Herbert v Doyle & Anor, Court of Appeal - Chancery Division, August 04, 2008, [2008] EWHC 1950 (Ch)

Resolution Date:August 04, 2008
Issuing Organization:Chancery Division
Actores:Herbert v Doyle & Anor

Neutral Citation Number: [2008] EWHC 1950 (Ch)

HC 06 C 02027



Royal Courts of Justice

Strand, London WC2A 2LL

Monday 4 August 2008




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Mr Timothy Becker (instructed by Direct Public Access) for the Claimant (7-9 April 2008 only); thereafter the Claimant in person

Miss Amanda Tipples (instructed by Moore Blatch) for the Defendants

Hearing dates : 7-11, 14-15 April 2008

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JUDGMENTMark Herbert QC :


1 This action comprises a property dispute. In legal terms it raises questions of proprietary estoppel and constructive trusts. The property in question is called Mansfield House, near the corner of Southampton Road and Mansfield Road in Ringwood, Hampshire. Originally it consisted of a substantial two-storey residence with a large walled garden to the rear. Some time before 1993 a single-storey building was built to the left and rear of the main building and attached to it, and this building was and still is used as a dental surgery. (In this judgment the words left and right suppose the viewer to be looking towards the garden from the rear of the main building, or looking at the front of the main building from Southampton Road, which runs approximately north-east to south-west at this point, so that `left' is north-east and `right' is south-west.) There is a narrow, open-ended, rhomboid area, which has become know as `the quad', between the surgery and the main building. The quad is essentially an unroofed, paved passageway leading to the garden, wider (more than 4 metres) at the garden end than at the house end (about 2½ metres).

2 The claimant Mr Julian Herbert (who has no family or other connection with myself so far as either of us is aware) is the freehold owner of most of the relevant property, and he has developed part of it by building three mews-style terraced houses to the rear of the property. From right to left they are Nos 1, 2 and 3 Mansfield Mews. He has also divided Mansfield House itself into flats. The area which formerly constituted the garden is therefore divided between (1) the new Mansfield Mews houses with their own small gardens behind them and (2) a private car park between those houses and the main building. Some of the disputes in the action concern the ownership, position and extent of parking spaces in this car park. Mr Herbert also effected improvements to the main building, including a small extension to the part linking the main building to the surgery. Some of the disputes relate to that extension, which came to be known as the staff-room extension. It is at present unfinished.

3 The defendants Mr Leonard Doyle and Mr Xerxes Talati are in partnership as dental surgeons in private practice, and they occupy the single-storey surgery as freeholders and a part of the ground floor of the main building under a long lease from Mr Herbert. They also own the freehold of nine parking-spaces in the car park. I shall need to explain the position of the various parts of the property in more detail below, but I mention now that No 2 Mansfield Mews, the central one of the new houses, encroaches on one of the defendants' freehold parking spaces. That is common ground.

4 At the beginning of the trial of the action Mr Herbert was represented by counsel Mr Timothy Becker. Mr Herbert's pleadings had been signed by other counsel, with two different counsel signing (1) the particulars of claim and an original defence to counterclaim and (2) an amended reply and defence to counterclaim. It was apparent that Mr Becker had been instructed only shortly before the hearing. On the morning of day 4, soon after Mr Becker had begun his cross-examination of the first defendant Mr Doyle the previous afternoon, Mr Herbert decided to dispense with counsel and continued the rest of the trial as a litigant in person. The defendants appeared before me by Miss Amanda Tipples.

The rival claims

5 The relief sought by Mr Herbert is simple. He claims to be entitled to a transfer by the defendants to himself of three parking spaces, which I shall call `the green spaces' because their approximate position is shown edged green on a plan attached to the particulars of claim, in return for which he will grant them three replacement spaces, the red spaces, also identified on the plan. The point is that 2 Mansfield Mews has encroached on the green spaces, as have two parking spaces which Mr Herbert wishes to allocate to the future purchasers of 2 Mansfield Mews, while the red ones are close to the main building. All parties were well aware of the encroachment when the development began. Mr Herbert's pleading does not use the phrases `proprietary estoppel' or `constructive trust', but it refers to an oral agreement evidenced by an e-mail dated 8 February 2003, which included provision for the defendants to transfer nine spaces (including the green spaces) to him in exchange for nine replacement spaces and an additional space. He claims that the defendants stood by when he began the development, without objecting to the proposed encroachment, so that he has acted to his detriment in reliance on that agreement.

6 Mr Herbert's pleading also mentions a `compressor house', a small shed at the front of the main building which houses pumping equipment for the dental practice. The parties agreed the construction of this compressor house on land belonging to Mr Herbert on the footing that this would be included in a lease having the same terms as the dentists' main lease. Mr Herbert acknowledges that this entitles the defendants to an equitable interest in the compressor house and to the grant of a lease accordingly, and this right is evidently based on proprietary estoppel.

7 The defendants have made requests for further information under Part 18 of the Civil Procedure Rules 1998. After two earlier attempts which the defendants criticised, Mr Herbert's third response to these requests, dated 10 September 2007, sets out a revised statement of the facts on which he relies to show that the defendants stood by without objection to the encroachment. In brief summary this statement gives numerous instances over the period from 1993 to April 2003, the time when he submitted his final application for planning permission for the mews houses, when the defendants were aware of Mr Herbert's plans and are said not to have objected to them.

8 Meanwhile the defendants had responded to the claim with a defence and counterclaim which, after amendment in April 2007, run to 34 pages. Importantly, in regard to the e-mail of 8 February 2003, the defence claims that the agreement which it evidences included several terms other than those mentioned in Mr Herbert's particulars of claim, and was also subject to contract (though the e-mail did not use that actual phrase). The defence claims that the agreement was not a simple, unqualified agreement to exchange the three green spaces for three red spaces, or anything similar. It goes on to assert that, shortly before the Mansfield Mews development began, Mr Doyle told Mr Herbert (amongst other things) that the defendants would not transfer any of their spaces to him until all the elements of the agreement of 8 February 2003 had been satisfied and recorded in writing. It claims therefore that, when Mr Herbert proceeded with the development without satisfying those elements, he did so at his own risk.

9 The defence and counterclaim refer to a multiplicity of disputes, quarrels and accusations which have arisen between the parties during the period from 1993 to 2005, many concerned with alleged failures on the part of Mr Herbert to implement the 2003 agreement or variations of that agreement. In its amended form the counterclaim contains the following claims : --

(a) One is a claim for damages in lieu of an injunction under section 50 of the Supreme Court Act 1981 by virtue of the encroachment onto the green spaces. (The defendants have evidently calculated that the court would not in practice grant an injunction requiring demolition of any of the new buildings.)

(b) Alternative to that is a second claim, that Mr Herbert is not entitled to the green spaces without satisfying nine other specified conditions (corresponding to what they claim to be the terms of the 2003 agreement). Those conditions are for Mr Herbert to do the following : --

(i) To grant freehold parking spaces so that the defendants have nine full-sized spaces reasonably accessible in the car park;

(ii) To transfer the freehold of Mansfield House to a management company;

(iii) To transfer the freehold of the quad to the defendants;

(iv) To complete the staff-room extension in accordance with a specification said to have been agreed in February 2004 and current building regulations;

(v) To grant a lease of the staff-room extension;

(vi) To install electrically operated gates at the entrance to the car park;

(vii) To provide cycle racks for the defendants and their staff;

(viii) To provide the defendants with a secure waste-disposal area;

(ix) To grant the defendants a lease of the compressor house.

(c) A third claim is that one of the new parking spaces in front of 3 Mansfield Mews (the left one of the three) encroaches on one of their own other spaces.

(d) A fourth is for an injunction restraining Mr Herbert from obstructing the entrance to the car park or entering the defendants' freehold and leasehold premises.

(e) A fifth claim is for damages for the encroachment claimed at (c) above, and also for having boarded up certain internal windows in the staff-room extension on two dates in December 2005.

(f) There was a further claim relating to a flood in the...

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