Campbell & Anor v Banks & Ors

A claimant cannot recast the issues after trial where the pleadings, interim relief, evidence and submissions reasonably presented a different case. A private right of way acquired by prescription requires sufficient qualifying use for the statutory period, or evidence supporting a lost modern grant. Occasional or sporadic use, particularly where opposed by the owner, is insufficient. A public right of way claim must be supported by persuasive evidence and cannot properly be determined without joining all necessary owners. Historical maps, parish records and proposals for a definitive map require careful evaluation and do not, without more, establish a bridleway. Damages for harassment or interference with business require proof of actionable conduct and loss caused to the claimant.

The claimants operated a stables business adjoining Headbolt Lane and Carr Lane, which crossed land owned or occupied by the defendants. Gates were erected across the lanes, and the claimants sought declarations that they had private or public rights to use them with horses, together with damages for alleged harassment and business loss.

The claimants later contended that the case had become one concerning pedestrian rights of way. The court held that the proceedings, interim injunction, pleadings, evidence and submissions had presented an equine-right-of-way claim. The issues were whether such rights existed by express grant, prescription, lost modern grant, dedication or public right, and whether the defendants had caused recoverable loss.

1. Issue to be tried. The claimants were not entitled to abandon their equine-right-of-way case after trial and substitute a pedestrian claim. The defendants and the court had reasonably understood the case to concern rights to ride horses along the lanes. The defendants were entitled to judgment on that issue.
2. Express right. The express right granted to the property at 98 New Cut Lane by the 1953 conveyance was restricted to the northern section of Headbolt Lane. The conveyance did not confer a right over the whole of Headbolt Lane or Carr Lane.
3. Private right based on use. The claimants could not establish 20 years’ qualifying use as of right. The evidence of vehicle and horse use before 1986 was insufficient, occasional and sporadic, and vehicle use had been opposed where observed. The claim under the Prescription Act 1832 was unavailable because proceedings had not been brought within a year of interruption, but a lost-modern-grant claim also failed on the evidence.
4. Public right. Any claim under s.31 of the Highways Act 1980 was unsustainable. The evidence did not establish dedication. A public bridleway declaration could not properly be made because relevant freehold and leasehold owners had not been joined. The historical records, parish minutes and definitive-map material did not establish a public bridleway.
5. Damages. The incidents proved did not amount to harassment or intimidation. In any event, the claimants failed to prove actionable interference or loss caused to their business. The damages claim was dismissed.
6. The claims for equine or vehicular rights over the lanes therefore failed, except for the defendants’ accepted right of way over the northern section of Headbolt Lane. The judgment was for the defendants on the claims.

This was a first-instance trial in the High Court. An interim injunction requiring the gates to be kept open and unlocked had been made by Patten J and continued pending trial. The claimants were later permitted by Mr Recorder Elleray QC to re-amend their particulars of claim.