Shaw v Grouby & Anor

The precise boundary conveyed by a transfer is determined by construing the parcels clause and plan objectively in its factual setting. A small-scale, hand-drawn plan intended to depict an existing driveway will not make a survey-created discrepancy decisive where the surrounding circumstances show that the roadway edge was the intended boundary.

A right to pass and repass over so much of a driveway as is necessary for access may permit use of a different access point from time to time. It is not confined to the point existing when the right was granted unless the transfer clearly so provides.

Excessive judicial intervention does not itself render a trial unfair. Unfairness depends on its effect on the parties’ opportunity to present their case or the judge’s ability to evaluate the evidence impartially.

The claimant owned a house transferred from the defendants’ development in 1999. The defendants retained the private driveway but granted a right of way over it. After the claimant replaced a fence and stones with a brick wall, closed the original entrance, and opened a new entrance from the driveway, the defendants obstructed access and alleged trespass.

The County Court at Bristol held that the boundary was the edge of the asphalt driveway, that the wall did not trespass, and that the right of way permitted the new entrance. It also ordered the defendants to pay 95% of the claimant’s costs. The defendants appealed, alleging errors in the construction of the transfer, procedural unfairness caused by the judge’s interventions, and an erroneous costs order.

Held

1. Appeal dismissed. The transfer had to be construed objectively against the physical circumstances known when it was made. The hand-drawn plan was intended to identify the driveway as it existed, not to create a retained triangular area which never formed part of the driveway. The parties therefore intended the claimant’s land to extend to the edge of the asphalted carriageway. The wall did not trespass.
2. The Court applied the contextual approach to conveyance plans described in Alan Wibberley Building Ltd v Insley and Pennock v Hodgson. A plan can be important, and in another case may be decisive, but its effect depends on the transfer and surrounding circumstances. This case differed from Beale v Harvey, where a clear straight boundary on a pre-existing plan prevailed over a later wall and fence erected in the wrong place.
3. The grant permitted the claimant to use the new entrance. The phrase “necessary to obtain access to the Property” was directed to what was necessary during the subsistence of the right, not to the access point existing in 1999 or the shortest possible route. The green edging identified the maximum area over which the right could be exercised, and the contribution covenant accommodated differing actual use. A landscaping covenant did not impliedly limit the separately granted right of way.
4. The trial judge intervened excessively and should generally have postponed questions until counsel had finished cross-examination. However, the interventions did not prevent the defendants from presenting relevant evidence, impair the judge’s decision-making, or affect the construction issues, which were ultimately questions of law. The trial was not unfair within the principles in Southwark LBC v Kofi-Adu, [2006] EWCA Civ 281.
5. The claimant was the successful party. Applying CPR 44.2, the judge was entitled to reflect abandoned points by reducing her recoverable costs to 95%, rather than make the issue-based order sought by the defendants. That discretionary order disclosed no error of principle and was not plainly wrong.

Patten LJ gave the leading judgment. The Chancellor agreed and added that active case management requires judicial self-restraint so that relevant evidence can be presented and tested without inappropriate interruption.

• Court of Appeal (Civil Division). The defendants’ appeal was dismissed: [2017] EWCA Civ 233.
• County Court at Bristol. HH Judge McCahill QC gave judgment on 21 July 2015. In the judge’s absence, Recorder Jarvis QC made the consequential order on 15 January 2016.