Practice and procedure – Summary judgment – Restrictive covenant – Claimant wanting to build pumping station on land – Defendant neighbour arguing claimant bound by restrictive covenant in earlier conveyance – Claimant applying for summary judgment in claim for declaration that covenant not binding – Whether court having sufficient information to grant application – Application dismissed
The claimant housebuilder wanted to construct a pumping station on land at Pencoed House Estate, Cardiff to serve a major new housing development that it intended to build nearby. The defendant operated a country wedding business from Pencoed House and was concerned that the development proposed by the claimant would affect its business.
The defendant argued that the claimant was bound by a restrictive covenant included in a conveyance made on 8 November 1983, which provided that no buildings could be built on the site without “prior consent from the vendor”. The defendant was the successor in title to the vendor (J) who died on 10 November 2011. As proprietor of Pencoed House, it claimed to be able to enforce the purchaser’s covenant in the conveyance of 8 November 1983. No copy of the 1983 conveyance was before the court.
The claimant applied for summary judgment under CPR Part 24 in a claim for declaratory relief under section 84(2) of the Law of Property Act 1925 in relation to the restrictive covenant. It challenged the defendant’s ability to enforce the covenant; because the original vendor had died, and it was no longer possible to obtain his consent, the claimant said the covenant no longer had any effect in law.
The question was whether the reference to “the vendor” in the covenant referred only to J, or also to his successors in title. If the reference was to J alone, a question arose whether his death enlarged the covenant from a qualified to an absolute covenant, or discharged the covenant altogether.
Held: The application was dismissed.
(1) If the court was satisfied that it had all the evidence necessary for the proper determination of the question and the parties had had an adequate opportunity to address it in argument, the court should grasp the nettle and decide it. Where it was said that the circumstances in which a document came to be written were relevant to its construction, particularly if they were said to point to a construction which was not that which the document would naturally bear, the respondent had to provide sufficient evidence of those circumstances to enable the court to see that if the relevant facts were established at trial they might have a bearing on the outcome: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 considered.
One important difference between the present case and ICI was that here the relevant document (the conveyance) was not available. There was only an official reproduction of the terms of the covenant in the charges section of the land register. No-one had suggested that that was inaccurate. However, there was nothing else, including any definition clauses and any other provisions which would bear on the question of construction, in particular whether the term “vendor” was to include his successors in title, and what was to happen on his death.
(2) The primary problem was the absence of the conveyance itself, rendering the adduction of secondary evidence of much greater importance than it would otherwise be. Moreover, if the matter were to go to trial, there was at least the possibility that further relevant evidence would come to light, partly from the process of disclosure, and partly from the interviewing and following up of potential witnesses. It was improbable that no further relevant evidence would be found. It was also possible that a copy of the missing conveyance might turn up. The application for summary judgment came from the claimant who had to satisfy the court that the case was suitable for such an application. That included satisfying the court that it had all the evidence necessary for the proper determination of the question.
(3) The claimant had pressed the court with a conveyance of adjacent land from J to third parties on 9 November 1983 which had at least potential relevance, as part of the factual matrix in which the conveyance of the day before was made. Despite the proximity in time, and the fact that J was a party to both conveyances, as well as the similarity in language between the covenant in the present case (as set out in the land register) and the equivalent covenant in the conveyance of 9 November 1983, it would not be right for the court to construe the covenant in the land register by reference to the conveyance of 9 November 1983. Each of the two conveyances was the product of a bargain between J on the one hand and entirely separate purchasers on the other, of two different pieces of land, albeit adjacent to each other. Each of the two purchasers might have had completely different motives for purchasing, and completely different ideas of what they wished to do with their new property. Such differences might well have been reflected in the bargains which they made and the terms of the conveyances. The fact that some parts of the conveyances might have been similar or even the same did not mean that they all were, or that expressions used in the one had to mean the same as in the other. The later conveyance did not to any significant extent make up for the absence of the conveyance with which the court was concerned.
Overall, the court was not satisfied that it had all the information needed in order to construe the covenant in its context or that it would be in as good a position as the trial judge would be in due course: Midland Bank plc v Cox McQueen [1999] PNLR 593; [1999] EGCS 12, Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1, Churchill v Temple [2010] EWHC 3369 (Ch); [2011] 1 EGLR 73, Arnold v Britton [2015] EGLR 53 and Wood v Capita Insurance Services Ltd [2017] AC 1173 considered.
Edwin Johnson QC (instructed by Walker Morris LLP) appeared for the claimant; Benjamin Faulkner (instructed by Burges Salmon LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Persimmon Homes Ltd v Country Weddings (Cardiff) Ltd
