Newman and another v Greatorex

  Lord  Justice  Mummery : 1.                  The parties own neighbouring properties in the centre of St Ives, Huntingdon. Their dispute is about the use of a right of way over a covered passage leading to the back of the appellant’s beer garden and bar. The passage belongs to the respondents and runs along the side of their house. The parties’ attempts at mediation before the trial and then before the hearing of this appeal have failed.    2.                  Mr Neil Greatorex (the appellant) bought No 23 Bridge Street in 2000. He obtained a liquor licence in 2005 and, with the necessary planning  consents, he converted No 23 into a bar and called it The Tap Room. Its front entrance is on Bridge Street, one of the town’s principal shopping areas close to the bridge over the River Ouse. At the back of The Tap Room there is a yard, which has been turned into a beer garden. In the corner of the yard wooden gates give access to the covered passage, which leads down past the respondents’ house to the riverside road called The Quay. It is a popular area of St Ives. 3.                  The passage is part of 2 The Quay, a residential property owned by Mr & Mrs Newman, the respondents. They have never lived there. They rent it out. The back of No 2 has a lean-to adjoining the beer garden.  The entrance to No 2 is through a door in the wall at the side of the passage. It has no front door opening on  to The Quay. 4.                  The Newmans do not dispute the existence of No 23’s right of way over the passage. Their complaints are about the use of it by patrons of The Tap Room and the noise and mess they make. Urinating, vomiting and other goings-on in the passage have spurred the Newmans to take legal action against Mr Greatorex. The situation is worse in the summer months, especially at weekends, though Mr Greatorex explains that use of the passage averages out at only about 1% of his total clientele. 5.                  The Newmans’ point is quite simply that the use of the right of way is restricted by a limitation placed on it when it was created in 1921. Their case is that the effect of the limitation is to exclude retail customers of the business carried on at No 23 from using the passage as a means of access. The Newmans do not object to other uses of the passage, such as for trade deliveries to No 23 and for putting out No 23’s wheelie bins for the rubbish collections. 6.                  The Newmans started legal proceedings against Mr Greatorex for an injunction and damages. The trial took place before HHJ O’Brien. It lasted for 3 days in early March 2008. Two judgments were delivered. The first was on the preliminary issue of construction of the terms of the right of way reserved in the conveyance of No 2 for the benefit of No 23. In his second judgment HHJ O’Brien set out his findings of fact and his conclusions on the remaining issues, including remedies. He is to be commended for his careful consideration of the relevant law and for the clarity of his conclusions of fact. The outcome was a declaration in favour of the Newmans. No injunction was needed. Permission to appeal was refused. 7.                  On 12 June 2008 Sir John Chadwick granted limited permission to appeal. He limited the appeal to just one of the points raised in the original grounds and that is the appeal against the finding of fact on the extent of the use of the passage in 1921 (the date of its creation). The right of way              8.                   The passage forms part of the title of No 2. The right of way over it was reserved for the benefit of No 23 in a conveyance dated 29 March 1921 (the 1921 Conveyance). Prior to the 1921 Conveyance both No 23 and No 2 were owned by Mrs Emma Hankin. She conveyed No 2 to Miss Hilda Wait, retained No 23 and reserved a right of way over the passage for the benefit of No 23 in these terms:- “…subject to the right of the said Emma Louisa Hankin and her heirs and assigns owner or owners for the time being of the hereditaments situate on the North side of the hereditaments hereinbefore described and her and their tenants and servants and all other persons authorised by her or them from time to time and at all times hereafter with or without horses carts and carriages to pass and repass from and to the said other premises belonging to the said Emma Louisa Hankin as now used by her tenant Edward Collinson…” [my emphasis added].       9.                  In the terminology of the law of easements No 23 became the dominant tenement and No 2 the servient tenement. 10.              The judge held that the words “as now used by her tenant Edward Collinson” were words of limitation. They limited the scope of the right of way to the sort of use made of the passage by Mr Collinson in 1921. The judge rejected Mr Greatorex’s contention that they were words of description for better identifying the dominant tenement. 11.              Sir John Chadwick refused permission to appeal against the judge’s ruling on construction. He also refused permission to appeal against the judge’s  decision  that gates on the boundary of No 23, which opened outwards across the passage for the purposes of access, were unlawful and that a trespass was committed when they were used. Opening the gates in that way was not an ancillary right vested in the owner of No 23. 12.              Only one ground of appeal was left. That was against the judge’s conclusion that the use of the passage by Mr Collinson at the time of the 1921 Conveyance did not include use by his retail customers for the purpose of gaining access to the back of his shop at No 23. The judge found that in 1921 Mr Collinson carried on the business of a fishmonger. On the basis of his findings on Mr Collinson’s use of the passage the judge made the following declaration in his order dated 7 March 2008 against which Mr Greatorex brings this appeal- “…upon a proper construction of [the 1921 Conveyance] the right of way created thereby over 2 The Quay …..for the benefit of 23 Bridge Street …is not a right of way which extends to use by customers of any business being operated at 23 Bridge Street save in the  case of emergency.”    13.              The thrust of the appeal was that the evidence adduced by the Newmans was insufficient to establish that retail customers did not use the passage in 1921 as a means of access to the back of   No 23.     Judgment on use issue 14.              As the judge noted, evidence of the use of the passage in 1921 was “rather slender.” Although more extensive researches into local public and private records and sources might have yielded more detail, the judge had to do his best with the evidence about the relative locations and uses of the two properties and of the passage. The judge found that in 1921 (1) Bridge Street was a major shopping street in St Ives; (2) Mr Collinson was a tenant in Bridge Street from 1920 to 1925; (3) the 1924 Kelly’s Trade Directory showed that he used No 23 as a fishmonger’s shop; and (4) there was some stabling at the back of No 23. Mr Greatorex  did not contest these facts.     15.              The judge inferred that horses and carts used the passage as a means of access to the yard and that the passage was used by tradesmen and staff as a tradesmen’s entrance to No 23. He declined, however, to infer that the passage was used, except for an emergency such as fire, as an entrance or exit by Mr Collinson’s retail customers. The judge said- “8. …it seems to me, on the balance of probability, that the proper conclusion to draw was that Mr Collinson was in business as a fishmonger with his shop fronting on to Bridge Street with a yard behind and some stables in it, and the use of this particular passageway to that yard and stabling area was purely trades entrance, so to speak, for tradesmen’s use…” …….. 11. So, as I say, on the balance of probabilities, I come to the view-and nothing in what happened subsequently dissuades me from the view I have come to- that this was purely a trade entrance and would not be an entrance for customers, nor an exit for customers save if there was some terrible emergency such as a fire. So I  come to the conclusion that the use of this right of way would be business use by persons trading or by the staff.” Discussion and conclusions 16.              To succeed on this appeal Mr Greatorex has to show that the judge’s conclusions on use of the passage by Mr Collinson in 1921 were wrong: CPR 52.11(3). The use issue was one of fact for the trial judge.  It was not a question of construction of the 1921 Conveyance. I mention this because there was a moment in his able submissions for Mr Greatorex when Mr Stoner appeared to be re-opening the question of construction that was closed off by refusal of permission to appeal. He highlighted the words in the reservation “and all other persons authorised by her or them from time to time” as an indication that retail customers could use the passage as and when authorised by the owner of No 23. That contention goes against the ruling of the judge that, as a matter of construction, the words “as now used by her tenant Edward Collinson” were words of limitation restricting the right of way over the passage to the use in fact made by Mr Collinson in 1921.  17.              There were obvious difficulties in obtaining any direct evidence about use of the passage 87 years ago. There was some direct evidence of use of the passage in more recent years. The judge mentioned it in his judgment (paragraphs 9 and 10), but he was careful not to rely on it in reaching his conclusion on use in 1921. In my view, he only referred to it as comfort for the conclusion that he had already reached by a legitimate process of inference. 18.              It was common ground that the judge was entitled to make inferences relevant to the use issue as long as they were justified by the evidence. The making of permissible inferences from proven or admitted facts in order to arrive at the probable explanation or proper interpretation of them involves practical reason, good sense and general knowledge. 19.              The Court of Appeal can only interfere with the judge’s factual conclusions on use of the passage in 1921 if they are shown to be wrong in the sense that no judge could have arrived at them by a process of reasonable and probable inference from the few facts directly established by the evidence. Otherwise his conclusions on the use issue must stand. 20.              Mr Stoner argued that there was no evidence from which the judge could have reasonably inferred that Mr Collinson never authorised his retail customers to use the back entrance via the passage. At one point in his oral presentation Mr Stoner seemed to go as far as to say that the only proper inference that could have been drawn from the evidential materials about the respective premises, the passage and their use in 1921, was that Mr Collinson’s retail customers were authorised to use the passage as a means of access to No 23. He sought to strengthen this bold submission by accepting that the primary access to No 23 by retail customers was in Bridge Street and then by stressing that he was only contending for secondary customer access over the passage, not for the passage as a means of a second access to No 23. 21.              Even with this qualification, I am unable to agree with Mr Stoner that the judge was wrong to infer that in 1921 (a) Mr Collinson’s retail customers did not use the passage; and that (b) the use of the passage to gain access to the rear of No 23 was limited to Mr Collinson’s trade customers and staff. In my judgment, it is a reasonable inference from the established facts that Mr Collinson’s retail customers would probably have used the front entrance to his fishmonger’s shop in Bridge Street and that the retail customers would probably not have gone or been authorised to go to the back of No 23 via the Quay and the passage.          22.              In these circumstances there is nothing wrong with the judge’s conclusions of fact on the use issue and this court is not entitled to interfere with them.              Result   23.              I would dismiss the appeal. It is unnecessary to reach any conclusion on  the  allegedly excessive use of the passage, on the part of customers,  as there is no right of way over the passage for any retail customers of The Tap Room, save in the case of emergency.   Lord Justice Sedley: 24.              I agree with the reasoning and conclusion of Lord Justice Mummery; but in one respect I think I would go somewhat farther. It seems to me that the known facts – sparse, to be sure, but all highly relevant – not only permitted the judge to draw the inference he did but made any other conclusion most unlikely. 25.              A judge takes with him to the bench a familiarity with the history and culture of the country. He must of course be open to evidence which amplifies what he knows or corrects what he believes he knows. But here Judge O’Brien had simply to consider the probable usage, shortly after the First World War, of a fishmonger’s shop with its frontage on a shopping street of an English market town and with rear access through a side alley. Was it even remotely likely that customers would use, or be expected to use, the rear access? No respectable tradesman would have asked or encouraged them to do so, and no respectable customer would have expected to do so or wanted to be seen doing so. The overwhelming likelihood was that the rear access was used only by suppliers, by Mr Collinson’s own delivery cart and possibly by trade customers. I have not found it easy to see how, on the available evidence, any other conclusion could realistically have been arrived at. Lord Justice Wilson: 26.              I agree.