James Patrick Nolan v Andrew Alistair Carnegie

On an application for summary judgment, the court must separately ask whether the relevant claim or issue has no real prospect of success and whether there is any other compelling reason for trial. The court may decide a short point of law or construction where the evidence is sufficient, but must avoid a mini-trial and should permit trial where expert evidence, disclosure or cross-examination may affect the outcome.

Under the Access to Neighbouring Land Act 1992, an access order depends on the statutory jurisdictional condition that works cannot be carried out, or would be substantially more difficult, without entry. Where that condition is satisfied and the land is residential, consideration under section 2(5) is unavailable. Compensation under section 2(4) may nevertheless be nominally available for loss, damage, injury or substantial inconvenience.

The claimant sought damages for the defendant’s earlier erection and maintenance of scaffolding on the claimant’s land. The damages claim was advanced on the basis of a hypothetical negotiation for permission to do what would otherwise have been a trespass.

The defendant applied for reverse summary judgment under CPR 24.3. He contended that the works could have been carried out internally, or that an access order under the Access to Neighbouring Land Act 1992 would have permitted the scaffolding without any substantial payment. The claimant disputed whether the statutory jurisdictional condition could be established and maintained that a hypothetical negotiation could have produced a payment reflecting delay, costs and other circumstances.

The court therefore considered the summary judgment threshold, the availability and financial consequences of an access order, and whether the claim or particular issues should be determined without trial.

1. Summary judgment test. The application had to satisfy both limbs of CPR 24.3: the claimant must have no real prospect of succeeding on the claim or issue, and there must be no other compelling reason for trial. The court applied the established approach that a realistic prospect is more than merely arguable, that the court must avoid a mini-trial, and that it may consider evidence reasonably expected to be available at trial. A short point of law or construction may be decided summarily where the necessary material is before the court and the parties have had a proper opportunity to address it.
2. Access order jurisdiction. The works were capable of being basic preservation works under section 1(4) of the Access to Neighbouring Land Act 1992. However, the section 1(2)(b) condition required determination of whether the works could be carried out, or would be substantially more difficult to carry out, without entry on the claimant’s land. That issue might require expert evidence and could not be resolved summarily on the material available.
3. Effect of a hypothetical access order. Subject to satisfaction of section 1(2)(b), the defendant had no real prospect of establishing that an access order would have been refused. The claimant had not identified any other statutory reason for refusal. Nor did the claimant have a real prospect of establishing more than nominal compensation under section 2(4): the intrusion was limited and caused no substantial loss of privacy or inconvenience. Since the properties were residential land, consideration under section 2(5) could not be ordered.
4. Hypothetical negotiation. Those conclusions did not dispose of the damages claim. The possibility that an access order could ultimately have been obtained without more than nominal compensation did not necessarily prevent a hypothetical negotiation before litigation. The relevance of litigation costs, delay, holding costs, the parties’ circumstances and whether the negotiation was wholly objective remained fact-sensitive and insufficiently supported by authority and evidence. Resolving those matters summarily would risk an impermissible mini-trial.
5. Disposition. Reverse summary judgment was refused in relation to the claim as a whole. Summary judgment was granted on the two defined issues: an access order would have been made if the section 1(2)(b) condition were satisfied, and no more than nominal payment would have been ordered under section 2. The claimant remained entitled to argue that a negotiated payment would have avoided the need to obtain the order.