Adam Boyle, appearing before the Honourable Mr Justice Ritchie, successfully defended the appeal on all of the grounds brought against the respondents in the case of Banks v Blount [2022] EWHC 1491 (QB).
Instructed by Esther Stirling and Rosie Lewis of Harrison Clark Rickerbys, Adam was brought in especially for the appeal, which related to a multi-faceted commercial right of way dispute originally heard over numerous days.
The appeal focused on issues such as the proper construction of an expressly granted right of way, in light of the likely usage of the way at the time of the grant. Nuanced issues such as the distinction between “swing space” (which, shortly put, is not allowed to be included) and verge space (which, shortly put, is) were discussed at length on appeal. This was relevant to the interesting and practical decision of the trial Judge to hypothesise a route with parameters akin to a road through the relevant car park, in order to solve the problem raised by the right of way granted across it being inherently ambiguous in scope.
The appeal also involved other matters such as: injunctions arising from tree encroachment over the right of way; the unneighbourly intentional placement of a fence over the right of way; trees interfering with rights to (in essence) a telephone connection; and the appropriate quantum of relevant damages.
The main generalisable takeaway from the appeal is a familiar one: would-be appellants should exercise real caution when considering appeals based on the facts found by the trial Judge. There was discussion on appeal about the cautionary guidance provided by the Supreme Court in Perry v Raleys [2020] UKSC 5, and the inevitable difficulties of an appellate court being asked to “island hop” (see Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5) around cherry-picked and/or incomplete facts, as opposed to having the time to sail the whole ocean (*/ insert your own nautical metaphor here) – which only the first instance Judge has the opportunity to do.
Lastly a more practical word of warning to appellants was provided. The judgment contains a firm nudge to appellants, strongly encouraging them to read and comply with CPR 52 and CPR PD 52A, particularly in relation to the proper preparation of appeal bundles and skeleton arguments. By way of an obvious practical tip, it is worth noting that solid preparation on this kind of basic procedural level is important, as it always helps to start off on the right foot in front of the Judge.
The full Judgment is available here.
Adam is a very experienced real estate practitioner and a “go to” barrister in relation to difficult property matters. Read more here
If you would like to instruct Adam, please contact his clerks here.