Tennant & Anor v Adamczyk & Anor

LORD JUSTICE MUMMERY: This is a case about whether a claim to recover land has become statute barred. The appeal is from an order made by HHJ Dafydd Hughes in the Runcorn County Court on 30th November 2004. He declared that the claimant's title to land bounded on three sides by the colour yellow and on one side by the colour green on a plan annexed to the order between Units 1 and 2, Halton Business Park, Runcorn, had been extinguished by the operation of the Limitation Act 1980. He ordered the claimants to pay the defendants' costs, subject to a detailed assessment, and he refused permission to appeal. Permission to appeal to this court was granted by Neuberger LJ on 17th May 2005.

The claimants in the action, who I will refer to as "the appellants", are Mr Barrie Tennant and Mr Eric Burke. Their dispute was with the defendants, Richard Adamczyk and William Ellis, who I will refer to as "the respondents". The appellants occupied Unit 2 of the Halton Business Park. They first did so in March 1992 as the lessees of a company called Ross Brown Developments Limited. In October 1993 they moved their business to the other side of a service road that ran through the business park. In September 2003 the appellants purchased Unit 2. They were registered as proprietors of it on 26th November 2003. On 1st March 2004 they began proceedings in the Runcorn County Court against the respondents. They claimed relief against the respondents requiring them to remove a fence referred to in the Particulars of Claim. They claimed a declaration that they owned the land fenced off by the respondents and a declaration as to the true boundary as contended for by the appellants. They also claimed damages for trespass, mesne profits and interest.

The respondents had on 14th June 1991 taken a transfer of Unit 1. They moved into that unit at about the same time. The respondents' defence to the claim was that it was statute barred. They pleaded various acts in their defence. They said that their business required the use of the land in question. It had been used by them since they commenced occupation of their unit for the parking of vehicles, the passage of goods vehicles into and out of the unit, and the cultivation of a flower bed. That use, they said, is and had been extensive. They also pleaded that they had erected a chainlink fence in the early part of 1992 and that that was replaced by a palisade fence in the autumn of 1994. They accordingly denied trespass. They pleaded in paragraph 4 of the defence:

They made a counterclaim, repeating their defence and seeking a declaration that the appellants' title had been extinguished as pleaded. There was a reply and a defence to counterclaim. The reply denied that the claim was barred or that title had been extinguished. It was specifically pleaded that, since the first acts of possession alleged to have been made by the respondents were in 1992, no 12 year period under the Limitation Act can have expired before the coming into force of the Land Registration Act 2002 on 13th October 2003. Section 96(1) of the Land Registration Act 2002 provided that no period of limitation should run against any person, other than a chargee, in relation to an estate in land. Section 96(2) of the Land Registration Act 2002 provided that section 17 of the Limitation Act 1980 did not operate to extinguish the title of any person where by virtue of the section a period of limitation does not run against him.

It was also pleaded that under the Limitation Act 1980, even if the relevant provisions of the same had not been repealed in relation to registered land, the respondents would have had to have erect the fence before 1st March 1992, which they do not assert and which is, in any event, denied. There was therefore a defence to the counterclaim.

The respondents served voluntary particulars pursuant to a directions order of 24th May 2004 made by the District Judge. I shall quote the whole of this because it crystallised the issue that fell to be decided by the Judge at the trial and it features prominently in this appeal:

The court has been supplied with a bundle that includes a photograph of the two units showing the yard between the respondents' Unit 1 and the appellants' Unit 2, showing the palisade fence enclosing the yard with a gate, and also showing in the particular photograph a van parked up against the wall of the respondents' unit. It is common ground that the part of the yard immediately adjoining the respondents' unit is the property of the respondents so that, for example, as regards the photographed van, part of that van facing the wall of Unit 1 is parked on the respondents' land and part of it is parked on the appellants' land. This fact has also been illustrated by an agreed coloured plan which shows that, in effect, the claim to adverse possession is not to the whole of the yard. It obviously does not include the part of the yard that abuts the respondents' unit, as it already belonged to them. The claim is only in respect of a part of the yard to which the appellants have a paper title.

The Judge heard evidence from the parties. We have been referred by Mr Hall, who made excellent submissions for the appellants, to parts of the evidence. It is not necessary to read out verbatim extracts from the transcript because it is quite clear that it was accepted that, as a matter of fact, about 70 percent of the activities which were pleaded by the respondents as acts of adverse possession in fact took place on land which belonged to them, not on the land to which they claimed adverse possession. Details were also given of the various activities of the respondents in relation to the use of the land, deliveries, unloading pallets, sorting stock out in the yard, cultivation of the flower bed where the Russian vine was planted. It was also clear from that evidence as pleaded and as explained by the Judge, that no fence was erected by the respondents until after the critical date of October 1991.

The judgment has been criticised by Mr Hall with regard to the Judge's conclusions in pages 9 and 10 of the transcript. There is no challenge on this appeal to any of the primary facts found by the Judge. The challenge is to the legal conclusion that the Judge drew from applying what he conceived to be the correct legal test to the facts he had found. The Judge held:

I pause there to say that it is accepted by Mr Askey, on behalf of the respondents, that the Judge was right in confining the crucial period to that from June 1991 until October 1991. Any acts on which the respondents relied after October 1991 were too late to support a plea of limitation, since they would be acts within the crucial 12 year period from October 1991 to October 2003.

The Judge then went on to say this:

So he concluded at the end of his judgment:

Mr Askey, for the respondents, sought to support that reasoning of the Judge. It is unfortunate that he did not, for the purposes of this hearing, produce a respondents' skeleton argument, setting out the respondents' arguments on the points made by the appellants in their skeleton, on the basis of which Neuberger LJ concluded that this appeal had a real prospect of success. Mr Askey said that he only needed a one-line skeleton argument, which was really no more than saying that the Judge had come to the correct conclusion, and that he was not obliged to put in a more substantial skeleton. He is mistaken in that. Part 52, paragraph 7.6 requires a skeleton argument to be submitted. It is essential that this be done when, as is bound to be the case on the full hearing of an appeal, permission to appeal has been granted by this court on the basis of a detailed skeleton argument which leads this court to conclude that the appeal has a real prospect of succeeding. A full written response is required. We do, however, have the benefit of the skeleton argument that Mr Askey successfully used in the court below. It is clear from the submissions made in that skeleton how the Judge, in my view, fell into error in his reasoning and conclusion.

Mr Askey submitted, having referred to the pleadings and the voluntary particulars relating to the period of adverse possession, that the adverse possession began in 1991 with the parking of cars and other vehicles on the disputed land, the use of it for turning vehicles around and later, by the end of July 1991, by the planting of Russian vines. There was no mention at that point of any fencing. But then, under the heading "Adverse Possession", having cited the speech of Lord Browne-Wilkinson in J A Pye (Oxford) Ltd and Others v Graham and Another (see below), he submitted that there was factual possession by the proven nature of the occupation that had occurred, plus the erection of the fencing after October 1991 and outside the crucial period to which the Judge had correctly directed himself in posing the questions for decision.

Mr Askey then submitted to the Judge:

That argument is, in substance, what Mr Askey submitted to this court on this appeal. In my judgment, he is wrong.

As far as the law is concerned, there is really no dispute between the parties. The only case cited was the decision of the House of Lords in J A Pye (Oxford) Ltd v Graham and Another [2003] 1 AC 419. This is the highest authority on this area of the law. It contains the most helpful exposition of the principles. Although a number of speeches were given, I need only refer to short passages in two of them, both of those passages being based on the first instance judgment of Slade J in Powell v Macfarlane [1977] 38 P&CR 452.

Lord Browne-Wilkinson said:

Lord Hutton said:

As Mr Hall submitted, the correct law for the Judge to apply was as stated by Lord Browne-Wilkinson, in particular in the two propositions, relating, first, to factual possession, and, secondly, to the intention to possess. The first question is whether there was a sufficient degree of physical custody and control by the respondents of the land in dispute; the second is whether there was an intention by the respondents to exercise such custody and control on their own behalf and for their own benefit. That is the test of the intention to possess. As Lord Browne-Wilkinson explained later in paragraph 40, intention frequently is a matter of deduction from the physical acts themselves, but he emphasised that there were two separate elements, namely factual possession and intention to possess, in legal possession.

On the facts of this case, I have reached the conclusion that Mr Hall's criticisms of the judgment of the trial judge are well made out and that the Judge was wrong in his reasoning on the question of adverse possession. The reference to the fences, whether the chainlink fence or the palisade fence which occurred after 13th October 1991, was irrelevant to the question which he had correctly identified on page 9 of what was the position from June 1991 until October 1991. It was necessary for the Judge to ask whether by October 1991 the appellants had been dispossessed of the land in dispute and whether the respondents were in adverse possession of it by then. Only if he could say that there had been dispossession of the appellants and the taking of adverse possession of the disputed land by the respondents, would he be entitled to conclude that the appellants had a cause of action in respect if which the limitation period of 12 years would begin to run from October 1991.

The Judge did not do that. The Judge relied, quite expressly, on matters have that occurred after October 1991, in particular, the fencing. It was not a slip. He had clearly made it a part of his reasoning that, during what he described as the crucial period of time, there had been dispossession and the taking of adverse possession. He relied on the erection, subsequent to October 1991, of the chainlink fence in the first place and then the palisade fence as affirmation of the position that had existed from June 1991. That is simply not correct. The Judge had to ask what factual possession was there of this disputed land by the respondents between June and October 1991? That had to be answered without reference to other acts, which I have to say were of a different quality, namely acts of enclosure, from those which occurred before October 1991. Before October 1991 the acts committed by the respondents on the appellants' land were acts of non-exclusive user, as described earlier in this judgment. They did not involve factually any control or custody or exclusive possession of any part of the appellants' land. There was nothing else done by the respondents on the disputed land to exclude the appellants from the land, to which they had a registered title.

The same goes for intention to possess, which is frequently to be inferred from factual possession. All that the respondents intended to do, in my judgment, was to use their own land, which immediately abutted their unit, and to use the appellants' land adjoining that only to the extent that they needed it as an extension of their land for the purposes of parking, unloading and so on. As for the growing of the Russian vines at the beds at the back of the disputed land, I fail to see how that is of any relevance. What the respondents were seeking to claim adverse possession to was an area of the yard on which they could use vehicles, and so on, not for the purposes of limited cultivation in a confined garden bed on the back edge of the yard. It would be of no use for the respondents to establish adverse possession to a flower bed, or a bed for growing vegetation. In any case, I would not regard the planting of a Russian vine as amounting to an act of adverse possession in the circumstances that I have described.

In my judgment, therefore, this appeal should be allowed. In a few words, the Judge arrived at the wrong conclusion because he held that the appellants' claim to land had been statute barred when there has been no dispossession of the appellants and no adverse possession by the respondents of the land in question before the critical date in October 1991. The claim was not statute barred. The Judge was wrong to make the order that he did. On the Notice of Appeal, as elaborated in the skeleton argument, the appellants seek an order that they should have the declaration sought in the prayer for relief in their Particulars of Claim, namely that they own the land that was formerly fenced off by the defendants and a declaration as to the true boundary as contended for on Plan A of the Particulars of Claim. They ask that this should be substituted for paragraphs 2 and 4 of the order of the learned judge.

As to the remainder of their claim for relief in respect of an order for the fence to be removed for damages and mesne profits, they ask that that should be remitted to the County Court for determination.

Subject to any further submissions on the precise form of the order I should make, I would allow this appeal and make an order along the lines suggested by Mr Hall in his skeleton argument.

LORD JUSTICE JACOB: I agree.

LORD JUSTICE MOSES: I also agree.