The court will only allow a claim to proceed without a defendant under CPR rule 8.2A in an appropriate case. It will not be appropriate where it is desirable that others are bound by the court’s decision or where a discretionary remedy is sought.
The High Court has considered this issue in Hughes Family Property Co Ltd and another v No Defendant [2024] EWHC 2288 (Ch); [2024] PLSCS 161.
The claim related to residential land at 28 Redwells Meadow, Dartmouth, the freehold title to which was owned by the claimants. The land was subject to a restrictive covenant contained in an August 1977 conveyance which prohibited the construction of any building on the land owned by the second claimant.
The claimants sought a declaration that the covenant did not bind the land, arguing that the purchaser under the 1977 conveyance did not own the land intended to benefit from the restriction – the remainder of the Redwells Meadow Estate – at the time the restriction was entered into. Consequently, the benefit of the covenant was never annexed to any part of the land intended to benefit and did not bind the claimants.
The claimants sought permission to bring the claim without a defendant under CPR rule 8.2A. The vendor under the 1977 conveyance no longer had sufficient interest in the property as it had been dissolved and its liquidator discharged. The purchaser under the 1977 conveyance did not oppose the claim, having long since sold all the land and not being liable to enforce the covenant against other purchasers.
Five of the seven conveyances of 21-27 Redwells Meadows were before the court. All referred to the earlier conveyance by which the purchaser under the 1977 conveyance acquired its legal estate to the land but did not set out its terms. The claimants asked the court to infer that the purchaser did not acquire its legal estate to the land until after the 1977 conveyance. The court was not prepared to do so and dismissed the application.
The obvious defendants to the claim were those who would have an interest in enforcing the covenant if it was valid – the owners and occupiers of 21-27 Redwells Meadow. Unless they confirmed that they did not oppose the claim, they were the proper defendants. It was possible they might have access to further relevant documents and information and could argue that other rights existed or the doctrine of the building scheme applied even if the purchaser had no legal interest in other land at the time of the 1977 conveyance.
Louise Clark is a property law consultant and mediator
