Law Report: City of London owns Smithfield site under charter from Charles I: Crown Estate Commissioners v Corporation of City of London. Court of Appeal (Sir Donald Nicholls, Vice-Chancellor, Lord Justice Mann and Lord Justice Evans) 13 May 1994

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By a charter on 18 October 1638 King Charles I granted the City the freehold title to the ancient site of Smithfield market.

The Court of Appeal dismissed an appeal by the Crown Estate Commissioners from Lord Justice Hoffmann's decision that King Charles I had granted the City the fee simple in the site of Smithfield market, known as West Smithfield.

Following unresolved disputes in the early 1600s between the Crown and the City about the title to waste ground and open spaces in the City, Charles I granted the City a charter in 1638, which represents, among other things, the City's property rights in respect of Smithfield.

The issue was whether the charter granted to the City any title to Smithfield by paragraph 2a which provides: 'We will also . . . declare and grant that the aforesaid Mayor etc and their successors for ever may have hold and enjoy, and shall and may be able to have hold and enjoy . . . that field called West Smithfield . . . to the use intents and purposes below expressed.'

Michael Driscoll QC and Edwin Johnson (Farrer & Co) for the Crown; Edward Nugee QC and Christopher Nugee (Andrew J Colvin) for the City.

SIR DONALD NICHOLLS V-C said that the issue, which had surfaced every now and again for 400 years, turned on the proper interpretation of the 1638 charter, which was impenetrable to a modern lawyer. It was a vast document, written in a form of Latin without punctuation or paragraphs, using conveyancing concepts and language belonging to a different age. The contemporaneous social setting of the charter was so far removed from today that attempts to identify what the Crown 'must' have meant by the language used were particularly unsatisfactory.

Paragraph 1 was straightforward. It was a grant to the City in fee simple of the buildings and other encroachments on grounds, streets and other common places within the City and its suburbs. Paragraph 2, which was the crucial paragraph, applied to three fields, including West Smithfield. These fields were treated differently from the rest of the land in the City.

The general overall scheme was that under paragraph 1 the buildings and other encroachments throughout the City and its suburbs were to belong to the City, and under paragraph 3 the streets and land not built upon were to belong to the Crown. The Crown contended that by paragraph 2 the City could continue to hold its customary markets and fairs on West Smithfield but paragraph 2 was not a grant to the City of any title to Smithfield.

The natural reading of paragraph 2 was that the fields were handed over by the King to the City for it to use for prescribed purposes. The words of the grant in paragraph 2 were capable of operating as a grant of a fee simple estate in land.

On any interpretation of paragraph 2 there were inconsistencies. Overall, and reading the provisions as a whole, those features were not sufficiently clear to form a sound basis on which to depart from the more natural reading of paragraph 2.

The pursuit of consistency between different provisions could be taken too far. It was only one aid, one guide, when seeking to find the proper interpretation of a document. Its value would vary from case to case. Care should be taken lest it lead to paying insufficient heed to the provision dealing directly with the subject matter in issue - here, the terms of the grant in paragraph 2.

Lord Justice Mann agreed and Lord Justice Evans concurred.