Easement – Right of way – Judgment – Claimants bringing proceedings against defendants in respect of rights of way over two tracks – Claim and appeal being dismissed – Claimants applying to set aside judgments on grounds of alleged fraud and perjury – Whether claimants pleading case in fraud with sufficient particularity to meet serious allegation and withstand challenge under CPR 3.4(2) – Application dismissed
A dispute arose in relation to a right of way over Headbolt Lane and Carr Lane at Birkdale near Southport. Two tracks were at right angles to one another and formed two sides of a square. The claimants owned a property within the square which they developed as livery stables. One of the attractions was that riders would ride along the lane, turn right into Headbolt Lane and then right again along Carr Lane. The defendants owned a bed of track called Headbolt lane and of the land along one side of it. They owned most of the land adjoining Headbolt Lane and Carr Lane and were the tenants and later owners of a farm which was alleged to have an easement over Headbolt Lane and Carr Lane.
In 1999, the defendants created a new gate across Carr Lane which prevented the circuit being completed, but allowed return journeys along Headbolt Lane and Carr Lane. In 2003, they erected a gate across Headbolt Lane. The claimants contended that the defendants had attempted to prevent and/or prevented the public and/or horse riders from passing and/or re-passing along Headbolt Lane and Carr Lane by harassing and/or intimidating them without lawful justification and that such action obstructed the claimants from enjoying the lawful and/or peaceful running and/or profitability of their business by causing existing livery customers to leave the claimants’ yard and prospective customers to avoid placing their horses there. The claimants relied, among other things, on the fact that the occupiers or tenants of the farm had allegedly used Carr Lane and Headbolt Lane up until 1953 for the purpose of moving cattle as establishing a right over the tracks the benefit of which passed with the relevant conveyance. The claimants’ action was dismissed, both at first instance and on appeal. Permission to appeal to the Supreme Court was refused.
The claimants then applied without notice for an order setting aside the judgments on the ground that they had been procured by fraud and by the commission of perjury. They contended that the failure to include a DEFRA agreement concerning the defendants’ erection of gates across Headbolt Lane in the trial bundle amounted to fraudulent concealment. Further, the trial bundle did not contain a full copy of the claimants’ registered title, in particular, the charges register had been omitted. Had it been included, it would have contained an excerpt from a conveyance showing that the relevant land had been sold “subject to … but with the benefit of all the vendors’ liabilities and rights in any private or occupation road”. The claimants sought an order that a specialist “rights of way” judge be appointed to hear their complaints that two officers of the court had seriously had misled the Vice-Chancellor, the Court of Appeal and the Supreme Court which resulted in a judgment in favour of the defendants in the original proceedings.
The court was concerned with the lower threshold of whether the claimants could plead a case in fraud (with the degree of particularity that such a serious allegation required) that could withstand a challenge under CPR 3.4(2) (the court’s power to strike out a statement of case).
Held: The application was dismissed.
The very short answer to the application was that no such order could possibly be made on such an application.
An easement was annexed to an estate in the land not to the physical piece of land itself. In any event, the evidence of user was insufficient. Further, the failure to include the DEFRA agreement in the trial bundle did not amount to fraudulent concealment. The trial was principally about whether the claimants had any rights at all. The erection of the gates had not been in issue and the reason why the gates had been erected was legally irrelevant. Furthermore, the argument concerning the omission of the charges register was not sustainable. Although the excerpt from the register had not been in the trial bundle, it had included the conveyance itself containing the vital provision.
The fact that there had been evidence that the occupiers as tenants of the farm had used Carr Lane and Headbolt Lane up until 1953 for the purpose of moving cattle did not prove that the vendor as freehold owner had express grant or an established prescriptive right over the tracks the benefit of which passed with the conveyance. On the facts, there had been no concealment and no basis for an allegation of fraud. The original judgment had quite plainly not been obtained by fraud: Wall v Collins [2007] EWCA Civ 444; [2007] PLSCS 104 considered.
The first claimant appeared in person and for the second claimant; The defendants did not appear and were not represented.
Eileen O’Grady, barrister
