Trial success in right of way/estoppel by acquiescence dispute

George Woodhead represented at trial the claimants (a farmer and his wife) in a longstanding and multi-faceted right of way dispute concerning land in Edenbridge, Kent. The 31-page judgment was formally handed down last week by His Honour Judge Simpkiss.

The case concerned legal issues of (i) the effect of a compromise in earlier First Tier Tribunal proceedings; (ii) the scope of a right of way (and whether the obstructions were actionable); (iii) whether there was a defence of acquiescence to the injunction claim; and (iv) whether damages were an adequate remedy in lieu of an injunction.

An injunction was awarded with the terms/modus to be agreed between the parties or determined at a further disposal hearing.

“Like the dog that didn’t bark”?

One of the heavily contested issues at trial was whether the claimants had acquiesced whilst the obstructions were being built. The defendant had to establish that there had been a representation by words or conduct by the claimants that they would not rely upon their strict proprietary right and reliance on those representations by the Defendant to its detriment, “or in a way which makes it unconscionable for the Claimant to bring the injunction claim”.  It was held that the works were not carried out in secrecy and in fact had been going on for many months, “for all to see” from the Roman Road on which the claimants lived.  It was further found that the claimants had not objected whilst the works were being completed.

The court was persuaded that the defendant’s director, Mr Woollard, had, in cross-examination, indicated that he was unaware of the right of way before the works were completed and did not rely on any actions or words of the claimants in making a decision to carry out the works which led to the obstructions. Further, that by the time it became apparent that the works were obstructing the right of way, or might, the expense had been incurred and an objection at that stage would not have saved the defendant any expense.  The claimants’ own knowledge was important, too.  It was held that the claimants were probably unaware of the right of way until they looked into access into the field which they had purchased some years prior to the works’ commencement.

George Woodhead acted for the successful claimants and was instructed by Helen Baker, Solicitor.