Ely & Anor v Simmons & Anor

Rimer LJ has given permission to appeal on the question whether Mr and Mrs Simmons and Mr and Mrs Ely made a binding agreement about the location of their mutual boundary between the Elys’ property at Monks Rest and the Simmons’ property at Rest Cottage. Mr and Mrs Simmons also wish to appeal against HHJ Nelligan’s decision that they had not established a right of way by prescription over a portion of the driveway that is in dispute. It is common ground that they own the remainder of the driveway. The disputed strip is that part of the driveway which adjoins Monks Rest and is approximately one metre wide.

In order to establish a right of way by prescription over the disputed strip, Mr and Mrs Simmons would have to show that the disputed strip had been used for passing and re-passing for 20 years openly and without force or permission. The 20-year period would run backwards from the date when the relevant court proceedings began. In this case the right of way was raised by counterclaim in May 2011, so the relevant period runs from 1991 to 2011. The burden of proof in establishing the right of way lies on Mr and Mrs Simmons. Since the right claimed is a right of way for vehicles, the critical use is vehicular use. Whilst evidence which Mr Simmons gives of the gardener having tended the right way does not itself support a claim to have acquired the right of way over the disputed strip, Mr and Mrs Simmons themselves can only speak to a period since 2001. So what evidence was there of vehicular use before that time?

The property was owned by the Misses Cape from about 1979. However, they themselves, according to the evidence, did not own a car. Mr Kendall owned the adjoining property at Monks Rest between 1985 and 1990. He used it as a holiday home between 1985 and 1987 and he lived in Monks Rest for about a year between 1989 and 1990. So the whole of the period to which Mr Kendall speaks is outside the relevant 20-year period for the purposes of prescription. His evidence was that the driveway was regularly used for access to Rest Cottage on foot and by vehicle. He said that drivers would manoeuvre along the driveway using the whole width as necessary and that it would be absurd and unnecessary for vehicles not to use the entirety of the driveway.

The judge accepted Mr Ely’s evidence that at least with the car he owned it was not necessary to use the disputed strip; so much might depend on what kind of vehicles were being used during Mr Kendall’s time and on that point he has given no evidence. Miss Jordan, who was in the adjoining property between 1990 and 1994, gives her evidence on the point as follows:

“Neither of the Cape sisters drove but they occasionally had visitors who would park in the driveway so we always kept it clear.”

Her evidence did not focus on the disputed strip as opposed to the driveway generally. So the high point of the evidence of actual vehicular use in the early part of the 20 year period was for one year just before the period began when there was regular use of the driveway and for four years when there was occasional use. There is then an evidential gap until Mr and Mrs Simmons came on the scene from 2002.

The question is whether there is a real prospect of showing that the judge was wrong in finding that Mr and Mrs Simmons have not proved their entitlement to a vehicular right of way over the disputed strip. It is well established that the use required to support the claim to easement by prescription must be continuous use. In the case of a right of way that does not of course mean use day and night, but casual or occasional use is not enough. In the present case, in my judgment, Miss Jordan’s evidence is fatal to the claim. Her very words are that the drive was only occasionally used during the four years when she lived next door. Without evidence of sufficient frequency of use during that four-year period, or at any rate between 1991 and 1994, the necessary use for 20 years cannot, in my view, be established.

Miss Shea points out that until HHJ Nelligan’s decision the parties believed that the whole of the driveway belonged to Rest Cottage and that it is absurd to suppose that the owners of Rest Cottage avoided using the disputed strip. She also submits that based on Mr Kendall’s evidence there is a presumption of continuity such that the regular use of which he spoke continued throughout the whole of the 20 year period, at least until Mr and Mrs Simmons came on the scene in 2002.

In my judgment that in effect reverses the burden of proof. The burden was on Mr and Mrs Simmons to establish their right of way and I do not think that the application of a presumption in their favour is an appropriate way of establishing the claimed right of way. Moreover any presumption of continuity that Mr Kendall’s evidence might raise is rebutted by Ms Jordan’s clear evidence of only occasional use. In my judgment, therefore, there is no real prospect of disturbing the judge’s conclusion on the facts. I might add that even if the judge’s conclusion were to be disturbed, it would almost certainly result in a trial rather than a finding of fact made by this court since the evidence upon which Mr and Mrs Simmons rely would still need to be evaluated against all the other evidence in the case. Miss Shea’s skeleton argument makes it clear that Mr and Mrs Simmons are not in a position to fund a re-trial so any victory in this court on the right of way issue would be a Pyrrhic one. For those reasons I refuse permission to appeal.