Alistair Cantor represents successful residents’ association in appeal about ‘negative declaration’ confirming no right of way over private road

29 April 2020

Alistair Cantor represented the successful respondent, a residents’ association, in a High Court appeal against a ‘negative declaration’ in effect confirming that the appellants (a local authority and another party) did not enjoy the benefit of any easements over a private road.

The case raises an interesting point as to the position of defendants to claims for negative declarations as to the absence of legal rights.  A defendant to such a claim can always argue that the discretion to make such a declaration should not be exercised. However, if the defendant wishes also to fight the claim on the merits it may be necessary to adduce evidence substantiating the existence of the rights in issue, especially if in truth he or she cannot be characterised as an “unwilling” defendant.

Grounds of appeal and legal arguments

The central ground of appeal was that the judge below had wrongly reversed the burden of proof by requiring the appellants to prove an easement, whereas the burden should have been on the respondent to prove that no such easement existed.

 This did not find favour with the appeal court.  The appellants had asserted the existence of an easement by prescription or necessity in their own claim. They had in the course of open offers asked the respondents to acknowledge the existence of an easement.

And, while the appellants had indicated at trial they did not need to establish an easement and wished to preserve their position to claim one in the future, they did not formally abandon their claims related to the existence of an easement.

The counterclaim for a declaration put the question beyond doubt.  Miles J ruled that the position on burden of proof was more nuanced than suggested by the appellants.  The party claiming a negative declaration bore the burden of persuasion but evidential burdens on specific issues might fall on the other party.

In particular, a party asserting a legal right over the property of another might reasonably be expected to provide some evidence for the existence of the right.  If it did not, it risked the court finding the legal right did not exist.

These nuances were why the court should approach the grant of a negative declaration with caution and guard against the risk of unfairness to an unwilling defendant (per Messier-Dowty v Sabena [2001] WLR 2040).

In the present case, the respondent residents’ association had provided limited evidence that, to the best of its knowledge, the appellants enjoyed no easement.

The appellants chose to adduce no evidence substantiating the existence of any easement, and indeed at trial had accepted that the judge could properly reach the conclusion that there was no easement based on the evidence before him.

The judge made no error in his fact-finding exercise, or as to the incidence of the overall burden of persuasion, and accordingly the ground of appeal would be dismissed.  Three other grounds of appeal were also dismissed by the court.

You can read the full  judgment in The London Borough of Brent & Anr v Malvern Mews Tenant’s Association [2020] EWHC 1024 (Ch) on Bailii.