Mark Leonard Lamport & Ors. v Stanley Thomas Jones

A prescriptive right of way is limited by the extent of the established user. A right to repair does not ordinarily include a right to improve the way by enlarging or reshaping it. Ancillary rights may nevertheless extend beyond the track itself where entry onto adjoining land is reasonably necessary to preserve the practical enjoyment of the easement. In a non-money claim, whether a Part 36 offer has been beaten requires a broad comparison between the relief offered and the relief obtained. The court may consider all the circumstances when deciding whether the usual Part 36 consequences would be unjust. An appellate court should interfere with a discretionary costs decision only for an error of principle or where the decision falls outside the generous ambit of reasonable disagreement.

The claim concerned a prescriptive easement over a rough track serving adjoining land. The County Court determined the width of the easement, the scope of the right to repair and cut back vegetation, the terms of an injunction, and the costs consequences of competing settlement offers. Both sides sought permission to appeal from the order of HHJ Jarman KC dated 18 October 2022. Permission had previously been refused on paper, but both applications were renewed before the High Court.

The appeals concerned the scope of the right to repair, including whether the adjoining embankments could be repaired, and whether the Claimants had beaten their Part 36 offer or whether the Defendant’s later offer made it unjust for the usual Part 36 consequences to continue.

1. Permission and appellate review. Permission was granted where the relevant ground was arguable. The appeals were limited to a review of the lower court’s decision. The appeal court could intervene where the decision was wrong or unjust because of a serious procedural or other irregularity.
2. Right to repair. The Claimants’ proposed work to enlarge the track to 2.5m along its entire length was improvement, not repair. The prescriptive easement had been established by vehicles with a wheelbase width of up to 2.5m using the track; it did not require the track to be 2.5m wide at every point. The County Court was therefore entitled to refuse the proposed works.
3. The right of way was not confined to a two-dimensional strip at ground level. Because vehicles exercising the easement were three-dimensional objects and the track was bounded by embankments, a right to repair the embankments could arise where damage caused by legitimate use interfered, or had the potential to interfere, with the enjoyment of the easement. That was an ancillary right reasonably necessary for its enjoyment. The alternative analysis based on abatement of nuisance also had force. The Defendant’s trespass argument did not displace that conclusion.
4. Part 36. For a non-money claim, the comparison required by CPR 36.17 was a broad comparison of the relief obtained with the relief offered. The court should avoid descending into immaterial detail, particularly where subsidiary matters would reasonably require agreement in any event. The Claimants had beaten their Part 36 offer. However, the County Court was entitled to conclude that the Defendant’s later offer made it unjust for the consequences of CPR 36.17(4) to continue after its acceptance deadline. The costs issue could include the practical value of the injunction and the uncertainty surrounding recoverable costs.
5. The County Court had neither erred in principle nor acted outside the generous ambit within which reasonable disagreement was possible. Both appeals were dismissed. There was no order as to the costs of the appeals.

• High Court: Both renewed applications for permission to appeal were heard with the appeals. Both appeals from the order of HHJ Jarman KC dated 18 October 2022 were dismissed. There was no order as to the costs of the appeals.