Moulder v Cox Hallett Wilkinson (A Firm)

• Jurisdiction: Bermuda
• Judgment Date: 17 June 2011
• Date: 17 June 2011
• Docket Number: Civil Appeal 2010 No. 22
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Before: Zacca, P; Ward, JA; Auld, JA

Civil Appeal 2010 No. 22

BETWEEN:

Robert George Green Moulder

Appellant

and

Messrs Cox Hallett Wilkinson (a firm) and Stephen P Cook and Michael Alan Cranfield and Paul Jeremy Slaughter and Janet Murray Slaughter

Respondents

Mr J Chambers, as McKenzie Friend for the Appellant

Mr D Kessaram for the 1st Respondent

Mr P Harshaw for the 2nd Respondent

Mr M Cranfield in person

Mr T Marshall and Ms K Tornari for the 4th and 5th Respondents

The following cases were referred to in the judgment:

Foster v Outred & CoUNK [1982] 2 All ER 753

Law Society v Sephton & CoUNK [2006] UKHL 22

Wardley Australia Ltd v State of Western AustraliaUNK (1992) 175 CLR 514

Cartledge v JoplingELR [1963] AC 758

Abstract:

Appeal against order of Chief Justice - Strike out - No reasonable cause of action - Statute barred - Adverse possession - Limitation

JUDGMENT of Auld, JA

Introduction

1. This is an appeal by Mr Robert Moulder against an order of the Chief Justice on 26th November 2010 striking out his various claims against the Respondents on the grounds that they disclosed no reasonable cause of action and, in any event, were statute-barred.

2. Mr Moulder's claims stemmed from a conveyance in late 1999 ("the 1999 Conveyance") by Mr Michael Cranfield, the Third Respondent, to Mr. and Mrs. Slaughter, the Fourth and Fifth Respondents, ("the Slaughters"). The conveyance was of his house, as to which there is no issue, but also purportedly of a plot of land ("the possessory land") and a right of way on land adjacent to it, both of which Mr Cranfield maintained were his to convey by right of adverse possession. Mr Moulder, his, neighbour, however, regarded the plot as his and the land over which the claimed right of way ran as free of any such right. Before the 1999 Conveyance he made his stance plain to Mr Cranfield and his lawyers, and shortly after it also to the Slaughters and the Second Respondent, Mr. Stephen Cook, then a partner in the First

Respondents, firm, Cox Hallett & Wilkinson, who acted for the Slaughters on the transaction. According to Mr. Moulder, he informed Mr Cook of his intention to develop his land and offered to sell the Slaughters a strip of it, and Mr Cook suggested that he should get back in touch when he was ready to start the development.

3. On Mr Moulder's pleaded case and in his evidence on evidence, in on about 15th December 2003 he began to think of preparatory works for the development of his land, and when discussing it with Mr. Slaughter he learned of the inclusion of the possessory land and purported right of way in the 1999 Conveyance. That date is of critical importance on the first and possibly determinative issue in this appeal, namely whether his claims are statute-barred.

4. Mr Moulder's account is that at about the time of those discussions in mid-December 2003 Mr Slaughter provided him with copies of the 1999 Conveyance together with affidavits on which the Slaughters had relied and continued to rely in support of their possessory claims. In discussion with Mr Cook at about the same time, he returned to his offer some four years before. He proposed selling the Slaughters a strip of the disputed land for $40,000, and Mr Cook said he "would encourage them to buy". However, in a further conversation shortly afterwards Mr Cook indicated that they relied on the inclusion in the 1999 Conveyance of the possessory land and that, therefore, they were not prepared to pay him anything for it. Mr Moulder then began to clear the possessory land as a start of the development works he had in mind.

5. The Slaughters responded on 17th February 2004 by issuing proceedings for trespass ("the 2004 action") on the strength of the 1999 Conveyance, and obtained an interim injunction restraining Mr Moulder from entering on the disputed land - proceedings that must have removed any possible lingering doubts he might have had as to whether the Slaughters would rely on the Conveyance to enforce their claim to the possessory land. Mr. Moulder, in his defence, disputed their claim and counterclaimed for damages, to be assessed, in respect of the wrongly obtained injunctive relief granted to them, which he alleged had caused him much damage, including inability to develop his land. However, he did not further particularise the counterclaim or the alleged damage, and did not pursue it evidentially in the action. He acknowledged in the proceedings the conversations he had had with Mr Slaughter and Mr Cook in 1999 and again in mid-December 2003 - important matters going to the state of his knowledge at the time of the Slaughters' reliance and of Mr Cook's and Mr Cranfield's involvement and stance at those times.

6. The proceedings led to protracted litigation between the Slaughters and Mr Moulder until finally concluded on 9th March 2007 by an order of this Court finding in favour of Mr Moulder. The Court determined that he and his wife had throughout owned the possessory land and that neither it nor any other part of his land was subject to a right of way in favour of the Slaughters.

7. It might have been expected that, on achieving such a signal victory and not having pursued in the proceedings any other relief by way of counterclaim other than vindication of his title, Mr Moulder would have been content. But, after a delay of some three years, he issued, on 17th February 2010 his writ in this action claiming variously against each of the Respondents damages for: 1) fraudulent or negligent drafting and execution of the 1999 Conveyance and/or of concealment of the inclusion in it of the possessory land and purported right of way; and/or 2) fraudulent and/or negligent misrepresentation by all the Respondents except Mr Cranfield. His claim, which he particularised, Respondent by Respondent, over 41 paragraphs of his Statement of Claim, identifies 12 major factual heads of complaint, but contains no allegation, in terms of conspiracy to defraud. It includes claims for aggravated and/or exemplary damages to a total of nearly $4m for fraud, deceit, misrepresentation and/or negligence and in trespass, for loss of use and of early opportunity to develop his property, mental and physical injury, distress, loss of reputation and family life, indemnity costs and payment of costs awarded to them in the 2004 action, which he had not pursued by way of taxation or otherwise...