Taylor v Burton & Anor

Interference with a right of way becomes actionable when it substantially obstructs the reasonable use of the easement. An appellate court may overturn a trial judge’s factual assessment of interference only where it is wholly unsupported by evidence, contrary to the weight of the evidence or perverse.

Costs are primarily for the trial judge’s discretion. Appellate intervention requires an error of principle, reliance on an irrelevant factor, failure to consider a relevant factor or a decision outside the range of reasonable disagreement. Reserved amendment costs must be considered separately. In the absence of a good reason otherwise, the party obtaining permission to amend should bear the costs caused by the amendment.

The claimants owned land benefiting from an express right of way over a track on the defendant’s adjoining land. After the defendant replaced the track with a realigned road, the claimants alleged substantial interference with their use of the route by heavy goods vehicles. They also advanced claims concerning the width and position of the right of way and a prescriptive right over neighbouring land.

Norwich County Court found actionable interference, awarded £520 damages, declared the position of the right of way, ordered rectification of the claimants’ registered title and awarded them their costs. The defendant appealed against the finding of substantial interference and several costs decisions. A further ground concerning the land identified in the declaration was adjourned to permit an agreed disposal.

1. Appeal allowed in part. The challenge to the finding of substantial interference was dismissed. The orders concerning the costs caused by the claimants’ amendment and the costs of the interim injunction were set aside or varied. The challenge to the remaining costs of the claim was dismissed. Rimer LJ gave the judgment, with which Ryder LJ agreed.
2. An interference with a right of way is actionable when it is substantial and obstructs the reasonable use of the easement. That principle was supported by Keefe v Amor [1965] 1 QB 334, Celsteel Ltd v Alton House Holdings Ltd [1985] 2 All ER 562 and West v Sharp (2000) 79 P & CR 327. The trial judge was entitled to find that realignment made the route materially more difficult for heavy goods vehicles. Although the conclusion was marginal, it was supported by the evidence and was neither contrary to its weight nor perverse.
3. The trial judge had not been told that the costs caused by the claimants’ amendment were reserved for separate determination. His general costs order therefore resulted from a failure to address that distinct issue. The Court of Appeal exercised the discretion afresh and made the conventional order requiring the claimants to bear those costs. The amendment had introduced several unsuccessful or irrelevant matters and had materially wasted paper and costs.
4. The condition governing the costs of the interim injunction had to be interpreted in the context of the issue before the judge who granted it. It entitled the claimants to costs only if they established that the proposed building plot encroached upon the express right of way. They failed on that issue. The parties were therefore left to bear their own costs of the interim application.
5. Appellate interference with a trial judge’s general costs order requires a misdirection in principle, consideration of an irrelevant matter, omission of a relevant matter or a conclusion outside the range of reasonable disagreement. Despite the claimants’ failures on some issues, the trial judge was best placed to assess their relative importance and could rationally conclude that the claimants had substantially succeeded. The remaining general costs order was therefore upheld.
6. Ground 1, concerning the correct plan for the declared right of way, remained adjourned so that the parties could seek an agreed disposal.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 21, allowed the appeal on the reserved amendment costs and interim-injunction costs, but dismissed the challenges to the finding of substantial interference and the remaining costs order. Ground 1 was adjourned for possible disposal by agreement.
2. Norwich County Court: His Honour Judge Barham awarded the claimants £520 damages, declared the position of their express right of way, ordered rectification of their registered title, discharged an interim injunction and ordered the defendant to pay their costs.