Case No: B2/2008/2634 +A

Neutral Citation Number: [2009] EWCA Civ 776
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE CARTLIDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 3rd June 2009

Before:

LORD JUSTICE CARNWATH 
LORD JUSTICE WALL
and
LORD JUSTICE MAURICE KAY
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Between:

	HAYNES & ANR	
Appellants	
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WILLIS	

Respondent	

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(DAR Transcript of 
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Mr P Kramer (instructed by Mortons) appeared on behalf of the Appellants.
Mr J Rodger (instructed by Ward Hadaway) appeared on behalf of the Respondent.
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Judgment
Lord Justice Carnwath:

1.	This dispute relates to a small area of land in East Boldon in Tyne and Wear.  In 1990 the respondent, Mr Willis, bought a property from Mr and Mrs Haynes.  It was part of premises which had been owned by the Haynes for some time, and it consisted of a factory unit with some car parking in front of it.  The adjoining building and land were retained by the Haynes.  They included the other part of the factory unit and also a building yard to the south.

2.	The transfer was dated 13 July 1990.  The land transferred was described as “the land shown and edged in yellow on the plan bound up within” and it was also transferred with the rights as set out in the first schedule.  That included “a right of way at all times with or without vehicles over and along the land shown coloured blue on the plan annexed hereto”.  

3.	The transfer plan, which has been the centre of the discussion before us, had certain dimensions shown on it.  The background to the plan was that it was sent by the Haynes’s solicitors in February 1990.  In that letter, which appears at page 23 of the bundle, they said: 
“We also enclose a plan showing the dimensions of the land and the building (land edged yellow, building edged red) for agreement by you and your client.”

4.	The plan at that stage showed the yellow-edged land which was being transferred and within it showed, by a red rectangle, the factory unit, but it did not show the parking land.  It appears, from a later letter of 6 July from Mr Willis’s solicitors, that they then proposed the right of way and they showed the area coloured in blue over which the right of way was to run.  There are no dimensions given for that area of blue, but it runs between the yellow line delimiting the land transferred and a property of a third party called Agphil Tools.

5.	The dispute originally arose because of problems over parking which Mr Haynes alleged was a trespass over the land which he used for access to the builder’s yard, but it then became apparent that there was a difference between the parties as to what was the land transferred and the matter came to trial on that issue.

6.	A joint expert, Mr Evans, was instructed as a single joint expert to review the relevant material and do a topographical survey of the site.  He had before him the transfer plan.  He had the Land Registry title plans for the property transferred and the property retained and he also had the current Ordnance Survey map.  It is helpful to quote what he said about the plan: 
“4.1.1 The plan…contained within the transfer document, shows the site as it was measured (by a third party) at the time of transfer.  The scaled drawing indicates an irregular polygon shaped plot boundary with a rectangular shape within indicating the position of the existing building. The building is shown as being 65 feet …long and split in two uneven halves of 36 feet…wide, representing the Defendant’s ownership, and 26 feet…wide indicating the claimant’s ownership. The plan was checked for distortion, by scaling given distances on the plan, in both the horizontal and vertical, and was found to be accurate give or take the thickness of a line.  

4.1.2 To the north east of the front of the building (the top of the plan) there is shown a car parking area consisting of two rectangles.  The distance from the front of the building to the extent of the smaller rectangle is given as 9 feet...  The distance to the larger rectangle extent is not shown however it scales as 22 feet… (As the plan was checked for distortion scaled measurements are taken as acceptable). 

4.1.3 An area coloured blue on the file plan is also shown, indicating the land allowed for access.  The distance to the extent of the area coloured blue, from the front of the building, is not shown.  This scales as 41 feet… from the front of the building.  The width of the blue area is indicated on a plan as 40 feet…, being the total width of the Defendant’s plot.  

4.1.4 The total length of the Defendant’s plot on the north west side (left side of the plan) is given as 110 feet... The total length on the south east side (right side of the plan) is not given but scales as 82 feet... The total width of the plot is given as 40 feet…”

7.	That that is a clear and accurate description of the plan and was accepted as such by the judge.  It is important to note that the expert was not referred to a potential issue, which was in the mind at least of the claimant, Mr Haynes.  He later gave evidence that in fact the dimensions on the plan were not accurate, and indeed that the whole plan was flawed, because the 110 feet which was shown for the boundary on the northwest side was, he said, intended to run from the boundary with the public house at the southwest end.  Had the expert been asked about that point, he might no doubt have covered it in his report, but he was not. Although there was some discussion and some evidence about it at the trial, it had to be accepted that the plan as included in the transfer plan was agreed at the time without any such qualification by or on behalf of Mr Haynes.  There has been no claim for rectification on the grounds that it was mistaken.  

8.	Furthermore, although both parties had the opportunity to put questions to the expert or to ask for him to be called at the trial, neither of them did so.  At one stage there was a ground of appeal alleging that the judge had erred in failing to allow Mr Evans to be called as a witness, but Mr Kramer, for the appellant, has fairly accepted that there was no indication in the transcript that there was a request for the expert to be called.  One notes in the transcript some discussion with the judge whether that should be done, but it was also made clear that it would involve an adjournment and that the costs thrown away would probably have to be borne by the person making the request.  So the judge was left with the position that he had an expert’s report which, on its face, gave a reasonably coherent and clear account of what the plan showed.  

9.	It is true that there are some discrepancies.  The most notable, perhaps, which has been mentioned before us was the fact that the blue area, if taken literally, would actually overlap the Agphil Tools building.  Apparently, the 41 feet which is the length of the blue area as shown on the plan, corresponds to a distance of some 36 feet on the ground.  Another oddity about the plan is that the 110 feet which is shown as the northwest boundary does not appear to have any start point at the southwest end, so that one cannot use that as a way of fixing the boundary at the northeast end.

10.	However, those points were simply factors which had to be taken into account by the judge in reaching a view on what the parties to the contract should reasonably have understood to be the effect of the transaction.  We have been referred to various authorities but they do not add anything very much to that simple formulation.

11.	The judge dealt with it fairly shortly.  He referred to the expert’s report and he mentioned the apparent discrepancies, including the doubt about where the 110 feet ran, and he mentioned the apparent overlap with the Agphil Tools building. He then said this: 
“Mr Whalley [who appeared for Mr Haynes] has suggested that the transfer plan is inaccurate and would make sense if one, so to speak, moved all the area marked blue and yellow southwards, so that the extent of the right of way corresponds to the southern end of the Agfill building.  Well I suppose it might do, but I operate on the basis that what the parties were transferring was a geographic area surrounded by yellow in the transfer plan.  That is the heart of the transfer and the expert has revealed to me, based on fixed positions in the transfer plan and the contract plan, that the car park has a depth, as I have said, of twenty-two feet, it seems to me that is right; the depth of the car park is twenty-two feet reducing to nine feet, it is what is shown on the plan and that is what the parties transferred.”

12.	He then referred to the suggestion in the evidence of Mr Haynes about the possibility of the plan having been modified. There had also been reference to a letter from an officer of the Land Registry who suggested that the building had been inaccurately placed on the plan, and indeed there were some discrepancies between the transfer plan and the Land Registry plans.  However, the judge focused on the suggestion that the northern end of the parking should be moved some five feet further south, commented: 

“I can’t see any justification for that.  I go by the best material that is presently before me which is the transfer plan.  It is what the parties agreed to, and that delineates the extent of the defendant’s car parking.  I am certainly sorry for Mr Haynes who is obviously a completely decent and genuine person, but it is obvious to me that the claimants transferred this area of car parking to the defendants.”

13.	He suggested that there might have been a grievance against the solicitor who drew up the plan, but concluded: 

“I think at the end of the day this is an unequivocal, reasonably accurate transfer plan which enables me to say that the depth of the car parking is at one point twenty-two feet, moving to nine feet at another point.  That I think is all that there is to this case.”

14.	The appeal to this court included initially an application to introduce various items of new evidence. However, as the case has been presented to us, the only significant new material is a plan drawn up by Mr Evans at the request of the appellant, which shows what the effect of moving the building five feet further south as he suggests it should be.  To that extent it is a helpful illustration, but I note Mr Evans’ comment that he “stands by” his original report.  So that really adds nothing to the argument.

15.	Mr Kramer has really relied principally on the discrepancies.  His case is that the judge should have grappled more fully with the problems. He should not simply have focussed on one factor derived from the expert’s report, but should have looked at it in context.  He also says that it would have been helpful in a case like this for the judge to have visited the site, although he does not suggest that the failure to do so by itself would be sufficient grounds for overturning his judgment.  For my part I can see that in a case like this it is often a good idea for the judge to visit the site, if only to give the parties the confidence that the judge is fully alive to the physical position on the ground.  However, it is a matter of case management, and in this case the judge had the benefit of a report from an expert who had visited the site and he had a reasonably clear picture from that .  There is no indication in the transcript that the judge was pressed on behalf of Mr Haynes that he should visit the site.  The matter was mentioned but then left rather in the open, and it was not pursued at the end of the evidence.

16.	So the case comes down to the significance of the apparent anomalies.  I have mentioned the relationship to Agphil Tools building.  I have mentioned the point about the 110 feet boundary.  There is also a point that the boundary of the car park as shown on the plan apparently would overlap what seems to be the kerb of the entrance way which runs through to the builder’s yard, but there is no evidence as to the derivation of that kerb or when it was built.  Another point is that there seems to be a missing strip between Mr Willis’s factory unit and the road.  However, none of those matters to my mind really provides any strong pointer in favour of Mr Haynes’s case.  For example, I take the Agphil Tools point.  Theoretically there appears to be a discrepancy, but in practice it would not be expected to cause any difficulties, because it is fairly clear from the plan that what was being granted was a right of way over the land between Mr Willis’s building and the Agphil Tools building. It is fanciful to suggest that it was intended to give a right to take vehicles through the Agphil Tools building itself.

17.	The other points are lend weight to the view that the plan is not perhaps as accurate as it might be, but they certainly do not detract from what the judge said was the central point. That was the boundary of the yellow land to the north and the car parking area which undoubtedly was intended to be granted, as shown on the plan which Mr Haynes agreed to.  To my mind the most striking feature is the 9 feet dimension, which to the reasonable purchaser, would have clearly indicated an intention to offer a strip for parking 9 feet wide. If Mr Haynes is right that would be reduced to 4 feet which would be of relatively limited value for parking anything other than bicycles.

18.	That is not only a clear feature of the plan, but it relates to something which was important to the purchaser, that is to know what precisely he was getting by way of parking.  I do not see how the judge cold go behind that, absent a claim to rectify what was otherwise an unambiguous indication on the plan.  

19.	There was some suggestion that that position creates difficulties for heavy vehicles gaining access to the builder’s yard.  There is no clear evidence on that, nor any finding on it. In any event, it does not seem to me to detract from the effect of the 9 feet dimension, clearly related as it was to the factory unit, which the judge was entitled to take as a fixed factor.

20.	I should perhaps emphasise that it is not our task to do more than resolve the legal issues, nor to investigate why the parties have come to this disagreement, and have been unable to resolve it by negotiation.  In many of the cases which reach this level one has the feeling that mediation at some stage might have helped sort things out, but unfortunately things have gone beyond that.  The judge observed with regret that it had cost so much to take the matter to that stage.  Further costs have been added before us. But for my part I see no alternative but to uphold the judgment and to dismiss this appeal.

Lord Justice Wall:

21.	I agree.

Lord Justice Maurice Kay:

22.	I also agree.

Order: Appeal dismissed