Case Nos: B2/2008/0140
B2/2008/0141
Neutral Citation Number: [2008] EWCA Civ 965
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
(HIS HONOUR JUDGE GEDDES)
Case Nos: 7WR00149 and 7WR00150
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 10th July 2008

Before:

LORD JUSTICE RIMER
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Between:

	COLIN HALL
	Appellant	
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SHIRLEY MOORE and
GERALD and CYNTHIA HARRIS 	
Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON

THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED

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Judgment

Lord Justice Rimer:

1.	This is a renewed application by Mr Colin Hall for permission to appeal.  He was the claimant in each of two claims in the Worcester County Court. Both claims raised a like issue.  One respondent, and defendant to one of his claims, is Shirley Moore. The other respondents, defendants to the other claim, are Gerald and Cynthia Harris.  

2.	The orders against which Mr Hall wishes to appeal are orders made on 22 November 2007 by His Honour Judge Geddes after the two trials, which were conducted together. Arden LJ refused permission to appeal on the papers on 23 May 2008 on the ground that, in her view, the appeals have no real prospect of success. Mr Hall, who represented himself at the trials and has also appeared in person on this application, has devoted the hearing to persuading me that Arden LJ was wrong.  

3.	The case is about rights of common. There is no dispute that Luckwards Hill, Powick, Worcestershire is common land, subject to registered rights of common recorded in the register maintained by Worcestershire County Council. Part of Luckwards Hill is owned by Mrs Moore under a registered title. The other, rather larger, part is owned by Mr and Mrs Harris, whose title is also registered. Mrs Moore became the proprietor of her land in August 2005, having bought it from Mr Jolly. Mr and Mrs Harris acquired their part of Luckwards Hill in May 2005, having also bought from Mr Jolly.  

4.	There is also no dispute that those entitled to registered rights of common over Luckwards Hill include the trustees of Stanbrook Abbey, a charitable trust (“the trustees”).  Their rights were registered on 22 January 1970 and are rights to graze defined numbers of cattle, horses or sheep on the land.  Their rights are attached to -- amongst other parcels of land -- Moat House  Farm,  Callow End, Powick. Moat House Farm comprises some 56 acres and is adjacent to Luckwards Hill, separated from it by a hedge and fence.  

5.	Mr Hall is, and his late father before him since about 1961 was, a tenant of Moat House Farm, the tenancies having been granted by the trustees. Mr Hall’s current lease is dated 22 July 1998, which granted him a tenancy from year to year. His case in the proceedings was that the tenancy also impliedly granted him the rights of common attached to Moat House Farm that are enjoyed by the trustees, and he relied for that proposition, perfectly reasonably, on section 62 of the Law of Property Act 1925. His claim as against Mrs Moore, and also against Mr and Mrs Harris, is that they had in various ways obstructed his access to Luckwards Hill and thereby interfered with his enjoyment of his rights as a commoner and he sought to restrain that obstruction by injunction. 

6.	The judge found against Mr Hall and granted injunctions against him in both cases restraining him from entering on to Luckwards Hill.  The judge declared that he had no common rights in respect of it and ordered him to pay the defendants’ costs.  Mr Hill seeks permission to appeal against the entirety of both orders.  

7.	The first issue with which the judge dealt was whether, as Mr Hall claimed, the trustees’ rights of common passed to him on the grant of his lease under section 62. The judge held they did not because the lease expressly reserved those rights to the trustees. He held that this reservation was made by an express reservation to the trustees of the rights set out in the second schedule. That set out various reserved rights under four heads, of which only the fourth is material.  That reads: 

“4. The benefit of all existing and future wayleaves, easements and rights affecting the Farm and all rents and moneys payable in respect thereof.”

8.	The judge interpreted that as reserving to the trustees, amongst other rights, the rights of common attached to Moat House Farm. Therefore, he held, they could not have passed to Mr Hall under section 62.  Mr Hall’s argument to the judge, and to me in his skeleton argument, is that the judge was wrong in that respect because, he says, Wheeldon v. Burrows (1879) 12 Ch.D. 31 is authority for the proposition that, for a right to be validly reserved, the reservation must state expressly the nature of the reserved right. Paragraph 4 does not, however, state that the reserved rights included the rights of common and so, Mr Hall submits, the reservation fails the Wheeldon test.  Therefore his case is there was no valid reservation and the rights of common impliedly passed to him under section 62.

9.	The judge rejected that argument and Arden LJ on the papers agreed with him.  I have no doubt, with respect, that Mr Hall’s argument to the effect I have just described, is incorrect. He has, I think, misunderstood Wheeldon v Burrows.  That case is not authority for the proposition that a right will only be validly reserved if its precise nature is expressly spelt out in the relevant grant. It is authority for the well-known proposition that a reservation of rights over land the subject of a lease or a conveyance will not -- apart from, for example, easements of necessity -- ordinarily or readily be implied in favour of the lessor or grantor, but that if any reservations are to be made they must be spelt out expressly. In this case, however, if, as a matter of construction of the lease, the trustees’ rights of common are correctly regarded as “rights affecting the Farm”, then paragraph 4 of the second schedule was a sufficient express reservation of those rights. There was no need for the trustees to list each of the reserved rights separately.  

10.	Where, however, I consider that a point might perhaps arise in relation to the rights the subject of the paragraph 4 reservation is whether a right of common attaching to Blackacre can or would ordinarily be described as a “right affecting Blackacre”.  In one rather loose sense it may be so regarded. But to describe appurtenant rights as affecting the dominant land is not, I believe, the ordinary language of conveyancers. If Blackacre has appurtenant to it an easement over Greenacre, no-one would ordinarily regard or describe that easement as “affecting” Blackacre, the more natural sense of that verb in the context being something “burdening” Blackacre. The easement would only “affect” Greenacre. Moreover, if paragraph 4 is read as a whole, it makes to my mind no very obvious sense to regard the “rights” as including rights that are appurtenant, or attached, to Moat House Farm. That is because the reserved rights are also to “all rents and moneys payable in respect thereof”.  If the rights referred to are appurtenant rights, how, in the ordinary way, can any rent or money be payable in respect of them? Rights appurtenant to Blackacre over Greenacre would not ordinarily yield income in the nature of rent or money in favour of the owners or occupiers of Blackacre, although of course they may do so in favour of the owners or occupiers of Greenacre.

11.	In my view, therefore, it is at least arguable -- although it is not apparent to me that Mr Hall did argue this before the judge -- that what paragraph 4 has in mind is not rights appurtenant or attached to Moat House Farm, but rights to which it is subject, such as easements and wayleaves enjoyed by others over Moat House Farm and for which they pay, say, an annual charge.  It is, or may perhaps be, saying that it is the benefit of rights of that nature that is reserved to the trustees. If so, then it may be that paragraph 4 has nothing to do with the rights of common attached to Moat House Farm. I would be disposed to accept that in principle Mr Hall may have a real prospect of showing that Judge Geddes was wrong in his interpretation of paragraph 4 of the second schedule.

12.	Whether or not this is so, the judge, however, also held that there was a further point that provided an alternative reason why Mr Hall’s claim to be entitled to the rights of common was not made out. That was to the effect that since at least 1984 the rights of common had all been waived, and therefore no rights of common could have passed to Mr Hall under his 1998 lease. That point was explained in Mr Jolly’s witness statement, he being Mrs Moore’s and Mr and Mrs Harris’s predecessor in title to the freehold of Luckwards Hill.  He bought Luckwards Hill in, I think, 1984 jointly with a Mr Laney. He said that during his ownership of that land there was always an agreement with the Commons Committee for Powick under which, upon payment of £225 a year, the commoners waived their rights of common over the two fields comprising Luckwards Hill.  

13.	Mr Jolly exhibited a copy of an agreement made on 20 November 1984 relating to both fields comprising Luckwards Hill. It was made between (1) “… THE COMMONS COMMITTEE FOR POWICK acting by GEORGE NORMAN MALEY … on behalf of all those persons whose names are finally entered in the Commons Rights section of the Register kept by the Hereford and Worcester County Council under the Commons Registration Act 1965 as entitled to exercise rights of common in and over [Luckwards Hill]” and (2) Mr Laney and Mr Jolly, they being the freeholders of Luckwards Hill. It provided that the commoners, in consideration of the annual sum of £225 (to be reviewable triennially) paid by the freeholders, waived their rights of common over Luckwards Hill. The agreement was terminable on 12 months’ notice by either side. Mr Jolly’s evidence was that when the title to Luckwards Hill became split in 2005, separate like agreements were entered into with Mr and Mrs Harris and Mrs Moore.  

14.	Mr Jolly’s evidence was further that from March 1984 until about 1990 Mr Laney grazed sheep on both fields comprising Luckwards Hill. He further said that from the early 1990s Mr Hall senior may have grazed both fields under yearly grazing licences, and he also produced copies of grazing licences in respect of Luckwards Hill granted to Mr Hall in March 1997, 1998, 2000, 2001, 2003 and 2004. No such rights have been granted since Mrs Moore and Mr and Mrs Harris acquired Luckwards Hill. Mr Floyd, the Chairman of the Committee since 1997 and a member of the Committee for about 30 years, explained that the reason for the waiver agreement was that there were about 50 separate commoners entitled to graze the common land in the parish of Powick, and it would be impractical for the land at Luckwards Hill (which extends to only about 10 acres) to be grazed by all those entitled to exercise a right of common. He said the Committee’s only income is derived from the waiver agreements, and that income was used for the benefit of all commoners in improving the grazing on the commonable land in Powick, which extends in all to about 400 acres.  

15.	Mrs Moore, in her witness statement, said that when she bought her part of Luckwards Hill in 2005 she knew not only that the land was subject to rights of common but that the Commons Committee of Powick had entered into an agreement with her vendor whereby the commonable rights would not be exercised upon payment of £75 a year. Her understanding was that, as a purchaser, she would have the benefit of a similar agreement. On 25 September 2005 Mrs Moore, who had by then purchased part of Luckwards Hill, entered into a similar agreement with the Commons Committee, this time acting by its chairman, Mr Floyd.  The form of the agreement was the same as that of the 1984 agreement. On 25 August 2005 Mr and Mrs Harris entered into a similar agreement with Mr Floyd, with the waiver fee in their case being £200 a year, their land being materially larger than Mrs Moore’s.  

16.	The judge’s conclusion about those agreements was that it was a proper inference that the Commons Committee, acting by its chairman, had the commoners’ authority to enter into them, and he referred to the evidence of Mr Floyd (the current chairman) that every year an annual general meeting of the commoners is advertised, which every commoner is entitled to attend, at which it elects a committee. The judge’s approach was, as I understand it, that it must be presumed that the agreements were entered into with the proper authority of the commoners, and that therefore the agreements amounted to an effective waiver of their rights for the duration of the agreements. On that basis, no common rights could impliedly have been granted to Mr Hall by his 1998 tenancy because they had been waived.  

17.	Mr Hall’s argument is that it was not open to the judge to arrive at that conclusion. He argues that the Commons Committee is not a statutory body with power to bind the commoners -- nor indeed is it -- and he says that no commoner can have his common rights waived without his prior approval and written consent. He asserts, as he did before the judge, that the agreements put in evidence did not have the backing of that support, approval and consent. His case was that the agreements could only stand up if there had been produced to the judge hard evidence of the fulfilment of all those conditions.  

18.	I regard it as probable that Mr Hall has got that argument the wrong way round.  Faced as the judge was with an agreement purportedly made in 1984 on behalf of all the commoners by their Committee, acting by its Chairman, it can be said that there was no basis on which the judge was required or entitled to infer and conclude other than that the Committee had been lawfully and constitutionally entitled to act in the way it did on behalf of all the commoners. It was not, so it can be said, for the defendants to prove that the Committee had the authority of each commoner to enter into the agreements that it did. It was for Mr Hall to prove, if he could, that it did not. That is because it can be said that, in relation to the 1984 agreement, there was and is a presumption of regularity as to its effectiveness. In this context the observations of  Lindley LJ in Harris v Knight (1890) 15 PD 170, at 179, are relevant: 
“The maxim, ‘Omnia praesumuntur rite esse acta,’ is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done, as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proven to exist, and would render what is proved to have been done of no effect.”

19.	It seems to me, therefore, that although the judge did not in terms refer to that passage, he nevertheless dealt with the case on the basis of the principle which it illustrates; and it would follow that, if Mr Hall wished to challenge the validity of the 1984 and subsequent agreements, it was for him to make good that challenge on the facts. He did, of course, advance such a challenge, but it amounted really to no more than a challenge to the defendants to prove the validity of the agreements. In those circumstances it can be said that the judge was entitled, as he did, to presume their validity and Mr Hall did not disprove it.  In the course of his argument he did, however, draw to my attention that one of the current commoners is Mr Lewis, who lives at Henwick Cottage, who claims to be a commoner by succession, whose evidence before the judge was that he has never consented to waive any commonable rights, and I suppose at least to that extent Mr Hall is entitled to say that he had raised a question over the validity of the most recent agreements, although it is the earlier agreement in 1984 which is of crucial importance, since that was the agreement in force when his tenancy was granted in 1998.  

20.	Mr Hall has also argued that, following the registration of the trustees’ rights in 1970, his father, as occupier of Moat House Farm under the then tenancy, enjoyed those rights of common which were attached to the land, and it is part of his case that his father was never a party to any such agreement as was entered into in 1984. To what extent the evidence before the judge dealt with Mr Hall’s father’s position is not, however, clear to me. Mr Hall has taken on this complicated case in person and has dealt with it with the disadvantage that litigants in person inevitably face.  

21.	For reasons I have given, I have come to the conclusion that the judge may perhaps have misinterpreted paragraph 4 of the second schedule to the 1998 lease, and I have explained the respect in which I consider it is arguable that that paragraph did not, as the judge held, reserve the common rights to the trustees. If, of course, the judge was right on his alternative ground, namely that turning on the presumed validity of the 1984 agreement, that, so it seems to me, is equally fatal to Mr Hall’s case. But I have come to the view that, given that I consider he has an arguable point on at least one of the judge’s grounds, I ought to give him permission to appeal, since the question as to the presumed validity of the 1984 agreement appears to me to be one in respect of which there is also a real prospect of success according to the relatively low threshold of that phrase in the context of the giving of permission to appeal. If it was established before the judge that Mr Hall’s father was enjoying common rights which were exercised during the years up to and after 1984, then it might be thought that his father would have been a proper party to any conferring upon the committee of an authority to waive the rights, but it is Mr Hall’s case that that did not happen. But quite apart from that, it anyway seems to me that the question whether the judge was entitled to treat the 1984 agreement as amounting to a valid waiver of rights which meant that nothing passed to Mr Hall by his 1998 lease is one which can fairly be the subject of argument on appeal. There must, in my view, at least be a real question as to whether the judge was entitled to infer that the 1984 agreement was not just formally valid but was entered into with the due authority of all those with rights of common over Luckwards Hill. 

22.	With, I have to confess, a considerable degree of reservation, I propose to give Mr Hall permission to appeal simply on those two grounds.  I say that because he has also raised various other imprecise grounds, which he has not developed, but which on the face of it do not appear to me to add up to any basis for an appeal. I will therefore give Mr Hall permission to appeal against Judge Geddes’s order, on what are, in effect, paragraphs 4 and 5 of his grounds of appeal, although as regards paragraph 4 I take the view that the real point is as to whether paragraph 4 of the second schedule did on its face reserve to the trustees the common rights in question. Permission to appeal on all other grounds is refused.

Order:  Application granted