Graham & Ors v Mayrick

LORD JUSTICE NEUBERGER: This is a renewed application for permission to appeal a decision of Hart J. Jacob LJ refused permission, essentially on the basis that this was a second appeal and none of the requirements of a second appeal were satisfied. Having heard Miss Holland’s submissions, although I have some diffidence about the decision I have come to the conclusion that I ought to give permission to appeal. I should explain why, so I propose to give a short judgment.

Two points are raised. The first is that the claimants should not be required to force on the defendant a possessory title in circumstances where they cannot show who had good paper title, i.e. who was dispossessed by their adverse possession. The second point is that the judge was wrong to conclude on the evidence before him that the defendant had not in fact shown that 12 years’ title by adverse possession had been obtained by him as a tenant of someone other than the claimants from 1988 or 1989.

Miss Holland makes much of the fact that the judge decided this case (as did HHJ Cook, from whom Hart J heard the appeal) on the basis of CPR Part 24, and that there is a point of general importance namely that the judge ought not to have conducted what may be called, in somewhat pejorative terms, a mini-trial. However, that point does not attract me any more than it attracted Jacob LJ. That argument, if too readily acceded to, encourages respondents to Part 24 applications to try and make the case seem as complicated as possible, with a view to persuading the judge not to decide it. In my view, this court should be very slow indeed to interfere with a judge who is prepared to delve into a case with a view to avoiding a trial if it is just to do so. Accordingly, I think there is nothing in that general point.

Where I have more concern is in relation to the two specific points which are raised. The first is that there is a general principle that title by adverse possession is not sufficiently demonstrated unless the title of identity of the paper title owner who has been dispossessed can be shown: that is supported by what is said in Barnsley’s Conveyancing Law and Practice at 353, Emmet on Title at paragraph 5.118 and Megarry & Wade, 4^th Edition (I am not sure what the most recent edition says) at 692. It might appear surprising if it applied in a case such as this, but, given the clear statements of principle in those books, it would seem that, unless there is a clear provision excluding that principle, the principle applies. The judge held it did not apply because the defendant knew of the nature of the claimants’ interest. I am not sure that is right; it may depend on what is meant by his reference to “an ancient title” in paragraph 5 on pages 2 and 3 of his witness statement, pages 227 and 228 of the trial bundle.

The second point that is raised rests on the fact that the judge found against the defendant on the basis of a point which the judge himself made, namely that the defendant did not have more than 12 years’ exclusive possession of the land, because he had only started exclusively possessing the land in 1995; see paragraph 35 of the judgment, and expanded in paragraphs 44 to 46.

Miss Holland says that this was an inappropriate conclusion in the light of the submissions in paragraph 1.2 of her reply on this issue, page 87 of the smaller appeal bundle, supported by the documents at the end of that bundle (pages 95 to 102). This was further evidence which the judge refused to admit in paragraph 46 of his judgment.

So far as the first point is concerned, it seems to me to raise an arguable point of principle and one which appears to be fit for consideration by the Court of Appeal, in principle. It may however be said that the finding of the judge makes this case fact-specific, so that I have some concern as to whether to give permission to appeal on this point, it being a second appeal. As to the second point, it may be said that the judge was entitled to base his decision on what was said in particular in paragraph 17 of the defendant’s witness statement (page 5 of the statement, page 230 of the bundle), and to refuse to admit further contradictory evidence on the point. However, the point at issue was only thought of by the judge, had not been thought of by Judge Cooke, who first decided it, and the statement in paragraph 17 was not made with that point in mind, and was corrected, with significant evidence, when the judge invited further submissions on the point, albeit that he refused to admit the further evidence. Particularly as the defendant had been in person until shortly before the hearing before the judge, that may be said to be a little harsh, especially on a Part 24 application and in relation to a point thought up by the judge at the hearing.

If this were an application for a first appeal, I would have little hesitation in allowing the application on both points. It is because it is a second appeal that I have difficulty in deciding whether to allow it. Nonetheless, I have decided to allow the application. It seems to me that a significant factor is that the second point arose only at the hearing before Hart J. He thought of the argument which established that the defendant could not run an adverse possession case from before 1988 or 1995. That point had not previously been taken. In those circumstances, to treat this as a second appeal on the point is a little harsh on the defendant. Although it is a second appeal, and therefore I cannot overlook the fact that rule 52(3) applies, it does seem to me to give the defendant a considerable boost that this is, in truth, a point which could have arisen only at the hearing before Hart J as well as coupled with the fact that the point was thought of by the judge. The first point could raise a point of general importance, namely whether the general rule as considered in the textbooks to which I have referred can apply without modification in every case, unless it is specifically excluded.

In those circumstances, as I say, with some hesitation, I have come to the conclusion that this is an application I should grant. But I should grant it only on terms that the defendant will not oppose any application by the claimants to run arguments that it ran below. Indeed, they may think that one or two of the arguments they raised, but ultimately accepted that they could not run below, because of authority, could be run on appeal. I do not thereby intend to give the claimants carte blanche to run any point, but I think it should be left to the Court of Appeal, reserving it to myself on this point, to decide whether to let the claimants run an argument, if they wish to, other than those which would run as a result of the two points I have permitted the defendant to run..

So, on that basis, I propose to give permission to appeal, to give the respondents, as they now are, 21 days from receipt of this decision to consider on what points, if any, they wish to cross-appeal, and I will consider whether or not to give permission. I am not going to stop the appellant objecting to the respondents raising any point, because they may have something useful to say, but I would be very sympathetic to any points the respondents wish to raise and would not expect the appellant to waste time objecting to points which clearly should be capable of being run by the respondents.

I think the appeal should take no more than a day in the Court of Appeal. It should be before three judges, one of whom can be a High Court judge, and there should be at least one Chancery judge in the constitution.

I shall grant a stay, on terms that the respondents can apply to discharge it. If the respondents apply to discharge it, the application should come to me and I will decide how to deal with it, but obviously I cannot discharge it without giving the appellant an opportunity to make submissions.