Lester v Woodgate [2010] EWCA Civ 199 is a wonderful example of a neighbour dispute getting out of hand (so out of hand, in fact, that indemnity costs were awarded against the Claimant, in the Truro County Court,  in “an exemplary use of the power to mark the court’s disapproval of the use of litigation to intimidate”, Sedley LJ at [53]).  It concerns a strip of land between a couple of houses in Looe, Cornwall (a nice place where I’ve been known to holiday, but will stay away from the locals in the future).  In 1980, a previous claim was settled between the parties’ predecessors in title allowing the Claimants’ predecessors a right of way by foot and using a wheelbarrow (I kid you not) over the strip of land.  A concrete ramp was constructed to facilitate the use of the easement.  The owner of the servient land proceeded to demolish the ramp and create a car parking space, which effectively made the use of the right of way impossible.  The then owner of the dominant land objected to the dumping of rubbish but did not apparently object to the creation of the car parking or the destruction of the ramp.  The servient land was sold in 2000 to the Defendants who, in answer to preliminary enquiries, were told that there was no neighbour dispute as, at that time, there was none.  In 2005, the Claimants took the dominant land, knowing that the easement was disputed.

The Claimants then brought a claim for the right of way and (a lot of) damages.  The Defendants defended on the basis of laches and estoppel.  In the County Court, the Recorder seems to have assimilated those defences into one general doctrine and debarred the Claimants’ claim.  In a careful judgment in the CA, Patten LJ separated out the defences, pointing out that, although similar, they were rather different partly because laches would not necessarily have prevented the Claimants from pursuing the claim because of the inaction of their predecessors in title (although that would have been put into the mix, citing Nwakobi v Nzekwu [1964] 1 WLR 1019, 1024, Viscount Radcliffe).  On the other hand, estoppel would provide a complete defence to the Claim brought by the current Claimants.

Patten LJ has an enormous amount of ground clearing to do on estoppel by acquiescence and does it with some aplomb.  In particular, the problem of Fry J’s well-known five probanda in Willmott v Barber (1880) 15 Ch D 96, at 105, which has bedevilled this area in the past, is again at stake here because eg it was not known whether the Defendants’ predecessor in title had made a mistake as to his legal rights (probanda 1).   But we have travelled some distance since Fry J’s restrictive probanda were uttered (Taylors Fashions Ltd v Liverpool Victoria Trustees Ltd [1982] 1 QB 133, of course, being the most pertinent authority, but others are cited), and Patten LJ said that the court was able “to take a flexible and very fact-specific approach to each case in which estoppel by acquiescence is relied upon” (at [39]).  The overriding consideration is, of course, unconscionability but the underlying principle here was stated as follows:

If the claimant’s conduct at the time takes the form of encouraging the defendant to believe that his otherwise tortious interference with the claimant’s property will be waived and not objected to and, in reliance on that, the defendant subsequently acts in a way which can be characterised as detrimental then the position is, I think, different from the facts considered in Ramsden v Dyson and the court does then have to decide whether the causative effect of that conduct is sufficient to bar the enforcement of the legal right. (at [40])

The basic point in this case was that the then owner of the dominant land did not complain about the construction of the parking space and the destruction of the ramp; they only complained about the dumping of the rubble.  They thus stood by, so to speak, while their rights were being interfered with.  The Recorder established the estoppel by holding that the property had been sold to the Defendants without notice of any pending dispute about the right to use the parking spaces, which was also accepted by Patten LJ.  The estoppel was therefore established and it was perfectly proper for it to be used as an equitable defence to the claim.  According to Patten LJ, the same result would have occurred if the matter had pursued only on laches (although that must have been a bit more tricky).