Tag Archives: land law

Hedge funds and attempted enclosures: Darwall  v. Dartmoor National Park Authority and another [2023] EWCA Civ 927

The CA judgment in Darwall is out. I will confess that I thought it would go the other way – not because natural pessimism led me to expect things to turn out in the way opposite to my preference, but just because, given that changes to the extent of access to the countryside have become part of the likely programmes of political parties, it seemed as if it might be a plausible choice for the CA to say ‘this is one for Parliament to sort out, not us’. Got that one wrong.

Anyway, no doubt I will revisit this, and may update/beef up as I wade through the CA livestream, but it seems worth noting a few immediate thoughts. So –

What is it about?

Alexander and Diana Darwall sought a declaration that people had no right to ‘wild camp’ on Dartmoor, where they owned (a lot of) land. ‘Wild camping’, is, helpfully, defined for us by Underhill LJ as:

a modish phrase which I understand to mean camping overnight in a place which is not a dedicated campsite

There had been an idea that there was such a right in the National Park there, even though there was not generally such a right in England. In the High Court, (: [2023] EWHC 35 (Ch)) Darwall won, and the relevant National Park authority appealed.

Why is it interesting?

Well, it is a fight on the borderline of the extent of a landowner’s power to exclude and the right of the public to obtain access to England’s wild places.

Essentially, it was uncontroversial that the public had access to the National Park for purposes of (for example) walking – so there were definitely some limits to the Darwalls’ rights as landowners, but was wild camping (i.e. camping other than at a designated site, with permission) allowed as well, or not? In the High Court, a judge (Flaux J) had said no. The CA (Vos MR, Underhill and Newey LJJ) however, were convinced that that was incorrect:

‘57. I, therefore, conclude that the grant to the public of “a right of access to the [Dartmoor Commons] on foot and on horseback for the purpose of open-air recreation” does allow members of the public to rest and sleep, whether by day or by night, whether on the ground or in a tent. I do not think that the use of the word “open-air” means that a tent cannot be used for the necessary incidents of walking …’ [Vos]

Despite being about pretty big principles, the CA case was argued on the less-swashbuckling territory of construction of certain legislation specific to Dartmoor itself, and particularly the following words: “the public shall have a right of access to the commons on foot and on horseback for the purpose of open-air recreation” –  Dartmoor Commons Act 1985 s. 10(1).

 

What not-entirely-legally-relevant hares has it set off running in my head?

I thank myself for asking. Well I do I find it rather interesting that there is considerable variation, in the judgments and in newspaper coverage, in the way in which the Darwalls are described. They are ‘farmers, landowners and commoners’ in one place [H Ct 4; CA, 33], which gives a certain spin to things to most people, I would imagine. Farmers – well, they are often treated as a bit special in Land Law, aren’t they (see various proprietary estoppel cases which seem to view farmers and their ways as not like other people, even if they are running rather large concerns in a business-oriented way)? And ‘commoners’ sounds very rustic and old world. Not quite how things are here – as various journalistic sources tell us, Alexander Darwall is not a life-long tiller of the soil, herder of beasts etc., but somebody who was primarily a hedge fund manager, acquiring land in the National Park relatively recently, and using it for, amongst other things, pheasant shooting and deer stalking (see, e.g. the Guardian , which also notes certain political activities).

I also rather enjoyed some of the gymnastics involved in trying to argue that camping was, or was not ‘open air recreation’ (either because canvas meant it was not ‘open air’ or because recreation had to be something physically active and could not be stationary) (see e.g. CA at 55).

Almost finally, one thing which often strikes me as worthy of further study, though I have not made a thorough-enough study of it to say much about it, is the judicial performance of emotion. Expressions of ‘real sympathy’ for the landowners at 72 (CA, Underhill LJ) – what do we think? In a judgment which otherwise seems to be at pains to keep to the statutory construction task, that choice did stand out to me as interesting.

Actually finally, and despite his being on ‘the wrong side’, I do have to award a special gold star for creativity to Timothy Morshead KC, who is reported to have made an allusion to a famous poem by Keats, relating to those ‘long in city pent’, which, although it does mention not being in motion at all times, seems to describe access to the countryside on a day basis, rather than camping, neatly supporting his clients’ case (H Ct, 40).

 

A good one for a Land Law reading list?

Yes – clearly an important area, and something which is ripe for a bit of debate about the limits of rights in and to land. Also shows that fights about pretty fundamental principles can be tied up in painstakingly detailed analysis of the wording of statutes, so rams home the Land Law lecturer’s favourite instruction: you need to be precise! Also –it weighs in at a mere 20 pages: see, proprietary estoppel case judges – you don’t actually have to get into 3 figures…

 

GS

5/8/2023

Photo by serena saponaro on Unsplash

Vampire Property Law: fiend simple absolute in possession?

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points (!) in relation to the Undead and their interactions with systems of property.

 

(Vampires outside a house …)

Can I come in?

Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries makes great play of this, and there are certainly resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring – actually played by the bonehead boyfriend from another jurisprudential classic, Legally Blonde) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. s.2 ep. 18 went totally for the Venn diagram overlap between vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her then paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

There is more right-of-entry-related fun in later series. Season 7, for example, goes for it in a big way. In episode 2, Lily, vampire mother of Stefan and Damon Salvatore, during an evil phase, keeps her sons out of the house by signing it over to a compelled Matt Donovan (a rather dim human) and making him refuse them entry. Thrillingly, there is talk of land registration (be still my apparently not undead beating heart)! And also a nugget on the workings of the whole thing – apparently if human Matt were killed and then brought back to life, that would simply ‘open the door’ – so, the seals would not go back up when he returned from the dead. [Issues of property entitlements, succession and return from the dead could, frankly, be fleshed out rather more …] Another human registered proprietor for the Salvatore house (for the same reason as Matt) is the compelled cleaner, Lucy (season 7 ep. 6). [I do wonder how to categorise the interests of Lily’s family in the house – un-life tenants?] Another house which features some property-based refusal of entry issues is the place Bonnie Bennett bought to keep drippy Elena’s coma-coffin, and wanted to use as a love nest for herself and dodgily accented vampire Enzo. In s. 8 ep. 11, Stefan (in an evil phase – keep up!) somehow managed to have title transferred away from Bonnie, thus allowing him to get in, shutting Enzo out and leaving the latter vulnerable to slaughter. I don’t claim any knowledge at all of the property law of New York, so don’t really understand how it is that the realtor has the ability to assume title of the property, but that is what happens (she is, of course, compelled – interesting to wonder how vampire compulsion could be brought up in a property dispute …)

Good stuff, but still so much that we need to know, e.g. …

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8 (or equivalent in your jurisdiction).
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Can we have a little more detail on the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.)
  • What about houses subject to a mortgage? Or a long leasehold? Could a vampire move in to one house and acquire an easement to enter neighbouring properties? How would a licence for vampire entry work with s. 62 of the Law of Property Act on reconveyance? So many unanswered questions …
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?
  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 2 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date? And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

(Vampires clearly inside a house …)

There’s just so much we need to know, isn’t there? And very oddly, there is not much in the way of existing scholarship.[i] Too much other stuff to do at the moment, but, like the undead, my article on Vampire Property Law for the Mystic Falls Law Review is a project which will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

updated 20/1/2022

 

(Main Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing. Don’t get me started on ‘mortmain’ …)

[Later thought – on the basis of this case – surely there is scope for a bit of vampiring up of the legal/property aspects of cryptocurrency such as Bitcoin …. Yes, need to get out more …]

[i] Honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2).

Towards a Theory of Vampire Property Law

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points in relation to the Undead and their interactions with systems of property.

 

Can I come in? Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries, however, has had a couple of scenes playing with this whole idea, with resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. It’s not fully fleshed out, but it hints at one of the issues. There is much that we need to know:

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8.
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Who has the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?

 

Miscellaneous

  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 3 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date?
  • And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

There’s just so much, isn’t there? And oddly, not much in the way of existing scholarship (honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2 – the abstract of which looks promising, and which I’m trying to find). It’s a shame I am on study leave next year, or I would definitely be suggesting this for a Final Year Research Project. Ah well, like the undead, it will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

And an update, 15/3 – the latest episode of VD (yes, we are using that) which I saw (s.2 ep. 18) went totally for the Venn diagram overlap between Vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

(Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing.)

Detriment, conscience and the fine art of judicial shade

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As the Land Law year rolls into co-ownership/constructive trust season, I was interested/irritated* (*delete as applicable) to see the appearance of another in the seemingly unending  parade of common intention constructive trusts cases: O’Neill v Holland [2020] EWCA Civ 1583. https://www.bailii.org/ew/cases/EWCA/Civ/2020/1583.pdf

Sometimes these things make me wish that (ALERT: mostly gratuitous Legal History reference coming up, to justify inclusion in ostensibly LH-centric blog) the Statute of Uses had done a better job of stamping out the whole law-equity separation business, but never mind – they must be read and inwardly digested.

This was a Court of Appeal case, centred on (parts of) a case which had been dealt with by a District Judge, District Judge Obodai, and then, in a County Court, by HHJ Pelling. The ‘live’ part of the dispute centred around a house in Farnworth, Bolton (53 Worsley Road for those keen Land Law fans who want to enter it on their Constructive Trusts Cases Maps … well, there might be such people). Ms O’Neill wanted reaffirmation of an earlier holding that this property, held in the sole name of Mr Holland, was in fact held on trust for both of them, and that she had a 50% equitable interest. She got it.

The main point of Land Law interest was, I suppose, discussion of whether it would matter if there was not specific pleading of detrimental reliance, or a specific finding of it, in the circumstances that, as far as the CA was concerned, there was in fact evidence of detrimental reliance. Answer – no. Also, there was a bit of an attempt to expand the importance of ‘unconscionability’ as something which could make up for lack of (pleading of? or actual?) detrimental reliance. This did not work. Nevertheless, the CA seemed happy that there had been evidence of DR – with particular reference to not sorting out legal/equitable positions earlier on, as a result of a misrepresentation that Ms O’Neill would not have been able to obtain a mortgage. (A minor legal point – I confess I had to look up what an ‘equity of exoneration’ was – mentioned early on, at 12).

Apart from that, I found myself going back to a bit of an obsession – how judges in judge-only trials present their views of those who have given evidence before them. Clearly they are going to have to evaluate credibility, and prefer one version to the other, but there is quite a variation in how critical, or condemnatory they are prepared to be. I have mentioned this in previous posts. Here, the DJ went for it in a fairly strong way. As Henderson LJ put it, at para. 9, ‘It is fair to say that the District Judge was distinctly unimpressed by the evidence of these witnesses, and in particular by the evidence of Mr Holland whom she described on more than one occasion as “a stranger to the truth”.’ Also, at 49, Henderson LJ noted that Mr Holland had been held by the DJ to have given evidence which “beggared belief”. This view of the party’s honesty was thus stated, and repeated in the easily-available public judgment (and by those commenting on it …). Not for the first time, I do find myself wondering about what that must feel like – if the parties know.

On a related matter, when judges’ cases are appealed, there is an issue of the level of ‘shade’ to be ‘thrown’ on them (see how down with the kids I am!). Here, Henderson LJ, at 7.,  is a touch sniffy about the fact that the DJ’s judgment ‘[ran] to 50 pages and 184 paragraphs’ and suggested at 18 that she had ‘fallen into error’ by not using existing case law properly. At 46., he gives us ‘The relevant findings of the District Judge are contained in paragraphs 154 to 161 of her judgment. With respect to her, they could sometimes have been more clearly expressed and are not always entirely easy to follow.’ Relatively mild, I suppose. In relation to the decision in County Court, he says, at 60, ‘In my respectful opinion, Judge Pelling adopted too narrow a view of the District Judge’s findings of fact, and he was also wrong to take the view that detrimental reliance had not been pleaded sufficiently or at all by Ms O’Neill’ . Possibly slightly more ‘respectful’? I am not sure. It would certainly be interesting to consider the range of different ways of dealing with/ disagreeing with lower level decisions which are used by appeal courts, by whom, and in relation to whom. A project for somebody?

Finally, this touched on another of my obsessions – questioning gendered writing in legal documents. As another page on the blog makes clear, I am not in favour of the rather frequent use of ‘emasculation’ in legal discourse, to indicate weakening/ worsening. I wonder whether similar concerns apply to the description of things, including judgments, as ‘seminal’ (here, at 27, we have the ‘seminal speech’ of Lord Diplock in Gissing v Gissing [1971] AC 886.’ Does it need the sperm-related subtext? (Could a speech ever be ‘ovular’, and if not, why not?). Or can this usage be excused on the ground that the word is wider than human sperm, and takes in all sorts of ‘seeding’? A point to ponder.

GS

29/11/2020

 

 

Destructive trusts: a family fight over beneficial interests

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[This is a modern Land Law comment – sorry legal history chums!]

Amin v Amin [2020] EWHC 2675 (Ch) is a recent constructive trusts case, a judgment by Nugee LJ on appeal from the London county court.

https://www.bailii.org/ew/cases/EWHC/Ch/2020/2675.pdf

There is a good note on it in the Conveyancer – Sam Bannister, ‘‘Over-acquiring and under-quantifying: continuing issues with the common intention constructive trust: Amin v Ami’n, Conv. 2021, 2, 222-229 – so I won’t go over things nicely covered there, but just make a few more observations on the case, which is a good one to read to get an idea of the sorts of disputes which this body of law may be called upon to handle, and also issues of practical case-crafting  and handling of evidence, at different stages of proceedings.

The basic facts of the dispute were that Mrs Amin was sole legal owner of a house in London. She regarded herself as having the whole legal and equitable interest in it. Her husband, Mr Amin, and her sons, Raja and Zubaire, claimed that they were entitled to an equitable interest by way of a common intention constructive trust. (The dispute initially arose as a possession proceeding by Mrs Amin, and a counter-claim for a declaration of the interests of Mr Amin and the sons). This way of proceeding meant that it was a virtual  ‘all or nothing’ case – Mrs Amin claimed everything, the counter-claim was for 100% of the equitable interest. The county court judge decided in favour of Mr Amin and the sons – the house was held by Mrs Amin on trust for them, and she must transfer the legal title to them. She appealed.

The judgment describes quite a number of property dealings within a large family, and is of considerable interest from a ‘law meets culture’ point of view. One fact to bear in mind, and which is of some relevance, is that the Amin parents were not officially married as far as English law was concerned. They had been through a religious form of marriage, the nikkah, but technically were not married. As Land Law students know, there is a fairly stark line between cases involving married (or once-married) couples and those who are, strictly, ‘cohabitants’. The Amins would surely not have seen themselves in the same bracket as those involved in informal living together situations, but in some ways, Land Law does (certainly a factor to consider in relation to suggestions for reform of cohabitation/property law). There is also some discussion of what may look to modern Land Law students like an (allegedly) unusual or old-fashioned financial relationship between the parties, in which Mr Amin ‘did not allow’ Mrs Amin to have her own bank account. I have often been told, when discussing cases like Burns v Burns that modern female cohabitants would not end up in such a dependent financial position. Perhaps we might reconsider that with slightly wider cultural perspectives.

Nugee LJ provides a good summary of where he thinks the law is on common intention constructive trusts, and what has to be shown, by whom. It may be picked up as blurring some boundaries – see Bannister note.  The case put by Mrs Amin’s lawyer in this appeal included a strong idea of it being wrong not to make separate, overt findings on all of the separate elements as to whether there a common intention at all, and if so what was its nature, and whether there was appropriate detrimental reliance. We have some further discussion on the (paper thin in my view- I am very skeptical about the idea of objective deduction in these cases) distinction between imputing and inferring intentions.  There is a nice quotable quote on the supposed separation of stages in consideration of  CICTs –  ‘I do not think the two stages can always be neatly distinguished’ [33] – the point is that the same evidence may well cover both bits: [34] ‘it seems to me to make no sense to try and make a sharp divide between evidence that enables an inference to be made as to their common intention that the beneficial interests should not follow the legal ownership, and evidence that enables an inference to be made as to what they intended those beneficial interests to be. Those questions are necessarily bound up together.’ Hackles will no doubt rise at this, but, really, it is a common dynamic in many areas of law, including Land Law, to move back and forth between ‘steppy’ tests and ‘holistic’ (cue whale music …) tests.

What I find more interesting and thought-provoking are the issues concerning the way in which the case was presented, and the evidence. Since this was an appeal, there were already limits on what could be done by way of going over the evidence, and deciding whether there was anything wrong with the initial decision. Greater limitations were imposed by a decision by Mrs Amin not to provide a transcript of oral evidence from the first hearing. Nugee LJ remarked on this more than once. He also highlighted the original judge’s doubts about Mrs Amin’s allegations of domestic abuse [8.11] though these were ‘not directly relevant to the proceedings’. Again, that might bear some exploration – what is relevant to proceedings is, to some extent, a matter of choice and perspective. Comment on the offences of false accounting of another witness were also mentioned (I do wonder whether people realise this sort of public and permanent comment will be made when they agree to be witnesses. I suppose they do).

I can see that, in such cases, judges do have to make comments on the creditworthiness of witness/parties, but it is always a rather uncomfortable thing. I am sure that I would feel deeply insulted and mortified to see myself referred to as ‘[not having made] a good witness’ as was the case with Mrs Amin here, a description based on the fact that, in the initial judgment,

‘The Judge found her oral evidence to be confused and imprecise, and referred to her complete inability at times to recall any precise detail contained in her witness statement – something that happened so frequently that he formed the view that it was almost as if the statement had been written for her by someone else’.  [at 8]

It is also interesting to note the nature of the outcome (100% equity to Mr Amin – now deceased – and the sons) was the logical outcome of the way the case was put. Though this was portrayed as particularly harsh by Mrs Amin’s lawyer, both sides had gone for an ‘all or nothing’ approach, and neither had suggested a plan to share out the equitable interest, so, if Mrs Amin lost, this was always on the cards (though the practical effect could be less harsh, as she could seek indemnity from the beneficiaries on the mortgage payments which she, as legal owner, was still liable to pay).

So – an interesting case in a number of respects: legal, evidential, cultural. It is a bit out of the ordinary for such cases in dealing with a wider family group, whose relations are both personal and financial. It also leaves some untied ends relating to the position of the two Amin daughters, whose interests may well be affected. All in all, a messy situation meets an unsatisfactory area of law. Good luck with it, Law students of England and Wales.

Yet another farming/proprietary estoppel case …

Once again, farming and family squabbles are to the fore in a recent proprietary estoppel case: just out (dropped?) on BAILI – Guest v. Guest [2019] EWHC 869 (Ch) https://www.bailii.org/ew/cases/EWHC/Ch/2019/869.pdf

The case was heard in Bristol by HH Judge Russen. Spoiler – the claimant was found to have made out his case. Not massively surprising in terms of outcome, but it does reinforce some ideas I have about this fertile area for land law.

  1. I suspect that this comes from spending much of my time with my Legal History hat on, looking at much shorter old common law reports, but I am often a bit taken aback by the level of judicial comment about impressions of the character of parties and witnesses. No doubt it is important to the decision that the judge makes a choice as to which of two disagreeing parties is to be preferred, but how much further is it appropriate to go? Does it help future decisions? Do people appearing in court know the level of detail of such comments (and general dirty laundry airing – arguments, personal letters, accusations of laziness, forgery, being a poor farmer…) which will be included in these public reports. Aside from the excellent follow-up on Valerie Burns (Dawn Watkins (2013) Recovering the Lost Human Stories of Law: Finding Mrs Burns, Law and Humanities, 7:1, 68-90) I am not sure what work has been done in this area. I think it would be a nice project for somebody.
  2. Farmers. A great deal seems to emerge from these cases about the relationships between farmers, business, land law and family. This case includes some interesting assumptions about what should happen to farms over generations (preference for sons over daughter being in charge? Strong idea of a male head of the family? Perhaps some lingering idea of primogeniture, or at least it being the destiny of the eldest son to farm the land). There is some idea that the mysteries of proprietary estoppel are making their way around the farming world – with a reference to the claimant here knowing about Davies v. Davies, though his mis-spelling of ‘Proprietary Stopol’ (which the judge chooses to include) suggests word-of-mouth transmission of the concept. Another interesting project would be an investigation of knowledge of this doctrine, and the extent to which it may have affected conduct in family-run farms. The impression given by a number of these cases is that, while farmers have to juggle many schemes and regulations, and take advice on how to organise their business in order to take advantage of subsidies and tax breaks, they are not necessarily taking account of proprietary estoppel, particularly in its modern incarnation, post Thorner v. Majors. This case suggests some awareness that it is important to have records of what is said (there are a number of secret recordings mentioned), so perhaps things are moving, but it also suggests that the defendants had a somewhat out of date reliance upon the idea that it would always be legitimate to change things by altering wills.

 

GS

18/4/2019

Update

Guest appearance

More farmer/proprietary estoppel fun …

The first instance case is here (and I did a little note on some aspects here). It went off to the CA. And now apparently there is to be a season finale – Guest v Guest in the Supreme Court.

Here is a quick summary.

Previously in Guest v Guest …

Guest concerns the charmingly named Tump Farm, near Chepstow. It was one of those family fall-out cases. Andrew, one son of the family, wanted a declaration that he was entitled to a beneficial  interest in the farm, and a life interest in a house, as a matter of PE, after he had worked on the farm for decades. At first instance, Andrew won on the PE point and was awarded a financial ‘outcome’ which would mean Tump Farm would have to be sold. There was an attempt to appeal both the existence of an equity and the remedy, but permission was only granted in respect of the remedy. So off we went to the Court of Appeal on that point.

The objection was that the judge had got wrong the basis upon which he should select a remedy. He had, said lawyers for the parents, been wrong to start with Andrew’s subjective expectation: he should have been approaching the matter with a view to either (a) avoiding an unconscionable result or (or and?) looking at what the parents must be taken to have intended. To cut a long story short, this would have ended up giving Andrew less.

There was discussion in the CA as to whether the judge had been wrong to use a 2-stage test rather than a three stage test (crudely, (i) is there an equity? (ii) so what should we do? as opposed to (i) is there an equity? (ii) how big is it? (ii) so what should we do?). The CA decided this was not wrong, and nor was it wrong to accelerate Andrew’s interest. Thus, while the expectation in terms of property interest may have been that Andrew would obtain a substantial interest on his parents’ death, there was also an expectation that he would be able to take over the business sooner, and, because of the quarrels, he could not reasonably do this without an earlier estoppel award (interesting interaction between property and business considerations here). Nor was the judge wrong to go for a clean-break solution which would mean that the farm had to be sold. So farms were not magically different to other sorts of property.

And now off the the SC, apparently. If there was betting on appeal cases (and why is there not – I will state here that I have long had the idea of online gambling for law students and legal scholars, in a game I tentatively call ‘Supremo’ – or would that be wrong?).

Anyway, looking forward to a slew of punning headlines, working with the name Guest. in legal periodicals, when this one ‘drops’.

GS 11/3/2022

Image – something fittingly bovine.

January 2023 – It has been to the SC. I will at some point probably get around to updating, but see this.

Regency Villas v Diamond Resorts [2018] UKSC 57 Easements in the Supreme Court: a few thoughts

Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …

The Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.

The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html

Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and  Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.

The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, quite unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant.  To my mind, it illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’/ not being too demanding of the servient owner idea which has arisen under the heading of ‘lying in grant’.

Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from [3] onwards).

In 1981, at the time of a key transfer, facilities in the alleged ST included:

  • golf course
  • outdoor heated swimming pool
  • three squash courts
  • two tennis courts
  • a restaurant, billiard/snooker room and TV room
  • gymnasium, including sauna and solarium
  • Italianate gardens
  • putting green
  • croquet lawn
  • outdoor jacuzzi/spa pool
  • ice/roller skating rink
  • platform tennis courts
  • a soft ball court (sic – softball?)
  • riding stables.

 

There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare apartments was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.

At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).

Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs [40] gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact [43].

Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) [44]. This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare apartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right. [53] No argument of proportionality, nor tails wagging dogs, was to defeat this [54]. It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.

Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, despite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not [62]. Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water [66].

He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ [76]. This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly [77] he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a  golf course).

Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts [85] to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club [89]. Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.

Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST: [95] …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed [96]: ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion [102] and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.

Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this rather feeble level?

12/1/2019

Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).

Don’t estop me now: credibility and comments on intelligence

-Warning: explicit Land Law content. If you do not want to read musings on land law, stop right now …

James v James [2018] EWHC 43 (Ch) http://www.bailii.org/ew/cases/EWHC/Ch/2018/43.html

Having had a year away from land law teaching, I am catching up on recent cases, including this one on proprietary estoppel (as well as testamentary capacity). I am not going to say anything about the actual legal points, despite the fact that this is what I am supposed to be preparing, but will comment on another interesting aspect of the approved judgment: a tendency to elaborate upon and explain the decision making process in terms of views about individuals (I think of this as the Eggheads tendency – after the quiz show where people can’t just say the answer is b, they have to ‘talk us through’ the thought-process which has led to that conclusion).

There is detailed discussion of  various witnesses:  HHJ Paul Matthews does not restrict himself to saying he believes X or believes X more than Y, and some of this material seems to go beyond credibility and into intelligence or education. For example, one of the major characters was, the judge found,  ‘a slow but clear witness. He was not good at reading. He was dogmatic, sometimes rather contrary, and not good at following legal reasoning’. [8] And ‘For the most part, I think that [S.] had convinced himself that he was in the right, and interpreted all the material available to him in a way which demonstrated that he was. In some cases, I am afraid I think he went further, and told me things that were simply not true.’[9] Some of this is honesty/credibility-related, but calling somebody ‘slow’ and criticising their reading seems to go beyond that.

 

In relation to a group of female witnesses, the judge shared his impressions at [11] that two were ’quiet and calm’. One ‘rather shy but clear and straightforward, but another, while she ‘gave evidence in a quiet tone’ also ‘ avoided eye contact and her body language suggested internal conflict.’  Some material for consideration of appropriate female witness behaviour there, I think – plus signs of great self confidence on the judge’s part of his ability to ‘read’ mental state from ‘body language’. I am not entirely convinced that has a place in an official account like this. Another ‘good’ female witness was ‘loyal.. to her husband,’ but ‘distressed by the litigation and wanted it to be over’ [12]. Yet another female witness was ‘a slow witness, with clear, trenchant views’ [13].

 

In relation to an older female witness, there is some doubt, but it is not expressed in quite such critical terms: [14] ‘[S.J.], … although she often took her time to answer, was clear and decisive when she did. Despite her advancing years, she was generally very much on the ball. But she was confused as to [a particular point]. On the other hand, she had little or no trouble in following accounts. It is plain that she had a head for business. Sometimes her answer was that she could not remember things, though I noted that that was the answer more often given when the question was a difficult one, not susceptible of a simple answer in her side’s favour. She also appeared confused about [another point]. Her answers did not square with what she said in her witness statement…. I have accepted her evidence without reserve where corroborated by other independent evidence, but otherwise with more caution.’ The first part of this sounds a bit like ‘She’s marvellous, considering …’ – a little patronising?

 

Also interesting is the decision of the judge to mention his views as to the competence and intelligence of a female solicitor in the case: ‘She struck me as a highly competent, intelligent solicitor …’ [16] while in  dealing with a male solicitor-witness, [17], there was, apparently, no need to affirm his intelligence. Likewise the male experts were ‘as one would expect … highly professional’ [18]. Might have been best avoided?

 

Clearly, the format of a civil trial requires a judge to make decisions about credibility, and comments on parties are not new, but I do wonder how it helps to hear that the judge does not rate a party’s speed of thought, and whether the study of ‘body language’ is now a respected and scientific subject, taught at judge school.

For a contrasting approach, see another proprietary estoppel case, Habberfield v Habberfield [2018] EWHC 317 (Ch), in which the judge is much less … well … judgey about individuals, and almost entirely sticks to saying which evidence he prefers on particular points. We don’t learn who is intelligent and who is ‘slow’, and yet it doesn’t detract from our understanding …  [no idea why this bit has gone red!]

Easements update: Regency Villas in the Court of Appeal

Regency Villas v. Diamond Resorts [2017] EWCA Civ 238

Regency Villas was one of those rare cases to engage with  the law students’ favourite question, ‘can a certain right be an easement?’ – a chance to use the Ellenborough Park test on something other than parking rights or storage. It concerned certain rights  for those occupying one piece of land to go onto a neighbouring piece of land (Broome Park Estate, Barham, Canterbury) for a variety of recreational and sporting reasons (including swimming, golfing, tennis and squash playing). This brought up the issue of whether rights which were ‘merely’ recreational could be said to accommodate the dominant tenement, as required by In Re Ellenborough Park [1956] Ch. 131, and whether they were too vague to ‘lie in grant’. It gave lecturers a chance to bring the concept of ius spatiandi out from the back of the cupboard. The upshot of the case was that the rights in question were allowed, and the sensible deduction from it was that the objection to something as merely recreational would be unlikely to work in future. Unusually for such a case, it went up to the Court of Appeal, and the judgment has just been reported, so what has the Court of Appeal  done with it?

Reminder of the facts

The dispute centred on a grant made in 1981,

“for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis  courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities … on the   Transferor’s adjoining estate”

This was held at first instance (HH Judge Purle QC) to amount to a grant of an easement or easements. The ‘servient owners’ appealed, claiming that the rights in question could not be easements because of (a) the expense involved in maintaining the factilities, and (b) the change of facilities since 1981. If some of the rights involved were easements, they contended that others were personal rights only, and that the judge should not have allowed them as a ‘bundle’ of easements as he did.

Over to the CA: (judgment delivered by Sir Geoffrey Vos)

  1. Yes (again) to recreational easements

First of all, the CA agreed with the first instance judge that the fact that a right may be classed as recreational is not a bar to its qualification as an easement.  Care was taken to deal with one of the most frequently-cited snubs to such rights, and to affirm (i) that the list of easements is not closed and (ii) that the list must move with the times (as interpreted by CA judges).

At [56], there is a decisive rejection of the ‘mere recreation’ Baron Martin’s view in the Exchequer case of Mounsey v. Ismay (1865) 3 H. & C. 486 at page 498, that there could not be easements for “mere recreation or amusement”:

“… [A]n easement should not in the modern world be held to be invalid on the ground  that it was “mere recreation or amusement” because the form of physical exercise it    envisaged was a game or a sport.  To be clear, we do not regard Baron Martin’s  dictum as binding on this court, and we would decline to follow it insofar as it suggests that an easement cannot be held to exist in respect of a right to engage in recreational physical activities on servient land.”

The idea of moving with the times is emphasised at [1]: “‘Since [the time of Ellenborough Park], the culture and expectations of the population of England & Wales have radically changed.  This case has to be considered in the light of those changes.’ and at [54]: “…[T]the views of society as to what is mere recreation or amusement may change …”

The way in which the CA thinks that societal views have changed, indicating the need for a change in the rules about what qualifies as an easement, relates to the regard in which  physical exercise is held:

[54]: “…Physical exercise is now regarded by most people in the United Kingdom as  either  an essential or at least a desirable part of their daily routines.  It is not a mere recreation or amusement.  Physical exercise can, moreover, in our modern lives, take    many forms, whether it be walking, swimming or playing active games and sports. We cannot see how an easement could … be ruled out solely on the grounds that the form of physical exercise it envisaged was a game or a sport rather than purely a walk in a garden.” [54]

This might appear to be good, healthy and unobjectionable, but there are certainly some things to think about as well.

As is the way with property law decisions, this is presented as the product of a process of deduction and analogy, using both previous decisions and supposedly ‘common sense’ assumptions about life and land use.

I am not sure, for example, how many people would find the inclusion of justifications based on the allowance of profits a prendre for hunting and fishing purposes a very appealing argument.  In addition, judges do leave themselves open to a certain amount of questioning when they use some sort of normality criterion or implication when working out whether something passes the test for qualification as an easement. We may feel a little bemused, for example, by the inclusion of the information that [66] “The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court is obvious to any modern owner.  Many country homes these days have their own tennis court or courts precisely as a benefit for the occupants.”  or [71] “…[T]he utility and benefit to the dominant tenement of the ability to use a next-door swimming pool is obvious.  As with a tennis court, some modern homes have their own pools as a benefit and a utility for the occupants.”  We may also feel that there is a certain unreality in the suggestion at [76] that “We are all familiar with the teams of groundsmen and greenkeepers that [high quality golf] courses need to employ to maintain them to the high standard that players frequently desire.” (my emphasis and disbelief).

  1. What’s in and what’s out?

The CA did think that the rights ought to have been split up and considered individually, rather than as a bundle [51]. They proceeded to look at nine different potential easements, ranging from use of the ‘formal Italianate garden’, through golfing, to use of post-1981 facilities.

So it was yes to: use of the ‘formal Italianate garden, croquet lawn, putting green and golf course but no to the right to use the reception, billiard room and TV room and other facilities within a building on the servient tenement, or a restaurant. This rejection was justified in very property-law terms, as [79] “the right granted is really not in the nature of an easement at all.  It is not about the use of any land, but the use of facilities or services that may for the time being exist on the land.”

While one may be glad to hear that “A restaurant is not like a toilet…” [79] there is food for thought in the distinctions being made here between different activities, and who is most likely to be in a position to benefit from them (so – yes to golf and tennis, no to TV, billiards, eating). Although the steps of the decision are often explicitly linked to the particular wording of the grant or facts on the ground, or realty and personalty (except when using an example based on profits, which certainly mix these concepts), there must also be an issue about the paradigmatic landowner or occupier of a dominant tenement who is lurking in some of this thinking. What does it mean for those who are not physically able (or who just prefer billiards to golf)? Is there a gendered aspect to any of this?

As far as the swimming pool was concerned, things were slightly more complex. In principle, an easement would have been legitimate in this area, but there was a problem – the servient owners had filled in the original outdoor pool and built another, indoor one. Because of the time factor and the change in location, no easement was allowed over the new pool. It was not [80] a ‘direct substitute’ for the original pool  [Crystall ball – look out for disputes over the difference between substitution and improvement on the one hand and extension on the other]. The ‘dominant tenants’ might, however, still have an easement over the (now-non-existent) original outdoor swimming pool. (The sometimes almost whimsical area of ‘non-abandonment despite non-existence’ is one of my favourite parts of easements). The court left that to be sorted out separately.

Misc.

A specific issue with regard to this case was that the slightly odd way in which the original transfer dealings were carried out might have led to particular rights being lost within 24 hours. This was something which seems to have weighed in favour of construction of the rights as easements at first instance (since this would tend to mean that they would survive), The CA was keen to keep separate the questions of qualification as an easement and acquisition of an easement: [62] “the parties’ intentions cannot ultimately validate an attempt to grant an easement of a facility that cannot in law be the subject of an easement”. A good model for law students to follow.

 

Conclusion and musings

On the specific facts of the case, this judgment showed a narrowing of the rights allowed as easements, compared to the first instance decision. Nevertheless, from a law student’s point of view, the most important thing is the reaffirmation of the fact that it will not be possible to challenge the legitimacy of  an easement simply because it is ‘recreational’.

For those who would like to take it further, there are a few things to ponder here. This does seem to be an area in which rather a lot of value judgments about land use and recreation can be brought in under cover of black letter property law principle. Arguments by analogy from the paradigm of the private right of way do seem to be rather creaky, particularly when the facts are far removed from the original context of the law of easements. Whereas many familiar easements cases involve individual landowners, this was about something rather more commercial. There are property companies and groups of companies involved. There is golf rather than ‘taking out small children in prams or otherwise’. Does Ellenborough Park, even with extensions (or improvements) really work in this context? The ways in which property lawyers consider these matters (including a sadly glossed-over ‘rather academic’ debate as to the nature of water in a swimming pool as realty or personalty – [71]) may well seem to many people to be as baffling as the words ‘incorporeal hereditament’ themselves.

GS 5/4/2017

Emasculation-watch (with updates)

For a long time, I have been conscious of the odd habit of those writing about law of referring to the weakening, diminution or nullification of laws and institutions as ’emasculation’. It seems to be an obviously clumsy way of expressing these ideas, and one which identifies the good with the possession of male genitalia.

After doing some pre-tutorial reading for a cycle of land law tutorials on proprietary estoppel some time ago, I could contain my annoyance no longer: why are academics and lawyers so keen on the imagery of emasculation, and why they are not more frequently ‘called out’ on the implications of using a word which assumes that that which is good and useful has male genitalia, and that its goodness and usefulness are located in the aforesaid genitalia? I started collecting examples. 

The one which started me off was a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210), but I soon saw that it really is pretty common, and is often used in rather odd ways. A quick database search threw up examples relating to the emasculation of:

  • various statutes and statutory sections (including a section of the Equality Act – particularly inappropriate?:  The Queen on the Application of Mrs JH, Mr JH v Secretary of State for Justice [2015] EWHC 4093 (Admin) at [22]; See also, e.g. Gold Nuts Limited and others v. Commissioners for Her Majesty’s Revenue & Customs [2016] UKFTT 0082 (TC) at [218])
  • ‘all the provisions of the statute’: Hudson v Parker (1844) 1 Robertson Ecclesiastical 14; 163 E.R. 948 at 40.
  • other regulations (‘Emasculating TUPE: transfers of undertakings and the concept of the “economic entity” L.T. 2002, 3, 23-28
  • a tax (The Queen on the application of: Veolia ES Landfill Limited et al.[2016] EWHC 1880 (Admin) [182]
  • the beneficial principle of proprietary estoppel: Thompson’s article, and also Thorner v Major [2009] UKHL 18 at [98](Lord Neuberger combines an emasculation image with ‘fettering’ here – all a bit S & M sounding).
  • the doctrine of restraint of trade (‘EC competition policy: emasculating the common law doctrine of the restraint of trade?’R.P.L. 2007, 15(3), 419-431
  • the doctrine of legitimate expectation (R v IRC ex p MFK [1990] 1 WLR 1545 at 1569–70
  • the option (‘Emasculating the optionVAT Int. 1997, 15(1), 1380-1383).
  • a regulation’s purpose (M v W [2014] EWHC 925 (Fam): [34]
  • a sanction (JKX Oil & Gas Plc v Eclairs Group Ltd [2014] EWCA Civ 640 [124] and [126]
  • a right (Neil Pattullo v The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 841 (TC) [85].
  • ‘the meaning of the deed’ (meaning to distort? Westlaw Case Analysis, Adedeji v Pathania, Chancery Division 22 April 2015).
  • the concept of ordinary residence (Regina (Cornwall Council) v Secretary of State for Health and another [2015] UKSC 46 at [145]
  • incentives (Lloyds Bank Leasing (No 1) Limited v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 0401 (TC) at [14])
  • the High Court’s role: Ghosh v GMC [2001] 1 WLR 1915 at [34]
  • obligations in a mortgage deal (Mark Robert Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd  [2016] EWCA Civ 496 at 81).
  • warranties (P &P Property Limited v Owen White & Catlin LLP, Crownvent Limited t/a Winkworth [2016] EWHC 2276 (Ch) at [101])

So – we see pieces of legislation and various less tangible things and ideas portrayed as damaged male bodies – decidedly odd at best.

Perhaps the oddest and most jarring use of this imagery is in Regina v “RL” [2015] EWCA Crim 1215 in which a barrister is said to have indicated (at [12]) that ‘the combined effect of the judge’s rulings was so to emasculate his cross-examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.’ Hard to know what to say to that – just – really? Best choice of words?

There may be some hope that people are beginning to see that this might be best avoided – applause for the appearance of a set of “” around the word in  Miss S C Hall v Chief Constable of West Yorkshire Police 2015 WL 5202319, before Mrs Justice Elisabeth Laing DBE, at [32] in her judgment. So, other judges, academic commentators, barristers, what about trying out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Go on – it won’t ’emasculate’ your scholarship.

Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

There are also a few more recent uses of emasculation in litigation to note. We have:

·         the risk of ‘the emasculation of fiduciary duties’ (Mrs Justice Cockerill, para. 72 of Recovery Partners v Rukhadze [2018] EWHC 2918 (Comm) [because trust and trustworthiness are male-genital related, and there’s no particular reason that women should know better …]

·         the danger of ‘the total emasculation of the civil law’ (HHJ Saffman, para. 9 of Durham County Council v James Bradwell 2018 WL 05823332 [because private law is characterised by its possession of male privates …]

·         the worry that a previous case will be ‘emasculated’ (with diminution of particular rights) if this case goes a certain way (counsel in Goddard-Watts v Goddard-Watts [2016] EWHC 3000 (Fam), mentioned at para 73 [because more male = more expansive, better etc …]

·         the concern that a proposed solution is based on the ‘emasculation’ of a statute section (Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust  [2016] EWCA Civ 607, para. 56) [because there is no special inappropriateness in using male-genitalia based imagery in a SEX DISCRIMINATION CASE …]

Those academics, lawyers and judges who care about such things might consider the many alternatives to ‘emasculating’ language – why not try ‘evisceration’ (we all have, and need, viscera) or nullification (because – big news – it isn’t actually necessary to use a violent physical metaphor at all!). For a more traditional and picturesque feel, at least in relation to legislation, why not go back to the old favourite ‘driving a coach and horses through [insert name of Act]’? Daft but at least not sexist-daft. And you may be able to style it out as knowing and retro.

(I have been watching out for emasculation-talk in relation to Brexit, but it seems that the inappropriate imagery of choice there is that of slavery, vassalage, colonialism. No better, obviously, but an interesting difference.)

Update 12/7/2020

Oh dear – here we are once more – counsel general of Wales, Jeremy Miles apparently thinks Boris Johnson plans to ‘emasculate’ the devolution settlement.

https://www.theguardian.com/politics/2020/jul/12/boris-johnson-accused-of-plan-emasculate-uk-devolution

Must we? Must we read about weird metaphorical portrayals of good legislation as having male genitalia, weakened legislation as lacking them? Grim. Sexist. Nonsense. Also in the context of ‘union’, (and indeed Boris Johnson) getting into genital metaphor mode brings up all sorts of unpleasant images and consequences. Best not.

The level of distraction (from an entirely plausible and righteous objection) is not helped by the additional corporeal metaphor of Brexit, or the UK government, bringing a big fist down on devolution – fist or men’s bits, make your mind up. Or is the ‘emasculation’ being done (somehow) with a ‘big fist’? And Miles apparently gets another legislative cliché in by talking about ‘driving a coach and horses’ through the relevant legislation. A little tiny bit behind the times?!

Update 2/9/2020

And one which jumped out in my sifting of articles for ‘Blended Learning’ preparation for undergraduate Legal History … W. Swain, ‘The classical model of contract’ Legal Studies 30  (2010) 513-32, 532  the emasculated law of restitution.’ Always did find restitution a bit of a macho thing …

… To be continued.

Postscriptt/Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

 

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

EmasculationWatch update 30/4/2020

Emasculation still going strong. The same old things about emasculating sections, statutes etc. are still sadly in evidence.

Some notable new entries!

A competition lawyer talks about a conclusion being ‘emasculated’, and couples it with an image of a snake eating its own tail – The Competition and Markets Authority, Flynn Pharma Limited, Flynn Pharma (Holdings) Limited (“Flynn”) v Pfizer Inc., Pfizer Limited (“Pfizer”) v The Commission of the European Union [2020] EWCA Civ 339, 2017 WL 11508568, at 232. One for the Freudians, I think.

The protective nature of male genitalia: men’s bits must be understood as somehow protective, since we have a nice reference to ‘emasculating’ protection in Mr Lee Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB), 2020 WL 00137207, at 53.

A cursory look suggests that there’s most waving of ‘emasculation’ in commercial cases these days. It would be an interesting thing to compare and contrast the language used in different sorts of case (and then cross-reference with gender, social class etc. of lawyers in various areas?).