Cemetery – Burial rights – Validity – Issue arising whether appellant cemetery owner having exclusive right to dig graves – Court declaring right personal to appellant’s predecessor – Appellant appealing – Respondent cross-appealing – Whether appellant entitled to introduce new ground of appeal out of time that burial rights proprietary interest – Appeal dismissed – Cross-appeal dismissed
The appellant owned a private cemetery know as Tottenham Park Cemetery. Under a series of deeds, one of the appellant’s predecessors in title (B) granted burial rights to the then trustees of an unincorporated association formed in 1981 to acquire and manage burial plots and cemeteries for its members, who were all Sunni Muslims. The respondents were the current trustees of the association.
The right granted was to bury a specified number of bodies in various defined parts of the cemetery. A premium was paid for each grant. The right was to endure for 999 years with an annual peppercorn rent. In most of the deeds, the areas concerned were described as plots within a portion of the cemetery shown on a plan. It was common ground that the appellant was bound by the deeds which did not address the question of digging graves beyond the right to dig reserved to B.
An issue arose whether the appellant succeeded to B’s exclusive right to dig graves under the deeds. The court made declarations to the effect that the right to dig graves was personal to B and the appellant was not entitled to insist on digging graves for the respondents pursuant to his regulations at the date of trial but he might in the future be able to draft regulations that went further from the current position without derogating from grant: [2021] EWHC 764 (Ch).
The appellant appealed and the respondents cross-appealed. The appellant sought to argue a new ground of appeal that the right of burial was proprietary and section 78 of the Law of Property Act 1925 applied because the covenant touched and concerned the land. Accordingly, the appellant as successor in title to B was entitled to enforce it.
Held: The appeal was dismissed. The cross-appeal was dismissed.
(1) In order to amend the grounds of appeal, the appellant needed the permission of the court under CPR 52.17. In the case of a very late amendment such as this (a year out of time), the party seeking to amend had a heavy burden to show the strength of the new case and why justice to him and to the other party required him to be able to pursue it. It was also necessary to consider the circumstances in which an appeal court would allow a new point to be taken. Where the point was one of law, the court would normally only allow it if the other party had had adequate time to deal with it, had not acted to his detriment on the faith of the earlier omission and could be adequately protected in costs.
Applying the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 906, the failure to comply with the time limit serious and there was no good reason for the failure. Considering all the circumstances of the case, although the appellant described it as a reasonably straightforward point of law, it was anything but. Although a grant of burial rights was undoubtedly valid, the nature of the right granted was questionable: see Gale on Easements (21st ed), para 1-25
(2) A right of burial did not obviously feature in section 1(2) of the 1925 Act as being a right in or interest over land that was capable of subsisting at law. If it were to be decided that the right of burial was a property right, the next step was the assertion that section 78 of the 1925 Act applied to the agreement and declaration that the grantor should have the exclusive the right to dig graves.
In this case the application was made two clear working days before the appeal was listed. It attacked a different part of the judge’s order and raised new points which were not argued below which were by no means straightforward. The new point was, apparently, prompted by a last-minute change of counsel which had not been explained and was not in itself a good reason for the delay in seeking to amend. It would be wholly unfair to the respondents to have had to deal with such a wide-ranging point at such short notice.
(3) The appellant’s only surviving ground of appeal was his argument that the judge ought to have used the word “plots” rather than “areas” in order to reflect the language of all but one of the deeds. Although the word that the judge used did not precisely track the words of some of the deeds, it was difficult to see what difference of any substance that made. The appellant had not identified any practical benefit that would be served by amending the text of the order.
(4) By their cross-appeal the respondents argued that the appellant was not entitled to confer on himself the exclusive right to dig graves in the areas covered by the burial rights through the mechanism of regulations. That was essentially the same argument that the respondents advanced before the judge and which he rejected.
The meaning of the deeds was to be determined as at their respective dates of execution. Their meaning could not change over time. For as long as B had the exclusive right to dig the graves, there would have been no need to regulate digging. How and when digging took place would have been entirely within their own control. If and when the proviso came into effect, there would have been some scope for regulation by B, but not to the extent of reclaiming the exclusive right to dig. Regulations might properly provide for the time at which and manner in which digging was to be conducted; but could not have provided for the exclusive right of digging itself.
The grant of a declaration in principle was a matter for judicial discretion, as was the form of the declaration that a judge was prepared to grant. Since a declaration made by the court was a binding legal ruling, it was necessary to be cautious about the way that any such declaration was framed. It could not be said that, on the facts of this case, the judge made an appealable error in the exercise of his discretion.
Justin Kitson and Lara Kuehl (instructed by Moreland & Co) appeared for the appellant; Daniel Gatty (instructed by Shoosmiths) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Demetriou v Mapara and others