Wynn-Jones v Bickley, Court of Appeal - Chancery Division, July 04, 2006, [2006] EWHC 1991 (Ch)

Resolution Date:July 04, 2006
Issuing Organization:Chancery Division
Actores:Wynn-Jones v Bickley

Case No: HC03CO2339

Neutral Citation Number: [2006] EWHC 1991 (Ch)



Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday, 4 July 2006



Sitting as a Judge of the High Court

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MR STEPHEN LENNARD (Instructed by Messrs Burkill Govier) appeared on behalf of the Claimant

MR WILLIAM HANSEN (Instructed by Messrs Mackrell Turner Garrett) appeared on behalf of Defendant

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  1. In the underlying proceedings, Mr and Mrs Wynn-Jones claimed, amongst other relief, a declaration that the boundary between their property and that of Mrs Bickley was in such position that there was no encroachment upon Mrs Bickley's land. They also sought rectification of the original land transfer and consequential rectification of the relevant Registers of Title at the Land Registry. Those claims failed, as did a counterclaim by Mrs Bickley for an injunction to remove that part of the extension to The Ramparts that constituted a trespass to her land.

  2. In summary, in the course of an ex tempore judgment delivered on 4 and 5 November 2004, I refused Mrs Bickley's claim for an injunction to remove that part of the extension to The Ramparts that had been built on Mrs Bickley's land, and instead I ordered that Mr and Mrs Wynn-Jones do pay the defendant damages to be assessed under what was formerly known as Lord Cairn's Act, the Chancery Amendment Act. That jurisdiction is now embodied in section 50 of the Supreme Court Act 1981. That section confers a power to award damages as well as or in substitution for injunction or specific performance. It provides:

    ``Where the Court of Appeal or the High Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to or in substitution for an injunction or specific performance.'' [Quote unchecked]

  3. Due to various difficulties in bringing the matter back before the court, my order embodying the terms of my ex tempore judgment was not in fact finalised until 26 July 2005 and it was entered on 1 August that year. I dismissed Mr and Mrs Wynn-Jones' claims for a declaration and rectification and made no order on their claim that Mrs Bickley do erect a good and sufficient fence demarking the boundary between the parties' respective properties. On the other hand, I refused Mrs Bickley's claim for an injunction.

  4. Paragraph 4 of my order provided by consent that the parties do, within 42 days of service of the order, simultaneously complete two transfers, namely (1) Mr and Mrs Wynn-Jones were to transfer to Mrs Bickley the land marked blue on the plan attached to the order, having a total area of 63.3 square metres, or such other parcel of land as might be agreed in substitution therefor; and (2) Mrs Bickley was to transfer to Mr and Mrs Wynn-Jones the land marked green on the plan attached to the order, having a same total area and a width of no less than 1.2 metres when measured from the western flank wall of Mr and Mrs Wynn-Jones' garage, or such other parcel of land as might be agreed in substitution therefor.

  5. Essentially, the parties had agreed effectively as a result of my judgment that there should be a transfer of land under which Mr and Mrs Wynn-Jones received the parcel of land on which the extension to The Ramparts had been constructed insofar as it encroached upon Mrs Bickley's land, together with a width of no less than 1.2 metres from the western flank wall of the extension. In return for that, Mrs Bickley was to receive from Mr and Mrs Wynn-Jones a corresponding area of land, the purpose of those simultaneous transfers by way of exchange being to ensure that the area of each of the parties' properties remained in excess of one acre and thus complied with the requirements of the covenants imposed by the Residents Association, regulating land on the St George's Hill Estate.

  6. By paragraph 5 of my order, I directed that Mr and Mrs Wynn-Jones should pay Mrs Bickley's damages for trespass to be assessed, and reserved such assessment to myself. There was also a claim by Mr and Mrs Wynn-Jones for damages pursuant to section 3 of the Protection from Harassment Act and I directed that Mrs Bickley should pay Mr and Mrs Wynn-Jones a sum of £3,000 in respect of that claim, which was to be set off against the damages awarded to Mrs Bickley, pursuant to the enquiry.

  7. There were then consequential directions regarding the conduct of the enquiry, including provision for points of claim and points of defence, and for expert valuation evidence.

  8. It is that assessment of damages that comes before me now. My original order was in fact varied by consent in certain respects by Lewison J on 16 November 2005.

    Section 2: The Hearing of the Assessment

  9. This began before me yesterday, 3 July 2006. Mr Stephen Lennard of counsel appeared for Mr and Mrs Wynn-Jones, as he had done at trial, and Mr William Hansen of counsel appeared for Mrs Bickley, again as he had done at trial. Pursuant to the terms of my order as varied, points of claim had been served by Mrs Bickley on 15 November 2005 and points of defence had been served by Mr and Mrs Wynn-Jones on 16 January 2006. Each of those statements of case was supported by a valuation report from each party's valuer. In the case of Mrs Bickley, the valuation report was from Michael Harrop FRICS of Knight Frank LLP. The report was dated 4 November 2005, although in evidence Mr Harrop explained that he had signed it in early March 2006. Mr and Mrs Wynn-Jones' expert valuer was Graham Randall FRICS of Graham Randall Chartered Surveyors. His report was dated and signed 16 January 2006.

  10. Again pursuant to my order for directions as varied, a joint statement was prepared by the respective valuers. That is dated 21 April 2006 and is at pages 92 to 93 of the hearing bundle. That statement recorded the extent of the agreement and disagreement between the experts. In particular, it recorded at paragraph 3 that Mr Randall was instructed and had assumed for his valuation purposes, that the footpath, that is to say of 1.2 metres, around the flank of the extension to be part of the agreed land exchange, and he had not attributed a separate value for this strip of land. Mr Harrop was instructed that the footpath land should be considered for compensation purposes and had valued the whole area extending to 63.3 square metres.

  11. Paragraph 4 recorded that Mr Randall had received instructions to consider the possibility of alternative locations for the extension, whereas Mr Harrop had been instructed that for valuation purposes, the extension as built was in the only possible position. Paragraph 5 recorded that Mr Randall had been instructed to provide a valuation opinion at the date immediately preceding the construction of the extension. He considered this relevant in terms of what may have been normal market negotiations between the parties at June 2001. The significance of June 2001 was, of course, that that was the approximate date on which Mr and Mrs Wynn-Jones had commenced the construction of their extension. Mr Harrop, on the other hand, had been instructed to produce his valuation as at 26 July 2005, being the date of my formal court order.

  12. Paragraph 6 recorded that Mr Randall considered that the extension had enhanced the value of The Ramparts in the region of £250,000, whereas Mr Harrop believed that £300,000 was the appropriate figure.

  13. Paragraph 7 recorded that the experts agreed that the land, that is to say the land to be ceded by Mrs Bickley, had no open market value and had little value to Patrice other than maintaining the plot size of at least an acre. Finally, paragraph 8 recorded that the experts were agreed that there were two possible approaches to the valuation, namely (1) the apportionment of the net gain in the increase in value of The Ramparts by building the extension after costs and fees had been deducted; (2) valuing the area of land in question by apportioning the value of the whole plot. The experts dealt with their differing views on the methodology in their respective experts' reports.

  14. As I say, the matter came before me yesterday, Monday, 3 July. I was asked to rule as a preliminary point on whether I should admit a witness statement from Mrs Wynn-Jones. That witness statement was dated 27 June 2006. My order of 26 July 2005 had made no provision for witness evidence of fact and consequently no provision for service of witness statements. For reasons that I gave in a ruling delivered immediately after lunch yesterday, I ruled that that evidence was irrelevant and thus inadmissible in the context of the assessment of damages that I was undertaking.

  15. Essentially my reason was that paragraphs 1-3 of the witness statement related to the particular considerations that Mr and Mrs Wynn-Jones would have had in mind in the context of a hypothetical negotiation. I expressed the view that the court should not go behind the hypothetical negotiation to look at the positions and characteristics of the actual parties involved in the dispute, save to the extent that those positions and characteristics were inherent in the position of the hypothetical parties to the negotiation.

  16. So far as the remainder of the witness statement was concerned, at paragraphs 4 through to 13, it seemed to me that, since those related solely to Mrs Bickley's behaviour since the original trial in November 2004, they were entirely irrelevant to the issues I had to decide on the assessment of damages.

  17. Yesterday afternoon I heard evidence from the defendant's valuer, Mr Harrop. He gave...

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