Doberman & Anor v Watson & Ors (Rev 1)

Section 84 of the Law of Property Act 1925 distinguishes the functions of the court and the Tribunal. The court determines whether land is affected by a restriction and the nature, extent and enforceability of that restriction. The Tribunal determines whether an existing restriction should be discharged or modified. A Tribunal proceeding on the assumption that an objector is entitled to the benefit of a covenant does not finally determine that entitlement. Such an assumption, or a concession made for the purposes of the application, does not create an estoppel in later court proceedings. Relitigation is not abusive where the earlier proceedings concerned a different statutory function and could not have finally determined the issue later raised.

The claimants sought a declaration under section 84(2) of the Law of Property Act 1925 concerning a restrictive covenant affecting their land. They wished to construct an additional dwelling house. The defendants relied on a 1978 application by the claimants’ predecessor to the Lands Tribunal under section 84(1), seeking discharge or modification of the covenant. That application was dismissed, subject to modification permitting a building then under construction, and the dismissal was upheld by the Court of Appeal in [1983] 1 Ch 27.

The defendants argued that the earlier proceedings gave rise to cause of action estoppel, issue estoppel or abuse of process. The central issue was whether the Lands Tribunal had finally determined that the defendants or their predecessors were entitled to the benefit of the covenant.

1. The application was dismissed. The defendants’ application for summary judgment or, alternatively, striking out was dismissed.
2. Res judicata and abuse of process are distinct but overlapping principles. The relevant constituent elements of an estoppel include a final judicial decision on the merits, determining a question raised in later litigation, between the same parties or their privies, or a decision in rem.
3. Section 84 of the Law of Property Act 1925 draws a clear distinction between the Tribunal’s jurisdiction under section 84(1) to discharge or modify a restriction and the court’s jurisdiction under section 84(2) to declare whether land is affected by a restriction and to determine its nature, extent and enforceability.
4. The Tribunal could investigate whether individual objectors appeared entitled to oppose an application and could proceed on an assumption about the covenant’s effect. It could not thereby make a binding determination of an issue falling within section 84(2). Any such assumption or decision was provisional for the purposes of the Tribunal proceedings and could be challenged in later court proceedings.
5. Section 84(3A), introduced by the Law of Property Act 1969, created procedural machinery for suspending Tribunal proceedings so that section 84(2) questions could be determined by the court. It did not enlarge the Tribunal’s jurisdiction or permit it to trespass on the court’s jurisdiction.
6. The 1978 proceedings concerned discharge or modification under section 84(1), whereas the present proceedings concerned whether the land was affected by the restriction and the effect of the covenant under section 84(2). The earlier proceedings therefore determined no issue raised in the present claim. A concession as to the covenant’s applicability did not alter that conclusion because the Tribunal made no decision based upon it.
7. There was no abuse of process. The claimants were not relitigating the same matter, were not making a collateral attack on an earlier decision, and could not have obtained a final determination of the section 84(2) issues in the earlier proceedings. It would be unjust to characterise reliance on the established approach in In re Purkiss’ Application, Shepherd Homes Ltd v Sandham (No 2) and Re Victoria Recreation Ground, Portslade’s Application as abusive.

The judgment states that the Lands Tribunal dismissed the predecessor’s 1978 application, subject to permitting a building then under construction. The Court of Appeal dismissed the appeal: [1983] 1 Ch 27. The present court dismissed the defendants’ application for summary judgment or striking out.