbled area in the Farm and declared it to be within the respondents’ registered title.

The appeal concerned whether the plan was sufficiently clear to exclude extrinsic evidence, and whether surrounding circumstances and later conduct could assist its construction. The appellants also sought to adduce a late-discovered sketch as fresh evidence.

1. Appeal allowed unanimously. Mummery LJ, with whom Jacob and Wilson LJJ agreed, set aside the County Court order and directed a declaration that the cobbled area belonged to the appellants.

2. The judge had erred in treating the 1976 plan as clear. The dog-leg in the red boundary line immediately east of the barn could not be explained from the plan or conveyance. It created real uncertainty whether the line followed the barn wall or the outer edge of the cobbled area.

3. That uncertainty permitted the use of extrinsic evidence to clarify the boundary and construe the conveyance. Such evidence could not contradict or vary the plan. The contemporaneous conversion plans were probative because they showed that the farmyard side was intended to be the front of the converted barn and that its front door opened onto the cobbled area.

4. Later conduct required caution, but it was admissible where probative of the original parties’ intentions. Applying Ali v Lane [2007] 1 EGLR 71 and Haycocks v Neville [2007] 1 EGLR 78, the court treated the conversion, use of the area, fencing, and absence of objection as evidence more consistent with exclusion of the cobbled area from the Farm than with its inclusion.

5. Read in that context, the 1976 conveyance excluded the cobbled area. It therefore passed with the barn under the 1977 conveyance. Permission to adduce the late sketch was refused: it was late, unlikely alone to affect the result, and would require oral evidence and effectively a retrial.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 837, the court allowed the appeal, set aside the County Court order, and declared title to the cobbled area in favour of the appellants.
• Halifax County Court: On 28 November 2007, HHJ Ibbotson declared that the cobbled area fell within the respondents’ registered title and ordered the appellants to pay 75% of the costs.