Two recent appeal court cases have highlighted the degree to which the Courts will consider extrinsic evidence in the construction of property conveyances. In cases of uncertainty the Court will attempt to construe the whole agreement according to the canonical principles outlined in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896. In the case of a defective parcels clause or a generally ambiguous conveyance, admissible extrinsic evidence has been held to include the conduct of the parties subsequent to the conveyance, and an objective assessment of the circumstances surrounding the conveyance, including an appreciation of the topography.

Thus extrinsic evidence is often necessarily considered when arriving at a meaningful interpretation of title documents. Of course the admissibility of extrinsic evidence still falls to be determined by the Court, subject generally to Lord Hoffman’s limiting third principle in ICS, viz:

“(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectifi cation. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear...”

Generally a conveyance of land will contain a written description accompanied by a plan. If the plan is described as being “for the purposes of identifi cation only” then the written parcels clause will often prevail. If the property is “more particularly described in the plan” then the plan will generally be seen providing the defi nitive description of the plot. Where the parcels clause is ineffective or defi cient then the court may have recourse to the plan even though it is “for the purposes of identifi cation only”.

Cameron v Boggiano and Robertson [2012] EWCA Civ 157

In the recent case of Cameron v Boggiano and Robertson [2012] EWCA Civ 157 two neighbours had purchased property at different times from a common vendor. The Claimant sought a declaration that his land at No. 7 Choumert Mews extended right up to the rear wall of the Defendants’ property, No. 60 Choumert Road . The Defendants denied that this was the case and claimed that the respective parcels were divided by a 4’ gravel strip running parallel to and between the rear wall of No. 60 and a drain line.

The Claimant was the fi rst in time to purchase his property and the sale documents for that transaction logically fell to be construed when the boundary between the two neighbouring plots was to be ascertained. The plan accompanying the contract and TR1 for the sale of his land at No. 7 was derived from the OS map and was described as inherently unclear, based on a small scale OS map over which boundary lines were thick and the colouring ‘slapdash’. This was referred to as Plan A.

In addition to plan A, a further plan had been available to the Claimant and common vendor at the time of the fi rst sale. This was a plan of the service runs which was marked up in greater detail than Plan A to show that No. 7 would only run up to the drain at the edge of the gravel strip.

Notwithstanding the concerns over the quality of the plan the Judge at fi rst instance decided that Plan ‘A’ was the only plan material to construction of the boundary. Viewed objectively it was held to be suffi ciently clear to permit construction of a boundary which corresponded with the Claimant’s pleaded case.

The Defendants pleaded a very late amended counterclaim in rectifi cation based on mutual mistake, upon which they succeeded. Thus the Claimant, having won on the construction point, was denied the fruits of his victory by the subsequent rectification point.1

The appeal and cross appeal

The Claimant appealed the rectifi cation point and the Defendants crossappealed on the construction point.

Allowing the Defendants’ cross appeal on the construction point (and dismissing the rectifi cation appeal) Mummery LJ conceded that the contract, TP1 and Plan A for the sale of No. 7 were indeed objectively capable of having the effect maintained by the Claimant, and that the subjective intention of the parties to that sale was not a legitimate part of the construction of the title documents. Ordinarily therefore, where the transfer and the transfer plan were clear and unambiguous a mismatch between the plan and the topographical features on the ground was not suffi cient of itself to depart from the title documents.

Where, however, the title and plan were insufficiently clear to establish the position of the boundary then it was permissible to rely on extrinsic evidence by way of the local topography (cf Pennock v Hodgson [2010] EWCA Civ 873). Where such ambiguity exists then it cannot be a breach of the exclusionary principle to look at the features on the ground at the time of the relevant conveyance.

In the instant case (and although Plan A was not qualified by the expression “for identification only”) Plan A was so ambiguous that it fell to be ‘contextualised’ in order to give effect to its meaning. At paragraph 65 of his Judgment, Mummery LJ stated:

“It [Plan A]…is not to be construed in a vacuum. In more mundane terms this means that the reasonable layman would go to the property with the plan in his hand to see what he is buying. The reasonable layman is not a qualifi ed surveyor or a lawyer. If the plan is not, on its own, suffi ciently clear to the reasonable layman to fi x the boundaries of the property in question, topographical features may be used to clarify and construe it.”

It was determined that Plan A was of such poor quality that recourse could legitimately be made to an examination of the features on the ground at the time of the conveyance. The practical effect on the construction of the conveyance of No. 7 was that the boundary was to be construed as passing along the line of the drain, and not as contended up to the rear wall of No. 60.

The case is further authority for the proposition that where a transfer plan is intended to be defi nitive, but is still ambiguous, then the local topography can be employed in construing the parcel boundary.

Owen Ernest Wood & Ors v Hudson Industrial Services Ltd [2012] EWCA Civ 599

Whilst it is settled law that a parcels clause in a deed will prevail over a plan attached ‘for the purposes of identification only’, if the verbal description is insuffi cient, the court will have recourse to the plan. If the plan is also of no help in identifying the area, then the court can again refer to the surrounding circumstances, and ask objectively what the reasonable lay person thought was the area described.

In Owen Ernest Wood & Ors V Hudson Industrial Services Ltd [2012] EWCA Civ 599, a further judgment delivered by Mummery LJ this year, the Court of Appeal looked at the question of whether extrinsic evidence of the parties’ discussions might become admissible in the construction of a parcels clause.

This case concerned the construction of a Deed of Gift dated April 1995. The appellants had been the owners of farm land and a dairy business which they gradually parcelled and sold by smaller plots after retirement. By deed of gift, they transferred a small parcel of land (‘one acre or thereabouts’) to their son David. Unfortunately there was a mismatch between the area of unregistered land described in the parcels clause in the Deed and the area of unregistered land delineated and edged red on a plan annexed to the Deed ‘for the purpose of identification only’.

Hudson Industrial Services Ltd subsequently bought that land from the son and sought registration of its title to the 3¼ acres of unregistered land described by the deed plan. The appellants resisted the application for registration on the basis that the land conveyed to Hudson could only have been the farm yard from where the son operated a machinery business, and that was the 1 acre or thereabouts intended to pass under the deed.

At fi rst instance the judge made a declaration that, as a matter of construction, the Deed of Gift had conveyed 3¼ acres from the parents to the son. The judge gave effect to the area of red edging shown on the annexed plan rather than to the verbal description of the area in the parcels clause. He did this on the basis that it was not possible to tell from the clause in the Deed where, within the area of the land delineated and edged red on the plan, the “one acre or thereabouts” was located.

The appellants had relied at first instance on the records and attendance notes of solicitors dealing between the parents and their son, and on the evidence of witnesses who had been privy to discussion with the son about the use of the yard for his business. In reaching his decision the Judge excluded that evidence, relying on the general exclusionary principle in Prenn v Simmonds [1971] 1 WLR 1381 (see also ICS supra) that evidence of previous negotiations between the parties is excluded from the process of construing the document.

The appeal

On appeal, Mummery LJ confi rmed that extrinsic evidence of the parties’ prior negotiation was indeed inadmissible. However, he pointed to the fact that what had passed between the witnesses as a preliminary to the original transfer was admissible as evidence of the surrounding circumstances known to the parties (Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38 per Lord Hoffman at paragraph 422). It followed that the evidence was admissible to identify the plot of land in the parcels clause as the yard.

On the balance of probabilities Mummery LJ was satisfi ed that that extrinsic evidence pointed to the yard alone as being the area described in the parcels clause. Those circumstances were (a) the physical separation of the yard from other land included in the plan; (b) the yard area being 1.09 acres; (c) the absence of any other plausible candidate of similar area; (d) the yard was used for David’s business and had been the subject of a planning application by David for a larger workshop.


This article only touches on two of the recent Court of Appeal decisions. The reader should be aware, however, that over the last eighteen months or so the Court of Appeal has been extremely active in this area. Disputes over the construction of conveyances of land are a class apart from other disputes over the interpretation of contracts etc, but must be viewed in the context of the wider debate about what should be admitted as an aid to construction and when it may be necessary to seek rectifi cation instead. It is certainly arguable that a lack of consistency in some of the recent pronouncements may be storing up real diffi culties for the future. See esp. Cherry Tree Investments v Landman Ltd {2012] EWCA CIV 736.