Taylor v Burton & Anor

Negotiations marked subject to contract do not bind the parties until a formal contract is entered into. Either party may withdraw before then. The qualification can be removed by express agreement or by necessary implication, but an agreed draft order does not itself remove it where the court has not drawn up and perfected the order. A proposed disposition of an interest in land may also require compliance with section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, although that issue was left undecided. Where a trial judgment and order leave the extent of an easement materially uncertain, the appellate court may set aside the affected decision and remit the issue for retrial.

The proceedings arose from a dispute between neighbouring landowners concerning an express right of way over a track, alleged prescriptive rights for HGV access, interference with the right of way, and the identification of the servient land. The Norwich County Court found certain rights and interference, awarded £520 damages, and made a declaration identifying the right of way by reference to a plan.

On an earlier appeal, grounds 2, 5, 6 and 7 were considered, while ground 1 was expected to be disposed of by agreement through a deed giving temporary access over disputed land. No final order was drawn up, and the appellant later disputed that he was bound to execute the deed. The central questions were whether ground 1 had been settled, whether the declaration and related findings required reconsideration, and what consequential orders should be made.

The appeal was allowed in part and the claim was remitted for a retrial before a different circuit judge.

1. Ground 1 and subject-to-contract negotiations. The negotiations for the proposed deed had expressly been conducted subject to contract. Under the principles explained in Cohen v. Nessdale Ltd [1982] 2 All ER 97, the parties remained free to withdraw unless and until a formal contract was entered into, unless the qualification had been expressly removed or its removal was necessarily implied.
2. Mr Taylor’s counsel had authority to agree the form of a draft order. If the order had been drawn up and perfected, the parties would have been bound by it. However, the court was not obliged to rubber-stamp the draft and did not draw it up because of concerns about its enforceability, including the involvement of persons who were not parties to the proceedings. Tendering the agreed draft therefore did not expunge the subject-to-contract qualification. Ground 1 had not been disposed of by consent, and Mr Taylor remained entitled to pursue it.
3. Merits of the easement issue. The trial judge’s reasons and subsequent oral ruling did not make clear whether the Burtons had any prescriptive right over the strip of disputed land between the track and the red land. His findings concerning HGV use could not readily be reconciled with his finding that the manoeuvre used to access the red land was not supported by prescription. The declaration and plan therefore left a central question about the identity and extent of the servient land unresolved. Paragraph 1 of the damages order was set aside to the extent of the £500 interference award, and paragraph 2 was set aside for a retrial.
4. The uncertainty concerning the right of way made it potentially unjust to leave the earlier determination of interference standing. The court therefore re-opened that issue and the associated costs issue. The court’s prior undrawn orders could be recalled for that purpose.
5. The discrete costs decision relating to the amendment of the particulars of claim was left undisturbed. The £20 nominal damages for the unchallenged trespass findings also remained in place. Paragraph 5 of the county court order was set aside, and the claim was directed to be reheard by a circuit judge other than Judge Barham.

• Court of Appeal (Civil Division): The present judgment held that ground 1 had not been settled, set aside the relevant parts of the county court order, and remitted the claim for retrial. Earlier judgments in the same litigation, [2014] EWCA Civ 21 and [2014] EWCA Civ 63, had addressed other grounds and costs.
• Norwich County Court: His Honour Judge Barham made an order on 12 January 2012 after trial, including a declaration concerning the express right of way, an interference finding, and an award of £520 damages.