Price & Anor v Nunn

Cause of action estoppel bars parties and their privies from reopening an identical cause of action, including essential points which reasonable diligence required them to raise in the earlier proceedings. Issue estoppel concerns a previously determined issue which is relevant to a different cause of action.

A claim concerning interference with a public right of way is distinct from one concerning a private easement appurtenant to land. Earlier litigation about the private easement therefore does not preclude reliance on the public right. By contrast, a successor in title cannot relitigate a private easement claim which the predecessor deliberately withheld and which was inconsistent with the final order previously made.

The owners of land containing the Lower Track sought to strike out parts of Mr Nunn’s Defence and Counterclaim. Mr Nunn claimed both a private right of way appurtenant to Woodside Bungalow and rights arising from an alleged public right of way. His predecessor had unsuccessfully litigated claims concerning a private right of way between 1976 and 1983.

Morgan J struck out the private-right allegations for issue estoppel, but permitted the public-right allegations and associated remedies to proceed. The landowners appealed against the latter decision. Mr Nunn cross-appealed against the striking out of his private-right case and against the costs order. The landowners also appealed on costs.

The central questions were whether res judicata or abuse of process barred either category of right-of-way claim and whether the costs orders fell outside the judge’s discretion.

1. Appeal and cross-appeal dismissed. The court unanimously upheld Morgan J’s operative conclusions, although it classified the estoppel affecting the alleged private right of way as cause of action estoppel rather than issue estoppel.

2. The earlier private-right litigation did not create a cause of action estoppel concerning public nuisance. A claim for relief arising from interference with a public right of way was distinct from a claim arising from interference with a private easement appurtenant to Woodside Bungalow. Their essential ingredients also differed. The earlier proceedings did not create an issue estoppel because the ingredients of public nuisance were irrelevant to the former private-right claim: per the Chancellor at [81]–[83].

3. In any event, the pleadings alleged that Mr Nunn’s use of the Lower Track was unlawful. He had to be permitted to defend that allegation by asserting a public right of way which had never been put in issue previously. It would be unjust to preclude that defence merely because his predecessor had unsuccessfully asserted a private easement. He could consequently pursue related declaratory and public-nuisance relief. Neither estoppel nor abuse of process barred that case: [84]–[88].

4. Mr Nunn was privy to his predecessors concerning the private easement. The present private-right claim involved the same cause of action as the earlier claim for relief arising from wrongful interference with an easement appurtenant to Woodside Bungalow. The former injunction embodied a final determination that no such private right existed, save for access benefiting the Paddock: [97]–[101].

5. Cause of action estoppel also covered prescription. That basis could, with reasonable diligence, have been raised earlier and should have been raised. Its deliberate omission did not justify later proceedings, particularly where the landowners had not agreed to the limitation and substantial evidence of use had already been gathered. No decisive new evidence or special circumstance displaced finality: [101]–[107].

6. Applying res judicata did not infringe article 6. Finality, protection against repeated litigation and fair allocation of court resources were legitimate qualifications upon the right to a hearing: [108].

7. Both costs challenges failed. Morgan J was entitled to treat the earlier hearing’s costs as wasted and to reflect the parties’ divided success through an overall costs award discounted by two-thirds: [109]–[115].

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1002, unanimously dismissed the landowners’ appeal and Mr Nunn’s cross-appeal, including both parties’ challenges to costs.
2. Chancery Division: Morgan J ordered part of the Defence and Counterclaim struck out because Mr Nunn was precluded from asserting a private right of way over the Lower Track. He refused to strike out the allegations concerning a public right of way and made a divided costs order.