Harrison Engler discusses the First-tier Tribunal (Property Chamber) decision of Woolf v Goldfinch [2025] UKFTT 00836 (PC), a complex land registration case about the registration of an easement. He represented the respondents.
The case concerned an alleyway adjoining 2 residential properties in Herne Bay, Kent.
The applicant, Mr Woolf, sought to register a right of way over the respondents’ land, relying primarily on a 2010 County Court order and, in the alternative, on prescription.
The respondents objected.
The 3 issues to determine
- Did an easement arise by prescription under the Prescription Act 1832 or the doctrine of lost modern grant?
- If not, does an estoppel bind the respondents to preclude them denying the existence of the easement because of the 2010 court order?
- In any event, was the unregistered easement an overriding interest at the time the respondents bought their property?
On the 1st issue
- Tribunal judge Hansen rejected the applicant’s claim to a prescriptive easement. He found that the evidence of use by Mr Woolf and his predecessors was insufficient to establish the 20 years of use required.
- This outcome underscores the importance of establishing the full evidential picture at the outset of a claim based on historical uses of property.
On the 2nd issue
The judge considered the law in relation to cause of action estoppel and issue estoppel following the Supreme Court’s decision in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] A.C. 160.
The difficulty in this case was that very little survived from the 2010 proceedings. For example, there was no Claim Form or Particulars of Claim, and the meaning of the 2010 court order was contested by the parties.
The FTT rejected the applicant’s claim to cause of action estoppel but concluded that, in light of the Court of Appeal’s judgment in Price and another v Nunn [2013] EWCA Civ 1002 [2013] All ER (D) 153 (Aug), the 2010 court order created an issue estoppel binding on the Respondents as successors in title.
The tribunal held that the order was a final decision on the merits, and that the respondents, as privies, were precluded from denying the existence of the easement, subject to the question of priority under the Land Registration Act 2002.
On the 3rd issue (the issue of priority)
The tribunal considered paragraph 3 to Schedule 3 of the Land Registration Act 2022, on which there was limited caselaw.
On the question of whether the easement was “obvious on a reasonably careful inspection of the land” the FTT accepted the respondents’ submission that – applying Thomas v Clydesdale Bank plc [2010] EWHC 2755 (QB) by analogy - the respondents were not obliged to make further enquiries about the alleyway when they bought their property.
On the facts, the FTT determined that the easement retained its status as an overriding interest as it had been exercised within 1 year before the respondents’ acquired the property.
Therefore the tribunal ordered the Chief Land Registrar to register the benefit and burden of the right of way on the respective titles.
On costs, the applicant sought that the respondents pay his costs of £25,111.
However, the FTT accepted submissions on the respondents’ behalf that a proportionate costs order was appropriate to reflect the applicant’s wholesale failure on the issue of prescription.
Accordingly, the tribunal reduced the costs awarded by 50%.
Wider implications of the decision
- This decision highlights the complexities of the law relating to easements and the evidential challenges in prescription claims.
- It also indicates the need for careful advice when considering any possible res judicata or issue estoppels within a claim.
Read the judgment in full in: Woolf v Goldfinch [2025] UKFTT 00836 (PC)