Lovering and another v Atkinson and others (Guernsey)

A conveyance must be construed as a whole, including any annexed plan forming part of it, to ascertain the parties’ objective intention. The verbal description and plan should be read as two views of a single truth. Where the instrument describes a plan as showing measurements, and does not subordinate it to the verbal description, those measurements may form part of the boundary description. A contradiction should not be manufactured by extrinsic evidence where the instrument is internally coherent. A later purchaser has defective title where a prior conveyance has alienated a material part of the only access route. The appeal was dismissed.

Advocates and notaries acted for purchasers of a Guernsey house and driveway. When the purchasers later sold, the buyer’s lawyers identified a possible defect because a 1984 conveyance had sold a triangular area described as part of the driveway. The Royal Court dismissed the purchasers’ professional-negligence claim on 28 November 2017, treating the location of boundary markers as a factual issue. The Court of Appeal reversed that decision on 22 June 2018, construing the 1960 conveyance by reference to its words and plan. The appeal concerned whether that construction was correct and whether the 1984 sale materially reduced the access route conveyed in 2009.

Majority. Lord Hodge delivered the majority opinion, with whom Lord Kitchin and Lord Sales agreed. The Board dismissed the appeal and advised that the Court of Appeal’s decision should stand.

1. The correct starting point in construing a conveyance is the instrument as a whole, including any plan forming part of it. The court must ascertain intention from the whole conveyance and should attempt to read the verbal description and the plan as two views of a single truth. Any express provision giving one part precedence in the event of contradiction must be given effect.

2. The approach in Payne v Walsh (unreported, 30 October 1986) and the English authorities was substantially correct. A plan referred to with measurements, rather than as indicative only, may form part of the description of the land. In the 1960 conveyance, the expression avec mésurage incorporated the plan’s measurements into the description. There was no conflict between the plan and the verbal boundary description without resort to extrinsic evidence.

3. The 1960 conveyance therefore conveyed the strip of ground shown on plan 2842, including a ten-foot driveway following the boundaries of the neighbouring properties. The South-western boundary lay materially to the East of the driveway as constructed.

4. The land conveyed away in 1984 occupied most of the width of the strip conveyed for the driveway. It materially reduced the only access route to which the purchasers acquired title in 2009. The 2009 title was consequently defective, providing the basis for the professional-negligence claim.

5. Dissent. Lord Briggs and Lady Arden would have allowed the appeal. They considered that the conveyance should be construed contextually by reference to the physical circumstances and boundary markers existing when it was executed. In their view, extrinsic evidence was admissible to resolve the ambiguity and the established physical driveway should have been treated as the conveyed route.

6. The Board expressed concern about the disproportionate cost of the litigation. It recalled its earlier observation in A v R [2018] UKPC 4 that review of section 16 of the Court of Appeal (Guernsey) Law 1961 might constrain disproportionate litigation costs.

1. Privy Council — In [2020] UKPC 14, the majority dismissed the appeal from the Court of Appeal of Guernsey. Lord Briggs and Lady Arden dissented.

2. Court of Appeal of Guernsey (Civil Division) — By judgment dated 22 June 2018, the court reversed the Royal Court and held that the 1984 conveyance had materially reduced the driveway conveyed in 2009.

3. Royal Court of Guernsey — By judgment dated 28 November 2017, the court dismissed the professional-negligence claim, treating the location of the 1960 boundary markers as decisive.