London Borough of Brent Susan Lyon v Malvern Mews Tenants Association Ltd

The grant of a negative declaration is discretionary. The court must consider whether there is a real dispute, whether the parties are affected, whether all sides of the argument can fairly be heard, and whether the declaration will serve a useful purpose. The overall burden of persuasion remains on the party seeking the declaration. However, an evidential burden on particular issues may fall on a party asserting a legal right adverse to another’s property. A declaration may be granted even without actual or threatened interference, and the absence of an identified third-party owner does not automatically prevent relief. The appellate court should not substitute its own discretion unless the lower court exceeded the generous ambit of reasonable disagreement.

The claim concerned a gateway between residential land and an unregistered private road. The Defendant had bricked up the gateway, later accepted that it should be reopened, and paid damages for trespass. The Claimants had pleaded that they enjoyed an easement over the road, although at trial they did not seek to establish that easement and wished to preserve the possibility of doing so later.

The Defendant maintained a counterclaim for a declaration that no easement existed. The County Court found on the evidence that there was no easement and granted the negative declaration. The Claimants appealed, challenging the judge’s approach to issue estoppel, burden of proof, procedural fairness, third-party ownership and the exercise of discretion.

Appeal dismissed. The County Court judge had acted within the generous ambit of his discretion in granting a negative declaration.

1. The decision to grant declaratory relief is discretionary. An appellate court should interfere only where the judge exceeded the generous ambit within which reasonable disagreement is possible. The judge was entitled to rely on the established principles governing declarations, including the existence of a real dispute, utility, fairness and the availability of other effective means of resolution.
2. The parties’ pleadings and conduct established a continuing dispute about the alleged easement. The Claimants had pleaded the easement, pursued it until the start of trial and had sought its acknowledgement in settlement correspondence. Their stated intention to raise the issue in future proceedings supported the conclusion that a declaration would provide useful clarity and reduce the prospect of further litigation.
3. The overall burden of persuasion remained on the Defendant, which sought the negative declaration. That did not prevent an evidential burden on the Claimants, who asserted a proprietary right adverse to the property of another, to provide some evidence supporting the easement. The Claimants provided no evidence of twenty years’ use, grant or necessity. The judge was entitled to find that no easement existed on the evidence before him.
4. The declaration could speak only to the position when it was made. It could not prevent rights accruing through later events or acts of the parties. The unidentified owner of the road was not a bar to relief because the declaration was not adverse to that person’s interests and the Defendant had a legitimate practical interest in the road.
5. Actual or threatened interference was not a prerequisite to declaratory relief. The touchstone was whether the declaration served a useful purpose and whether there were special reasons for or against granting it. The judge had material on which to conclude that the declaration would clarify the parties’ rights and reduce further disputes.

It was unnecessary to consider the Respondent’s notice. The parties were invited to agree an order, including costs.

• High Court (Chancery Division): appeal from the order of HHJ Parfitt sitting in the Central London County Court dated 4 September 2019. The appeal was dismissed.