Pennant v Watkin Jones & Sons Ltd

The construction of a deed of easement requires a unitary assessment of the words used, the surrounding circumstances and the commercial common sense of the agreement. Commercial common sense is contextual assistance, not an independent power to rewrite an injudicious bargain.

Negotiating drafts and manuscript alterations recording how the executed wording came into existence are inadmissible as aids to construction. A previously agreed draft may be relevant where it illuminates what was ultimately agreed, but evidence of negotiations cannot be used for that purpose.

Where a deed grants rights over a roadway identified by reference to a plan, and the physical roadway crosses bridges, a right to lay services under the roadway may extend across the bridges even without an express reference to them in the services clause.

The claimant, proprietor of the Penrhyn Estate, sought summary judgment concerning the construction of a 1978 deed entered into by his predecessor and the BBC, the defendant’s predecessor in title.

The deed granted rights of way over a roadway and bridges and rights to enter the roadway and lay a sewer or drain to connect the BBC’s property to mains services. The defendant had laid a pressurised foul-water drain beneath the roadway where it crossed two bridges.

The claimant contended that the services right did not extend beneath the bridges, so that the drain was an actionable trespass. The defendant contended that the deed, properly construed, authorised the works. Other issues, including the extent of land that could be served and compliance with approval requirements, were not determined.

1. The court accepted the parties’ invitation to determine the construction issue on the summary judgment application. It did not determine the other issues identified in paragraph 17.

2. Following Arnold v Britton [2015] UKSC 36 and Wood v Capita Insurance Services Ltd [2017] UKSC 24, contractual construction involves balancing the language used against indications arising from the context, surrounding circumstances and commercial common sense in one unitary process. Commercial common sense cannot retrospectively override the words chosen by the parties.

3. The manuscript interpolations in the final pre-execution draft were inadmissible as aids to construction because they recorded the negotiations by which the final wording came into existence. Ladbroke Group Plc v Bristol City Council [1988] 1 EGLR 126 was distinguishable. That case concerned a previously agreed draft which illuminated what was ultimately agreed, rather than a draft used to reveal the negotiations leading to the executed document.

4. The starting point was the language of clause 1(b), read with clause 1(a). The “said roadway” was the roadway coloured brown on the plan. That roadway extended across the two bridges. The reference in clause 1(a) to the footpath and bridges clarified the extent of the roadway and also related to the separate obligations concerning repair and maintenance.

5. The ordinary meaning of clause 1(b) therefore entitled the defendant to enter the roadway and lay a sewer beneath its whole length, including where it crossed the bridges. The alternative construction would defeat the evident purpose of enabling the property to be connected to the mains sewer, which lay beyond the bridges.

6. The drain did not constitute a trespass on that footing. The claimant’s application for summary judgment was dismissed. The court indicated that, if required, it would make declarations reflecting the construction issues determined.