Property & Real Estate Barristers
Andrew Butler QC succeeds in Court of Appeal
10th August 2018
Andrew Butler QC has successfully resisted an appeal against a judgment given in his clients’ favour in the Chancery Division in 2017 (Jones & anor v Oven & anor [2017] EWHC 1647 (Ch)).
The dispute concerned a complex series of property transactions as a result of which Mr and Mrs Jones (J) had sold part of their land to a developer (C), and C had sold on to Mr and Mrs Oven (O). On selling to C, J had given certain restrictive covenants (for the benefit of C and their successors in title) regarding their use of the retained land. However, the terms on which C acquired the land required them, in certain events, to reconvey a plot (which became known as “the Strip”) to J, and when selling to O, C passed this obligation on to them. The events which triggered the obligation to reconvey the Strip came to fruition. In light of earlier difficulties with J, O sought J’s assurance that they would use the Strip in accordance with the restrictive covenants which governed the rest of their land. J refused to give that assurance, so O refused to reconvey the Strip.
The issue was therefore whether the covenants given by J to C and its successors would also apply to the Strip once it was reconveyed, or whether J was entitled to take free of them.
At first instance, HHJ Paul Matthews sitting as a Deputy Judge of the Chancery Division held that the covenants did (or, once it was reconveyed, would) apply to the Strip, either as a matter of construction of the express terms of the conveyance, or by a process of implication. He also dismissed a claim for damages brought by J for breach of the obligation to reconvey the Strip.
On appeal, J (now represented by Timothy Morshead QC) argued that the Judge had adopted the wrong approach, focussing as he had on the terms of the sale by J to C, rather (as he should have done) on the terms of the sale from C to O. The Court of Appeal rejected this contention, agreeing with Andrew’s submission that this approach involved denying that O had the benefit of the covenants given by J to C – a point which had been conceded prior to trial and had accordingly not been the subject of argument.
The Court of Appeal decision, which is reported as Jones and another v Oven and another [2018] EWCA Civ 1895 and can be found here, represents the end of a long-running, acrimonious and (for Andrew’s clients) deeply stressful dispute in which Andrew has achieved success at every stage, recovering his clients’ trial costs on the indemnity basis in the process.