Fairacre Investments Ltd.v Earlrose Golf & Leisure Ltd & Anor

This case is in essence a boundary dispute. The land in question lies in an area with a history of industrial and commercial use at West Drayton in the London Borough of Hillingdon, near the junction of the M4 and M25 motorways and immediately to the south of the Slough branch of the Grand Union Canal. It is within the Metropolitan Green Belt, but none of the land in question is now used for either residential or agricultural purposes.

The claimant, Fairacre Investments Limited (Fairacre), is a company registered in the British Virgin Islands. It is the registered proprietor with title absolute under Title No AOL 58272 of an area of freehold land extending to some 13.6 hectares and known as the Lizzards. The Lizzards is currently derelict and unused, apart from two fishing lakes on the sites of old gravel pits. The most recent use of most of the land was for illegal tipping, and the tipping operations on the site in the mid-1990s are of central importance in the present case. However, those operations were brought to an abrupt end on 24 June 1996 when the High Court granted injunctions on the application of the London Borough of Hillingdon restraining Fairacre’s predecessor in title and various other individual and corporate defendants from conducting tipping and related activities on the land. Fairacre’s predecessor in title was a company registered in the Isle of Man, Guinea Enterprises Limited (Guinea), which had purchased the Lizzards from the trustees of a family trust (the Henry Boyer Trust) in July 1994.

Both Fairacre and Guinea, despite their different offshore places of incorporation, have at all material times been beneficially owned, through nominee share-holdings, by the same two gentlemen, Mr John McDaid (Mr McDaid) who describes himself as a haulage contractor and now lives in Harrow, Middlesex, and Mr Patrick (also known as Porick) Keogh (Mr Keogh) who also describes himself as a haulage contractor and now lives in Tubbercurry, County Sligo, Ireland. Indeed, Guinea was set up by Mr McDaid and Mr Keogh for the express purpose of purchasing the Lizzards. The transfer of the Lizzards from Guinea to Fairacre was effected in June 1998. This was a voluntary transfer, for no consideration, undertaken for what Mr McDaid and Mr Keogh euphemistically describe in their witness statements as ‘tactical reasons’.

The Lizzards is bounded to the north by the Grand Union Canal and a narrow strip of land about 11 metres wide on the south bank of the canal owned by the British Waterways Board (BWB). Towards the north-eastern corner of the Lizzards, and surrounded by it on all sides but the north, there is an irregularly shaped parcel of land which protrudes into the Lizzards and was originally in common ownership with the rest of the Lizzards. This parcel of land used to be the site of an animal waste or tallow factory. It is now the site of a thriving waste recycling plant known as Trout Lane depot operated by the second defendant, Sweeney Environmental Limited (SEL). I shall refer to this land as the Trout Lane site or the depot.

The separate ownership of the Trout Lane site begins in 1979, when by a conveyance dated 7 November 1979 (the 1979 conveyance) the trustees of the Henry Boyer Trust sold it to a UK company called Granox Limited (Granox) for £50,000, together with a right of way with or without vehicles for the purchaser and those authorised by it along an access roadway which leads south east from the depot for about 375 metres until it joins the public road known as Trout Lane. The right of way also extended over an area of land coloured blue on the plan annexed to the 1979 conveyance, roughly in the shape of a quadrant of a circle and situated in a right angle (forming the two straight sides of the quadrant) at the south west of the Trout Lane site.

The Trout Lane site itself was defined in the 1979 conveyance exclusively by reference to the plan (‘as the same is more particularly delineated on the plan annexed hereto and thereon edged red’). As I have said, the general shape of the site is irregular. I would describe it as comprising a basic rectangular area mainly occupied by factory buildings, together with an area to the west of the factory buildings shaped rather like one-half of the vertical cross-section of a bell, and a further trapezium-shaped area to the south and east of the factory buildings which opens onto the access road. Unfortunately, the plan is on a very small scale (1 to 1250, which means that one inch on the plan represents about 100 feet on the ground), and although dimensions are given in feet and inches for the straight lines which form the boundaries to the north, east and south of the site, the bell curve to the west is not defined by any measurements, and to make matters worse the red line is a thick one. The only further indication which can be gleaned from the plan is that for most of its length the bell curve appears to follow the eastern edge of a physical feature shown on the plan, which is not labelled or referred to in the body of the 1979 conveyance hut appears from other plans in evidence to represent an old ditch or watercourse.

Following the purchase Granox was duly registered as the proprietor of the freehold of the Trout Lane site with title absolute under Title No NGL 363453. The filed plan shows more physical features than the plan annexed to the 1979 conveyance, and appears to be taken from a large-scale Ordnance Survey map. The scale is the same (1 to 1250), and as one would expect the boundaries of the site appear to be the same as on the 1979 conveyance plan, although no dimensions are marked. The filed plan clearly shows the bell curve as following the eastern edge of a watercourse which drains to the south into a large area of open water. It also shows the land immediately to the west of the factory buildings sloping steeply down to the watercourse, and then sloping up again on the other side.

By a lease dated 7 October 1982 a narrow strip of land lying between the north of the rectangular part of the Trout Lane site and the canal (the green land) was demised by the BWB to Granox for a term of 42 years from 24 June 1980 at an initial annual rent of £1,360 subject to upward-only review every five years. Since then the green land has been occupied in conjunction with the Trout Lane site, and unless otherwise indicated subsequent references to the Trout Lane site or the depot in this judgment should be taken to include the green land. The leasehold title to the green land is separately registered under Title No NGL 439706.

The factory on the Trout Lane site had been used for many years for the manufacture of animal waste by-products. At first Granox continued this use, but following a takeover during the 1980s the manufacturing activities were transferred elsewhere and the depot was used as a waste transfer station for the collection and transfer of animal wastes.

In May 1994 the Trout Lane site was sold by Granox to a Mr John Gray. Although he acquired the land in his own name, it appears that the acquisition was a joint venture with his brother, Mr Peter Gray, and before long they had taken over the running of the animal waste transfer business. I record at this point that both Mr John Gray and Mr Peter Gray gave evidence at the trial as witnesses for the defendants, and it was during the former’s ownership of the depot that two crucial meetings allegedly took place at which oral agreements were allegedly made as to the exact position of the western and southern boundaries of the site. The first such meeting is now said to have taken place in the autumn of 1994, and the second one sometime in the spring of 1996. Each meeting is said to have been attended by both of the Gray brothers.

In late 1995 another key figure first appeared on the scene, Mr John Sweeney. Mr Sweeney had been born and brought up in Ireland, but moved to the London area in 1988. After working for a few years in the construction industry, initially as a driver of vehicles engaged in earth-moving operations, he set up business on his own account in 1992 through a company called Sweeney Transport Limited. He operated this business from Airlinks Golf Club in Hounslow, and from 1992 to 1995 was engaged in the enhancement of golf courses by earth-moving operations.

The Airlinks Golf Club was largely an open site with no workshop or shelter for Mr Sweeney’s mechanic whose job it was to maintain the company’s vehicles. Towards the end of 1995, Mr Sweeney answered an advertisement which Peter Gray had placed in a local newspaper offering a workshop and garage to let at the Trout Lane site. Mr Sweeney visited the depot and met Peter Gray. He concluded not only that it would be preferable to the Airlinks Golf club as an operational base but also that it would make an excellent site for a waste recycling centre in view of its good transport links, proximity to Central London, and relatively secluded location in a commercial area with a long history of industrial use. Agreement was therefore reached for Mr Sweeney to take an oral tenancy of the whole of the depot from John Gray. By this stage Mr Sweeney had already established a number of companies, and the tenancy was taken in the name of the parent company of the group, Sweeney Holdings Limited (later renamed Sweeney Holdings (UK) Limited in 1999). In February 1996 Mr Gray obtained from the London Borough of Hillingdon a Certificate of Lawful Use which stated that for planning purposes the lawful use of the depot was as a waste transfer station.

Since December 1995 Mr Sweeney through his companies has been in continual occupation of the whole of the depot, and in February 1997 John Gray sold his freehold and leasehold interests in the Trout Lane site to another Sweeney company, Earlrose Golf & Leisure Limited (Earlrose), the first defendant, for £300,000.

The conveyancing file for this transaction was produced for the first time during the course of the trial, having been obtained from John Gray’s then solicitors, Iliffes Booth Bennett. Three points of interest emerge from the file. First, although the transaction post-dated the two alleged boundary agreements referred to in paragraph 10 above, the Transfer simply conveyed the land comprised in the two registered titles of the depot and the green land respectively. Secondly, there is no reference to either of the alleged boundary agreements in the written contract which preceded the Transfer or in the correspondence. Thirdly, in answer to standard Pre-contract General Enquiries Mr Gray’s solicitors answered ‘No’ to the question whether the vendor had moved any of the boundaries of the property, and in answer to a request to supply a site plan sufficient to identify the property simply said ‘See filed plan’.

Although legal title to the depot was vested in Earlrose, that company has at all times held the land as nominee for a Jersey company called Sweeney Holdings Limited (not to be confused with the UK company of the same name), which in turn holds the beneficial interest in the land on trust for a Sweeney family settlement.

The second defendant, SEL, was already in existence at the date of the transfer to Earlrose, but remained dormant and had no significant accounting transactions until 1997. In that year it began to acquire fixed assets funded by intra-group loans, and in early 1998 it commenced trading. At or about the same time, Mr Sweeney procured Sweeney Holdings Limited (ie the UK company of that name) to grant an oral sub-tenancy of the depot to SEL, and substantial rents began to be paid by SEL to Sweeney Holdings Limited, and by Sweeney Holdings Limited to Earlrose. In February 2000 matters were put on a more formal footing and Earlrose granted a formal lease of the Trout Lane site to Sweeney Holdings (UK) Limited, as Sweeney Holdings Limited had by now become, for a term of 20 years from 1 February 1997 at an annual rent of £132,500. No formal sublease to SEL was granted, but SEL remained in occupation of the site as before and continued to pay rent to Sweeney Holdings (UK) Limited.

By 2002 the Sweeney group had grown to 14 companies, and on the recommendation of tax advisers Mr Sweeney embarked on a group reorganisation which was carried out between September 2002 and April 2003. The details of this reorganisation do not matter, but they included the transfer of businesses out of the other companies into SEL and then the voluntary liquidation of the former companies. Some of the companies were in fact insolvent and went into creditors’ voluntary liquidation, a point to which I will have to return later. These companies included Sweeney Holdings (UK) Limited, which went into creditors’ voluntary liquidation on 14 April 2003 with an estimated deficiency as regards creditors of just over £1m, including trade and other debts owed outside the group of over £350,000. Before the liquidation, Sweeney Holdings (UK) Limited had assigned its lease of the Trout Lane site to SEL.

In sharp distinction to the unlawful tipping activities on the Lizzards in the mid-l990s, the activities carried on by Mr Sweeney’s companies at the Trout Lane site have at all times substantially complied with the relevant planning and environmental controls. When the necessary planning permission had been obtained, the old factory buildings on the site were demolished, with the exception of one small office building on the south-eastern side which remains there today, and in 1997 a new waste recycling shed was constructed. A Powerscreen Trommel machine was then installed to screen soils and hardcore brought onto the site.

In the summer of 1999 SEL began to take possession of an area immediately to the west of the green land, and between the end of August and mid-December in that year 111 lorry loads of waste were removed in order to reduce the level of the land to the same level as the rest of the site. (The invoices in the bundle for this work are made out to a non-existent company, Sweeney Environmental Skip Hire Limited, but it is clear that the work was in fact performed for SEL.) At this stage, no Sweeney company had title to this land, which belonged to the BWB. No attempt had been made to check the ownership of the land before the work began, and a second Powerscreen Trommel machine had already been installed on it before the encroachment came to the attention of the BWB, which promptly complained about it. SEL was apologetic, and fortunately for it the BWB was willing to grant a lease of the land in question (the blue land). This was done by a lease dated 13 September 2000 which demised the blue land to Sweeney Holdings (UK) Limited for a term of 22 years expiring on 23 June 2022 (ie on the same date as the existing lease of the green land was due to expire) at an annual rent of £3,000, with rent review provisions similar to those in the lease of the green land. This lease too was assigned by Sweeney Holdings (UK) Limited to SEL in December 2002. The leasehold title to the blue land is separately registered under Title No AGL 83929.

Further substantial items of recycling machinery were installed during 2002, and by the end of that year the recycling centre was fully operational in the form which has continued down to the present day. The recycled materials which emerge from the recycling process comprise hardcore, concrete, woodchips, fibre fuel, topsoil and subsoil, paper and cardboard, and various metals. A very high recycling level of about 85 per cent is achieved. The centre is just one of a number of successful business ventures which Mr Sweeney has built up in the UK and Ireland, and which now have a combined annual turnover of several million pounds.

Against this background I can now turn to the present dispute, which was begun by a claim form issued in the Central London County Court on 3 June 2003. At that stage Earlrose was the only defendant, but shortly before the trial the particulars of claim were amended to add SEL as the second defendant.

In the amended particulars of claim dated 11 November 2005 Fairacre claims that Earlrose and/or SEL have trespassed on the land owned by Fairacre, ie the Lizzards, in the areas shown coloured pink on the plan annexed thereto. The alleged trespass is said to comprise the creation of mounds of earth, the parking of vehicles and plant, and the storage of materials, and is alleged to have continued since Fairacre first became the registered proprietor of the Lizzards in September 1998. The relief sought is an order that the defendants remove all of the materials which they have deposited on the areas shaded pink, an injunction restraining them from entering on the Lizzards save in the proper exercise of their right of way over the access road, and an order that they pay Fairacre mesne profits to be assessed together with interest.

The main areas shown pink on the plan annexed to the amended particulars of claim are (a) an irregularly shaped area to the west of what I have called the bell curve part of the registered boundary, and (b) a roughly rectangular area to the south west which includes (but extends well beyond) the quadrant-shaped area over which the right of way subsists. Much smaller and thinner areas are also shown along most of the western margin of the access road. This plan was annexed to the particulars of claim from the beginning, and was referred to in the subsequent statements of case as Plan A. I need not say any more about it, because it has effectively been superseded by Plan C to which I will come in due course.

The particulars of claim, both in their original form and as amended, were settled by Mr Alexander Hill-Smith of counsel, who appeared for Fairacre at the trial.

The defendants’ case at trial was that pleaded in a reamended defence of both defendants and counterclaim of the first defendant dated 21 October 2005 and settled by Ms Emily Windsor of counsel, who appeared for the defendants. However, the defence as finally pleaded had evolved in a way which Fairacre submits is indicative of the general weakness and unreliability of the defendants’ case, so it is appropriate that I should trace the main stages in its evolution.

The original defence and counterclaim of Earlrose was dated 6 August 2003. It was settled by Ms Windsor and (like its successors) verified by a statement of truth signed by Mr Sweeney. Annexed to it was a sketch plan (Plan B), which was based on Plan A and showed the areas of alleged trespass to the west and south west of the depot as lying either within the blue land (to the north near the canal) or within a boundary marked by straight lines between three points identified as A, B and C. The boundary of the depot (excluding the green land and the blue land, but incorporating the lines between points A, B and C) was marked in red and the land within it was defined as ‘the Red Land’. Paragraph 2 of the defence stated that all the markings on Plan B were approximate, and that permission would be sought to substitute a professionally-drawn plan as soon as it was available.

The nub of the defence, as originally pleaded, was that the boundaries of the Lizzards and the depot are not accurately shown on the plans forming part of the two registered titles; that the BWB owned the freehold of the green land and the blue land; that in December 1995 John Gray was the freehold owner of the Red Land; and that in about late 1996 a verbal agreement as to the precise position of the boundary between points A, B and C was reached between (1) the then freehold owner of the Lizzards, (2) the then freehold owner of the Red Land, Mr John Gray, and (3) Mr Sweeney in his capacity as the sole director of the companies in occupation of the Red Land.

Details of this meeting were then pleaded as follows in paragraph 10 of the defence:

The defence then went on to say that a mound of earth about 4 metres high had been constructed by the owner of the Lizzards along the line A to B, and that following the 1996 meeting and in reliance on the agreement then reached Earlrose had purchased the Red Land from John Gray and taken an assignment from him of the lease of the green land. It was alleged that the boundary as agreed betweens point A, B and C can no longer be challenged by the claimant, and/or that a proprietary estoppel has arisen in favour of Earlrose which prevents the claimant from denying that this is the boundary and binds the claimant as an overriding interest within section 70(1)(g) of the Land Registration Act 1925.

In the circumstances the allegations of trespass were denied, and in the counterclaim Earlrose sought appropriate relief by way of declarations and rectification of the two registered titles on the footing that the true boundary lies between points A, B and C.

I observe that at this stage Earlrose did not know for sure which company owned the Lizzards in late 1996, and also had no means of knowing that Fairacre had in fact acquired the Lizzards from Guinea for no consideration. I also note that John Gray was said to have been the freehold owner of the Red Land in December 1995, and therefore well before the alleged 1996 agreement, even though the boundaries of the Red Land clearly extend well beyond the registered title of the depot. However, no explanation for this allegation was provided, and the pleading of the 1996 agreement certainly does not give the impression that it was merely intended to confirm an existing state of affairs.

In March 2004 the defence and counterclaim were amended, The main purposes of the amendments were to substitute a new sketch plan for Plan B; to give fuller details of the occupation of the depot by Mr Sweeney’s companies and the rents which were paid; and to supplement some of the details of the 1996 boundary agreement.

I have seen not the sketch plan which was annexed to the Amended defence, but I need say no more about it because it was in its turn superseded by a professionally-drawn plan C which was annexed to the Re-amended defence and counterclaim in October 2005: see paragraph 38 below. I am told that the sketch plan was in fact an earlier version of Plan C, but differed from it in not marking the boundary of the registered title of the depot and in not marking points D and E, which had not at that stage been identified.

It is also unnecessary for me to say much more about the further details which were pleaded of the 1996 agreement. As amended, the relevant part of paragraph 10 gave particulars of the features on the ground by reference to which the boundary between points A and B was agreed (namely a low mound on the other side of a dip in the level of the land at the boundary, and a difference in the colour of the grass on each side of the boundary), and explained that point C was (and still is) the end of a fence marking part of the southern boundary of the Red Land. Point B is then identified as the point where a straight line continuing the line of the fence to the west meets the physical features referred to above.

On 3 March 2004 an order had been made in the Central London County Court staying the case for two months for mediation. The mediation was evidently unsuccessful, and by a consent order made in January 2005 the case was transferred to the Chancery Division of the High Court. Directions were then given by Master Price on 16 February 2005, including directions for standard disclosure of documents by list and for exchange of witness statements by 16 May 2005. The date for exchange of witness statements was then extended by further orders, first until 21 October, and then until 9 November 2005, which was less than two weeks before the date fixed for the beginning of the trial (Monday 21 November) with a three-day time estimate. During the summer the solicitors acting for Earlrose (Allen & Overy, who were the solicitors regularly employed by the Sweeney group of companies) had been replaced by Courts & Co, and a notice of change was filed on 8 July.

The order granting the final extension of time for the service of witness statements was made on 4 November 2005, on the claimant’s application by notice dated 19 October and taken out in anticipation of service of the Re-amended defence. On the same occasion Earlrose (a) was given permission to amend its defence and counterclaim ‘in the terms already served’, which I take to be a reference to the reamended defence which had by now been served on the claimant’s solicitors, and (b) was also ordered to serve answers to a detailed request for further information by 11 November. Meanwhile Earlrose had itself applied by notice dated 25 October for SEL to be joined as second defendant, for permission to reamend the defence, and for further disclosure of documents by Fairacre. The witness statement in support of this application was made by Mr Michael Krantz of Courts & Co, and was mainly directed to the question of further disclosure of documents relating to Mr Barron and his involvement with Guinea and the Lizzards. I will have to return to that question in the next section of this judgment. With regard to the proposed re-amendment of the defence, Mr Krantz said he had been informed by John Gray about an earlier meeting in the autumn of 1994 to discuss the position of the boundary on the western and southern sides of the depot. He then gave further details of the information supplied to him by John Gray, and acknowledged that Earlrose claimed that the boundary was agreed along positions further west and south than those shown on the registered title. He also referred to a detailed letter from Courts & Co dated 8 September 2005 in which the principal elements of the proposed reamendments had first been notified to the claimant’s solicitors.

Earlrose’s applications were heard by Master Price on 11 November, when he amended his earlier order of 4 November to join SEL as second defendant, and also made an order for further disclosure to which I will return later. The order made on this date does not refer to the re-amendment of the defence, presumably because this was understood to be covered by the order made on 4 November.

The Re-amended defence is dated 21 October 2005. Annexed to it was Plan C, substantially in the form used at trial although a slightly revised version of it prepared in November and labelled ‘Revision A’ was in fact the document to which Counsel and the witnesses mainly referred. I should add that nothing seems to turn on these November revisions, which as I understand it consisted only of the removal of certain notes and the addition of some markings near the western boundary which represent the position of temporary concrete shuttering erected on the site. Plan C was prepared by Mr Peter Norman, a self-employed architect planner who practises under the name of Towers Associates. Mr Norman was called as a witness by the defendants. In his oral evidence he explained how he had prepared Plan C, by reference to the measurements on the 1979 conveyance plan and the position of the old office building which still remains from the buildings which were present on the site in 1979.

Plan C is drawn on a scale of 1:200. It marks the boundary of the registered title (and in particular the bell curve section of it) with a green line. The disputed areas to the west and south west are shown cross-hatched red, and as on Plan A the boundary for which the defendants contend is shown by straight lines between points marked A, B and C. Point A is placed on the southern boundary of the blue land, and the area cross-hatched red includes a narrow L-shaped strip around the western and south-western boundaries of the blue land as well as the larger areas to which I have already referred. In his witness statement Mr Norman said that he had calculated the total area of the disputed land to be 849 square metres. The two main areas in dispute are (a) a roughly triangular strip immediately to the west of the bell curve, approximately 54 metres in length and narrowing from about 11 metres in width at the north to an apex where it crosses the western extremity of the bell curve to the south, and (b) a roughly rectangular area filling the corner in the south west of the registered title, the length of the long sides being about 27 and 30 metres respectively, and that of the short sides about 18 metres.

Unlike its predecessors, Plan C shows a tiny portion of the registered title (at the extreme south west of the hell shaped area) as lying to the west of line A–B, and therefore as on the Lizzards side of what the defendants claim to be the agreed boundary. This piece of land is roughly triangular in shape, with sides about three, six and seven metres in length. Its total area cannot be more than about 10 square metres.

It is convenient to add at this point that Mr Norman readily acknowledged in his oral evidence that it was impossible to plot the position of the registered boundary (ie the green line on Plan C) with total precision, because of the thickness of the lines on the 1979 conveyance plan and because of the curve in the boundary. However, he considered (and I accept) that the maximum margin of uncertainty should be no more than about two metres (by which I understood him to mean up to 1 metre on either side of the green line as shown on Plan C). I should also mention that it would have been impossible for Mr Norman to take into account the position of the old watercourse marked on the 1979 conveyance and Land Registry plans, because the ditch and the deep depression to the immediate west of the factory buildings had long ago been filled in.

I can now return to the Re-amended defence. The most significant feature of it is the pleading for the first time (foreshadowed only by Courts & Co’s letter of 8 September 2005) of an initial oral boundary agreement in the autumn of 1994. It is said to have been reached between Guinea and John Gray as the respective freehold owners of the Lizzards and the Red Land, at a meeting on site attended by the two Gray brothers and Mr Barron as the representative of Guinea. Paragraph 9A then continues as follows:

The references to points D and E in paragraph 9A will be difficult to understand for a reader of this judgment who does not have Plan C available, but perhaps the simplest way to explain them is to say that they are parallel to and lie to the north of line B–C, and are approximately five metres to the south of the registered boundary in the south-west corner of the site. In other words, they demarcate a ‘top slice’ of the roughly rectangular disputed area, and are situated a little over one-quarter of the way down the short sides of that area.

Paragraph 10 of the reamended defence then goes on to plead a second and subsequent boundary agreement, but now in spring 1996 instead of late 1996. This agreement largely incorporates the terms of the single boundary agreement as pleaded in the amended defence, but also expands and alters it in significant respects, apart from the change of date which I have already mentioned. The new features include the following:

There then followed three further new paragraphs,10A, 10B and 10C, the gist of which can briefly be summarised as follows:

The remaining changes introduced into the Re-amended defence include the pleading of various matters which are said to constitute detrimental reliance by SEL on the 1996 boundary agreement (paragraph 12), and the addition of an alternative constructive trust claim in paragraph 15. More generally, it is admitted and averred that SEL has used the disputed land for the purposes of its recycling business, but denied that this use has amounted to a trespass because of the two boundary agreements.

Before leaving the reamended defence and counterclaim I should mention that it is necessary to refer back to the Amended defence and counterclaim in order to be sure what is new in it, because (at least in the copy in the trial bundle) the green underlining is incomplete, and much of the new material has very confusingly been printed in red.

In its amended reply the claimant admits the title of the BWB to the green land and the blue land, but makes no admission as to either of the alleged boundary agreements on the basis that none of the matters referred to are within the claimant’s knowledge. It is specifically denied that Mr Barron was authorised to conclude any such agreements on Guinea’s behalf. Various points of a more technical nature are also taken, including:

To complete the picture, a response to the claimant’s request for further information was duly served on 11 November 2005. This fleshed out several of the contentions in the reamended defence, and gave details, for example, of the previous use of the site by Granox; of the filling in and levelling of the land to the west of the old factory by John Gray and Mr Barron before the making of the 1994 boundary agreement; of the marking out of the registered boundary with pegs by a surveyor instructed by Peter Gray before the 1994 agreement; and of the unlawful tipping activities carried out by Guinea on the Lizzards, by reference to two affidavits sworn in support of the 1996 enforcement proceedings brought by the London Borough of Hillingdon in the High Court. The particulars given under this last head were understandably prefaced with a statement that Fairacre ought to have access to the relevant information itself, given the common beneficial ownership of Fairacre and Guinea by Mr Keogh and Mr McDaid.

It will by now be apparent that the defendants concede that their activities at the depot extend across the western and south-western boundaries of the registered title of the Trout Lane site and encroach to a substantial degree onto the registered title of the Lizzards. Their defence to what would otherwise be an unanswerable claim of trespass depends entirely on the two boundary agreements which are alleged to have been made in the autumn of 1994 and the spring of 1996.

It is a common feature of both of the alleged boundary agreements that they were entered into on behalf of Guinea, which was the then freehold owner of the Lizzards, by Mr William Barron and nobody else. It is not alleged by the defendants that Mr Barron was an officer or employee of Guinea, but it is said that he was a ‘representative’ of Guinea and (by implication rather than expressly) that he had actual authority to conclude the two boundary agreements on Guinea’s behalf. There is no plea of implied or ostensible authority, and although Ms Windsor said in opening that she might wish to rely on all forms of authority and apply in due course to re-re-amend the defence (an application which Mr Hill-Smith for the claimants made clear would be vigorously opposed), by the close of evidence no material which might ground such an application had emerged and Ms Windsor confirmed that her case depended on actual authority alone.

Since the defendants’ case depends on establishing Mr Barron’s actual authority to conclude the boundary agreements, one might have expected that Mr Barron would be a willing witness on their side and that they would have known in advance what he was going to say. However, so far was this from being the case that in the period immediately before the trial the defendants were still trying to extract from the claimant documents which might establish or throw light on Mr Barron’s relationship with Guinea, and on the first day of the trial (which started on Tuesday 22 November, after a reading day on the Monday) I was informed that the defendants had no idea of his whereabouts. I was also informed by Mr Hill-Smith that relations between Mr Barron and Mr McDaid and Mr Keogh were not good, and it was not intended to call him as a witness for the claimant. It therefore looked as if the trial would take place, and I would have to make findings of fact on this crucial issue, without the benefit of hearing from the one person who was said to have had authority to conclude the agreements on Guinea’s behalf, even though there was no suggestion that Mr Barron was in any way incapacitated from giving evidence. In the event, as I shall relate, Mr Barron was traced and gave evidence on day 5 on behalf of the claimant. However, I must first of all deal with the question of disclosure of documents relating to the question of his authority.

As I have already said, standard disclosure of documents was ordered in February 2005, and the claimant’s list of documents was signed on 14 September 2005 by Mr Roger John Bennett (Mr Bennett) who described himself as the director with knowledge of the matters in question in the list. Mr Bennett gave evidence at trial on behalf of the claimant, and in his witness statement he explained that he is a director of Bastion Limited, a private Seychelles company which was appointed as a director of Fairacre on 13 March 2001. Before then he was a director in his personal capacity of both Fairacre and Guinea. Mr Bennett lives in the Isle of Man, and has a law degree from London University but is not a qualified solicitor (a point which I mention because the description ‘solicitor’ appears in the introductory section of his witness statement, but has been crossed out). He readily acknowledged in cross-examination that he takes his instructions from Mr McDaid and Mr Keogh, and although he demurred a little at the suggestion that Guinea had nominee directors I have no hesitation in finding that his role has at all material times been an essentially passive one, and that his normal function is simply to act in accordance with the instructions of those two gentlemen. In fact, he said that he usually takes his instructions from Mr Keogh alone, although he is happy to do so from either or both of them. He said that he had never visited the Lizzards personally, and as far as he was concerned he left the conduct of matters on the ground at the Lizzards to Mr Keogh.

Quite why Mr McDaid and Mr Keogh should feel it necessary to disguise their beneficial ownership and de facto control of the Lizzards behind nominee shareholdings in a British Virgin Islands company directed by a Seychelles company with a Manx-resident director to whom they give instructions, is one of the matters that I need to keep well in mind when assessing the oral evidence and considering the question of Mr Barron’s authority.

The original list of documents signed by Mr Bennett included the 1998 Transfer of the Lizzards from Guinea to Fairacre, office copy Land Registry entries for the Lizzards as at 13 November 1998, and certain correspondence relating to a caution which Mr Barron had entered against Guinea’s registered title to the Lizzards, but which had evidently been withdrawn before the. transfer was finally registered. In the light of this material the defendants’ solicitors wrote to Fairacre’s solicitors (Read & Co) on 10 October 2005 requiring disclosure of the relationship between Guinea and Mr Barron at the material time, the basis upon which the caution had been entered, the grounds for Mr Barron’s objection to the proposed transfer of the Lizzards from Guinea to Fairacre, and how the objection was resolved. On 19 October Read & Co replied saying that no relationship existed between Guinea and Mr Barron, it was Fairacre’s belief that ‘Mr Barron claimed to own the land wrongly and sought to enter a caution’, and that Fairacre did not have the substance of his objections but had requested the Land Registry to provide the relevant documents.

This reply was on any view less than complete and satisfactory, so one of the matters sought by Earlrose in its application of 25 October 2005 (see paragraph 36 above) was an order for specific disclosure by Mr Bennett in his capacity as a director of Fairacre and a former director of Guinea of documents concerning the relationship between Mr Barron and those two companies. On 9 November Master Price made an order that Mr Bennett in those twin capacities should make and file a witness statement by 4 pm on 14 November:

This order was not complied with by Mr Bennett by the stipulated time, but on Thursday 17 November disclosure was given of some further documents from his file which were placed in volume 3 of the trial bundle. At this stage he had still not filed a witness statement. Those documents included:

Very belatedly, Mr Bennett finally produced a second witness statement on 22 November 2005 in which he referred to Master Price’s order of 9 November and said that although the terms of the order had been faxed to him on the following day (10 November) he was then about to depart on business to the United Kingdom and had only returned to his office on 15 November. He continued:

In cross-examination it was put to Mr Bennett that this witness statement fell well short of full compliance with the order of 9 November, as it dealt only with the documents on his own file and not with any other documents which either were or had in the past been in the power, possession or control of Fairacre and Guinea. In my judgment Mr Bennett had no satisfactory answer to this criticism. He accepted that he had not looked anywhere apart from his file, and that he had not made any further enquiries, but said that he understood the order to relate only to documents in his own power. It transpired that his second witness statement had been drafted for him by the claimant’s solicitors, that he did not discuss it with them before approving and signing it, and that he did not even remember having ever read the actual terms of the order. He denied that his disclosure had been deliberately incomplete, and said that he had gone through his files and taken out all the documents which referred to Mr Barron.

I formed the view, after hearing Mr Bennett’s oral evidence, that although he had not deliberately set out to conceal any relevant material, and had not been instructed by Mr McDaid or Mr Keogh to do so, his general attitude towards compliance with the order of 9 November had been highly unsatisfactory. He had made easy and unjustifiable assumptions about the scope of the order, he had not discussed the extent of his obligations with Read & Co, and he had manifestly failed to treat the order with the urgency and seriousness which it demanded.

This adverse impression was unexpectedly and powerfully reinforced when at the start of the next day’s hearing (day 3 on 24 November) I was informed by Mr Hill-Smith that further inspection of Mr Bennett’s files, which he had left in London with Read & Co before returning to the Isle of Man, had revealed a significant number of further documents which were clearly relevant and which should have been disclosed. Mr Hill-Smith made no attempt to defend or excuse Mr Bennett’s dereliction of his duty to the court, and offered apologies on behalf of Mr Keogh and Mr McDaid. Since this further material had only just come to light, an adjournment for the defendants and their advisers to consider it was inevitable and unopposed. I therefore adjourned the hearing until the following morning, and ordered the claimants to pay the costs of the adjournment in any event.

The new material was placed in a new volume 5. It runs to 109 pages, and includes a good deal of material relating to the 1996 High Court enforcement proceedings, notably an affidavit sworn by Mr Barron himself on 15 May 1996 and an affidavit sworn by Maureen Anita Cooksley of Burke’s Law Practice on 14 May 1996. Ms Cooksley had conduct of the matter on behalf of most of the sixteen defendants, including Guinea, Mr Barron, Mr McDaid and Mr Keogh.

In her affidavit Ms Cooksley said that she had taken instructions from the parties whom her firm represented, and that the purpose of her evidence was to provide information about their status and their involvement (if any) with the Lizzards. The relevant parts of her affidavit were to the following effect:

I infer from Ms Cooksley’s affidavit that Mr McDaid and Mr Keogh must have concealed from her, although she was acting for them as their solicitor, their beneficial ownership through Guinea of the Lizzards. The impression given by her evidence was that their involvement with the site was marginal or non-existent, and that neither of them had anything to do with the operations on the site. As will appear, all of this was completely untrue.

In his affidavit Mr Barron said that he was an employee of Towerway Limited, a private company the sole director of which was Mr Mark Anthony Keogh (who was Mr Keogh’s nephew). He said that Towerway occupied the Lizzards site pursuant to an agreement with Guinea, who owned the land. This was an informal agreement whereby, in return for allowing Towerway to occupy the land to carry out certain operations, Towerway had undertaken to level and grass the site. No rent or other payment was made by Towerway to Guinea, and the agreement had not been reduced to writing. Mr Barron went on to describe the operations on the Lizzards, giving the impression that they were directed towards the rehabilitation of the site and the processing of raw materials brought onto the site. He said that Towerway employed eight full-time staff at the Lizzards, and that he was personally employed as a site manager at a salary of £350 per week. He said that he had no other source of income apart from his employment by Towerway. This too, as emerged in due course, was wholly untrue.

Apart from the affidavits of Ms Cooksley and Mr Barron, the new material obtained from Mr Bennett’s files also included a full copy of the Inspector’s decision on a planning appeal brought by Towerway against the original enforcement notice issued by the London Borough of Hillingdon on 16 February 1996. This decision contains a valuable review of the history of the Lizzards and the activities carried on upon it, ostensibly by Towerway, since early 1995, The Inspector concluded from the evidence he had heard that this activity was:

I now turn to the circumstances in which Mr Barron came to give evidence at the trial. At the beginning of day 4 (Friday 24 November) I was informed by Mr Hill-Smith that a witness statement had now been obtained from Mr Barron and served on the defendants, and that the claimant would ask for permission to call him as a witness. Ms Windsor then made it clear that this application would not be resisted. As Mr Barron had been found in Ireland, where he now runs a public house at Craignamanagli in County Kilkenny, it was hoped that he would be able to attend court to give evidence on the following Monday.

Mr Barron was duly called to give evidence on day 5 (Monday 27 November) and produced a short witness statement which he had signed on the previous Friday. Since Mr Barron’s evidence is of such importance in this case, it will be convenient to reproduce the contents of his witness statement in full:

I will return later to some of the matters dealt with by Mr Barron in paragraphs 1 to 1 0 of his statement. For the moment, I am concerned with paragraph 11 which says (in effect) that Mr Fallon was an emissary sent by Mr Sweeney to offer him £5,000 a day as ‘expenses’ in return for agreeing to give evidence for Mr Sweeney. In the light of this damaging allegation, it is not surprising that Ms Windsor called Mr Fallon as a witness later on the same day to give his version of events. In due course, Mr Sweeney too was cross-examined about the episode.

In his oral evidence, Mr Barron remained unshaken about the essentials of what he said in paragraph 11. He explained that he had in fact been approached some three weeks earlier on behalf of Fairacre with a view to giving evidence for the claimant, and had even been sent a draft witness statement by Mr McDaid, but the fax had not come through properly, and he had refused to become involved. He said that he had moved on in life, and no longer regarded the matters in issue as important. He had then heard no more until Mr McDaid had again contacted him during the first week of the trial, and he had coincidentally been speaking on the telephone to Mr Read of Read & Co when Mr Fallon arrived at the pub around lunchtime. He then ended his conversation with Mr Read, fearing that Mr Fallon was a smoking inspector policing the recent legislation in the Republic of Ireland which bans smoking in public premises. He said that Mr Fallon had then disabused him of that fear, and proceeded to ask him the three questions referred to in his witness statement. He then described, with graphic gestures, how Mr Fallon offered him ‘expenses’ of £5,000 to give evidence on the following Monday and Tuesday, by holding a piece of paper in the palm of his hand for Mr Barron to look at which had that figure written on it.

Mr Fallon, for his part, agreed that the meeting with Mr Barron took place, and that he had been asked by Mr Sweeney to see if he could trace Mr Barron and persuade him to give evidence. He also agreed that he had been asked to put the questions to Mr Barron, although not in precisely the same terms as Mr Barron recollected. He said that depending on the answers to those questions the fourth question would then have been whether Mr Barron was willing to come and give evidence. He accepted that he was authorised by Mr Sweeney to offer Mr Barron payment of his expenses, but denied that there had been any discussion about money, or that any specific sum had been mentioned. He had merely said words to the effect that Mr Barron had a pub to run, and his expenses would be covered. He said that he had known Mr Sweeney for ten years, was a personal friend of his, and acted as agent for one of Mr Sweeney’s companies (SRS) in the Republic of Ireland.

Mr Sweeney confirmed in cross-examination that he was the controlling shareholder of a company called SRS Ireland Ltd, and that this company had an agency agreement with Mr Fallon. He sought to play down the description of Mr Fallon as ‘General Manager Republic of Ireland’ on the latter’s business-card as a meaningless title, but when extracts from the SRS website were put to him, which included a reference to Mr Fallon as ‘Sales Manager’, he readily accepted that Mr Fallon was indeed part of the SRS team. He agreed that he had sent Mr Fallon on a mission to find Mr Barron, and had given him three questions to ask Mr Barron. He also agreed that he wanted somebody to see Mr Barron in person, and that Mr Fallon was authorised to offer him expenses. He said that similar offers had been made to other witnesses who were giving evidence on the defendants’ behalf. He expressly denied having asked Mr Fallon to offer Mr Barron £5,000 a day, but accepted (perhaps revealingly) that if I were to find that Mr Fallon had indeed made such an offer, Mr Fallon would have been very silly to make it without his approval. I say ‘perhaps revealingly’ because, if Mr Sweeney had never instructed or authorised Mr Fallon to offer this sum, I would have expected him to reject the hypothetical suggestion which was put to him in more forthright terms.

Having heard and carefully considered the evidence of Mr Barron, Mr Fallon and Mr Sweeney on this episode, the conclusion I have come to is that I accept Mr Barron’s version of events as substantially truthful. I do so even though in some other respects I found him to be an unreliable witness. It seems to me highly improbable that he should have invented a story of this nature, and his oral description of how the offer was made to him impressed me as convincing. Conversely, the crucial importance to Mr Sweeney of Mr Barron’s evidence provides an obvious motive for what I find to be a most ill-advised and discreditable attempt to reward him for giving evidence. I should add that it \vas suggested by Ms Windsor that, if I should find the offer to have been made, I might conclude that it was a reasonable estimate of the expenditure that Mr Barron would be likely to incur in booking a return flight to London at short notice and hotel accommodation, and in finding somebody to run the pub in his absence. I reject this suggestion, unsupported as it was by any evidence of the relevant expenditure. In my judgment it is obvious that £5,000 a day greatly exceeds any reasonable estimate of the cost to Mr Barron of coming to London to give evidence and finding somebody to look after the pub while he was away.

The witnesses who gave evidence for the claimant were Mr McDaid, Mr Keogh, Mr Barron, Mr Bennett and Mr Ian Henderson.

Mr Henderson

The only one of the above witnesses whom I have not so far mentioned is Mr Henderson. He is a construction manager, who works full time for a firm which has nothing to do with the present dispute. His involvement arises because he is a long-standing business acquaintance of Mr Keogh and Mr McDaid, having known the former for about 25 years and the latter for about 20 years. In about 2000 Mr Keogh returned to live in Ireland, and asked Mr Henderson whether he could introduce a purchaser or developer for the Lizzards. Mr Keogh supplied him with the title plans, including the 1979 conveyance plan. Mr Henderson and his business partner, a Mr Simon Whitelock, then agreed to fund some investigative works on the land, and made regular site visits with architects, surveyors and potential clients. This led in turn to the making of a written agreement in January 2001 between Fairacre (1) and Mr Henderson and Mr Whitelock (together defined as ‘the Firm’) (2), whereby the Firm was given a three-year exclusive right to develop the land on the terms that any profits from the development would be distributed as to 75 per cent to Fairacre and 25 per cent to the Firm. The Firm was also given a right of pre-emption should Fairacre wish to sell, transfer or otherwise dispose of the land, or any development on it, after the expiry of the three-year period, the price payable being 75 per cent of the open-market value of the land.

In his oral evidence Mr Henderson said that the three-year period was by tacit consent treated as still current, and not time-expired, but no profits had as yet been made from the land. Various ideas had been canvassed, but none had yet come to fruition. He denied that he saw the current litigation as an attempt to make money out of Mr Sweeney and his companies. However, it seems to me that there is more than a grain of truth in the suggestion, although it has no bearing on any of the issues that I have to decide.

In the course of his inspections of the Lizzards Mr Henderson noticed that the activities on the Trout Lane site appeared to extend well over the boundaries shown on the 1979 conveyance plan and the registered title, and it was he who took the initiative in complaining about the encroachment to Mr Sweeney and instructing solicitors (Craig & Co of Wembley Park, Middlesex) to raise the matter in correspondence. The correspondence begins with a letter dated 20 February 2001 to Mr Sweeney, and on 6 April 2001 Craig & Co wrote to Allen & Overy claiming that approximately 20 metres of land had been taken from the Lizzards, enclosing photographs and a sketch plan. It is fair to say that some of the complaints made were unjustified or ill-focused at this early stage. For example, the initial letter of 20 February complained about use of the access road to the depot, completely overlooking the existence of the right of way. However, there can be no doubt that Mr Sweeney and his companies were on notice of the general nature of the alleged trespass to the west of the depot from early April 2001 at the latest.

In general, I found Mr Henderson to be an honest and reliable witness, but I felt at times that he was prone to exaggerate, and in particular I do not accept his recollection that the depot was not laid to hardcore and concrete until October 2002. I should also mention that he took a number of photographs of the site in October 2002, which were exhibited to his witness statement and which he helpfully explained in the course of his oral evidence.

Mr McDaid

In his witness statement Mr McDaid said that he and Mr Keogh had each contributed 50 per cent of the purchase price of the Lizzards when it was purchased by Guinea in 1994, and that from 1994 to 1998 he was engaged in using the land for recycling and tipping purposes, using his own haulage and excavation company called J & J Transport Ltd which traded from Greenford, Middlesex. In cross-examination he accepted that the period of his tipping operations on the site was in fact considerably shorter, and ran for about 15 months from the spring of 1995 until June 1996, when the High Court injunction put an end to them. His explanation for this discrepancy was that he was ‘not good with dates’. He said that J & J Transport had four or five vehicles at Greenford, and the same number of employees. Greenford was his main base, but he would visit the Lizzards at irregular intervals, and usually at least once or twice a week. I am satisfied that the statement in paragraph 4 of his witness statements that he visited the Lizzards ‘on a daily basis’ is an exaggeration.

With regard to Mr Barron, Mr McDaid said in his witness statement that he was a friend in a similar line of business whom he had known since 1991, and that Mr Barron recycled on the Lizzards for three to four years from 1995. During that period of time, he said, Mr Barron was invoiced for the work, which he carried out on behalf of his own company. However, no copies of any such invoices were produced, and as will appear the view which I formed from the evidence as a whole was that the tipping and recycling activities on the land were carried out by Mr McDaid, Mr Keogh and Mr Barron pursuant to some form of joint venture or partnership in which they were equally interested. Mr McDaid went on to say that Mr Barron had no financial interest in the land itself, had never been employed by Guinea or Fairacre, and had no authority to hold himself out as representing either of those companies. He said that Mr Barron had been aware of his and Mr Keogh’s intention to purchase the land and had wanted to contribute towards the purchase price, but in fact had not done so.

In his oral evidence Mr McDaid was in my view unable to give any clear or coherent picture of how the tipping operations were in fact conducted on the Lizzards in 1995 and 1996, and I have to say that I found much of his evidence confusing and unreliable. However, the general impression I gained was that each of Mr McDaid, Mr Keogh and Mr Barron were engaged in tipping or recycling activities of one kind or another, carried out either in person or through companies which they owned or controlled, and that Mr Barron was in effect the site manager who supervised operations on a day-to-day basis. Because the activities in question were all unlawful, I find that Mr McDaid and Mr Keogh wished to keep as low a profile as they could, and that they were therefore happy for Mr Barron to deal with planning matters on their behalf, as well as to manage operations generally on the ground. It was therefore Mr Barron who would engage architects, liaise with the Council, and so forth. However, I also accept Mr McDaid’s evidence that, as between himself and Mr Keogh on the one hand and Mr Barron on the other hand, the latter’s authority was not unlimited, and if a problem arose Mr Barron would telephone or contact him to discuss it. The question of the limits of Mr Barron’s authority was never expressly discussed, but I find that it was well understood between the three of them that Mr Barron’s role was essentially to act as a general site manager, and to represent their joint interests in relation to the use of the land as against the outside world, while Mr McDaid and Mr Keogh remained as invisible as possible in the background.

To summarise my impression of Mr McDaid’s evidence, I find him to be an unreliable witness whose evidence must be treated with the greatest caution. It is also clear from the wholly untruthful instructions which he must have given to Ms Cooksley in 1996, and for which he was unable to provide any adequate explanation in cross-examination, that he is prepared to be dishonest and to mislead the court when it suits him to do so. However, it does not follow from this that everything which he says is automatically suspect, and I have sought to identify in the previous paragraphs some important points in his evidence which I accept.

A further matter I should mention is that it emerged in cross-examination that Mr McDaid is unable to write, and also has considerable difficulty in reading. However, there is no mention of this in his witness statement, which is drafted very much in lawyer’s language. No effort seems to have been made to draft the statement in his own words, and this impression is reinforced by the fact that Mr Keogh’s witness statement is for the most part framed in almost identical terms.

Mr Keogh

In general terms, my impression of Mr Keogh as a witness was very similar to my impression of Mr McDaid. As I have said, his witness statement is for the most part identical to Mr McDaid’s, and after he had heard Mr McDaid give oral evidence he confirmed that he broadly agreed with what he had said. Mr Keogh acknowledged that he had lorries of his own on the site, and he was equally unable to provide an adequate explanation for the instructions which he had clearly given to Ms Cooksley in 1996. I draw the same inference, namely that he too is quite prepared to be dishonest and to mislead the court when it suits him to do so.

Mr Keogh said that his own visits to the site were mainly to a portacabin on the main road which was used as the site office, and that he seldom went on to the Lizzards itself because he is troubled by gout and finds walking difficult. He was in general happy for McDaid to look after things for him, and trusted him to take joint decisions on their behalf, but said that they would take major decisions together. His interests were also looked after for him by his nephew Mark, who had his own company, Towerway Limited. He emphasised, however, that he was the owner of the land (together with Mr McDaid), and said he was available if anybody wanted to talk to him about it. He described the role of Mr Barron as manager of the site in very much the same way as Mr McDaid had done. I found this part of his evidence convincing, and I have drawn on it in reaching the conclusions summarised in paragraph 81 above. Mr Keogh also agreed with Mr McDaid that there had never been any express discussion about the limits of Mr Barron’s authority.

Mr Barron

I have already dealt at some length with the circumstances in which Mr Barron came to give evidence, and set out the contents of his short witness statement. I must now say a little more about the evidence which he gave at trial and my impression of him as a witness.

I begin with the point that, like Mr McDaid and Mr Keogh, Mr Barron has in the past shown himself willing to mislead the court, and for that reason alone his evidence must in my view be treated with great caution. In his 1996 affidavit, which came to light for the first time on day 3 of the trial, Mr Barron said that he had no source of income apart from his employment by Towerway as a site manager at a salary of £350 per week. However, in cross-examination Mr Barron described a very different situation, where he, Mr McDaid and Mr Keogh conducted the tipping operations on the Lizzards as some kind of partnership or joint venture in which they had equal one-third shares. He went on to say that, in addition to his salary from Towerway, he received one-third of the weekly takings which could vary in amount from about £1,200 to £1,500. I accept this evidence as broadly correct.

When he began to give his oral evidence, Mr Barron appeared to be extremely nervous; and although he soon settled down, he gave his evidence throughout quickly and volubly, without pausing for thought and often veering away from the question or changing tack in mid sentence. He resisted attempts to pin him down, and often failed to give a straight answer to questions put to him. This made assessment of his oral evidence a difficult exercise. However, there were some points which shone through his evidence and which seemed to me to have the ring of truth. One such matter was his insistence that Mr McDaid and Mr Keogh left him in complete charge of the day-to-running and management of the site. In his own words, nobody would dispute that he oversaw everything. Similarly he said (agreeing in this with Mr McDaid and Mr Keogh, neither of whose evidence he had heard being given) that there was nothing he was expressly told he could not do. However, he accepted that he had nothing to do with the two fishing lakes on the Lizzards, which were let out and supervised at all times by a watchman; and more generally he said that what he regarded himself as owning one-third of was the operations carried out on the Lizzards, not the land itself. This evidence too I found convincing and accept.

With regard to the beneficial ownership of the Lizzards, Mr Barron did not seek to dispute that Mr Keogh and Mr McDaid were at all times the sole beneficial owners. I find it impossible to form any confident view about what was or was not agreed between the three of them at or about the time when the Lizzards was purchased, but on balance I am satisfied that the entire purchase price of the land was indeed provided by Mr Keogh and McDaid, and that any contribution by Mr Barron went towards the acquisition of machinery to carry out the operations on the land. In his oral evidence Mr Barron quantified his contribution as £40,000, but I regard this figure with some suspicion and doubt whether it was actually as high as that. It follows from my finding that Mr Barron made no contribution towards the purchase of the land that his application to lodge a caution against the title in 1998, on the footing that he had acquired and paid for a one-third interest in the land, was unjustifiable; and it is in my opinion revealing that when steps were taken to have the caution removed Mr Barron put up no resistance.

However, Mr Barron’s one-third share or interest in the tipping activities on the Lizzards meant that he did have a very real commercial interest of his own in their continuation, and it is therefore not surprising to find him taking the lead in relation to planning matters, and contributing on an equal footing with Mr McDaid and Mr Keogh to the costs of the planning appeal. The money which he contributed certainly included the payment on account of £10,000 on 14 July 1997 referred to in Fenwicks’ schedule of 27 April 1998. It also seems likely, as Mr Barron says in paragraph 9 of his witness statement, that he had to borrow this sum from Mr Reilly. I therefore infer that the July 1997 notice of agreement was probably intended to give notice to Mr McDaid and Mr Keogh of a charge by Mr Barron on his share in their partnership or joint venture as security for this loan. Without sight of the remainder of the document it is obviously impossible to be sure what the ‘above-mentioned project’ referred to in the July 1997 notice of agreement actually was; but it was evidently the common understanding of all three of them that Mr Barron had a one-third beneficial share in it, and in my judgment the likeliest explanation is that it referred to some kind of agreement concerning the joint exploitation by them of the land.

In reaching my conclusion that Mr Barron was not a beneficial co-owner of the Lizzards I have not overlooked the evidence which indicates that he was perfectly ready to claim to be a co-owner when it suited him to do so. The lodging of the caution was one such example. Another example, at an earlier date, was when the council were investigating the planning position in 1995/1996, and Mr Barron evidently claimed to Mr Philip John Poplett, who was at the time the council’s planning enforcement officer, that he owned a share of the Lizzards: see paragraph 38 of an affidavit sworn in the 1996 enforcement proceedings by Mr Shaun David Denny, who was a senior planning officer. Mr Poplett gave evidence for the defendants and confirmed that this accorded with his recollection. He also confirmed that Mr Barron was the man in charge of the ground, and said they used to meet several times a week.

Mr Bennett

I have already dealt with Mr Bennett’s evidence and the highly unsatisfactory way in which he discharged, or rather failed to discharge, the claimant’s disclosure obligations. I add a few further points which emerged from his oral evidence. With regard to the July 1997 notice of agreement, he confirmed that he had never seen the remainder of the document, and had indeed been surprised to find it in his file. In re-examination he linked it with a fax cover sheet marked for his attention, on which he had written the words ‘No sense’ and ‘No reply’. He was unable to throw any light on its purpose. He was also unable to throw any light on the question whether Mr Barron owned a one-third interest in Guinea, although he acknowledged that the manuscript note of 10 February 1998 which records Mr Barron as having said that he owned one-third of Guinea was in his handwriting. In re-examination he said that only two shares in Guinea had been issued, one to Fortress Nominees Ltd and one to Castle Nominees Ltd. He understood and believed that Mr McDaid and Mr Keogh were the beneficial owners of those shares, but had not actually seen the relevant declarations of trust. Finally, he confirmed that he had no first-hand knowledge about either of the alleged boundary agreements.

The witnesses who gave evidence for the defendants were Mr John Gray, Mr Peter Gray, Mr Sweeney, Mr Fallon, Mr Norman, Mr Poplett and Mr Richard Gilchrist, all of whom I have already mentioned apart from Mr Gilchrist.

Mr Gilchrist

Mr Gilchrist was a solicitor with Allen & Overy in 1999 and 2000. His evidence related to the circumstances in which Earlrose granted a lease of the Trout Lane site to Sweeney Holdings (UK) Limited in February 2000. The specific point which he addresses is the fact that the plan attached to the lease dated 8 February 2000 is a copy of the Land Registry plan, and the boundaries of the demised property as shown on that plan (for identification purposes only: see the description of the property in Schedule 1 to the lease) follow the outline of the registered tithe. The claimant naturally relies on this as an indication either that the alleged boundary agreements were never made, or (if they were) that they were never intended to affect the legal boundaries of the site.

In his witness statement Mr Gilchrist explained that when he had prepared a draft lease between Earlrose and Sweeney Holdings he sent a copy of it to Joe Lake at Sweeney Holdings who was the in-house accountant for the Sweeney group. As he did not have an accurate plan to attach to the draft, he informed Mr Lake that the necessary plan should be retrieved from the title deeds which were then held by Barclays Bank. When the deeds had arrived from the bank, Mr Gilchrist prepared a plan for the lease by making a photocopy of the Land Registry plan. The draft of the lease was then engrossed and two counterpart copies were made. Mr Gilchrist sent them to Mr Sweeney, who was the director of both companies, and asked him to sign and return both parts to him in preparation for completion, which could not take place until the BWB had given their consent to the underletting of the green land. Mr Sweeney then signed both parts of the lease, and also countersigned the plan. Mr Gilchrist was not aware that the Land Registry plan did not in fact match the area of land that the Sweeney group was actually occupying on the ground. Nobody mentioned to him that the plan did not reflect the true position on the ground.

Mr Gilchrist’s account of what took place was not challenged in any way, and I can say at once that I found him to be an entirely honest and helpful witness. In cross-examination it was put to him that he had told Mr Lake of the need to attach ‘an accurate plan’ to the lease, and he agreed that it is important for the plan attached to a lease to be accurate. He also said that, if a plan was inaccurate, he would expect the client to revert to him about it. However, it had never been suggested to him by Mr Sweeney, or anybody else, that the plan was inaccurate.

In view of the fact that the lease was a transaction within the Sweeney group, the plan is in my judgment of considerably less significance than would have been the case on a sale of the Trout Lane site to an unconnected third party. Nevertheless, it remains a striking fact that Mr Sweeney was perfectly happy to approve it and sign the plan without question, even though his own case is that he had been a party to the second boundary agreement. I therefore consider that the lease does provide some reinforcement for the much stronger adverse inferences that can be drawn from the conveyance of the Trout Lane site by John Gray to Earlrose in February 1997, as to which see paragraph 14 above.

Mr Norman

I have already described how Mr Norman prepared Plan C. He has been self-employed as an architect planner since 1988, and has done work for the Sweeny group of companies for about ten years. The main matter he was asked to deal with in his short witness statement was to calculate the area of the disputed land. As I have already said, he concluded that it extended to 849 square metres. The point of this calculation was no doubt to ground a submission that the area in dispute is trivial when compared with the total size of the Lizzards, which he calculated to be in excess of 13.6 hectares. However, what he was not asked to do, and what would in my judgment have been a much more useful exercise, was to calculate the area of the Trout Lane site within the registered boundary. There is no evidence of what that area is, but it is obvious from Plan C itself that the disputed land hatched red would increase the area of the registered title (ignoring the green land and the blue land) by something of the order of 15 to 20 per cent. It follows that, if the defendants’ case is upheld, they will have obtained this very substantial increase in the size of their site, on which a profitable recycling business is carried out, in return for giving up a minute area of waste land which measures no more than 10 square metres, ie the area referred to in paragraph 40 above.

I found Mr Norman to be a reliable and sensible witness. He was asked various other questions about Plan C and certain other plans, but the only point I wish to mention is that he described the line A-B on Plan C as representing the midway point between the undulations of the bank which forms the physical western boundary of the site as it is currently occupied. It follows from this that the crest of the bank is in fact to the west of A-B, while the foot of the bank is to the east of that line. Mr Norman also stressed that the bank is not stable, and its configuration will change from week to week.

Mr Poplett

Mr Poplett too I found to be an entirely reliable and helpful witness. He appeared in response to a witness summons, because he was professionally unable to attend court voluntarily. This meant that he had not signed a witness statement, but I gave permission (without opposition from Mr Hill-Smith) for him to he questioned about his recollections of the Lizzards and his role in the 1996 enforcement proceedings. As I have already mentioned, he was the planning enforcement officer of the London Borough of Hillingdon, a post which he held from 1991 until 1997 or 1998 when he moved to a different job. His task in 1995/96 had been to put a stop to the unauthorised tipping activities on the Lizzards, which were being conducted on a massive scale and were causing great annoyance to the local residents. He explained how the tipping had covered nearly all of the Lizzards, which had previously been fairly flat and undulating, with large mounds up to six or seven metres in height with vehicle tracks between them. The person he met most frequently on the site was Mr Barron, who appeared to be in charge of the operations. His impression was that the site was owned by Guinea, who allowed Towerway Ltd to use it. However, he accepted that he was not directly concerned with questions of ownership, but rather with the use to which the land was being put. He confirmed that the Trout Lane site had nothing to do with his investigations, because the activities on it were all being carried on lawfully. He also confirmed the accuracy of Mr Denny’s affidavit in the 1996 proceedings, insofar as he was able to do so.

Mr Fallon

I have already described why Mr Fallon was called to give evidence, and dealt with his meeting with Mr Barron. I have nothing further to add.

Mr Peter Gray

Peter Gray is now a farmer in Buckinghamshire and 58 years old. He has always been involved in keeping animals and farming, but his main occupation for most of his adult life was in a family contracting business from which he has now retired. He first got to know Mr Sweeney in the early l990s, when (in addition to his other activities) he ran a landfill site in Uxbridge. He has also known Mr McDaid since about the same time, but does not know Mr Keogh. He has not been in contact with Mr Sweeney over the last couple of years, and has no business connection with him. In this respect his position is very different from that of his brother, John Gray, who is an employee of Mr Sweeney’s. Another important difference between them, which it is convenient to mention at this stage, is that, unlike his brother, Peter Gray is able to read and write. It was therefore Peter Gray who looked after the paperwork in matters in which they were both concerned.

Peter Gray’s evidence was mainly directed to the historic use of the area and his participation in the two alleged boundary agreements. He gave his oral evidence in a slow and courteous manner, and for the most part I got the impression that he was doing his best to tell the truth and assist the court. However, there was one significant matter on which I found his evidence unconvincing: see paragraph 107 below.

I have no hesitation in accepting his evidence about the historic use of the site, which he first got to know in the l950s when he made regular visits to the depot with his father. His father often used to buy pigswill at the animal waste factory, and he has vivid memories of the terrible smell around the Trout Lane site. On those visits he would get a good view of the land to the west of the factory buildings, either from the depot itself or by walking along the canal towpath from which there was at that time clear visibility onto the Lizzards. There were two sets of double doors on the west side of the factory buildings, from one of which (the doors nearest to the canal) a set of rails led out onto an area of land in which there was a ditch and a large void or depression. In cross-examination he said that the depth of the depression was about 20 feet, although it was largely concealed by a canopy of sizeable trees up to 30 feet high. He described the ditch as running in a south-westerly direction, with standing water at its southern end. However, most of the ditch had dried up. He said that labourers from the factory would run wheelbarrows on the rails, and use them to tip waste material into the ditch. His recollection was that the slope down to the ditch began about 8 to 10 feet from the factory wall.

Peter Gray’s regular visits to the area with his father ceased in about the early 1960s, and thereafter he visited it only occasionally before his brother purchased the Trout Lane site in 1994. Although the purchase was in John Gray’s name, they appear to have treated it as a joint venture and both worked together in the business, sharing the profits, until the land was sold to Mr Sweeney in 1997.

After they had purchased the depot they discovered that waste materials had been deposited not only in the ditch and the slopes leading down to it, but also on the far side of the depression. In addition, old machinery, skips, and obsolete items of plant had been dumped by the previous owners to the west and south-west of the factory buildings, over an area roughly corresponding with the land now in dispute. When it was put to Peter Gray that this dumping was not visible in aerial photographs taken in 1992 and 1994, he said that the old machinery etc was hidden under the trees and thick undergrowth on the Lizzards. With some hesitation I am prepared to accept this explanation, although I think that Peter Gray may have somewhat exaggerated the nature and extent of the dumping.

In paragraph 16 of his witness statement Peter Gray says that soon after his brother’s purchase of the depot ‘a gentleman by the name of William Baron came over one day when both my brother and I were on the site and he told us that he now owned the neighbouring land’, which he proposed to use as a landfill site. Peter Gray went on to say that Mr Barron was known to himself and his brother, because he had previously been a salesman working for a manufacturer of waste recycling equipment and he had dealt with him in that capacity when he operated the landfill site at Uxbridge. I am satisfied that this meeting took place, and find it not improbable that Mr Baron should have falsely claimed to be at least a co-owner of the Lizzards. It would not have been the only time when he made claims of that nature: see paragraph 91 above. However, in cross-examination Peter Gray referred for the first time to an earlier meeting not long after the purchase of the Lizzards by Guinea, at which a mutual friend (whom he named as a Mr Shaun Kelly) had introduced him and his brother to Mr McDaid, Mr Keogh and Mr Barron at the entrance to the depot, and the latter three gentlemen had referred to themselves as ‘the new owners’ of the Lizzards, saying they owned it in equal third shares. This account was in due course substantially backed up by John Gray, who described Mr Kelly (rather oddly) as a ‘mediator’, and said that the meeting had taken place at the request of the new owners of the Lizzards. According to John Gray they said that they had bought the Lizzards, although he did not remember a reference to equal shares, and they enquired whether the Trout Lane site was for sale, to which the answer was that it was not. I do not accept the evidence of the Gray brothers in relation to this alleged earlier meeting. If it had indeed taken place, I would expect it to have been referred to in their witness statements, which are very detailed and carefully prepared. The account is also inconsistent both with paragraph 16 of Peter Gray’s witness statement, where he describes his first meeting with Mr Barron in the terms I have already mentioned, and with paragraph 27 of John Gray’s witness statement, where he says that a few months after his purchase of the depot the Lizzards was sold and ‘a Mr William Barron came over and told me that he was now working with a firm who had purchased the Lizzards and he was therefore now my neighbour’.

Mr John Gray

John Gray is Peter Gray’s younger brother, being some 16 years his junior. He is employed as a machine driver by SEL at the depot, and has worked for that company since 1999. He has no business involvement with Mr Sweeney apart from his employment; but that connection alone, taken together with the fact that he was the previous owner of the depot and the person who sold it to Mr Sweeney, means that he has every incentive to support the defendants’ case. As I have already said, he is illiterate and depends on his brother in relation to paperwork. There is no reference to this in his witness statement, which has evidently been carefully prepared for him by his lawyers and at times uses language of a type that he would never employ. For all these reasons, I consider that his evidence needs to be approached with circumspection.

The need for caution is reinforced by my rejection of his account of the alleged first meeting with Messrs McDaid, Keogh and Barron at the factory gate. That said, however, there are large sections of his evidence, both written and oral, which I accept, and for the most part he struck me as an honest and straightforward witness, although understandably reluctant to say anything which might be construed as damaging to his employer’s case.

As with Peter Gray, I have no hesitation in accepting his account of the history of the depot and the Lizzards up to 1994. He has been well acquainted with the area since boyhood, and unlike his brother his knowledge of it has been fairly continuous. For example, he was friendly with a Mr Bernard Squires who managed the depot from the 1970s until 1994, and during the 1980s and early 1990s he would often ride his motorcycle on the Lizzards at weekends. He describes the part of the Lizzards near the depot as having been a large expanse of derelict and undulating land at that time, and very suitable for off-road riding of motorcycles as a leisure pursuit.

In May 1994 he purchased the depot from Granox, having been informed by Mr Squires that it was on the market for sale and the factory might well shut. For some months after the purchase he allowed the previous use of the depot (which was by now as an animal waste transfer station) to continue, but he then took over the operation of the depot with his brother and it was at this stage that they began to operate it as a joint venture. The next important development, as I have already related in the introductory section of this judgment, was in late 1995 when Mr Sweeney answered an advertisement placed in a local newspaper by Peter Gray and an oral tenancy of the depot was granted to Sweeney Holdings Ltd.

John Gray described the land to the immediate south west of the depot, at the time when he purchased it, as having been extensively used for the parking of vehicles and skips. The area so used extended to the west of the entrance yard to the depot as far as the old ditch. The traffic which used the depot was heavier than the factory yard could accommodate, and the land to the west of the yard was therefore used as an additional area for the parking of lorries, skips, plant and equipment. He also gave evidence in similar terms to his brother about the use of the depression to the west of the factory buildings for the deposit of waste material. He remembers making a joke as a boy that the labourers in the factory were carrying out and burying dead bodies in the ditch.

I have already referred to paragraph 27 of John Gray’s witness statement, where he describes his first meeting on the site with Mr Barron. He went on to say that Mr Barron was already known to him because of his connection with the landfill site previously run by Peter Gray. He regarded Mr Barron as being the person in charge of operations on the Lizzards, and if any practical problems arose, Mr Barron would be his point of contact. He always found Mr Barron very accommodating, and it suited them both to maintain good neighbourly relations.

Mr Sweeney

Mr Sweeney is clearly a highly intelligent man, and a shrewd and successful businessman. He has achieved his success despite being severely dyslexic. He has difficulty reading documents of any length but has no problem with plans. He gave his oral evidence clearly, courteously and confidently, and in relation to many matters I have no difficulty in accepting him as a truthful witness.

I do, however, have serious reservations about some parts of his evidence. On one matter (his attempt to procure Mr Barron’s evidence) I have already concluded that he did not tell me the truth. Although that is the most glaring example, there oilier instances where his written evidence in his witness statement turned out to be inaccurate or less than the whole truth; and I have already described in section 2 of this judgment how the pleading of the boundary agreements has changed, including the details of the second agreement to which Mr Sweeney himself was allegedly a party, in statements of case which have at all stages been verified by him. Some, but by no means all, of the inaccuracies in his witness statement were picked up before he began to give his oral evidence on day 6, no doubt in the light of company documents and accounts which had been obtained by the claimant, and at the start of his evidence Mr Sweeney handed in a two-page list of corrections. The most significant of these, to my mind, were (first) his acceptance that SEL did not begin trading until January or February 1998, although in his witness statement he had placed the sub-letting to SEL a year earlier, and had said that SEL was in occupation of the depot from the spring of 1996 onwards, and (secondly) his admission, described by him as a ‘clarification’, that some of his companies, including Sweeney Holdings (UK) Limited, had been insolvent and placed in creditors’ voluntary liquidation, whereas the impression given in his witness statement was that the group had been reorganised for purely tax reasons. Another example of an inaccuracy, which is not picked up in the corrections, is the statement in paragraphs 21 and 65 of his witness statement (and probably elsewhere) that Earlrose purchased the freehold in the Red Land (ie including all or most of the disputed hand) from John Gray, whereas the conveyancing file makes it crystal clear that the depot was sold to Earlrose by reference to the registered title alone: see paragraph 14 above.

In themselves these points may seem relatively insignificant, in a case full of detail, but their cumulative effect is far from negligible, and they lead me to treat Mr Sweeney’s evidence with considerable caution in relation to any matters where his personal interests are at stake.

I have already drawn heavily on Mr Sweeney’s evidence in the introductory section of this judgment, and I will not travel over the same ground again. I would simply add at this stage that Mr Sweeney said in his oral evidence that he had known Mr McDaid since around 1990, and had once himself been a director of Mr McDaid’s company, J & J Transport Ltd, before they had amicably agreed to go their separate ways. He said that he had also known Mr Keogh for a similar length of time, and had at one stage worked for him. With regard to Mr Barron, he said that he had known him for a number of years, but had not had any business dealings with him before 1996. He professed to have no recollection of the falling out referred to by Mr Barron in his witness statement, or of owing Mr Barron any money, but accepted that he and Mr Barron did not get on well. He said in cross-examination that they were ‘never great friends, to say the least’. It is unnecessary for me to resolve the conflict of evidence as to whether Mr Sweeney and Mr Barron had ever had previous business dealings, and I prefer not to do so.

1 will return to the evidence of Mr Sweeney and the other protagonists when I come on to deal with the two boundary agreements, but first of all I must state my conclusions on the question of Mr Barron’s authority.

In her closing submissions Ms Windsor invited me to make a finding of fact that Mr Barron had unlimited and unrestricted authority to act on behalf of Guinea and the beneficial owners of the Lizzards (whoever they might have been) in respect of all matters arising in connection with the Lizzards. Such authority would have extended to the making of the two alleged boundary agreements, being matters arising between the owners of the Lizzards and the neighbouring owners of the Trout Lane site, but would not have given Mr Barron carte blanche to do whatever he chose with the Lizzards, even to the extent (to take an extreme example) of giving the land away.

I decline to make the finding of fact for which Ms Windsor contends. In my view the extent of Mr Barron’s actual authority was significantly narrower than in her formulation, and certainly did not extend to making boundary agreements with neighbouring landowners without reference to and approval by the beneficial owners of the Lizzards. I find that the matters which Mr Barron was authorised to deal with were the general management of the site and operations on the ground, and the planning and regulatory aspects of the business which, they carried on together on the Lizzards, including in particular negotiating with the council. The general management of the tipping and recycling operations on the land might well include reaching agreement with neighbours about tipping lines, ie about the limit up to which new material might be deposited; but that is a very different matter from reaching an agreement about the legal boundaries between the Lizzards and adjacent land. It seems to me inherently most unlikely that Mr McDaid and Mr Keogh should have given Mr Barron wide enough authority to agree the precise legal boundaries of the site on their behalf, and none of the evidence which I have heard comes anywhere near establishing that they did. It certainly cannot be inferred from the mere fact that there was no express agreement about the limits of his authority that his authority was in fact unlimited.

In reaching this conclusion I am fortified by the following considerations:

The conclusion which I have reached about Mr Barron’s authority would by itself be fatal to the defendants’ case, which as I have said is dependent upon establishing that he had actual authority to conclude the two boundary agreements on behalf of Guinea. In the absence of any such authority, and there being no plea of subsequent ratification either by Guinea or by Mr McDaid and Mr Keogh, the agreements (assuming them to have been made with Mr Barron in the terms alleged) could not have been binding on Guinea, or on Fairacre as Guinea’s successor in title. That would be the case even if Mr Barron had wrongly held himself out as having actual authority to make agreements in those terms on behalf of the owners of the Lizzards; but I am in any event satisfied from the evidence that he did not purport to hold himself out in such a way. It must equally follow from my conclusion that the alternative defences based on proprietary estoppel and constructive trust likewise fail, because no relevant assurances or representations were ever made by or on behalf of Guinea, nor was there ever any relevant common understanding to which Guinea was a party.

In the light of these conclusions it is strictly unnecessary for me to go on to examine the evidence relating to the two alleged boundary agreements, but I will do so in case I am wrong on the question of actual authority (although I must say that I do not entertain any serious doubt about it). I will, however, examine the question in rather less detail than would be appropriate if I had decided the issue of authority the other way.

It will be recalled that the parties to the first alleged boundary agreement in the autumn of 1994 were Mr Barron and the Gray brothers, John Gray being by then the owner of the Trout Lane site. The background to it is described in substantially similar terms by the Grays in their witness statements. According to both of them, it was Mr Barron who took the initiative. He wanted to agree a boundary so that he could instruct his employees where it hay and they could organise their tipping operations accordingly. For his part, John Gray also wished to mark out a boundary because he was planning a one-way traffic system for the depot whereby incoming lorries would drive down the western side of the site, would then tip their loads in the buildings at the centre of the site, and would then drive out of the site to the south. For this purpose it would be necessary to have sufficient space to the west of die existing factory buildings.

Before a boundary could be marked out it was obviously necessary to clear the land to the west of the factory buildings and to level it. It was therefore agreed that the Grays would fill in the depression to the west of the buildings and level the ground, while Mr Barron would work on the higher ground to the west where the hand began to rise naturally. For the purpose of carrying out the necessary work Mr Barron lent John Gray a machine, a 360° excavator, and over the next two weeks the work of clearing, infilling and levelling was duly carried out. Meanwhile Mr Barron’s men carried out a similar exercise on the higher ground. All of this work was done, according to the Grays, with Mr Barron’s complete agreement and co-operation.

The next stage was to agree where the boundary should be. For this purpose Peter Gray looked up a land surveyor in the telephone book, and retained him to peg out the position of the boundary as it was shown on the title deeds. This was duly done, and the resulting line on the ground was seen to be curved and irregular in shape. The witnesses described it as pear-shaped, which fits reasonably well with my description of the registered boundary to the west of the factory buildings as being shaped like a bell curve. Mr Barron was then called over to discuss the matter further. He said that he wanted a boundary which was in a straight line, so that he could instruct his men to conduct the tipping operations on their side of the boundary up to it. A straight line was then agreed between them by moving the pegs around until they were all happy with it. The position of this straight line, according to John Gray, was the line between points A and D, and it was also agreed that Mr Barron could now start tipping operations up to that line.

For his part, Mr Barron said in cross-examination that he had no positive recollection of a meeting of this nature in autumn 1994, but he was not prepared to say that it never happened. He emphasised that the only type of boundary line he would have agreed was a tipping line, and he seemed happy to accept A-D as representing a line beyond which he had agreed not to tip. Bearing in mind Mr Barron’s recollection in paragraph 5 of his witness statement of an occasion when Peter Gray pegged out the boundary in his presence, it seems to me reasonably clear that this was the same occasion as that described by the Grays, and in general terms I accept that an agreement was reached between Mr Barron and the Grays in substantially the manner described by the Grays in their witness statements. Although there are some fairly minor disagreements between the Grays in their recollection of what took place, I do not regard these differences as significant and I do not find them surprising given that the events in question took place over eleven years ago and it is common ground that no contemporary record of the agreement was made. I certainly do not accept that the whole of the agreement is a recent fabrication, and in my view its very hate appearance in the defendants’ pleaded case is attributable to the fact that detailed witness statements from the Grays were only taken in the late summer or autumn of 2005, after Courts & Co had taken over as Earlrose’s solicitors on the record in July, and the fact that until then Mr Sweeney had unwisely treated the claim as one with little more than nuisance value which he never expected to be pursued to trial.

Against this background, the crucial question I have to decide is what was the true nature and purpose of the agreement which was reached. Was it a boundary agreement in the sense of an agreement that was intended to settle the position of the legal boundary between the Lizzards and the depot once and for all, in a way that would bind the respective owners of the land and their successors in title? Or did the agreement have some more limited, and if so what, purpose? The question has to be answered, in my judgment, by an objective appraisal of the terms of the agreement in the light of the surrounding circumstances. It is not a question of what the parties subjectively intended, or of what they privately considered the effect of the agreement to be.

The main surrounding circumstances which seem to me to be relevant are as follows.

Taking all these factors into account, and doing my best to appraise them objectively, the picture which presents itself to my mind is not one of a ‘true’ boundary agreement in the sense explained in paragraph 128 above, but rather one of an informal agreement about the areas in which business operations were to be carried out for the time being by the owners and operators of the Lizzards on the one hand and the owners and operators of the depot on the other hand. in my judgment the agreement was never intended, on a fair appraisal, to deal with the legal boundary at all. If it had been, I would have expected the Grays at the very least (a) to insist on finding out who the legal owner of the Lizzards was, (b) to take legal advice from a solicitor, and (c) to ensure that the agreement was properly recorded. After all, if that was indeed the purpose of the agreement, its effect was to increase the area of the depot on its western side by a very considerable margin. Equally, I would not have expected Mr Barron to agree a line which lay entirely, or almost entirely, to the west of the legal boundary of the depot and within the Lizzards. It is significant, in my judgment, that the original impetus for the agreement came from Mr Barron, who was above all concerned to establish a tipping line. There is nothing to indicate that he was interested in the position of the legal boundary at all. The Grays may well have hoped that the tipping line they agreed with Mr Barron would at some later stage mature in some way into legal ownership of all the land on their side of it, but in my judgment they could not reasonably have supposed that the oral agreement itself conferred title on John Gray to the land on their side of the tipping line which lay outside his registered title.

I am confirmed in this view by the fact, which I have already mentioned more than once, that when John Gray came to sell the depot to Earlrose in 1997 the land was transferred by reference to the registered title, and there was no reference to the 1994 agreement either in the pre-contract correspondence or in the replies to pre-contract enquiries. In my view, it is no answer to this point to say that Mr Sweeney (through his companies) was already a tenant of the depot, or that he might have been told about the agreement by the Grays. To my mind, if the agreement had been a true boundary agreement affecting the legal boundaries between the Lizzards and the depot, it is inconceivable that John Gray would not have told his solicitors about it when he came to sell the land to Earlrose. His failure to do so suggests to me, not that the agreement never happened, but rather that it was of a much more limited and informal nature than the defendants now claim.

For the sake of completeness, I should mention that it is the evidence of John Gray (although not on this point of Peter Gray) that an express agreement was also made, on the same occasion, about the position of the southern boundary of the depot. On this point I prefer the evidence of Peter Gray. It was the western boundary that really mattered, and I find that nobody was then seriously concerned about what was or was not going on in the rectangular area to the south west of the registered boundary of the depot.

The second boundary agreement is said to have been made in spring 1996 between Mr Barron, the Gray brothers and Mr Sweeney. By this time Mr Sweeney was in occupation of the depot pursuant to the oral tenancy granted to Sweeney Holdings (UK) Limited in December 1995. In his witness statement Mr Sweeney describes the background to the agreement in the following way. He says that one morning, fairly soon after the commencement of the tenancy, the tipping operations on the Lizzards got so close to the western boundary of the site which his company occupied that they began to encroach over it. He dates this occasion to the spring of 1996 because it was a few months after his company had gone into occupation of the site, but also some time before the injunction in June 1996 which finally restrained the tipping operations. When Mr Sweeney saw what was happening, he telephoned Peter Gray who confirmed to him that the boundary had already been agreed with the neighbouring owner and said that he would come over immediately to sort things out. Peter and John Gray then arrived shortly afterwards, and the three of them walked the line of where they believed the western boundary to lie. Mr Sweeney had previously been informed by John Gray of the first boundary agreement, and his understanding was that this was the line along which they walked.

So far Mr Sweeney’s account is corroborated by the evidence of the Gray brothers. John Gray describes the neighbouring land as still rising upwards from the line which had been agreed in 1994, but because of the tipping activity it was no longer possible to locate where the former ditch lay where it ran to the south west of the depot. As a result it was no longer possible to locate point D on the ground with ease, but it was nevertheless clear that the tipping operations were getting too chose and some material was falling and being deposited onto parts of the land which were on his side of the tipping line previously agreed with Mr Barron.

After they had walked the line of the western boundary, Peter Gray went over to the portacabin on the Lizzards and asked Mr Barron to come over and discuss the matter, which he agreed to do. Mr Barron then arrived, and all ‘four of them walked the length of the boundary again. Mr Barron readily agreed that there had been some encroachment, and was content that tipping should go no further than the line which they had walked. The meeting was entirely amicable, and took no more than 45 minutes. To ensure that there would be no repetition of the encroachment, Mr Barron called over a dozer machine and directed its operator to drive along the boundary line with the blade of the dozer down so as to level off the land and mark the physical position of the boundary on the ground. He then agreed that the tipping would not go beyond that line.

Mr Barron says in his witness statement that he never discussed tipping lines with or in the presence of Mr Sweeney. In cross-examination, he said at first that he had no recollection of the meeting, and thought it most improbable that it had ever happened. However, he then admitted that it was very possible that he and the Gray brothers had discussed a tipping line and walked the boundaries for that purpose in the spring of 1996, and he also accepted that Mr Sweeney might have been present on the site at the same time, although he maintained that Mr Sweeney was never in his presence. On this point I prefer the recollection of the Grays and Mr Sweeney, and I conclude that all four of them did indeed meet together on the site in the spring of 1996 in the circumstances which I have summarised above. It seems clear to me, however, that the purpose of the meeting was simply to reinstate, and possibly extend somewhat further to the south, the tipping line which had previously been agreed in 1994. Whether the new line was in fact in precisely the same position as its predecessor is in my view immaterial, although I am prepared to accept that it was broadly in the position of the line marked A-B on Plan C. What mattered was that the line was agreed on the ground between Mr Barron, the Grays and Mr Sweeney, and that the tipping operations on the Lizzards thereafter kept to the west of that line. All the witnesses agreed that Mr Barron was as good as his word and there was no further cause for complaint before the tipping operations were brought to a halt in June.

As with the first agreement, I heard no evidence which persuaded me that this agreement was in any sense intended or understood by the parties to delineate the legal boundary between the Lizzards and the depot, or to resolve any doubt or uncertainty as to the position of the legal boundary. In my judgment it was no more, and no less, than an agreement about tipping lines.

There may also have been some discussion at this meeting about the southern boundary. The evidence on this was conflicting, but even Mr Sweeney accepted that the most important thing was to agree the western boundary, and he accepted that he and his companies had little or no use for the south-western corner. I am inclined to think that, even if there was some discussion, it was inconclusive, and that the alleged agreement of the line B-C never took place. If I am wrong about that, and there was an agreement reached about the southern boundary, I am satisfied that the purpose of the agreement was again to demarcate an area over which the tipping operations should not encroach, and no more.

I would add that, as in the case of the first agreement, the witnesses all agreed that no photographic or other record was taken of the agreed boundary line, no measurements were taken, and the matter was not referred to a solicitor on either side. These points to my mind strongly reinforce the conclusion that the agreement was never intended to deal with legal boundaries at all. In paragraph 73 of his witness statement John Gray does indeed say that he asked Mr Barron whether they could put down in writing or on a plan where the agreed boundary hay, but says that Mr Barron was reluctant to do so and told him that there was no need and that he could trust him. In cross-examination, however, John Gray said that there was no discussion about making a written record, which I find to be the true position.

I heard a good deal of evidence directed towards establishing reliance by Earlrose and/or SEL upon the terms of the second boundary agreement, as pleaded in paragraph 12 of the reamended defence and paragraphs 19 to 22 of the response to the claimant’s request for further information served on 11 November 2005. In view of the conclusions which I have already reached I do not propose to make detailed findings of fact on these matters, and I confine myself to the following brief observations:

For the reasons which I have given I conclude that this claim succeeds, and the claimant is in principle entitled to regain possession of the disputed land. It may also be appropriate to make an order restraining the defendants from trespassing and conducting their operations across the registered boundary of the Trout Lane site (save in proper exercise of their right of way), but I will hear counsel on that question and generally on the form of the order that should he made to give effect to this judgment.

Ms Windsor submits that the court should first order the claimant to restore the small area of the registered title which lies to the west of the line A-B to its previous state, after obtaining the necessary statutory consents for the purpose, and that no order for possession should take effect against the defendants until the restoration work has been carried out. I do not accept that submission. In my judgment the area of land in question is de minimis in the context of the present dispute, and in any event the tipping on it took place with Mr Sweeney’s consent pursuant to the second agreement, so the defendants cannot now complain about it. They have legal title to the land, and in the unlikely event that they wish to make any commercial use of it they must in my view take the necessary steps to clear it themselves.

As I indicated during the hearing, the question of mesne profits should in my view be referred for determination by the master in the event that the parties are unable to reach agreement on it. I accept that there was never any agreement between the parties for ‘a split trial, with the question of damages to be dealt with at a subsequent hearing; but the way in which the claim is pleaded, seeking mesne profits ‘to be assessed’, is to my mind a clear indication that this is what the claimant envisaged, and the defendants can hardly complain about the two-stage process when if their own case had been upheld the question would never have arisen at all. Be all that as it may, I am satisfied that the sensible and proportionate course is to order an assessment of damages before the master. It is far from evident to me that Ms Windsor is right when she says that the sums of money at stake would be trivial, given the length of time for which the trespass has continued and the use of the land by the defendants for commercial purposes.

I should record that the claim as pleaded also includes a claim of trespass over the verges of the access road to the depot, but the parties have very sensibly been able to resolve that question by agreement and I need say no more about it.

Finally, I would also mention that on the morning of day 2, I was taken on a site visit to the depot and the surrounding area, which I found most valuable. I would like to express my gratitude to all those who were involved in arranging the visit. I have also been greatly assisted by the able advocacy and skilful cross-examination of both counsel, for which I thank them.