Jones & Anor v Oven & Anor

A party who has conceded an issue before trial, and on whose concession the case was conducted, may not ordinarily revive that issue on appeal without seeking to withdraw the concession. It may be unjust to permit revival where the issue was neither investigated nor argued. Where restrictive covenants have been held to extend to land if it is re-transferred, the covenants bind that land on retransfer. It is immaterial that the retransfer occurs under a later transfer obligation rather than under the contractual mechanism originally contemplated.

The parties owned adjoining properties. The dispute concerned a four-metre strip which the respondents were obliged to transfer to the appellants after demolishing a barn. The appellants had previously conveyed the land, including the strip, to City & Country Residential Limited subject to restrictive covenants concerning the retained land. The respondents acquired the relevant property from that company.

The High Court declared that the covenants applied to the strip when it was re-transferred, construing the relevant words accordingly or, alternatively, implying a term. The appellants appealed, arguing that the respondents’ obligation arose under the later 2005 transfer and did not itself impose the covenants. The central issues were whether the respondents had the benefit of the covenants and whether the appellants could revive that issue after conceding it before trial.

1. Disposition. The appeal was dismissed. It was unnecessary to address the cross-appeal.
2. Concession. Before trial, the appellants conceded that the respondents had the benefit of the restrictive covenants given in 2002–2003, including those in the 2003 Transfer. The trial proceeded on that basis. The appellants neither applied to withdraw the concession nor stated in their grounds or skeleton argument that they wished to do so. It would not be just to allow the issue to be revived, since matters that would have required investigation and argument had not been considered at trial or on the appeal.
3. Section 78. The court did not determine whether section 78 of the Law of Property Act 1925 applied, whether an express assignment was required, or the effect of provisions in the 2005 Transfer concerning the passing of covenants. Those issues were no longer live because of the concession.
4. Effect of the covenants. On the accepted basis that the respondents had the benefit of the covenants in the 2003 Transfer, those covenants would apply to the strip when it was transferred back to the appellants. The fact that the transfer was made pursuant to the 2005 Transfer, rather than the earlier conditional contract, made no difference. The High Court’s conclusions on construction and implication were not challenged.

• Court of Appeal (Civil Division): Appeal from the High Court was dismissed. The cross-appeal was not addressed because it was unnecessary to do so.
• High Court of Justice, Chancery Division: His Honour Judge Paul Matthews declared that the strip would be burdened by the restrictive covenants when transferred back to the appellants: [2017] EWHC 1647 (Ch).