AJP Homes Limited v Tate Estates (Lambert House) Limited

An employer is not vicariously liable for trespasses committed by an independent contractor. Liability may nevertheless arise from the employer’s own tort, a non-delegable duty, or authorisation, ratification or participation amounting to joint tortfeasance. There is no special trespass rule imposing liability merely because an employer engaged or directed building works.

A right of way expressed to permit passage for all purposes may, depending on the grant and its background, include stopping to load and unload, but not storing materials or blocking the way. Express rights over the same land may coexist where the transfer so provides. An appeal court should not interfere with findings of fact or contractual construction absent legal error.

AJP Homes appealed from a County Court judgment dismissing its claim for damages for trespass against Tate Estates. Harris CM, Tate’s building contractor, had carried out development works near AJP’s property. The appeal concerned whether Tate was responsible for Harris CM’s trespasses, whether the 2016 transfer granted rights to stop and load or unload, access an undercroft, and use a parking area as part of the right of way, and whether procedural irregularity made the County Court’s decision unjust.

The County Court had construed the rights broadly, found Tate not liable for Harris CM’s trespasses, and dismissed the claim. Permission to appeal was granted on one procedural ground and four construction and trespass grounds.

1. Appeal dismissed. The County Court’s decision was neither wrong nor unjust because of a serious procedural or other irregularity under CPR Part 52.21(3).
2. An employer engaging an independent contractor is not vicariously liable for the contractor’s torts. Liability may arise from the employer’s own negligence or personal fault, a non-delegable duty, or authorisation, ratification or participation in a common design. There is no special rule in trespass making an employer jointly liable merely because it engaged or directed an independent contractor to carry out works.
3. The Respondent was taken to have admitted the factual allegation that Harris CM acted at its direction, but that admission did not establish joint liability as a matter of law. The allegation that the Respondent was consequently liable was a legal proposition which did not require an express denial. Any procedural irregularity did not cause injustice. The Appellant had not sought judgment on admissions or an adjournment, and the County Court’s findings on the limited extent of the trespasses and negotiating damages meant that a retrial would have been disproportionate.
4. The construction of the 2016 transfer was a matter for the trial judge. The right of way for all purposes connected with the property included a right to stop and load or unload, subject to the prohibition on blocking the way, but did not include storing materials. It also permitted vehicular access to the undercroft. The planning permission was not incorporated into or made a condition of the transfer.
5. The right of way extended over the land which was also subject to the express parking right. The two rights were intended to coexist. The alleged ouster principle was not determinative, particularly because the transfer prohibited blocking the land except when exercising the parking right and contemplated sensible shared use.
6. The appeal court found no error in the County Court’s interpretation or methodology. Grounds 1(i) and 3(i)–(iv) were dismissed.

• High Court: Appeal from the County Court in Leeds judgment dated 27 March 2024. Appeal dismissed.