Price and another v Nunn

Right of way – Issue estoppel – Claimants bringing proceedings against defendant in trespass – Claimants applying to strike out parts of defendant’s defence and counterclaim so far as these asserting private and public rights of way over part of the land – Whether defendant bound by issue estoppel affecting his predecessors in title – Application allowed in part In 1991, the defendant purchased a bungalow and a paddock. The paddock came with the benefit of a right of way with or without vehicles over a track (the lower track) on land owned by the claimants. The bungalow adjoined another track (the upper track), which the defendant’s predecessors in title had used to access that property and which the defendant continued to use for that purpose. In 2011, the claimants brought proceedings against the defendant, seeking a declaration that they were the freehold owners of the upper track and that the defendant had no right to pass over it with vehicles; they also sought injunctive relief restraining the defendant from trespassing. By his defence and counterclaim, the defendant contended that he had the benefit of a private right of way, on foot or with horses or vehicles, over the lower and upper tracks for the benefit of both the bungalow and the paddock. He also asserted the existence of a public right of way over the tracks. The claimants applied to strike out parts of the defence and counterclaim relating to the lower track. They contended that the defendant was bound by an issue estoppel arising from two earlier sets of proceedings, in 1976 and 1980, between the claimants and the previous owners of the bungalow and paddock; in the alternative, they alleged an abuse of process. In the 1976 proceedings, the defendant’s predecessors had been found to have a right of way over the lower track for purposes connected to the paddock, but damages had been awarded against them for trespass in respect of their use of that track for other purposes. On appeal from that decision, it had further been held that the claimants were not estopped from denying the existence of the claimed right of way on the grounds of acquiescence; injunctive relief had been granted to the claimants accordingly. In the 1980 proceedings, a claim by the defendant’s predecessors to a right of way by prescription over the lower track had been struck out as an abuse of process, on the ground that they could and should have advanced that claim in the earlier proceedings but had deliberately chosen not to do so. Issues arose as to the extent of any issue estoppel and whether the defendant was bound by it as the privy of his predecessors in title. Held: The application was allowed in part. (1) Cause of action estoppel arose where the cause of action in the later proceedings was identical to that in earlier proceedings brought between the same parties or their privies and involving the same subject matter. The discovery of new factual matters that could not have been found by due diligence for use in the earlier proceedings did not permit the earlier proceedings to be reopened: Arnold v National Westminster Bank plc [1991] 2 AC 93; [1991] 2 EGLR 109; [1991] 30 EG 57 applied. Issue estoppel arose where a particular issue, forming a necessary ingredient of a cause of action, had been litigated and decided and it was subsequently sought to reopen that issue in further proceedings between the same parties or their privies, involving a different cause of action to which the same issue was relevant. Both cause of action and issue estoppel extended to matters that could have been, but were not, raised and decided in the earlier proceedings: Henderson v Henderson (1843) 3 Hare 100 applied. (2) The defendants’ predecessors in title were bound by an issue estoppel emerging from the outcome of the claim in trespass against them. The orders in the 1976 proceedings were made on the basis that their right to use the lower track was confined to the express right of way for the benefit of the paddock. The award of damages and an injunction determined the issue of whether they had a right to use the lower track and did not leave open any claim to a right by prescription. The claims to a private or public right of way that were now put forward were contrary to the earlier determination that the defendant’s predecessors did not have a right to use the lower track to gain access to the paddock. Furthermore, since those claims would, if established, have provided a defence to the claim in trespass, they could and should have been put forward in the 1976 proceedings. (3) The defendant was bound by the issue estoppel affecting his predecessors in title so far as it related to the claimed private right of way over the lower track. His claim in that regard should be struck out. However, the defendant was not prevented from asserting the existence of a public right of way. The judgments in the earlier proceeding were judgments in personam, not judgments in rem. Accordingly, they did not bind all the world but only the parties and their privies: LE Walwin & Partners Ltd v West Sussex County Council [1975] 3 All ER 604 considered. A private right of way had to be appurtenant to a dominant tenement; accordingly, so far as the defendant claimed a private right of way for the benefit of the bungalow as the dominant tenement, he was a privy of his predecessors in title in relation to that property. There were no special circumstances in the case making it an exception to the principles of issue estoppel. By contrast, a public right of way could be exercised by any member of the public. It was not necessary for a person to show ownership of land served by the public right before he could enjoy that right. If a person were sued for an injunction or damages in trespass, the existence of a public right of way would be a defence to such a claim. The defendant was entitled to put forward his contentions as to a public right of way in defence to the claimants’ claim in trespass. It was arguable that he could also claim a negative declaration that he would not be liable in trespass by using the lower track pursuant to the alleged public right of way. The court would consider granting such a declaration not because the defendant owned the bungalow, but because he was someone whom the claimants sought to prevent from using the track. Since the defendant was not relying on his ownership of the bungalow in that regard, he was not the privy of his predecessors in title in relation to such a claim. The claims relating to the alleged public right of way did not otherwise amount to an abuse of process: Johnson v Gore Wood & Co [2002] 2 AC 1; [2000] PLSCS 292 applied. (4) So far as the defendant claimed damages for interference with the claimed public right of way, or an injunction against future obstruction of the lower track by the claimants, he was advancing a claim in public nuisance, consisting of interference with a public right of way. To advance such a claim, he had to show that he had a special interest justifying the bringing of that claim. It was strongly arguable that the defendant needed to rely on his proprietary interest in the bungalow in order to establish the special interest and that he was accordingly a privy of his predecessors in title in relation to that claim. However, it was not appropriate to strike out that claim at the present stage. Guy Adams (instructed by Phoenix Legal Group, of Stroud) appeared for the claimants; John Stenhouse (instructed by direct public access) appeared for the defendant. Sally Dobson, barrister