Case No: 2001/1030
NEUTRAL CITATION NO: [2002] EWCA Civ 590
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON
COUNTY COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 1 May 2002
B e f o r e :

LORD JUSTICE THORPE
LORD JUSTICE BUXTON
and 
MR JUSTICE MOSES

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	PETER PHARBU DAS and others	Appellants	
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	LINDEN MEWS LIMITED	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)

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Mr Kim Lewison QC and Miss Sheila Foley (instructed by Burges Salmon for the Appellants)
Mr Edward Denehan (instructed by Freeman Box for the Respondent)

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Buxton : 

Introduction
1.	Linden Mews is a small mews, containing only seven properties, in West London.  At the further end of the mews, facing each other over what I will call the carriageway, are numbers 4 and 5.  At the end of the mews, at right-angles to the carriageway and abutting on to numbers 4 and 5, is a substantial wall.  Behind that wall is an area of garden ground.  That ground has been used for the parking of cars since about 1988, at which time the whole of it was owned by the owner of number 4, though held as a separate tenement from number 4 itself.  In 1998 the garden ground was divided between the owners of numbers 4 and 5, both of whom use it for the parking of cars.  To facilitate access for vehicles, substantial gates have been opened in the wall by the owners of numbers 4 and 5.
2.	For a long period the residents in the mews were uncertain as to who owned the carriageway.  However, two of them succeeded in tracking down the owner, and formed the defendant company [LM Ltd] to purchase and hold the freehold of the carriageway.  LM Ltd then required the payment by the various owners of substantial sums in order to park on the carriageway.  The owners resisted those claims, claiming easements of way along the mews and easements to park their vehicles immediately adjacent to their respective properties.  When that claim came on for trial at the Central London County Court all the frontagers apart from the owner of No 1 agreed, on the first day of the trial, to enter into lease agreements for spaces in front of their houses.  The only contest was on the part of the owner of No 1, whom the judge held to have established a prescriptive right to park by his property, though with it left unresolved at that stage over what exact area of the carriageway that right extended.
3.	However, LM Ltd additionally counterclaimed against the owners of numbers 4 and 5, claiming declarations that the owners of numbers 4 and 5 did not have a right to pass over the carriageway by foot or with vehicles for the purpose of gaining access to the garden ground, and injunctions to prevent their doing so.
4.	The judge held that the owners of numbers 4 and 5 had no such right, and granted the injunctions sought.  The owners appeal against that finding; and contend that in any event the judge should not have granted injunctions, but only have made an award of damages under Lord Cairns’ Act.  There are no significant differences between the case of number 4 and the case of number 5, and I shall deal only with number 4, using the latter expression to refer to the premises of number 4, excluding the garden ground; and referring to the owner of number 4 for the time being as “the owner”.
The easement and its extent
5.	It is agreed that the owner has an easement of way over the carriageway, indeed in the terms asserted by LM Ltd in paragraph 1 of the relief sought by its counterclaim:
“a right to pass and repass over the [carriageway] to and from the highway to their respective properties by foot and with vehicles and a right to halt a single vehicle immediately adjacent to their respective properties for the purposes of loading and unloading the said vehicles”
It was further agreed or assumed without challenge that the right would extend to driving a car into a garage contained within number 4, were such to exist.
6.	LM Ltd however argued, and the judge accepted, that any extension or use of that right of way to secure access to the garden ground, and to park a car there, fell foul of what is known as the rule in Harris v Flower (1904) 74 LJ Ch 127.  Because of the important rôle that that rule, and that case, played in the present appeal, it is necessary to make some general observations about it.
The “rule in Harris v Flower”
7.	In Harris v Flower the defendant owned land, the “white land”, immediately adjacent to the dominant tenement (the “pink land”) served by the way.  He erected a single building, partly on the white land and partly on the pink land.  The court had to decide whether use of the way to access the building as a whole by passing through the pink land would be for the purpose of obtaining access to the white land; and held that that was the case.  It had to determine that question because of the rule as formulated by Romer LJ, 74 LJ Ch at p 132:
 “If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B”
8.	However, that rule was only a particular application of the more general principle that the dominant owner can only use the way for the purposes of the dominant tenement, and not for other land.  As Cozens-Hardy LJ put it, at p133:
“What is the right of way?  It is a right of way for all purposes-that is, for all purposes with reference to the dominant tenement.  The question is whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement.  The land coloured white is entirely landlocked…The only access is by the passage over the land coloured pink; and it is in my judgment impossible to use the right of way so as to enlarge the dominant tenement in that manner.”
And similarly Romer LJ, when commenting on Finch v Great Western Railway 5 Ex D 254, a case where the dominant owner was held to have legitimately increased the use of the way  as a result of a more intensive use of the dominant tenement itself:
“in the present case the defendant might have erected a building on the land coloured pink and used it for a contractor’s business, and made use of the right of way for that purpose; but what he is really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the white”
9.	That more general proposition was recently set out by the House of Lords in Alvis v Harrison (1991) 62 P & CR 10 at pp 15-16 (a Scottish appeal, which was however stated by the House equally to apply English law):
“A servitude right of access enures to the benefit of the dominant tenement and no other.  Thus it cannot be communicated for the benefit of other tenements contiguous thereto….What they may not do…..is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those other subjects.”
10.	It should also be noted at this stage that it is the general principle as stated in Alvis v Harrison, rather than the factually constrained version of it stated in Harris v Flower, that arises on the facts of the present case.  The owner does not assert a right to pass through number 4 to the garden ground; or at least, that is not his principal interest, since he seeks to access the garden ground not merely on foot but, principally, by vehicle.  He does that, not by passing through number 4, but by driving past number 4 and into a different tenement.   
The owner’s case: “ancillary” use
11.	In powerful submissions before this court Mr Lewison QC did not challenge the general correctness of either the rule in Harris v Flower or the more general statement of principle to be found in Alvis v Harrison.  He said, however, that they were subject to a gloss or qualification, on which the owner could rely.  That qualification was that, because the agreed easement was to accommodate the use of number 4 as the dominant tenement, the lawful exercise of that easement extended to accommodating any use that was ancillary to use of the dominant tenement.  Access to the garden ground for the owner was clearly for the benefit of number 4, and thus was a use ancillary to the agreed core of the right under the easement.
12.	The books do not appear to adopt any principle at the level of generality contended for by Mr Lewison, but he contended that such could be drawn from, principally, three authorities, two of them in this court.  However, before turning to those authorities it is necessary to look more closely at the formulation of the principle that they are said to establish.   Mr Lewison was clear that the ancillary “use” that he asserted was a use ancillary to the beneficial use of number 4: that is, that parking upon the garden ground by the owner was ancillary to his enjoyment of  number 4 as a dwelling-house.  Thus, to drive up the carriageway to the garden ground was not to do something ancillary to the easement; rather, it was to use the easement for the very purpose for which the servient owner must be taken to have granted it, that of accommodating the dominant tenement.
13.	Mr Lewison relied first on some observations of Vaughan Williams LJ in Harris v Flower itself, 74 LJ Ch at p132, when explaining the implications under the principle just discussed of the single building being on the two tenements:
“I cannot help thinking that there not only may be, but that there must be, many things to be done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land…..It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on pink land.  The whole object of this scheme is to include the profitable user of the white land as well as of the pink, and I think that the access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink.”
14.	The issue therefore was as to the substance of the use of the way.  Vaughan Williams LJ envisaged there being some circumstances in which, having accessed the dominant tenement, the owner went from the dominant tenement on into “mere adjuncts” or “usual offices” on adjacent land.  The latter circumstances, unlike those in Harris v Flower itself, would not prevent the use of the way from being in substance use to access the dominant tenement.  But that was the limit of those observations, and they were strictly related to the factual issue before the court, of what was the true purpose of the use of the way to approach the dominant tenement.  The court did not address the issue that arises in this case, of a use of a way to access land that is not the dominant tenement without going through the dominant tenement at all: hence the impossibility of applying “the rule in Harris v Flower” directly to this case, as pointed out in §12 above.  Nor did Vaughan Williams LJ pose the question that Mr Lewison says that we should answer, of whether access to the white land would be ancillary to the owner’s enjoyment of the pink land.  But plainly it would have been, because a building that was on the pink land could not be as effectively used as a building if the owner could not access the part of it that was on the white land.  
15.	I do not, therefore, think that the observations of Vaughan Williams LJ assist the owner in our case.  It is not merely a pedantic distinction of fact to say that the court there was not concerned with use of the way directly to access land that was not the dominant tenement: because the court’s observations about ancillary use are all made in the context of further steps once the agreed purpose of the way, access to the dominant tenement, had been achieved.  And if it had been thought that use of the way, in the words of Vaughan Williams LJ, to include profitable user of the white land as well as of the pink, was legitimised because profitable user of the white land was ancillary to and supported the profitable use of the pink land, as would appear to have been the case, then it is difficult to see how the result of that case could not have been different.
16.	Peacock v Custins [2001] 1 EGLR 87 was another “passing through” case. The dominant tenement was the (agricultural) “red land” which was in the same ownership as the contiguous “blue land”.  The owners wanted to use the way to access the red land so that they could pass through the red land in order to cultivate the blue land.  This court had no difficulty in finding that that use fell foul of  Harris v Flower, which case the court cited at length.  Schiemann LJ said, at p90K:
“The law is clear at the extremes.  To use the track for the sole purpose of accessing the blue land is outside the scope of the grant.  However, in some circumstances, a person who uses the way to access the dominant tenement, but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant.  The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made.”
17.	Schiemann LJ continued, at p91D, that the issue addressed by Vaughan Williams LJ in Harris v Flower had been 
“whether the white land was being used for purposes that were not merely honest adjuncts to the honest use of the pink land (the dominant tenement); or, rephrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement….It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land.  This cannot sensibly be described as ancillary to the cultivation of the red land.”
Mr Lewison said that it followed that it had been the view of this court that a “use” ancillary to the permitted use, such as he contended the use of the garden ground to be, would be within the grant.  I cannot agree.  Schiemann LJ was doing no more than saying that to enter the blue land in order to cultivate it could not sensibly fall within the very limited possibility of taking further steps outside the dominant tenement without disqualifying the original access to the dominant tenement from being a proper use of the way.  That was the very limited extension of the enjoyment of the access to the dominant tenement, rather than as we are asked to find in this case extension of enjoyment of the dominant tenement, to which he had referred in the first passage quoted in §16 above.  This short observation I have to say comes nowhere near to supporting a principle of the generality contended for by the owner in this appeal.
18.	The case put before us that was nearest to the facts of this appeal was National Trust v White [1987] 1 WLR 907.  The Trust owned Figsbury Ring, a popular attraction, and had the benefit of an easement over a track leading to it.  A car park was constructed at the side of the track, for visitors to leave their cars in order to proceed on foot to the Ring.  Objection having been taken to that use, the Trust sought a declaration that it and persons authorised by it were entitled to use the track in conjunction with the car park for the purpose of visiting the Ring.  Warner J granted the declaration, saying, at pp 912G-913D:
“[In Harris v Flower the dominant owner] proposed to use the right of way for access to the factory as a whole.  The Court of Appeal held that he was not entitled to do that because it would amount to increasing the size of the dominant tenement and thereby increasing the burden on the servient tenement.  The Court of Appeal, however, recognised that it would have been otherwise if user of the right of way for access to the white land had been merely ‘subsidiary’ and the ‘principal user’ had been for access to the pink land…..So applying in this case the distinction drawn by the Court of Appeal in Harris v Flower….since the right claimed by the National Trust is no more than a right to authorise people to use the track for access to the car park for the purpose of visiting Figsbury Ring, it is properly to be regarded as ancillary to the enjoyment of Figsbury Ring.  It is not as if the National Trust claimed a right to authorise people to use the track for access to the car park for the purpose of enjoying the car park itself, e.g. by picnicking there.  Indeed, one way of describing the right claimed by the National Trust is as a right to authorise people to use the track to get to Figsbury Ring, in their vehicles as far as the car park and on their feet from there on.”
19.	Mr Lewison relied strongly not only on the result in that case, but also on the observations of Warner J as to the use of the car park being “ancillary” to the enjoyment of Figsbury Ring.  In our case, he said, parking on the garden ground was ancillary to the enjoyment of number 4; and it could not make any difference in principle that the parking was at the end of the way rather than, as in White, half-way up it.  The inclusion of uses ancillary to the enjoyment of the dominant tenement was thus founded on the distinction drawn in Harris v Flower, that Warner J had seen himself as applying.
20.	There are two reasons why I cannot agree with that contention.  First, although I accept that Warner J did speak of use of the car park as ancillary to the “enjoyment of Figsbury Ring”, the general structure of his judgment, and not least his references to the analysis of this court in Harris v Flower, makes it plain that what he had in mind was use of the car park as ancillary to, or in Mr Denehan’s phrase part and parcel of, the use of the way for the purpose of the original grant, of getting to and from the Ring.  That that is so is strongly supported by Warner J’s statement of the practical effect of the provision of the car park that is to be found in the last sentence of the passage cited in §18 above.  Second, although I agree that the mere fact of the location of the parking area cannot be decisive, it is of importance in the present case.  Because the car park abutted on to the way, and was used for access to the way rather than separately for access to the Ring, it was possible for Warner J to analyse the mechanics of its use as he did; and not possible for it to be said, as it can be said in the present case, that the principal or real use of the way that is asserted is a right to use the way to access land that is not part of the dominant tenement.
21.	The distance between the decision in White and any principle that easements can be extended to access to any activity that can be said to ancillary to the beneficial use of the dominant tenement can be illustrated in a further way.  Warner J excluded any use of the way for the purpose of separate activities within the car-park, for instance picnicking.  He undoubtedly so held because use of the way to accommodate a separate activity on the car-park would have extended the dominant tenement, contrary to the principle that Warner J drew from Harris v Flower in the passage quoted in §18 above.  But it might well occur to the Trust, in line with similar arrangements at other beauty spots, that it would be agreeable for their visitors, and convenient for the Trust in terms of protecting the Ring while pleasing the customers, to provide a picnic area in the car park.  Provision and use of the picnic area. would undoubtedly be ancillary to the enjoyment or beneficial use of the Ring.  Warner J’s judgment is however clear that the way could not be used to access the picnic area.
22.	I therefore consider that White gives no support to a rule or principle that would justify the use of the way sought to be made in the present case.  That conclusion is strongly reinforced by consideration of the actual facts of the present case, and of the implications within them of the principle that is sought to be established.
The facts of the present case
23.	What the owner wishes to do is to drive a car up the carriageway, past number 4, on to the garden ground, and then leave the car parked there while he enters number 4: by going either through the garden ground or through the front door that abuts on to the carriageway.  All that is said to accommodate the dominant tenement, in that it is an adjunct to, ancillary to, the owner’s enjoyment of life in number 4.  But even if the latter were, in law, an available analysis in general terms, on the facts of this case it presents an insuperable problem.  Mr Lewison pointed out that, unless the owner creates a garage within the building of number 4, the admitted easement, as set out in § 5 above,  is of only limited use to him; because if the owner or his guests arrive by car at the front of number 4, they have to put the passengers down while the driver takes the car off to park somewhere else, there being no easement of parking in front of number 4.  Quite so.  The great benefit of access to the garden ground is not simply to be able to access number 4, because that can already be done by using the easement according to the grant.  What the garden ground adds is somewhere where the car can be left: a parking space.  
24.	I have no doubt that, for the practical reasons already given, that is a separate use from mere access.  It is a use that takes place other than on the dominant tenement, and by using the carriageway to access that parking space the owner extends the dominant tenement.  He does exactly that which the House of Lords said in Alvis v Harrison, quoted in §9 above; Cozens-Hardy LJ said in this court in Harris v Flower, quoted in §8 above; this court said in Peacock v Custins, quoted in §16 above; and Warner J said in White, quoted in 18 above; could not be done.
25.	Even, therefore, if application of the verbal terms of the narrower rule in Harris v Flower could be made to yield the outcome contended for by the owner, the use of the way to access the parking space on the garden ground would fall before the broader rule forbidding enlargement of the dominant tenement.
26.	That was the also view of the judge.  He said:
“[counsel for the owner says] that he merely intends to pass through the adjacent land and eventually to arrive at No 5, a right of way need not necessarily have to abut the dominant land if it is part of a road that serves the dominant land.  But that is not the reality of this case.  What they want to do is to park on the gardens.  This is the primary purpose and that being so it is an attempt to use the way to accommodate 4 & 5.  On the authorities that cannot be done.”
27.	The latter phrase, as to “attempt to use the way to accommodate 4 & 5”, is a little obscure.  Mr Denehan may have been correct in suggesting that, in context, the judge meant to say that use of the garden was being, wrongly, presented as if it were solely an accommodation of 4 & 5.  But we need not pause over that point, because the overall finding of the judge is entirely clear, that the asserted use of the way is to access and to serve a separate use on a tenement that is not part of the dominant tenement.  He found that parking on the garden ground was the primary purpose of this use of the way.  That of course poses a formidable difficulty for the owner’s case.  But it was not necessary for the judge to go that far.  Once he found that the use was to access an activity on land that was not the dominant tenement, and which could not be regarded simply as a minor, or indeed any, extension of the access already obtained to number 4, then that use, whether a primary purpose or not, fatally extends the dominant tenement.
Conclusion as to the asserted use of the easement
28.	I would uphold the judge’s judgment, and declare that the appellants do not have a right to pass and re-pass over the carriageway either by foot or with vehicles for the purposes of gaining access to the garden ground.  LM Ltd however sought and obtained more than that, in the shape of injunctions preventing the use of the carriageway for access to the garden ground.  The appellants contend that the judge did not properly exercise his discretion as to the award of damages in lieu of an injunction under Lord Cairns’s Act; and that this court should either exercise that discretion itself, or remit the matter to the judge.
Injunction or damages?
29.	It will be convenient to set out in full the comparatively brief passage in which the judge dealt with this issue:
“The Company seeks an injunction presenting the user of the mews for access to the gardens.  Mr Mendoza resists this. He relies on a comparatively recent decision of the Court of Appeal Jaggard v Sawyer 1995 1 WLR 269.  This is a case where it was held that the breach of a restrictive covenant would cause little harm to the Claimant the value was capable of being estimated in money there had been no application for interlocutory relief and restrictive covenants are not to be regarded as perpetually inviolable.  Therefore the Court said, no injunction.

In my judgment that case is not this case.  Restrictive covenants although they bind in equity rather than directly in contract are essentially contracts that something is not to be done.  Not in every case is an injunction necessary for a minor breach.  Sometimes as in that case the breach can be compensated in money – simply by way of example the breach may have been small, measurable but once for all (possibly temporary) effect on value.  In that case rather than order a building to be pulled down the Court can well consider that money will do.  Again as the Court of Appeal said restrictive covenants are not necessarily to be regarded as inviolable for all time.  A time may come when the covenant may not secure much of practical value.

But this case is not  that kind of thing at all.  Here the Claimant assert a right to something over the Company’s land.  They assert it in perpetuity.  If an injunction is refused they will in effect get that right to which they have no legal entitlement at all.  The Company will in effect be compelled to sell a right for all time which it never wished to sell.  In my judgment that is exactly the sort of case in which an injunction should be granted and I propose too grant it.”

30.	Mr Lewison made three criticisms.  
i)	First, the judge had wrongly assumed, contrary for instance to the observations of Millett LJ in Jaggard v Sawyer [1995] 1 WLR at p 284F, that the nature of the claim, being in trespass rather than in covenant, was dispositive. 
ii)	Second, the considerations set out in the last paragraph of the judge’s judgment were not, as he seemed to think, conclusive against an award of damages: see the observations of Millett LJ again in Jaggard v Sawyer, at pp 285-286, as to the implications for the exercise of the jurisdiction of the mere fact of the plaintiff being forced to grant a right against payment.  
iii)	Third, the judge had given no weight to the effect of delay and thus alleged acquiescence on the part of LM Ltd or its predecessors.  Mr Lewison made clear that he did not adduce acquiescence as a complete bar to relief.  Had he done so he would have had difficulty in meeting the requirement identified, in this court in Shaw v Applegate [1977] 1 WLR 970, that it had to be shown that it was dishonest or unconscionable to enforce the rights.  He did, however, urge that delay was one factor properly to be taken into account in considering whether an injunction rather than damages should be awarded.
31.	I am of the view that these complaints are well founded.  As to the three matters specified I would say as follows:
i)	If, which I doubt, the judge took the view of the law attributed to him, he was in error.   The legal categorisation of the claim cannot be dispositive in itself.  The judge is however at liberty to give weight, indeed should give weight, to the effect and nature of the particular claim and of the respective effect of an injunction and of damages upon the parties’ rights and interests.
ii)	The reasons given by the judge do not in themselves justify his conclusion, as is demonstrated by Millett LJ in Jaggard v Sawyer.  The approach to the exercise of the discretion needs to be reconsidered in the light of the guidance given in that case.  
iii)	Delay is a relevant factor, though again it is for the judge to determine what weight to give to it.  I agree that since this is but an element in a decision as to remedy it is not necessary to meet a test as high as unconscionability before weight can be given to whatever unwarranted delay, if any, the judge may find.
32.	The matter will therefore have to be remitted to the judge.  This court is in no position to exercise the judge’s discretion.  He heard a detailed trial, of which we know very little; and it must be for him to determine what, if anything, of what was proved in that trial assists him in the present task; and we are certainly not in a position to assess the amount of any damages.  It may however be pertinent to draw attention to some aspects of this judgment that the judge may wish to have in mind when determining whether damages is the appropriate remedy, and if so in what amount.
i)	The finding of trespass is based on the extension of the dominant tenement: see § 24 above.  As this court made plain in Pedacock v Custins, that is entirely different from, and does not depend on any finding as to, excessively burdensome use of the way.
ii)	Use of the way gives access to, and unlocks, a valuable asset held by the owner, in the shape of a parking space: see § 23 above.  That however benefits the owner, rather than necessarily placing a burden on LM Ltd, save in the sense referred to in sub-paragraph (i) above.
iii)	LM Ltd is not a frontager, and only its legal interests, as opposed to its amenity or convenience, are affected by the use of the way.  This consideration may be thought relevant to the exercise of the judge’s discretion in relation both to delay and to any previous indication of willingness to accept a financial settlement. 
Remission to the judge
33.	I would therefore remit to the judge for reconsideration the two questions of whether damages should be awarded in lieu of the injunction; and, if yes, what the measure of damages should be.  
34.	It is desirable that the case is disposed of as soon as possible.  I would, subject to any further submissions by the parties, make the following directions, in the interest of expediting matters:
i)	The parties should agree a time estimate for the hearing, and immediately approach the Central London County Court for an allocation of such time in front of Judge Cooke.  They are at liberty to draw attention to this court’s hope for a speedy resolution of the issues, as set out in the present paragraph.
ii)	No further evidence shall be called.
iii)	The present appellants will within 28 days of the date of delivery of this judgment produce and serve a skeleton setting out their case in respect of the matters in issue.  LM Ltd will serve a skeleton in reply within 14 days thereafter.
35.	I would not be minded to discharge the injunction pending the resolution of these issues by Judge Cooke, but, subject to the views of my Lords, I would be willing to entertain further submissions on that question.
Disposal of the appeal
36.	I would allow the appeal to the limited extent of remitting to Judge Cooke the two questions set out in §33 above.
Moses J:
37.	I agree.
Thorpe LJ:

38.	Our principal task is to consider the rule in Harris v Flower, as it has been developed over the past century, and to apply it to the facts of this case.  On this issue I found the submissions of Mr Lewison QC persuasive, perhaps because they accorded with my estimation of the underlying merits.  However having had the opportunity of reading in draft the judgment of my lord, Buxton LJ, I must conclude that such exception to the rule as the authorities allow is not sufficiently extensive as to embrace this case.  Accordingly I agree with his conclusion that the appellants do not have a right in law to drive through the mews in order to gain access to park on the garden.
39.	I find it hard to understand the judge’s rejection of the appellant’s fallback application for relief under Lord Cairns’ Act.  Mr Lewison addressed very powerful considerations in favour of damages in lieu of injunctive relief.  None of those factors are mentioned in the judge’s brief passage in point.  It may be that the submissions were not advanced or not advanced so fully below.  Although I would have been tempted to remit only the assessment of the appropriate damages, I must concur with my lord’s conclusion that the judge who conducted the trial would be possessed of relevant material that we do not have.
40.	Accordingly I concur with my lord’s judgment on both points and with the orders which he proposes.
Order: Appeal allowed in part.  In relation to the outstanding matters, further evidence will be limited to the single joint expert.
As to the costs of the appeal, we consider that Mr Lewison achieved for his clients something of real importance.  Accordingly, his proposal that his clients should pay 50% of the costs is a reasonable proposal which we endorse.
The application for interim payments under Part 44.38 is refused.
(Order does not form part of the approved judgment)