Hughes Family Property Co Ltd & Anor v No Defendant

The claimants sought permission under CPR r.8.2A to issue a Part 8 claim without naming a defendant, and a declaration under section 84(2) of the Law of Property Act 1925 that a restrictive covenant in a 1977 conveyance did not bind their registered titles to 28 Redwells Meadow. The judge held that the owners and occupiers of Nos 21–27 Redwells Meadow were obvious persons with an interest in the issue and therefore proper defendants unless they confirm in writing that they do not oppose the claim or are served with the claim form and evidence. The application for permission to proceed without naming a defendant was dismissed because (i) the matter involved potential factual and legal issues (including timing of Chantreys’ acquisition, possible building scheme and notice issues), (ii) declarations are discretionary remedies under CPR r.40.20 and the court should be cautious about making a declaration without hearing those who may be bound, and (iii) court decisions ordinarily bind only parties to them.

Background and parties

• The applicants and claimants are two limited companies registered as proprietors of parts of the freehold of 28 Redwells Meadow, Dartmouth. The land is subject to a restrictive covenant in a conveyance dated 5 August 1977 which forbids building on part of the land now owned by the second claimant.
• The 1977 conveyance recites the purchaser as Chantreys Building Company Limited, and the claimants contend that Chantreys did not own the remainder of the estate at the time the covenants were given, so the benefit of the covenants was never annexed and the properties are therefore not bound.

Nature of the application

• The applicants applied by Form N244 for permission to issue a Part 8 claim without naming a defendant pursuant to CPR r.8.2A and issued the Part 8 claim on the same day. The substantive claim seeks a declaration under section 84(2) Law of Property Act 1925 that the covenant does not affect the claimants’ land.

Issues framed by the court

1. Whether the court should permit a Part 8 claim to proceed without naming any defendant under CPR r.8.2A.
2. Who, if anyone, are the proper defendants or persons with an interest in enforcement of the covenant.
3. Whether it is appropriate for the court to make a declaration without joining or serving potentially interested parties, given the discretionary nature of declaratory relief and evidential gaps.

Court’s reasoning and decision

• The judge accepted that exceptions to naming a defendant exist, but concluded that this was a case in which the obvious interested persons were the owners and occupiers of Nos 21–27 Redwells Meadow, who could, depending on evidence they possess, raise factual or legal arguments (including as to timing of acquisitions, possible equitable interests, notice and the doctrine of building scheme) affecting the claim’s outcome.
• The available conveyances were incomplete; some conveyed titles referenced earlier conveyances without setting out dates, creating a risk of inference rather than established fact about when Chantreys acquired interests in the various plots.
• The discretionary nature of declarations under CPR r.40.20 and the general principle that court decisions bind parties favoured having potentially interested neighbouring owners given the choice to participate rather than being bound without notice.

Practical outcome

• The application for permission to issue the claim without naming a defendant was dismissed. The claim may continue as issued only if the owners and occupiers of Nos 21–27 either confirm in writing that they do not oppose the claim or are served with the claim form and evidence.

The application for permission to issue the Part 8 claim without naming a defendant is dismissed. The judge held that the owners and occupiers of Nos 21–27 Redwells Meadow are proper persons with a sufficient interest who should be given the opportunity either to confirm they do not oppose the claim or to be served with the claim and evidence, and that the discretionary nature of a declaration and evidential uncertainties make it inappropriate to proceed without them.