Right of way – Issue estoppel – Appellants bringing proceedings against respondent in trespass – Appellants applying to strike out parts of defendant’s defence and counterclaim so far as these asserting private and public rights of way over part of the land – Whether respondent bound by issue estoppel affecting his predecessors in title – Defence and counterclaim struck out in relation to private right of way but not public right of way – Appeal and cross-appeal dismissed
In 1991, the respondent purchased a bungalow and a paddock. The paddock came with the benefit of a right of way with or without vehicles over a track (the lower track) on land owned by the appellants. The bungalow adjoined another track (the upper track), which the respondent’s predecessors in title had used to access that property and which the respondent continued to use for that purpose. In 2011, the appellants brought a claim against the respondent for a declaration that they were the freehold owners of the upper track and that the respondent had no right to pass over it with vehicles; they also sought injunctive relief restraining the respondent from trespassing. By his defence and counterclaim, the respondent contended that he had the benefit of a private right of way, on foot or with horses or vehicles, over the lower and upper tracks for the benefit of both the bungalow and the paddock. He also asserted the existence of a public right of way over the tracks.11
The appellants applied to strike out parts of the defence and counterclaim relating to the lower track. They contended that the respondent was bound by an issue estoppel arising from two earlier sets of proceedings, in 1976 and 1980, between the appellants and the previous owners of the bungalow and paddock; in the alternative, they alleged an abuse of process.15
In the 1976 proceedings, the respondent’s predecessors in title had been found to have a right of way over the lower track for purposes connected to the paddock, but damages had been awarded against them for trespass in respect of their use of that track for other purposes. On appeal from that decision, it had further been held that the appellants were not estopped from denying the existence of the claimed right of way on the grounds of acquiescence; injunctive relief had been granted to the appellants accordingly. In the 1980 proceedings, a claim by the respondent’s predecessors to a right of way by prescription over the lower track had been struck out as an abuse of process, on the ground that they could and should have advanced that claim in the earlier proceedings but had deliberately chosen not to do so.
The appellant’s application to strike out the respondent’s defence was allowed so far as it related to the respondent’s claim to a private right of way; the respondent was held to be bound by an issue estoppel affecting his predecessor in title in that regard. However, the application was dismissed in relation to the defence and counterclaim based on a public right of way: see [2012] EWHC 1251 (Ch); [2012] PLSCS 102. The appellants appealed and the respondent cross-appealed.
Held: The appeal and cross-appeal were allowed.
(1) Under the principle of res judicata, issue estoppel would preclude a party from disputing the decision on an issue reached in earlier proceedings, even though the cause of action in the subsequent proceedings was different. It might arise where a particular issue, forming a necessary ingredient in a cause of action, had been litigated; it barred the re-opening of the same issue in subsequent proceedings between the same parties or their privies to which the same issue was relevant, save in special circumstances where the bar would cause injustice. The estoppel also applied to points that had not been raised in the earlier proceedings if they could with reasonable diligence have been raised and should have been raised in all the circumstances: Henderson v Henderson (1843) 3 Hare 100; Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2013] 3 WLR 299 applied.
Neither the 1976 proceedings nor the 1980 proceedings had given rise to an issue estoppel binding on the respondent’s predecessors in title in relation to any interference with their use of a public right of way. Save that their ownership of the bungalow provided the special status necessary to make the claim, the ingredients of a cause of action for public nuisance were of no relevance to the establishment of their claim for damages and other relief for wrongful interference with a private right of way appurtenant to the bungalow. The existence of a public right of way along the lower track might even be said to undermine the claim of the respondent’s predecessors to a co-existing private right of way of equivalent ambit. Their ownership of the bungalow was not in issue in the 1976 or 1980 proceedings; nor was the respondent’s ownership in issue in the present proceedings.
Accordingly, as a matter of principle, issue estoppel did not apply to the respondent’s counterclaims for, or arising out of, wrongful interference with his use of a public right of way along the lower track. Even if it had applied, it would not bar the respondent’s counterclaims in the circumstances of the case. The appellants had put the respondent’s use of the lower track in issue in the current proceedings. The assertions made in their pleadings went beyond the 1976 and 1980 proceedings and amounted to an allegation that any use of the lower track by the respondent had been, or would be, a trespass regardless of whether that use was sought to be justified on the basis of a private right of way appurtenant to the bungalow or otherwise. Further, the respondent could not be prevented by issue estoppel from raising a defence to a claim for trespass on the ground that he was merely exercising a public right of way. It would be unjust to bar him from relying in his defence on a public right of way enjoyed by him as a member of the public, which had never been put in issue in previous litigation, merely because a previous owner of the bungalow had chosen to claim, unsuccessfully, a private right of way for the benefit of that bungalow. The respondent should be entitled to counterclaim for relief relating to, or arising out of, interference with his use of the public right of way, either because issues estoppel was simply not engaged or because of special circumstances. The appeal was dismissed accordingly.
(2) The allegations and relief claimed in the respondent’s defence and counterclaim based on prescriptive use of a private right of way were barred by cause of action estoppel, which precluded a party from challenging the existence or non-existence of a cause of action where that had already been decided in earlier proceedings, or that could and should with reasonable diligence have been raised in them: Virgin Atlantic Airways applied. The respondent was the privy of his predecessors in title for the purposes of any estoppel by way of res judicata relating to the claim to, and interference with, a private right of way over the lower track for the benefit of the bungalow. The cause of action in the 1976 proceedings was for damages and other relief for, or arising out of, nuisance caused by wrongful interference with a private right of way appurtenant to the bungalow. That was the same cause of action that the respondent now advanced. Proof of the existence of a private right of way was a necessary ingredient of that cause of action. There were no special circumstances that provided grounds for excepting the respondent’s claims based on a private right of way from the bar of res judicata. The cross-appeal was dismissed accordingly.
Guy Adams (instructed by Phoenix legal Group, of Stroud) appeared for the appellants; John Stenhouse (instructed by direct access) appeared for the respondent.
Sally Dobson, barrister
