Harepath SW19 Ltd and another v Kufta and others 

Easement – Right of way – Parking – Defendants having right of way over roadway owned by claimants – Claimant seeking injunction prohibiting defendants from parking on roadway – Defendants arguing transfer of land included easement of parking ancillary to right of way – Claimants applying to strike out part of amended defence and counterclaim – Whether defendants showing realistic prospect of defence succeeding – Application granted Vehicular access to an industrial estate at Elm Grove in Wimbledon was along a roadway owned by the claimants. The first and second defendants owned a garage at the end of the roadway which benefited from a right of way along the roadway expressly granted to the defendants’ predecessors in title by a transfer dated 14 July 1971. The defendants claimed that they and their predecessors in title had been parking on the roadway since their acquisition of their part of the land in 1984, as had their customers. The defendants claimed to have an easement allowing them to park there. On 16 January 2023, the claimants applied for an order striking out part of the amended defence and counterclaim pursuant to CPR 3.4(2) where the defendants asserted an easement/implied right to park on the roadway in line with the test in Moncrieff v Jamieson; alternatively for summary judgment against the defendants. Held: The application was granted. (1) CPR 3.4(2) gave the court the power to strike out a claim, amongst other things, where the statement of case disclosed no reasonable grounds for bringing (or defending) the claim. CPR 24 provided that the court might give summary judgment where it considered that there was no real prospect of a claimant succeeding on the claim or issue and there was no other compelling reason why the case or issue should be disposed of at trial. The strike-out provisions in CPR 3.4(2) focused on pleaded claims which were unreasonably vague, incoherent, vexatious, scurrilous, or obviously ill-founded and other cases which did not amount to a legally recognisable claim or defence. There was an overlap with the summary judgment provisions in CPR 24.  In the context of summary judgment, the court was not barred from evaluating the evidence and concluding that on the evidence there was no real (as opposed to fanciful) prospect of success. It would be cautious in doing so, bearing in mind the clarity of the evidence available and the potential for other evidence to be available at trial which was likely to bear on the issues. There would be cases where the court was entitled to draw a line and say that it would be contrary to principle for a case to proceed to trial: Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) and King v Stiefel [2021] EWHC 1045 (Comm) considered. (2) The judgment in Moncrieff v Jamieson [2007] UKHL 42; [2007] PLSCS 201 did not set out a “test” for an implied easement. It dispelled any residual doubts as to whether a right to park could be an easement. The House of Lords recognised that an easement of parking could exist as ancillary to a right of way if it would be impossible to enjoy the vehicular right of access without it. The law would imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties. Such an easement could only be claimed on two bases: The first was that on the sale of part of a piece of land owned by the grantor, there would pass to the grantee all those continuous and apparent easements (quasi-easements), or all those easements which were necessary to the reasonable enjoyment of the property granted, and which had been and were at the time of the grant used by the owners of the entirety for the benefit of the part granted: Wheeldon v Burrows (1879) 12 Ch D 31 applied. The defendants did not rely on that basis. The second was that the grant of an easement was prima facie also the grant of such ancillary rights as were reasonably necessary to its exercise or enjoyment and that easements might be impliedly created in such a case because of the circumstances under which the grant was made: Jones v Pritchard [1908] 1 Ch 630 and Pwllbach Colliery Company Ltd v Woodman [1915] AC 634 applied. (3) The defendants relied on the second basis, together with the proposition that the court could look at events from 1984 (there being no evidence about the position between the transfer in 1971 and 1984 other than some hearsay) in order to reach a view about the circumstances under which the grant was made. Aside from the transfer itself, there was no evidence about what use of the land generally, and the roadway in particular, might have been in contemplation at the time of the 1971 transfer. The defendants’ land at the date of the transfer already had three private parking spaces. The transferee had also covenanted not to do anything which would prevent the transferors and the owners and occupiers of adjoining or neighbouring premises from having a right of way thereover. (4) In the light of the defendants’ evidence, the court did not accept that because this was an industrial estate, it should be inferred that owners and occupiers must have needed to park on the roadway; nor that because there was regular parking on the roadway from 1984, one could infer anything about what might have been contemplated in 1971, particularly because of the wording of the grant and the covenant in the transfer. Even if it was reasonably necessary for vehicles to turn on the roadway, or park for a short period whilst loading or unloading, that did not mean that it was contemplated there should be an easement to park on the roadway. There was no realistic prospect of the defendants establishing that there was a right to park on the roadway under the second of the bases in Moncrieff, and there was no other compelling reason why that issue should go to trial. Accordingly, the claimants were entitled to summary judgment and the relevant parts of amended defence and counterclaim would be struck out.   Rupert Cohen (instructed by Penningtons Manches Cooper LLP) appeared for the claimants; Jerome Wilcox (instructed by Direct Access) appeared for the defendants. Eileen O’Grady, barrister Click here to read a transcript of Harepath SW19 Ltd and another v Kufta and others