Higson & Anor v Guenault & Anor

Fresh evidence may be admitted on appeal where the overriding objective of doing justice requires it, although Ladd v Marshall remains relevant and persuasive. The extent of an express or reserved right of way is determined from the deed and plan, construed in context, including relevant physical features. Mere non-use does not abandon or modify an easement without an intention to do so. Interference is actionable when it substantially impairs the reasonable use contracted for; the test is convenience, not necessity. A later acquisition of a small additional strip does not remove the legal injury or make a mandatory injunction oppressive where full use remains reasonably required. Reasonable expenditure incurred to ameliorate the obstruction may be recovered as damages.

The appellants owned 11 Barton Road beside a narrow lane leading to the respondents’ tennis club. The dispute concerned whether a 2004 fence narrowed the Club’s right of way and trespassed onto its land. The Club sought removal of the fence and damages for works undertaken to improve access.

District Judge Forrester held that the boundary ran along the centre of the hedge, awarded £3,150 damages plus interest and costs, and later ordered removal of six fence panels with costs. On appeal, the Higsons sought to adduce the original 1921 conveyance, arguing that it showed the lane had been conveyed to the Borough council. The central issues became the extent of the reserved right of way, whether the fence substantially interfered with it, and whether the injunction, damages and costs orders should stand.

Lord Justice Aikens delivered the judgment, with Lord Justices Elias and Fulford agreeing. The appeal was dismissed.

1. Fresh evidence. Under Civil Procedure Rules 1998, Pt 52.11(2)(b), the appellate court ordinarily excludes evidence not before the lower court unless it orders otherwise. The correct approach gives effect to the overriding objective of doing justice. The principles in Ladd v Marshall remain relevant and persuasive, but the evidence was admitted notwithstanding the failure to obtain it with reasonable diligence. The certified plan was materially misleading, and refusal to admit the original conveyance would have required the appeal to proceed on a false basis.
2. Conveyances and the right of way. The original 1921 conveyance conveyed the land including the lane to Lancaster Borough council, while reserving the Wellhouse Estate’s right of way. The 1945 conveyance therefore could not convey the lane to the Club, although it could operate as a grant of an easement. The 1997 conveyance created the relevant boundary. The extent of the reserved right depended on the language and plan construed in context, including the physical features existing at the relevant time. The hedge, rather than the temporary Peill fence, marked the extent of the right of way. Non-use did not abandon or modify the right because no intention to abandon had been proved.
3. Substantial interference. Interference with a right of way is actionable only if substantial. The inquiry is whether the grantee’s insistence on the whole contracted use is reasonable and whether the way remains substantially and practically usable as conveniently as before. The 2004 fence made it virtually impossible for large lorries to deliver hot tar-macadam satisfactorily and therefore substantially interfered with the right.
4. Injunction. The Club’s acquisition of the Wood strip did not eliminate the legal injury or make removal of the six panels oppressive. Full use of the narrow lane remained reasonably required. An injunction was justified whether the wrong was treated as nuisance or trespass.
5. Damages and costs. The Club could recover reasonable expenditure on bridge widening undertaken to ameliorate the obstruction. The £3,150 assessment was supported by the evidence and was below the sum claimed. The costs of the second hearing were properly awarded because the Club obtained an injunction more extensive than the Higsons’ offer. The declaration, damages, interest and costs orders stood, subject to amendment clarifying that the right of way, and subsequently the registered boundary, extended to the outside of the existing hedge.

• Court of Appeal (Civil Division) — Dismissed the appeal and upheld the substantive orders, subject to amending the declaration concerning the line of the right of way and registered boundary.
• Lancaster County Court — District Judge Forrester determined the boundary, awarded £3,150 damages plus interest and costs, and ordered removal of six fence panels with costs.