Price & Anor v Nunn

An issue estoppel may prevent a successor in title from advancing a private right of way inconsistent with an earlier final determination concerning the predecessor’s use of land. The estoppel does not necessarily prevent a person from relying on a claimed public right of way as a defence to trespass, because membership of the public does not depend on privity with an earlier litigant. Claims in public nuisance may raise different privity issues. Fresh evidence will displace an issue estoppel only in exceptional circumstances and must entirely change the aspect of the case. A public right of way claim was not an abuse of process where the issue could properly be determined in the current proceedings.

The Prices sought to strike out parts of Mr Nunn’s Defence and Counterclaim concerning alleged private and public rights of way over the lower track. Earlier proceedings between the Prices and Mr and Mrs Close had resulted in findings and orders limiting the Closes’ private right of way to access to the paddock, together with an injunction restraining other use. Mr Nunn later acquired Woodside Bungalow and the paddock from the Closes.

The application raised whether Mr Nunn was bound by issue estoppel as a successor in title, whether privity existed in relation to a public right of way, whether fresh evidence constituted special circumstances, and whether pursuing the public right of way claim was an abuse of process.

1. Private right of way. The earlier damages award and injunction determined that the Closes had no right to use the lower track for access to Woodside Bungalow, apart from the express right benefiting the paddock. Mr Nunn, as successor in title to Mr Close in relation to Woodside Bungalow, was his privy. An issue estoppel therefore prevented Mr Nunn asserting that Woodside Bungalow had a private right of way over the lower track.
2. Public right of way as a defence. A claimed public right of way could be relied on by Mr Nunn to defend a trespass claim without showing the special interest required for a claim in public nuisance. Nor was he relying on ownership of Woodside Bungalow to found a negative declaration that such use would not be trespass. There was consequently no issue estoppel preventing those parts of the case.
3. Public nuisance claims. Claims for damages or an injunction based on obstruction of a public right of way would be claims in public nuisance and ordinarily required a special interest. There was a strong argument that ownership of Woodside Bungalow supplied that interest and made Mr Nunn a privy of Mr Close for those claims. The court nevertheless declined to strike them out. If the public-right-of-way defence succeeded at trial, that would constitute a special circumstance preventing the estoppel operating against the consequential nuisance claims.
4. Fresh evidence and abuse of process. The proposed historical material did not entirely change the aspect of the case and therefore did not constitute the exceptional special circumstances required to avoid issue estoppel. However, raising the public right of way in the present proceedings was not abusive. The issue was suitable for determination in proceedings already addressing related rights over the upper track.
5. The court had not determined the merits of the alleged public right of way. The parties were directed to agree a minute of order; unresolved consequential matters, including costs, were to be dealt with by written submissions.