Peter Demetriou v Mehmood Mapara & Ors.

This appeal concerned the interpretation of a series of deeds granting long term burial rights in Tottenham Park Cemetery and whether the cemetery owner succeeding to Badgehurst Ltd. acquired an exclusive right to dig graves. The court accepted that the appellant was bound by the deeds and did not need to decide whether the grants were licences or proprietary interests. The deputy judge's interpretation that the reserved exclusive right to dig graves was personal to Badgehurst and did not pass to successors in title was held within the permissible exercise of his judgment. The court also held that the owner has some scope to regulate digging under general regulatory covenants, but any regulations must not derogate from the rights granted by the deeds and remain subject to implied terms of reasonableness and timeliness. An application to amend the grounds of appeal to advance a new proprietary argument based on section 78 of the Law of Property Act 1925 was refused as a late and new point which the respondents had no adequate opportunity to address.

Background and parties. The cemetery, now owned by Mr Demetriou, had been subject to a number of deeds by which Badgehurst Ltd granted long-term burial rights to trustees of the Tottenham Park Islamic Cemetery Association (an unincorporated association). The deeds granted "the right of burying" specified numbers of bodies for 999 years, reserved to Badgehurst an exclusive right to dig graves (for a specified fee schedule initially), and contained covenants by the grantees to observe cemetery rules and regulations.

Procedural posture. The dispute before the deputy judge concerned whether the exclusive right to dig graves passed to Mr Demetriou as successor in title to Badgehurst, and whether Mr Demetriou could obtain such a right by making cemetery regulations. The judgment below (Ian Karet, Deputy High Court Judge) held that the exclusive digging right did not pass to the successor and that the current regulations did not entitle Mr Demetriou to insist on digging graves for the Association. The deputy judge made declarations to that effect ([2021] EWHC 764 (Ch)).

Nature of the relief sought. Declarations were sought and made about the legal rights to dig graves, the scope of permissible regulations and about who may be buried and prohibited acts (paragraphs 1–3 of the order below).

Issues before the Court of Appeal. On appeal the appellant sought (i) to challenge part of paragraph 3 (use of the word "areas" v "plots"), and sought very late to amend to raise a new ground that burial rights were proprietary and that section 78 of the Law of Property Act 1925 operated to enable successors to enforce covenants. The respondents cross‑appealed against the words "as they were at the date of trial" in paragraph 2, arguing that regulations could not confer the exclusive right to dig graves where the deeds had dealt with that issue by a specific provision.

Court's reasoning and conclusions. The court refused the late application to amend the grounds of appeal. It applied the approach governing late amendments and extensions of time (including the Denton principles), concluding the proposed point was novel, not argued below, raised complex legal questions (including the juridical nature of burial rights and the application of section 78), and was raised too late for the respondents to have adequate opportunity to respond. On the substantive points that remained, the court rejected the appellant's narrow drafting challenge to paragraph 3 as raising no substantive difference and rejected the cross‑appeal: the deputy judge had properly exercised his discretion in declaring that the existing regulations did not permit the owner to insist on digging graves, while recognising that future regulations might lawfully regulate digging provided they did not derogate from the deeded rights and were subject to implied limits of reasonableness and timeliness. The court dismissed both the appeal and the cross‑appeal.

Appeal and cross-appeal dismissed. The Court of Appeal held that the deputy judge did not err in interpreting the deeds to the effect that Badgehurst's reserved exclusive right to dig graves was personal to Badgehurst and did not pass automatically to successors; the court also refused permission to amend the grounds of appeal to raise a late proprietary argument under section 78 LPA 1925 as the new point was late, not argued below and would have unfairly prejudiced the respondents. The court affirmed that the owner may regulate burial practice by regulations so long as such regulations do not derogate from the deeded grants and are subject to implied requirements of reasonableness and timeliness.

Appeal from the High Court of Justice, Business and Property Courts (Property, Trusts and Probate List (ChD)), Ian Karet (sitting as a Deputy High Court Judge), [2021] EWHC 764 (Ch). Permission to appeal granted by Newey LJ on 16 February 2022; permission to cross-appeal granted on 13 June 2022. Appeal heard 13 July 2022; judgment handed down 19 July 2022 ([2022] EWCA Civ 1001).