Fitzpatrick & Ors v Spencer [2017] EWHC 2868 (Ch) (13 October 2017)

Fitzpatrick & Ors v Spencer [2017] EWHC 2868 (Ch) (13 October 2017)

Claimants have a real prospect of establishing the pleaded easement based on historic use, including discharge of effluent containing faecal matter, and the matter should proceed to trial for evidence and findings of fact; summary judgment was inappropriate as the extent and nature of the easement and any increase in burden require factual determination.

Citation
[2017] EWHC 2868 (Ch)
Parties
Claimants: Fitzpatrick and Others; Defendants: Spencer
Jurisdiction
England and Wales
Judgment Date
13 October 2017
Procedural Posture
Appeal / Judgment on Appeal Against Summary Judgment and Application for Extension of Time for Appealing
Outcome
First appeal allowed; second appeal dismissed as otiose
Legal Topics
Easements, Prescription, Summary Judgment, Lost Modern Grant, Drainage Rights
Property Law Civil Procedure Easements Prescription Summary Judgment Lost Modern Grant Drainage Rights

Case Brief

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Parties

Fitzpatrick and Others

Claimants

Spencer

Defendants

Procedural Posture

Appeal / Judgment on Appeal Against Summary Judgment and Application for Extension of Time for Appealing

Legal Issues

  1. 1 Whether claimants have a real prospect of establishing a prescriptive easement to discharge sewage, foul waste, and surface water
  2. 2 Whether summary judgment striking out part of the claim was appropriate
  3. 3 Whether redevelopment of dominant tenement results in substantial increase or alteration in burden on servient land

Ratio Decidendi

Claimants have a real prospect of establishing the pleaded easement based on historic use, including discharge of effluent containing faecal matter, and the matter should proceed to trial for evidence and findings of fact; summary judgment was inappropriate as the extent and nature of the easement and any increase in burden require factual determination.

Court Disposition

First appeal allowed; second appeal dismissed as otiose

Orders

  • Summary judgment and strike out of claim reversed; claim to proceed to trial
  • No order on second appeal except claimants to pay defendants' costs from 24 February 2017