ON APPEAL FROM THE DEPUTY ADJUDICATOR TO HM LAND REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR PETER LEAVER QC (sitting as a Deputy Judge of the High Court)
Between :
(1) PHILIP JAMES LONG and FREDERICK CHARLES SATOW (as LPA Receivers appointed by SS GLOBAL LIMITED) | First Appellants/Second Respondent |
(2) IPE JACOBS and RICHARD WHITE (as LPA Receivers of DELPHIS BANK LIMITED incorporated in Mauritius and in Receivership) | Second Appellants/Third Respondent |
- and - | |
CHRISTOS KYRIACOU SAVA | Respondent/Applicant |
Mr Gary Cowen (instructed by Addleshaw Goddard LLP) for the Appellants
Mr Michael Roberts (instructed by Ashton Graham) for the Respondent
Hearing dates: 12th, 13th, 16th and 18th July 2007
Judgment
Mr Peter Leaver QC:
INTRODUCTION
This is an appeal from the Decision of Mr John Hewitt, sitting as the Deputy Adjudicator to Her Majesty’s Land Registry, given on the 20th October 2006 (“the Decision”). The hearing before the Deputy Adjudicator had taken place over 4 days in April 2006, during which he heard evidence from a number of witnesses, and one day in June 2006, during which he heard the parties’ closing submissions.
The hearing before the Deputy Adjudicator was in respect of an application by Mr Christos Kyriacou Sava (“Mr Sava”) to change the register in respect of part of the titles NGL349241 and NGL597449. By the Decision the Deputy Adjudicator directed that the Chief Land Registrar should give effect to the application in respect of title NGL 349241 and in respect of part of title NGL 597449.
On the 12th January 2007 the Deputy Adjudicator refused the Appellants permission to appeal from the Decision. The Appellants renewed their application for permission to appeal to the High Court and on the 26th February 2007 Henderson J granted them permission.
The appeal is in respect of both the Deputy Adjudicator’s findings of fact and his application of the law. It is the Appellants’ submission that the Deputy Adjudicator made findings of fact that were against the weight of the evidence and that he failed to identify sufficiently his reasons for coming to the conclusions which he stated in the Decision. Accordingly, a large part of the hearing was taken up with a detailed analysis of the transcripts of the evidence given at the hearing.
I am grateful to both Mr Gary Cowen, counsel for the Appellants, and to Mr Michael Roberts, counsel for Mr Sava, for the care and economy with which they took me through the evidence. Their submissions on both fact and law were always concisely and clearly stated. In the result they made what might have been an extremely difficult exercise considerably easier than I had anticipated. Although they referred me to some of the important evidence, I have taken the opportunity, when writing this judgement, to read the whole transcript, including the closing submissions.
THE DISPUTED LAND
The land with which this litigation is concerned is situated in green belt land in Hadley Wood in the London Borough of Barnet. It is comprised of the whole of land registered under Title No. 349241 and part of land registered under Title No. 597449.
On the 1st August 1990 a company incorporated in the British Virgin Islands, Ashirwad Limited (“Ashirwad”), acquired the land registered under both Title Nos. 349241 and 597449. The land comprised in Title No. 329241 is open green belt land of some 27 or 28 acres, which lies immediately behind and to the south of the land comprised in Title No. 597449. At the date of its acquisition by Ashirwad the open land was owned by a local builder/developer, McSharry. Although at some stage in the past the land may have been cultivated, it appears that at the date of Ashirwad’s acquisition it was used by McSharry either for winning or storing aggregates or for storing and dumping building materials.
The land comprised in Title No. 597449 contains a large house, known as Dolphin Manor, which has a substantial garden. The property is immediately adjoining, and abuts onto, the green belt land comprised in Title No. 329241. Access to Dolphin Manor is obtained off a road called Camlet Way.
Mr Sava claims to have acquired by adverse possession the whole of the green belt land comprised in Title No. 329241, to which I shall refer in the remainder of this judgment as “the Farm”, and a corridor of land comprised in Title No. 597449, which runs from Camlet Way down to the Farm, to which I shall refer as “the corridor”.
On the 6th July 1992 Ashirwad acquired a further parcel of land. This land, which is registered under Title No. 523113, also runs from Camlet Way. It is adjacent to and abuts onto Dolphin Manor, and contains a large house, which is known either as Ashirwad House or as Glebe House. I shall refer to it as Glebe House.
It is common ground that the ultimate beneficial owner of Ashirwad is a Mr Ketan Somaia (“Ketan”). I was told that Ketan is presently in prison in Kenya. I was not given any information about the circumstances in which Ketan came to be in prison. He played no part in the proceedings before the Deputy Adjudicator, although his name was frequently mentioned. It appears that until he became unable to do so, Ketan and his immediate family occupied Dolphin Manor and that, after it was acquired, his extended family and staff occupied Glebe House. No doubt one of the advantages of occupying Dolphin Manor was that it enjoyed the facility of a helipad.
On the 26th March 2001 Ashirwad charged the land on which Glebe House stands (Title No. 523113) to The Delphis Bank Limited (“Delphis”). Ashirwad entered into a further charge over that land in favour of Delphis on the 9th October 2001. On the 12th October 2001 Ashirwad charged the disputed land to Delphis. Shortly before that date, on the 13th August 2001, Ashirwad had charged the land on which Dolphin Manor stands (Title No. 597449) to SS Global Limited (“SS Global”), and on the 9th October 2001 further charged that land to Delphis. The priority of charges as between Delphis and SS Global is regulated under a Deed dated the 14th March 2002. Nothing turns on the terms of the charges although these proceedings were commenced against the Law of Property Act Receivers appointed by Delphis, which is itself now in receivership, and SS Global. I shall refer to Delphis and SS Global jointly as “the Appellants”.
THE DECISION
General
The Decision runs to some 30 pages and contains 102 paragraphs. It is divided into a number of sections, one of which is entitled “Findings and Reasons”. That section covers the last 4 pages and 17 paragraphs of the Decision. In the earlier part of the Decision the Deputy Adjudicator sets out the background to Mr Sava’s application, and summarises the legal framework that is relevant to the Decision. He also summarises the evidence of the witnesses who gave evidence at the hearing.
The Appellants’ criticism of the Decision was twofold. First, it was submitted that the Deputy Adjudicator had failed adequately to state the reasons for his findings of fact, and, secondly, it was submitted that a number of his findings of fact were against the weight of the evidence. Each of those criticisms required a detailed textual analysis of the Decision, and the second required a detailed consideration of the transcript of the evidence given at the hearing.
Although it is common ground that the Deputy Adjudicator’s summary of the legal principles accurately states the relevant law, Mr Cowen, counsel for the Appellants, criticises the Deputy Adjudicator’s application of those legal principles to the findings of fact that he made in the section of the Decision to which I have referred entitled “Findings and Reasons”.
Much of the hearing before me was taken up with an analysis of the findings of fact that were clearly made by the Deputy Adjudicator, and a debate as to whether other relevant findings of fact were made. That debate centred around whether Paragraph 98 of the Decision should be understood to contain findings of fact as to the use of the disputed land made by or on behalf of the Appellants during the period when Mr Sava claimed to have occupied the disputed land to the exclusion of the Appellants.
At one stage during the hearing I asked Mr Cowen and Mr Roberts whether I should send the matter back to the Deputy Adjudicator to make further findings of fact, or to clarify the findings that he had made. Although his primary submission was that the Deputy Adjudicator’s findings of fact were clear and decisive in Mr Sava’s interest, Mr Roberts submitted that if I did not accept that primary submission, I should take the course of remitting the matter. Mr Cowen submitted that I should not do so.
Mr Roberts’ first submission in relation to the issue of whether I should remit the matter to the Deputy Adjudicator was that if an appeal is to be based on the insufficiency of the reasoning of the judge, an application should be made to the judge when permission to appeal is sought for him to state additional reasons. If no such application is made, the party who wishes to appeal cannot subsequently be heard to complain about the insufficiency of the reasoning. No such application was made by the Appellants in the present case. Accordingly, so Mr Roberts submitted, I should work on the basis of the findings of fact that were undisputed, and draw such inferences as I thought fit from those findings and from the evidence generally as to other findings that were implicit in the Decision rather than explicit.
I was referred to a number of authorities in relation to this issue. In his judgment in English v Emery Reimbold & Strick [2002] 1WLR 2409 Lord Phillips of Worth Matravers MR said:
“25 Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.”
In Michael Hyde & Associates Ltd v JD Williams & Co Ltd [2001] PNLR 233 Ward LJ said, in a judgment with which Nourse and Sedley LJJ agreed:
“20 A year after handing down his judgment, the judge was referred to Flannery v. Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377 and was invited to provide reasons in amplification of why he did not find it necessary to hold that the views of Mr Byrom had no logical basis. He agreed to supplement his judgment in order to avoid the unnecessary expense of a retrial in the event that the appeal turned on the absence of reasons for preferring one expert's evidence to anothers. I can understand that reasoning and have a good deal of sympathy with that pragmatic approach. I also accept without question that the judge recognised that it cannot be my task to engage in a reconstruction of my judgment, that he did not do so, and that he had a clear memory of the case. Nevertheless, I am of the view that the judge should not have been put in that embarrassing position and that once a judgment has been approved, then it must stand or fall as it is, warts and all. Going back to the judge for clarification is a step I would strongly discourage.
21 For what it is worth, the judge in the supplementary reasons added only that if it was not clear, he considered Mr Barnard's reference to the red beacon to represent sound common sense and that Mr Byrom's view that it was up to Mr Fowler to make further enquiries of British Gas was indeed fatally flawed. For my part I would have inferred from the original judgment that those were the judge's views.”
As I have said earlier in this judgment, the hearing before the Deputy Adjudicator took 4 days in April 2006 and a further day in June 2006, when closing submissions were made. After closing submissions Mr Sava applied for permission to adduce further evidence about the carrying out of electrical works on the disputed land. He was given permission to adduce that evidence, and written submissions were made as to the weight of that evidence. The Decision was not handed down until the 20th October 2006, that is, nearly 6 months after the conclusion of the hearing, and 4 months after closing submissions.
The Appellants’ applications for permission to appeal were rejected by the Deputy Adjudicator on the 22nd January 2007. The applications had been supported by detailed skeleton arguments and the parties had exchanged written submissions. The Deputy Adjudicator dismissed the applications in the following terms:
“10. The challenges to the Decision turn almost exclusively on findings of fact and preferences over conflicting testimony. Having had the benefit of seeing the witnesses give their [evidence] and be subjected to cross-examination, I am confident that my findings were justified and correctly made. On this question and approach, I prefer the representations made on behalf of the Applicant.
11. Whilst I do not necessarily agree with the assertions made in the grounds of appeal or material supporting the application for permission, it seems to me that I can see that an appeal might have a prospect of success but I cannot say that it has a reasonable prospect of success. Thus I find I have to conclude that on the test to be applied permission to appeal should be refused.”
In the light of the terms in which the applications to appeal were dismissed, I do not believe that, if asked, the Deputy Adjudicator would have acceded to an application to amplify his findings. Nor do I understand that Lord Phillips of Worth Matravers MR was suggesting that courts hearing appeals should send the judgments from which the appeal is made back to the trial judge for him to amplify his reasons. The course that Lord Phillips suggested was that the judge hearing the application for permission to appeal should consider whether to take that step. The reason for suggesting that course is readily comprehensible. At the time when the application for permission is heard the matter will be comparatively fresh in the mind of the parties and of the trial judge. By the time that the appeal is heard many months are likely to have passed, memories will have faded, and the task would be extremely difficult, if not impossible.
I concluded, therefore, that I should consider the Decision “warts and all”, and not ask the Deputy Adjudicator to amplify his reasons and findings.
The Deputy Adjudicator’s Findings of Fact
In Paragraph 86 of the Decision the Deputy Adjudicator expresses his views on Mr Sava’s evidence, and sets out a number of findings of fact that he makes as a result of that evidence. It is necessary to quote the majority of that paragraph:
“I accept at the outset that Mr Sava was not an ideal witness. He had not kept and made available documents that would have corroborated his date of entry, despite claiming that some documents had not been lost or destroyed and were still available. This is surprising because he says, and I accept, that when he first went onto the land it was his avowed intention to acquire a title to it by way of adverse possession. Mr Sava’s evidence was also at times confusing, contradictory and muddled. Sometimes he became confused with dates, times and places. Nevertheless, and overall I found Mr Sava to be genuine and honest in his evidence. Broadly I accept his evidence and I find that he moved onto the Farm some months prior to October 1991 and that in the early days his activities were limited to grazing sheep, horses and ponies. He carried out some limited fencing, largely to keep his sheep within the fields he wished them to graze in. In general terms the boundaries of the Farm were either fenced or hedged and only required limited fencing. I find that Mr Sava ensured that the main entrance gates were locked and I dare say ferociously guarded by him. In the context of this property I find that Mr Sava has discharged the burden of proof on him and has shown that he meets the criteria set out in paragraph 24 above. Inevitably given the size of the Farm and Mr Sava’s limited resources, his early farming activities were modest but developed gradually as time went on. By 1995 the Farm was well established and underwent significant development when substantial cash resources were available to him.”
I interpose at this stage to mention that it was common ground that in order to establish adverse possession, Mr Sava had to prove that he had enjoyed an uninterrupted period of 12 years possession prior to the 13th October 2003, which was the date upon which the Land Registration Act 2002 came into force. In other words, Mr Sava had to prove that he was in possession of the disputed land by the 13th October 1991 and that he had remained in uninterrupted posseesion until the 13th October 2003. If Mr Sava’s uninterrupted period of possession had not been completed before that date different considerations (which it is not necessary for me to describe in this judgment) would apply in consequence of the provisions of the 2002 Act.
In my judgment, that paragraph shows that the Deputy Adjudicator had made the following findings of fact from Mr Sava’s evidence. First, that Mr Sava had moved onto the disputed land before October 1991, although the Deputy Adjudicator was unable to reach a conclusion as to precisely when that move had taken place. It is implicit in that finding that he did not accept Mr Sava’s evidence that he had moved onto the disputed land on the 24th October 1990, as Mr Sava had stated in his Statutory Declaration in support of his application, or in the Spring of 1990, as Mr Sava had asserted in his Witness Statement.
Secondly, at the time that Mr Sava moved onto the disputed land, the boundaries were either fenced or hedged, and that such “limited” fencing as Mr Sava carried out was largely done to keep his sheep in the fields that he wanted them to graze in. It will be necessary to refer again to this finding when I consider the evidence of what fencing Mr Sava actually did prior to the 13th October 1991, and when Mr Sava first took sheep onto the disputed land.
Thirdly, that in addition to grazing sheep, Mr Sava used an unspecified part of the disputed land for the grazing of horses and ponies. I should interpose here to say that it does not appear to me from the transcript of the evidence, and neither Mr Roberts nor Mr Cowen could identify any evidence that had been given to the Deputy Adjudicator, that Mr Sava had brought ponies onto the disputed land and grazed them there. During his evidence Mr Savvas Alexandrou (“Mr Alexandrou”) referred to “one or two ponies” being on the disputed land. However, he said that they were brought there in 1994. Mrs Sava said that she owned a prize Shetland pony which was stolen in 1991, but recovered in 1995, which she brought onto the disputed land after it had been recovered.
Fourthly, Mr Sava built a gate at the entrance to the land on Camlet Way, at the top of the corridor, on which he placed a lock. It is to be noted that the Deputy Adjudicator makes no finding that at that time Mr Sava erected fencing down the sides of the corridor or that he laid down a roadway or track from Camlet Way onto the fields. That omission is particularly important as Mr Sava had stated in his Statutory Declaration that he had erected a chain mail fence along the sides of the corridor in 1990, and in his Witness Statement he stated that when he moved onto the land one of the first tasks that he undertook was to put in proper access. Mr Sava also stated in his Witness Statement that he contacted London Surfacing Limited who provided materials to make the road.
Fifthly, the Deputy Adjudicator found as a fact that when he moved onto the land Mr Sava’s “avowed intention” was to acqire a title to it by way of adverse possession.
On the basis of those findings of fact the Deputy Adjudicator found that Mr Sava had discharged the burden of proof on him, and had possessed the disputed land before the 13th October 1991 so that by the 13th October 2003 he had acquired the land by adverse possession against the paper title owners.
It is necessary to consider whether there are other findings of fact, either express or to be implied, in the Decision which support those findings or which add to them. Between Paragraphs 87 and 92 of the Decision the Deputy Adjudicator states his findings on the evidence of the witnesses who gave evidence in support of Mr Sava’s applications.
The first additional finding of fact is that Mr Andrew Loizides carried out work on the disputed land for Mr Sava in “1990 or 1991”. This finding was based on Mr Loizides’ evidence, as recounted by the Deputy Adjudicator, that Mr Loizides “first visited Mr Sava at the Farm in 1990 or 1991 to repair a car that would not start”. That visit was before Mr Loizides moved his garage in Kentish Town. That move took place in 1992.
Secondly, the Deputy Adjudicator found that Mr Dale Robert Smith had carried out work for Mr Sava on the disputed land “in about 1990”, and that Mr Smith’s evidence “confirms activity and preparation for farming in 1990/1991 which is broadly consistent with what Mr Sava and other witnesses told me”.
Thirdly, the Deputy Adjudicator accepted the evidence of Mr Sava’s wife, Mrs Karen Sava. It is not clear whether the Deputy Adjudicator accepted all of the dates in Mrs Sava’s evidence. For example, in her Witness Statement Mrs Sava said that Mr Sava “moved onto the land” after the person who had introduced him to the disputed land left. Mr and Mrs Sava had met that person “during the course of 1989 or early 1990”. Mrs Sava also stated in her Witness Statement that the road “had gone in in 1990” and that Mr Sava “had lived there since that date”. She added that “from an early stage Chris made sure that there was power on the farm”.
It is to be noted that, for various reasons, the Deputy Adjudicator felt unable to “attach much weight” to the evidence of two other witnesses called by Mr Sava (Mr John Frangoudis and Mr Andrew Slaymaker), and treated the evidence of another witness, Mr Andreas Savva, “with a degree of caution”.
The Deputy Adjudicator next considered the evidence of the witnesses called by the Appellants. First, he considered the evidence of Mr Divesh Somaia (“Divesh”). He expressed “some concerns about his evidence”, which he found that he could not rely upon “with confidence”. In particular, he found that he was “rather vague on a number of details about activity in the early days on 199./1991(sic)”. Where Divesh’s evidence was contradicted by others, the Deputy Adjudicator preferred the evidence of those others. Unfortunately, the Deputy Adjudicator does not, save in one instance, identify what evidence of Divesh he accepts and what he rejects.
Mr Alexandrou was another witness upon whose evidence the Deputy Adjudicator found that he could not rely “with confidence”. He had “doubts about the accuracy of the dates of events” that Mr Alexandrou gave, and where his evidence was “at variance with the evidence of Mr or Mrs Sava”, he preferred the evidence of Mr or Mrs Sava. It will be necessary to consider Mr Alexandrou’s evidence in greater detail later in this judgment.
An important finding by the Deputy Adjudicator was that he rejected the evidence that Mr Sava had made a payment of £500 for the use of the land. Again, I will consider the evidence on this issue later in this judgment.
On the basis of the evidence and findings that I have set out, the Deputy Adjudicator said, in Paragraph 97 of the Decision:
“Looking at the evidence overall I find that Mr Sava has established meaningful adverse possession of the Farm prior to 13th October 1991 and that he has discharged the burden of proof that rests on him.”
But, having stated that conclusion, the Deputy Adjudicator continued in Paragraph 98:
“Virtually no meaningful evidence was presented as to the paper owner’s use or intended use of the land. It seems to me that the First Respondent made no meaningful use of the land between acquisition in 1990 down to date. Such use as there was limited (sic) the very occasional picnic by members of K[etan]S[omaia] family, three or four quad biking escapades and a small part of the land used for parking visitor’s cars when KS hosted a large social event. It appears that KS was aware of Mr Sava’s use of the Farm, certainly by 1996 when it appears that KS first sought legal advice. Advice was again sought in 1998 but evidently no follow action was taken.”
There was considerable debate during the hearing before me as to whether this paragraph of the Decision contained findings of fact, and, if it did, what conclusions should be drawn from those findings. Mr Roberts submitted that no findings of fact were made in that paragraph, while Mr Cowen submitted that not only were there clear findings of fact but that those findings were decisive in favour of the Appellants. Mr Roberts’s submission was that if, contrary to his primary submission, the paragraph contained findings of fact, those findings should have no effect on the outcome of the case.
I have no doubt that the paragraph does contain findings of fact. In my judgment, the third sentence (“Such use…”) can only be read as explaining that the Deputy Adjudicator was satisfied that some use had been made of the land by the Somaia family, but that that use was not “meaningful”, which I understand to mean that he did not think that it interrupted Mr Sava’s exclusive possession of the disputed land. It is to be noted that the Deputy Adjudicator uses the adjective “meaningful” on three occasions in the space of 5 lines of the Decision to qualify respectively “adverse possession”, “evidence” and “use”. It is not clear precisely what the Deputy Adjudicator intended to convey when he used that word, but I will attempt to explain what I understand him to have meant later in this judgment. I should add that Mr Cowen also submitted that the findings that there was only “the very occasional picnic” and “three or four quad biking escapades” were findings that were not supported by the evidence, which demonstrated far greater use by the Somaia family.
The garden at the rear of Dolphin Manor led onto the fields which formed part of the disputed land. There was direct access to the fields from the garden. In his Statutory Declaration Mr Sava states that he erected a fence at that point in 1992. The Deputy Adjudicator did not make any finding in relation to that point of access to the disputed land. As will be seen when I consider the evidence that was given by various witnesses, there was a dispute about whether occupants of Dolphin Manor or Glebe House could gain unfettered access to the disputed land through the garden of Dolphin Manor, and whether, if they could, they did in fact gain such access.
Before considering the evidence I turn now to a consideration of the legal principles which must be applied to a claim that property has been acquired by adverse possession.
THE LAW
It was common ground that the Deputy Adjudicator had correctly stated the law, but it was Mr Cowen’s submission that he had misapplied the law to the facts that he had found. Despite that rare accord between Mr Cowen and Mr Roberts as to the contents of the Decision, I propose to state my understanding of the law before considering the evidence.
The starting position is that the paper title owner is in possession of the land. He does not have to prove his possession. It is presumed. It follows that the person contending that he has acquired the land by adverse possession has to prove that he has dispossessed the paper title owner.
In JA Pye (Oxford) Limited v Graham [2003] 1AC 419 the House of Lords had to consider what had to be shown by a person contending that he has acquired the land by dispossessing the paper title owner. Lord Browne-Wilkinson, with whose speech Lords Bingham of Cornhill, Lord Mackay of Clashfern, Lord Hope of Craighead and Lord Hutton agreed, summarised the legal principles in a lengthy passage, which bears setting out in full:
“The law
31 The apparently straight forward statutory provisions have given rise to considerable difficulties, most of which flow from the remarks of the Court of Appeal in Leigh v Jack (1879) 5 Ex D 264 and Littledale v Liverpool College [1900] 1 Ch 19. In a remarkable judgment at first instance, Powell v McFarlane (1977) 38 P & CR 452, Slade J traced his way successfully through a number of Court of Appeal judgments which were binding on him so as to restore a degree of order to the subject and to state clearly the relevant principles. Although there are one or two minor points on which (unlike Slade J) your Lordships are not bound by authority and can therefore make necessary adjustments, for the most part the principles set out by Slade J as subsequently approved by the Court of Appeal in Buckinghamshire County Council v Moran [1990] Ch 623 cannot be improved upon. Hereafter I adopt them without specific recognition beyond marking with inverted commas those passages which I have quoted verbatim.
Possession, dispossession, ouster and adverse possession
32 In Powell's case Slade J was considering the Limitation Act 1939. However, apart from paragraph 8(4) of Schedule 1 to the 1980 Act the statutory provisions applicable in the present case are identical in the 1939 Act and the 1980 Act. Slade J first addressed himself to the question what was the meaning of possession and dispossession in the statutory provisions. After noticing that possession and dispossession were not defined in the 1939 Act he continued, at p 469:
"Possession of land, however, is a concept which has long been familiar and of importance to English lawyers, because (inter alia) it entitles the person in possession, whether rightfully or wrongfully, to maintain an action of trespass against any other person who enters the land without his consent, unless such other person has himself a better right to possession. In the absence of authority, therefore, I would for my own part have regarded the word 'possession' in the 1939 Act as bearing the traditional sense of that degree of occupation or physical control, coupled with the requisite intention commonly referred to as animus possidendi, that would entitle a person to maintain an action of trespass in relation to the relevant land; likewise I would have regarded the word 'dispossession' in the Act as denoting simply the taking of possession in such sense from another without the other's licence or consent; likewise I would have regarded a person who has 'dispossessed' another in the sense just stated as being in 'adverse possession' for the purposes of the Act."
Save as to the last sentence I have quoted (as to which I will make certain further comments below), I entirely agree with that statement of the law. Slade J felt doubts whether, in the light of certain Court of Appeal judgments then binding on him, he could properly adhere to the view that he expressed. Decisions (for example Wallis's Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] QB 94) appeared to hold that use of the land by a squatter which would have been sufficient to constitute possession in the ordinary sense of the word was not enough: it was said that such use by the squatter did not constitute "adverse possession" which was required for the purposes of limitation unless the squatter's use conflicted with the intentions of the paper title owner as to his present or future use of the disputed land. In those cases it was held that the use by the squatter was, as a matter of law, to be treated as enjoyed with the implied consent of the paper owner. Not surprisingly, Slade J found this line of reasoning difficult to follow. It is hard to see how the intentions of the paper title owner (unless known to the squatter) can affect the intention of the squatter to possess the land. In my judgment, Slade J was right and the decision of the Court of Appeal in those cases wrong. In any event Parliament (on the advice of the Law Reform Committee) has intervened to reverse the principle of implied licence: see the 1980 Act, Schedule 1, paragraph 8(4). However there remains a long standing confusion as to what constitutes "dispossession" and the place, if any, of "adverse possession" in the modern law.
33 The root of the problem is caused by the concept of "non-adverse possession". This was a concept engrafted by the common law and equity onto the limitation statute of James I (21 Jac 1, c 16). Before the passing of the Real Property Limitation Acts 1833 (3 & 4 Will 4, c 27) and 1874 (37 & 38 Vict c 57), the rights of the paper owner were not taken away save by a "disseisin" or an ouster and use of the land by the squatter of a kind which was clearly inconsistent with the paper title. Such inconsistent use was called adverse possession: see Professor Dockray, "Adverse Possession and Intention" [1982] Conveyancer 256, 260. Under the 1833 Act (sections 2 and 3 of which were substantially to the same effect as the 1980 Act, section 15(1) and Schedule 1, paragraph 1) the right of action was barred 20 years after "the right … to bring such action shall have first accrued" and "such right shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession". Soon after the passing of the 1833 Act it was held that "the second and third sections of that Act … have done away with the doctrine of non-adverse possession, and … the question is whether 20 years have elapsed since the right accrued ,whatever the nature of the possession": Denman CJ in Nepean v Doe d Knight (1837) 2 M & W 894, 911. The same statement of the new law was made in Culley v Doe d Taylerson (1840) 11 Ad & E 1008, 1015 where Denman CJ said:
"The effect of [section 2] is to put an end to all questions and discussions, whether the possession of lands, etc, be adverse or not; and, if one party has been in the actual possession for 20 years, whether adversely or not, the claimant, whose original right of entry accrued above 20 years before bringing the ejectment, is barred by this section."
34 The same was held to be the law by the Privy Council in a carefully reasoned advice delivered by Lord Upjohn in Paradise Beach and Transportation Co Ltd v Price-Robinson [1968] AC 1072; see also Professor Dockray [1982] Conveyancer 256.
35 From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. From 1833 onwards the only question was whether the squatter had been in possession in the ordinary sense of the word. That is still the law, as Slade J rightly said. After 1833 the phrase "adverse possession" did not appear in the statutes until, to my mind unfortunately, it was reintroduced by the Limitation Act 1939, section 10 of which is in virtually the same words as para 8(1) of Schedule 1 to the 1980 Act. In my judgment the references to "adverse possession" in the 1939 and 1980 Acts did not reintroduce by a side wind after over 100 years the old notions of adverse possession in force before 1833. Paragraph 8(1) of Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of a person in whose favour time "can run". It is directed not to the nature of the possession but to the capacity of the squatter. Thus a trustee who is unable to acquire a title by lapse of time against the trust estate (see section 21) is not in adverse possession for the purposes of paragraph 8. Although it is convenient to refer to possession by a squatter without the consent of the true owner as being "adverse possession" the convenience of this must not be allowed to reintroduce by the back door that which for so long has not formed part of the law.
36 Many of the difficulties with these sections which I will have to consider are due to a conscious or subconscious feeling that in order for a squatter to gain title by lapse of time he has to act adversely to the paper title owner. It is said that he has to "oust" the true owner in order to dispossess him; that he has to intend to exclude the whole world including the true owner; that the squatter's use of the land has to be inconsistent with any present or future use by the true owner. In my judgment much confusion and complication would be avoided if reference to adverse possession were to be avoided so far as possible and effect given to the clear words of the Acts. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.
37 It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that, as Slade J said, the words possess and dispossess are to be given their ordinary meaning.
38 It is sometimes said that ouster by the squatter is necessary to constitute dispossession: see for example Rains v Buxton (1880) 14 Ch D 537, 539 per Fry J. The word "ouster" is derived from the old law of adverse possession and has overtones of confrontational, knowing removal of the true owner from possession. Such an approach is quite incorrect. There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be. If the paper owner was at one stage in possession of the land but the squatter's subsequent occupation of it in law constitutes possession the squatter must have "dispossessed" the true owner for the purposes of Schedule 1, paragraph 1: see Treloar v Nute [1976] 1 WLR 1295, 1300; Professor Dockray [1982] Conveyancer 256. Therefore in the present case the relevant question can be narrowed down to asking whether the Grahams were in possession of the disputed land, without the consent of Pye, before 30 April 1986. If they were, they will have "dispossessed" Pye within the meaning of paragraph 1 of Schedule 1 to the 1980 Act.
39 What then constitutes "possession" in the ordinary sense of the word?
Possession
40 In Powell's case 38 P & CR 470 Slade J said, at p 470:
"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."
Counsel for both parties criticised this definition as being unhelpful since it used the word being defined—possession—in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial is to understand that, without the requisite intention, in law there can be no possession. Remarks made by Clarke LJ in Lambeth London Borough Council v Blackburn (2001) 82 P & CR 494, 499 ("It is not perhaps immediately obvious why the authorities have required a trespasser to establish an intention to possess as well as actual possession in order to prove the relevant adverse possession") provided the starting point for a submission by Mr Lewison for the Grahams that there was no need, in order to show possession in law, to show separately an intention to possess. I do not think that Clarke LJ was under any misapprehension. But in any event there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.
Factual possession
41 In Powell's case Slade J said, at pp 470-471:
"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."
I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before 30 April 1986.
Intention to possess
(a) To own or to possess?
42 There are cases in which judges have apparently treated it as being necessary that the squatter should have an intention to own the land in order to be in possession. In Littledale v Liverpool College [1900] 1 Ch 19, 24 Sir Nathaniel Lindley MR referred to the plaintiff relying on "acts of ownership": see also George Wimpey & Co Ltd v Sohn [1967] Ch 487, 510. Even Slade J in Powell , at pp 476 and 478, referred to the necessary intention as being an "intention to own". In the Moran case (1988) 86 LGR 472, 479 the trial judge (Hoffmann J) had pointed out that what is required is "not an intention to own or even an intention to acquire ownership but an intention to possess". The Court of Appeal in that case [1990] Ch 623, 643 adopted this proposition which in my judgment is manifestly correct. Once it is accepted that in the Limitation Acts, the word "possession" has its ordinary meaning (being the same as in the law of trespass or conversion) it is clear that, at any given moment, the only relevant question is whether the person in factual possession also has an intention to possess: if a stranger enters on to land occupied by a squatter, the entry is a trespass against the possession of the squatter whether or not the squatter has any long term intention to acquire a title.
43 A similar manifestation of the same heresy is the statement by Sir Nathaniel Lindley MR in Littledale v Liverpool College [1900] 1 Ch 19, 23 that the paper owners "could not be dispossessed unless the plaintiffs obtained possession themselves; and possession by the plaintiffs involves an animus possidendi—i e, occupation with the intention of excluding the owner as well as other people". This requirement of an intention to exclude the owner as well as everybody else has been repeated in subsequent cases. In Powell's case 38 P & CR 452, 471-472 Slade J found difficulty in understanding what was meant by this dictum since a squatter will normally know that until the full time has run, the paper owner can recover the land from him. Slade J reformulated the requirement (to my mind correctly) as requiring an "intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow".
(b) Must the acts of the squatter be inconsistent with the intentions of the paper owner?
44 The decision of the Court of Appeal in Leigh v Jack 5 Ex D 264 has given rise to repeated trouble in later cases. In that case the plaintiff's predecessor in title (Mr Leigh) had laid out part of his estate as proposed streets to be known as Grundy Street and Napier Place. He conveyed to the defendant certain land described as being "bounded by" Grundy Street and Napier Place: therefore the intention to use the adjoining land for streets was known to all parties. Within the 20-year limitation period, both Mr Leigh and the defendant had carried out work on a fence separating Grundy Street from other land of Mr Leigh, Regent Road. From 1854 onwards the defendant had placed on Grundy Street and Napier Place old graving dock materials, screw propellers, boilers and refuse from his foundry. In 1872 (four years before action brought) the defendant completely enclosed Grundy Street and Napier Place. The Court of Appeal held that the defendant had not acquired title to the enclosed land under the Limitation Act 1833.
45 The decision on the facts is not a surprising one. Quite apart from anything else, during the 20-year limitation period relied on, the paper owner (Mr Leigh) carried out works on the fence separating Grundy Street from Regent Road. This was inconsistent with a claim that he had either discontinued possession or been dispossessed. Unfortunately, other reasons were given. Cockburn CJ said that the defendant's storage of goods on the disputed land was not "done with the view of defeating the purpose of the parties to the conveyances". It will be noted that the defendant was well aware of Mr Leigh's intention to use the land as a public road since he was party to the conveyance so stating. Cotton LJ relied solely on the repair of the fence by Mr Leigh which I have mentioned as showing that there had been possession by him during the limitation period. The real difficulty has arisen from the judgment of Bramwell LJ. He said, at p 273:
"I do not think that there was any dispossession of the plaintiff by the acts of the defendant: acts of user are not enough to take the soil out of the plaintiff and her predecessors in title and to vest it in the defendant; in order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it …"
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong. It reflects an attempt to revive the pre-1833 concept of adverse possession requiring inconsistent user. Bramwell LJ's heresy led directly to the heresy in the Wallis's Cayton Bay line of cases to which I have referred, which heresy was abolished by statute. It has been suggested that the heresy of Bramwell LJ survived this statutory reversal but in the Moran case the Court of Appeal rightly held that however one formulated the proposition of Bramwell LJ as a proposition of law it was wrong. The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.”
Lord Hutton said:
“76 I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.”
It is important to bear in mind that a person who claims to have acquired title by adverse possession will at the outset have entered the land as a trespasser. It is for that reason that in Powell v McFarlane (1978) 38 P&CR 452 Slade J said, at page 472, when dealing with the question of animus possidendi:
“The question of animus possidendi is, in my judgment, one of crucial importance in the present case. An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
A number of cases illustrate the principle just stated and show how heavy an onus of proof falls on the person whose alleged possession originated in a trespass.”
Thus, the questions to be decided are, first, whether Mr Sava took possession of the disputed land from the Appellants; secondly, if he did take possession of the disputed land, whether he did so prior to the 13th October 1991; and, thirdly, whether there is clear and affirmative evidence that he made his intention clear to the world. If before the date upon which he took possession “the slightest acts” were done by or on behalf of the Appellants on or in respect of the disputed land, the abandonment or discontinuance of possession by them will not be presumed.
It is in relation to that issue that it is relevant to recall that it was not until the 9th July 1992 that the Appellants acquired Glebe House. After the conclusion of the hearing, and while I was preparing this judgment, it occurred to me that there might be some significance in the date of acquisition of Glebe House. I invited Mr Cowen and Mr Roberts to make written submissions on the issue, and I am grateful to them for their assistance.
The importance of this issue is that while the slightest acts might negative an abandonment or discontinuance of possession as against a trespasser who seeks to acquire possession, once the trespasser has acquired such possession, something more than the slightest acts will be required in order to interrupt that possession. The nature of the acts, and the frequency with which they are performed, will be relevant considerations in assessing whether the possession by a trespasser has been interrupted.
It was submitted on behalf of Mr Sava that the date of purchase of Glebe House should have no negative effect or adverse implication on Mr Sava’s claim to adverse possession of the disputed land. Mr Cowen submitted on behalf of SS Global and Delphis that the date of purchase had limited significance.
In my judgment, the significance to be attached to the date of purchase is that it demonstrates that Ketan was interested to increase his holding of land around Dolphin Manor. That interest seems to me to be inconsistent with the actions of a man who was so disinterested in his property that he was allowing a stranger to occupy it and to exclude him. However, as neither party developed any detailed submissions as a result of my request, I do not propose to attach any weight to the date of purchase of Glebe House.
So the first issue becomes whether Mr Sava enjoyed that degree of occupation or physical control, coupled with the animus possidendi, that would have entitled him to maintain an action of trespass against SS Global and Delphis in relation to the disputed land. Of course, he could not have maintained such an action on the 13th October 1991, but the question to be considered is whether, all other things being equal, his possession of the disputed land was such that, if the necessary period had passed, he could have done so. As Lord Browne-Wilkinson explained in JA Pye(Oxford) Ltd v Graham the Appellants will have been dispossessed if Mr Sava assumed “possession” in the ordinary sense of that word.
The enquiry, therefore, concentrates on the nature of the possession enjoyed, or taken, by Mr Sava. It is only a person who has possession of land in whose favour time can run under the Limitation Act 1980. In assessing whether a person has “possession” it is necessary to have both factual possession and the intention to possess. A paper title owner will be assumed both to be in possession of the land, and to have the intention to possess it. A squatter must prove both elements.
Slade J explained the meaning of factual possession in the passage from his judgment in Powell v McFarlane cited above. Lord Browne-Wilkinson expressly stated his agreement with that passage in JA Pye (Oxford) Ltd v Graham. In order to prove factual possession, therefore, Mr Sava has to prove that he was dealing with the disputed land as an occupying owner might have been expected to deal with it, and that nobody else has done so. His possession must have been “single and exclusive”.
If that issue is decided in Mr Sava’s favour it is necessary to consider whether the Appellants did anything that could be said to have interrupted Mr Sava’s possession.
There are many acts which are capable of demonstrating that a person who is not the owner of land is dealing with the land as an occupying owner might have been expected to deal with it. Equally, there are many acts which are capable of demonstrating that a dispossessed owner is exercising his rights of ownership and possession of the land. Inevitably, the reported cases depend upon their own particular facts. There are, however, some acts which are by their very nature such as to demonstrate factual possession.
Furthermore, it is not any use of the land by the true owner that will be treated as dispossessing a trespasser who is in factual possession. It is the element of exclusivity which distinguishes possession from mere occupation. The distinction is not always easy to draw, as Lord Denning MR pointed out in Wallis’s Cayton Bay Holiday Camp Ltd. v Shell-Mex and BP Ltd. [1975] QB 94 at page 103:
“The line between acts of user and acts of possession is too fine for words.”
Normally, the erection of fences will be considered to be an unequivocal act of possession, as will the placing and locking of gates which control the entrance and access to the land. As Slade J put it in Powell v McFarlane:
“There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned. The ploughing up and cultivation of agricultural land is one such act: compare Seddon v. Smith. The enclosure of land by a newly constructed fence is another. As Cockburn C.J. said in Seddon v. Smith "Enclosure is the strongest possible evidence of adverse possession," though he went on to add that it was not indispensable. The placing of a notice on land warning intruders to keep out, coupled with the actual enforcement of such notice, is another such act. So too is the locking or blocking of the only means of access.”
However, in order to be treated as evidence of possession, the erection of fences must be for the purpose of keeping people out of the land and not merely for the purpose of keeping animals in or preventing them from straying. In essence, the decision as to whether any act or acts demonstrate unequivocally that a trespasser has possession of land will depend on the nature of the act or acts done. Nourse LJ, with whose judgment Mustill LJ agreed, explained the importance of making that assessment in Boosey v Davis (1988) 55 P&CR 83:
“I turn then to the quantity and quality of the acts done by the plaintiffs. The evidence of Mr. Boosey was to the effect that he had used the land for grazing goats for two or three days two or three times per year. Mrs. Boosey said that the use was more extensive than that and that the animals grazed from the road down to the ditch when it was necessary. While taking the judge to have accepted the evidence of Mrs. Boosey over and above that of Mr. Boosey himself, I nevertheless think that both the quantity and the quality of that user were minimal. Nor do I think that the cutting down of the scrub and the erection of the secondary wire mesh fence add very much. The cutting down of the scrub was merely to facilitate the minimal use by the goats--it was not for any wider purpose. Moreover, although in some cases the erection of a fence can be very significant, it seems to me that that was not so here. The fence was erected in order to reinforce a fence which had already been put there by the defendants' predecessors in title, and it did not in any event enclose the disputed land from Inglefield Road.
On a view of the facts as a whole, and making every allowance both for the finding as to the intention of the plaintiffs and for the fact that the learned judge saw and heard the witnesses, which we have not, I conclude that the facts found by him were not sufficient in law to constitute adverse possession. It seems to me to be impossible to say that there was, to echo the words of Lord Denning, something in the nature of an ouster of the defendants.”
In Boosey v Davis the Court of Appeal dismissed the erection of a wire mesh fence for the purpose of keeping goats on the land as being of little significance. In Fruin v Fruin (unreported, Court of Appeal 15th November 1983: CA Transcript 448) a similar result was reached when the trial judge had held that the sole purpose of the gate and fence that was erected was to demarcate the area beyond which the farmyard animals should not stray.
Equally, the mere maintenance of existing boundary features, such as a fence or a ditch or a hedge, is not an act which unequivocally asserts exclusive control over land. That is important in a case, such as the present, where the ditches and hedges that bordered the fields on the disputed land were all features that were present when Mr Sava moved onto the disputed land.
As has been seen in the quotation from the judgment of Slade J in Powell v McFarlane in Paragraph 61 above, the cultivation of land for the purpose of growing crops or as a garden will usually be treated as unequivocal evidence of possession. The planting of trees has been treated as being cogent evidence of possession: see Lord St Leonards v Ashburner (1870) 21 LT 595. By contrast, the cutting of trees or turf is not without more to be treated as evidence of possession.
In the present case Mr Sava stated in his Witness Statement, although not, it is to be noted, in his Statutory Declaration, that when he occupied the disputed land he stationed a caravan on the land in which he lived. He also stated in his Witness Statement that he had a roadway constructed to facilitate access, and had mains electricity installed. There is no doubt that at some stage caravans were positioned on the disputed land and that mains electricity was installed. However, the Deputy Adjudicator made no findings of fact as to when those acts took place, and I will have to consider whether any inferences can be drawn from the Decision as to the Deputy Adjudicator’s conclusions on that issue.
There is little authority on the stationing of caravans. However, in Adverse Possession by Mr Stephen Jourdan (Butterworths, 2003), a text-book which I have found immensely helpful both during the hearing and in writing this judgment, it is suggested that it is unlikely that the mere stationing of a moveable caravan will, without more, be evidence of possession as opposed to occupation.
I turn now to consider the evidence, and what inferences, if any, I should draw from the Deputy Adjudicator’s findings of fact and reasoning.
THE EVIDENCE
General considerations
I readily accede to Mr Roberts’ submission that I should draw such inferences as I believe are appropriate from the Deputy Adjudicator’s findings of fact and come to a view about what findings of fact are implicit in the Decision.
I also give appropriate weight to the fact that the Deputy Adjudicator saw and heard the witnesses give their evidence. The approach that I adopt to the findings of fact is the approach that has been adopted by the courts for many years. That approach has recently been explained by the Court of Appeal in Assicurazioni Generali SpA v Arab Insurance Group [2003] 1WLR 577. In his judgment Clarke LJ said:
“Thus, for example, in cases in which the court was asked to reverse a judge's findings of fact which depended upon his view of the credibility of the witnesses, it would only do so if satisfied that the judge was plainly wrong. This can be seen from many cases, as for example National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1995] 1 Lloyd's Rep 455, where the court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away. Giving the judgment of the court, Stuart-Smith LJ addressed the correct approach as follows, at pp 458-459:
"(1) The burden of showing that the trial judge was wrong lies on the appellant … (2) When questions of the credibility of witnesses who have given oral evidence arise the appellant must establish that the trial judge was plainly wrong. Once again there is a long line of authority emphasising the restricted nature of the Court of Appeal's power to interfere with a judge's decision in these circumstances though in describing that power different expressions have been used. In SS Hontestroom v SS Sagaporak [1927] AC 37, 47 Lord Sumner said: 'None the less not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge and unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at merely on the results of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case … Finally in Mersey Docks and Harbour Board v Proctor [1923] AC 253, 258, Viscount Cave LC said: 'In such a case … it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into question, but with full liability to draw its own inferences from the facts proved or admitted and to decide accordingly.' (3) When a party has been acquitted of fraud the decision in his favour should not be displaced except on the clearest grounds. This proposition is not in contest and is supported by the House of Lords in Akerhielm v De Mare [1959] AC 789, 806, where the earlier authority of Glasier v Rolls (1889) 42 Ch D 436 is cited."
13 In my view, although it is true that RSC Ord 59, r 3 expressly refers to a rehearing, the exercise upon which the court was engaged was essentially one of review. That is I think so, even though the extract from the speech of Viscount Cave in Mersey Docks and Harbour Board v Procter [1923] AC 253, 259 might suggest that that was not so because of the reference to the court having "full liability to draw its own inferences from the facts proved or admitted". However, I observe that CPR r 52.11.1(4) expressly gives the appeal court (which of course includes this court) power to draw any inference of fact which it considers justified on the evidence. There is no suggestion that that rule applies only to appeals by way of rehearing under rule 52.11(1)(b), so that the court has that power when conducting a review. In these circumstances, it seems to me that in the type of appeal in which the court is asked to reverse findings of fact based upon the credibility of the witnesses, the same approach should be adopted in this court whether the appeal is by way of review or rehearing.
14 The approach of the court to any particular case will depend upon the nature of the issues [and the] kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adams & Chope (trading as Trelawney Fishing Co) [2002] 2 Lloyd's Rep 293 and Bessant v South Cone Inc [2002] EWCA Civ 763. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
15 In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a "rehearing" under the Rules of the Supreme Court and should be its approach on a "review" under the Civil Procedure Rules 1998.
16 Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
17 In Todd's case [2002] 2 Lloyd's Rep 293, where the question was whether a contract of service existed, Mance LJ drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows, at p 319-320, para 129:
"With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of 'review' may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment—such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in rule 52.11(3)(4) to the power of an appellate court to allow an appeal where the decision below was 'wrong' and to 'draw any inference of fact which it considers justified on the evidence' indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trail judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious."
In the same case Neuberger J stressed, at pp 305-306, paras 61-64, that the question whether there was a contract of service on the facts involved the weighing up of a series of factors. Thorpe LJ agreed with both judgments.”
Later Clarke LJ added:
“22 Thus the extent to which the findings of fact depend upon oral evidence or what Lord Hoffmann called the "penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance" will vary from case to case. In the instant case, the judge had the considerable advantage of seeing the witnesses and of assessing their credibility, although, as ever, he did so against the documentary material that was available. In these circumstances we should, I think, take particular care before holding that his conclusions of fact were wrong, especially since (as appears below) some of his conclusions depended to a significant extent upon the view which he formed of the witnesses. On the other hand this is not a case in which the judge was concerned to weigh a number of factors such that the judgment which he was called upon to make was a matter of degree.”
In the same case Ward LJ explained the position of the appellate court in the following way:
“195 When the Court of Appeal heard appeals on questions of fact the court was essentially conducting a review of the findings made by the judge below in as much as the Court of Appeal examined that judgment in the light of the evidence which had been presented to the court below without (save exceptionally) hearing evidence in this court. Mr Boyd submits that the change of language compels a different approach to be adopted. I do not agree. Our task is essentially no different from what it was—we consider the judgment testing it against the evidence available to the judge and we ask, as we used to ask, whether it was wrong. The Court of Appeal can only interfere if the decision of the lower court was wrong and in deciding whether or not findings of fact were wrong, we take a retrospective look at the case and do not decide it afresh untrammelled by the judge's conclusion.
196 The trial judge's view inevitably imposes a restraint upon the appellate court, the weight of which varies from case to case. Two factors lead us to be cautious about interfering. First, the appellate court recognises that judging the witness is a more complex task than merely judging the transcript. Each may have its intellectual component but the former can also crucially rely on intuition. That gives the trial judge the advantage over us in assessing a witness's demeanour, so often a vital factor in deciding where the truth lies. Secondly, judging is an art not a science. So the more complex the question, the more likely it is that different judges will come to different conclusions and the harder it is to determine right from wrong. Borrowing language from other jurisprudence, the trial judge is entitled to "a margin of appreciation".
197 Bearing these matters in mind, the appeal court conducting a review of the trial judge's decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established. The best formulation for the ground in between where a range of adverbs may be used—"clearly", "plainly", "blatantly", "palpably" wrong, is an adaptation of what Lord Fraser of Tullybelton said in G v G (Minors: Custody Appeal) [1985] 1 WLR 642, 652, admittedly dealing with the different task of exercising a discretion. Adopting his approach, I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with an evaluation of those facts. The judgment of the Court of Appeal in The Glannibanta (1876) 1 PD 283, 287 seems as apposite now as it did then:
"Now we feel, as strongly as did the Lords of the Privy Council in the cases just referred to [ The Julia (1860) 14 Moo PC 210 and The Alice (1868) LR 2 PC 245], the great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are, as they were in the cases referred to, material elements in the consideration of the truthfulness of their statements. But the parties to a cause are nevertheless entitled, as well on question of fact as on questions of law, to demand the decision of the Court of Appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, even though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect."”
My approach to the Decision, therefore, is to give great weight to the Deputy Adjudicator’s findings of fact, both those which are expressly stated and those which can be implied. That weight will be decisive unless I conclude from my consideration of the transcript of the evidence and from the submissions of counsel that any particular finding was so clearly wrong that it fell outside the generous ambit in which an appellate court might simply disagree with it. In making that assessment I bear in mind the limitations of judging the evidence of a witness merely from the transcript, and the advantage enjoyed by the Deputy Adjudicator in seeing and hearing the witnesses give their evidence.
It follows from what I have said that I have had full regard to the advantage enjoyed by the Deputy Adjudicator in seeing the witnesses give evidence, and hearing their evidence. It is not a simple task to attempt to gain a feel for the atmosphere of a hearing or for the dynamics of the adversarial system. It is, for example, well known that different individuals react to giving evidence in different ways. The mere fact that a witness may appear to be flippant does not mean that he or she is being flippant, or is not taking giving evidence seriously. Nor is nervousness the same as evasiveness. A witness may laugh at an inappropriate moment as a result of nerves, and the fact that a witness is unable to look a person in the eye does not mean that he or she is being shifty.
I make those points in order to emphasise the difficulties that an appellate court has in deciding whether the judge who has heard the evidence has found facts against the weight of the evidence or has formed a view about a witness that is unjustified.
Equally, an appellate court will be reluctant to fill what are said to be gaps in the trial judge’s findings or reasoning. The trial judge will be presumed to have mentioned all of the facts which have been proved to his satisfaction and which, in his judgment, were relevant to the decision that he has to make. He will be presumed not have mentioned facts which had not been proved to his satisfaction, or which he did not consider to be relevant. An appellate court will be particularly slow to interfere when, as in the present case, the parties agree that the Deputy Adjudicator had correctly directed himself as to the legal principles involved in the dispute. In such a case, a trial judge will normally be taken to have had the relevant factual considerations in mind that would enable him to apply those legal principles when delivering his judgment.
But appellate courts do occasionally conclude that the trial judge has erred in his assessment of the evidence or of a witness, and they may do so simply from a consideration of the transcript of the evidence: see, for example, Armagas Ltd v Mundogas SA [1986] 1 AC717. The task is particularly difficult in the present case because it is clear that the Deputy Adjudicator did not accept all of the evidence that Mr Sava gave as to his occupation of the disputed land. Mr Sava was described as not being “an ideal witness”. His evidence was described as “at times confusing, contradictory and muddled”. Nevertheless the Deputy Adjudicator found him to be “genuine and honest”, and “broadly” accepted his evidence.
The difficulty is that such a qualified acceptance of Mr Sava’s evidence does not assist an appellate court in coming to a conclusion as to what was the plum in his evidence, which was accepted, and what was the duff, which was not accepted. A trial judge who accepts only part of a witness’s evidence should make clear which part is accepted and which part is rejected. If that course is not followed an appellate court which is asked to conclude either that the trial judge has made findings of fact that are against the weight of the evidence or to find facts which the trial judge has not expressly or impliedly found will be at an even greater disadvantage than would normally be the case. In such a situation the appellate court might well take the view that the safest course is to conclude that the trial judge found only those facts that he was satisfied had been proved to the necessary standard. Such a view would undoubtedly make more difficult the task of the party asserting that the findings were against the weight of the evidence. It would also make far more difficult the task of the party asserting that the trial judge must also be taken to have found additional, albeit unstated, facts, or to persuade the appellate court that additional findings of fact are to be taken to be implicit in the express findings of fact.
The Evidence
As I have said, I have read the transcript of all of the evidence heard by the Deputy Adjudicator, and the submissions made by Mr Cowen and Mr Roberts. That exercise has demonstrated graphically to me the difficulty faced by an appellate court having to decide whether findings of fact have been made that are contrary to the weight of the evidence. Even if one discounts the advantage which a trial judge is usually said to enjoy from seeing the demeanour of the witness giving evidence, the "penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance" and the atmosphere in which the witness is giving evidence are plainly not matters which the reader of the words in a transcript can have in mind or take into account.
With all of those qualifications, however, I have to say that I formed a view of the evidence that is almost entirely the opposite of that stated by the Deputy Adjudicator. Although I agree with the descriptions of Mr Sava’s evidence that I have quoted above, I found his evidence almost totally unconvincing. When one bears in mind that the onus was on Mr Sava to prove by clear and affirmative evidence that he was in factual possession of the disputed land by the 13th October 1991 and that he had the requisite intention to possess, his evidence, in my judgment, fell far short of establishing either of those matters. At best it proved that he had been in occupation of part of the disputed land from some time in 1990 or 1991. It was impossible to reach any firm or precise conclusion as to what he had done or when. In particular, there was no evidence which established that he was in sole and exclusive possession of the disputed land by that date.
I do not doubt for a moment that Mr Sava was trying to give an honest account of his occupation of the disputed land, but I agree with the Deputy Adjudicator that his evidence was “confusing, contradictory and muddled”. However, I cannot agree with the Deputy Adjudicator that his “confusing, contradictory and muddled” evidence could have succeeded, or did succeed, in discharging the burden of proof on him, or that it could have justified, or did justify, the weight which the Deputy Adjudicator placed upon it.
In my judgment Mr Sava’s evidence proves that at some time in 1990 or 1991 he heard that the disputed land was not being used. He thought that it would be a good idea to go onto it, and I accept that he intended, if he could, to acquire it by adverse possession. But even if one were to err generously in Mr Sava’s favour and to find that he moved a caravan or caravans onto the disputed land in October 1990, it is necessary to consider what he did in the next 12 months (that is, up to the 13th October 1991) that could be said to be the taking of sole and exclusive possession as against the paper title owner, and to amount to clear and affirmative evidence that he had the requisite intention to possess.
The problem for Mr Sava becomes more acute when it is remembered that Glebe House was only acquired by the Appellants in July 1992, that is, about 9 months after the date upon which Mr Sava’s case depends upon him having then excluded the Somaia family from the disputed land. True it is that the disputed land formed no part of the title of the land upon which Glebe House stands, but the evidence was that the two properties were treated as one by their residents, who enjoyed access to the disputed land from the garden of Dolphin House. Furthermore, it must be borne in mind that the purchase of Glebe House completed the Somaias’ acquisition of the area to the east and south of the corridor.
As Mr Sava’s evidence was so unsatisfactory, it seems to me that, in order to judge whether the Decision can be upheld despite the errors which I have identified, the safest course is to look first at the independent objective evidence before considering Mr Sava’s evidence. That evidence seems to me to show that it was not until about September 1991 that Mr Sava began seriously to attempt to fence part of the disputed land. Mr Bennison was a witness called by Mr Sava. His evidence was summarised by the Deputy Adjudicator in Paragraph 61 of the Decision. Surprisingly, the Deputy Adjudicator did not refer to Mr Bennison’s evidence at all when stating his Findings and Reasons. The omission was surprising because Mr Bennison gave evidence that accurately identified the state of the disputed land on a specific date. His evidence was that at the end of September or early October 1991 he gave Mr Sava a demonstration of a tractor powered saw bench and log splitter that his company, Tech Norton Limited, had first put on the market in about March or April 1991. He met Mr Sava at Rectory Farm, land on which Mrs Sava ran a riding school, which was a few hundred yards from the disputed land. Mr Sava had given him directions to Rectory Farm.
At Rectory Farm Mr Bennison mounted the saw onto Mr Sava’s tractor, and they then drove across the fields onto the disputed land to a point which, from his description, was at the end of the corridor. They drove onto the disputed land through a gate. Mr Bennison said that he did not recall too much in the way of fencing: Transcript Day 3, page 72 (page 761 in the trial bundle), line 23. His recollection was that the reason that Mr Sava wanted the saw was to cut up a pile of wood and produce stakes from it, so that he could do some fencing.
Shortly before Mr Bennison’s visit, on the 19th September 1991, Mr Sava had purchased 44 ewes, which he said that he transported to the disputed land on the back of his lorry.
There is almost no other independent objective evidence of Mr Sava’s occupation of the land before the 13th October 1991. However, after the hearing before the Deputy Adjudicator Mr Sava was given permission to adduce further evidence in the form of a receipt from Enfield Electrical Supplies, which was sent under cover of a letter from Mrs Sava. The receipt was dated the 8th July 1991 and was said by Mrs Sava to have been in respect of “single phase electrical supplies to the poultry”. Mr Sava’s evidence had been that the single phase electrical supply had been put in shortly after he first occupied the disputed land, and that a three phase supply was installed at a later date but before the 13th October 1991. In fact, from an Eastern Electricity work order dated the 6th December 1995, it would appear that a three phase supply was not even ordered until December 1995.
That evidence leads me to the conclusion that although Mr Sava might have been a frequent visitor to the disputed land before October 1991, he did not in fact occupy it, as opposed to visit it regularly, until about October 1991. Certainly, he was not in sole and exclusive possession of the disputed land before October 1991: nor was there clear and affirmative evidence of his intention at that date. I have no doubt that during the period before he occupied it Mr Sava carried out some preparatory work on the disputed land which was designed to enable him to move onto it and to occupy it, and, eventually, but not until well after the 13th October 1991, to possess it.
The preparatory work that took place prior to the 13th October 1991 included moving one or more caravans onto the disputed land, erecting fencing along the corridor and putting a gate at the entrance to the corridor. In addition, Mr Sava began the task of sorting out the rubble that had been left on the land by the previous owners, McSharry. That rubble had, ironically, been produced from the building of Dolphin Manor. Mr Sava also began the laying of a rudimentary track down the corridor and across the field into what has been called “the circular field”. During that initial period the amount of work that Mr Sava could do on the disputed land was necessarily limited by his lack of funds: see, for example, his evidence at Transcript Day 2, page 2 (page 604 in the trial bundles) lines 11-13.
Part of the difficulty in placing much weight on Mr Sava’s evidence as to dates upon which events occurred is graphically illustrated by an exchange he had with Mr Cowen about the date upon which hay was cut. Mr Sava pointed to a pile of hay in a photograph of the disputed land which was taken on the 12th April 1995. He was adamant that the hay was made in “very late 1991” although his method of identifying that date was, to the reader of his evidence, totally obscure: see Transcript Day 2, page 5 (page 606 in the trial bundles) lines 1-33. He purported to be able to identify the date upon which the hay was made by looking at a photograph of the disputed land.
Mr Sava confirmed that he first had animals on the land in late 1991 (Transcript Day 2, page 26 (page 627 of the trial bundles) lines 38-42). He remembered that the first animals were his dog and the sheep he purchased in September 1991. Horses would only have been on the land before late 1991 if his wife had brought them over from Rectory Farm.
Mr Sava began to grow crops on the disputed land in about 1995, although he was adamant that he had planted seedlings for Christmas trees earlier. Mr Sava called Mr Slaymaker to give evidence about a visit that he had made to the disputed land in early 1996. Mr Slaymaker is an agricultural surveyor. He was adamant that he saw no Christmas trees growing when he made his visit. Mr Slaymaker’s visit was part of an investigation by Barnet Borough Council as to whether Mr Sava had agricultural permitted development rights for the road that he had by then constructed along the corridor together with fodder stores that he had placed on the land. The Deputy Adjudicator found that he could “attach no weight to [Mr Slaymaker’s] evidence” because he had no personal or first hand knowledge of activity on the disputed land in 1990/1991. I find that conclusion surprising in the light of Mr Sava’s reliance on the planting of the Christmas tree seedlings early in his occupancy as evidence of his cultivation of the disputed land. I would attach considerable weight to the evidence of a person with Mr Slaymaker’s qualifications. I have no doubt that he would have noticed Christmas trees growing if they had been planted by the date of his visit. As it is, Mr Slaymaker’s evidence casts doubt on Mr Sava’s evidence that the Christmas trees had been planted long before his visit.
Mr Sava’s evidence about fencing was also extremely vague and, in my judgment, unreliable. From a careful reading of his evidence, I conclude that for the first few years that Mr Sava occupied the disputed land he did little in the way of fencing, apart from the erection of the fence along the corridor. For the rest, he used scrap that he found on the land to reinforce the existing hedges and fences, but did not erect proper fences of his own until 1995. Mr Sava’s evidence on fencing is to be found in Transcript Day 2 pages 46-56 (pages 647-657 of the trial bundles), when he was asked about the contents of his Statutory Declaration and Witness Statement.
At the beginning, when he first went onto the disputed land, Mr Sava just used the scrap to make “the place secure”, so that the sheep could not get out. Even before he first had sheep in September 1991 he was trying to prepare for their arrival. But a careful reading of Mr Sava’s evidence makes it impossible, in my judgment, to conclude that he erected fencing in order to demonstrate that he had sole and exclusive possession of the disputed land before the 13th October 1991. Between his arrival on the disputed land and 1995 Mr Sava carried out no fencing that demonstrated that he had exclusive possession of the land. It was only in 1995, after the surrender of Rectory Farm and the receipt of £150,000 from the London Diocesan Board, that Mr Sava had the funds that enabled him to carry out works to exclude people from the disputed land.
The only act by Mr Sava that could be taken to be a demonstration of an intention to exclude people from the disputed land was the erection of a gate at the Camlet Way entrance. Mr Sava’s evidence was that when he first went onto the disputed land there was a “broken gate” which he “fixed”: Transcript Day 2 page 52 (page 653 of the trial bundles) lines 27-32. He placed a lock on the gate as soon as he had mended it, and nobody apart from him has had the key to the gate since that time. However, as there was a way onto the disputed land through the garden of Dolphin Manor, that gate did not exclude members of the Somaia family and the occupants of Glebe House or Dolphin Manor from getting onto the disputed land.
During the hearing I was concerned to know what steps Mr Sava took to prevent access from the garden at the rear of Dolphin Manor. In his Statutory Declaration Mr Sava stated that a chain link fence had been erected there in 1992. He confirmed that date in his Witness Statement. During his cross-examination Mr Sava said that the fence at that point had been erected in “1991 to 1992, and from 1990 it has those steel things, and they are still there”: Transcript Day 2 page 53 (page 654 of the trial bundles) lines 28-30. His evidence was that nobody from Glebe House or Dolphin Manor had gained access to the disputed land since 1990.
In Paragraph 98 of the Decision the Deputy Adjudicator characterised the use of the disputed land between 1990 and the date of the hearing before him as not being “meaningful”. He went on to say that such use as there was by the Somaia family was limited to the “very occasional picnic” and “three or four quad biking escapades”. He came to that conclusion because he found the evidence of Divesh and Mr Alexandrou unreliable. In my judgment, the those findings were not justified by the evidence and the Deputy Adjudicator fell into error in making them.
First, I do not find any justification for his description of Divesh’s evidence as “vague on a number of details” while at the same time accepting the “confusing, contradictory and muddled” evidence of Mr Sava as being genuine and honest. My reading of Divesh’s evidence confirms that he was sometimes vague or uncertain about dates, but there was no vagueness or uncertainty about his description of his activity on the disputed land from 1990 to 1995 or 1996. The fact that he might have been vague about dates does not mean that his evidence as a whole should be rejected. After all, the Deputy Adjudicator had not found that confusion, contradiction and muddle had required the rejection of Mr Sava’s evidence.
Secondly, although from my reading of his evidence I agree with the Deputy Adjudicator’s description of Mr Alexandrou as “a confident young man who gave his evidence with gusto and flamboyance”, I can see no justification to reject his evidence simply for that reason, which appears to be the Deputy Adjudicator’s only reason for rejecting it.
Thirdly, there is no justification in the evidence for the Deputy Adjudicator’s finding that there was only the very occasional picnic and only three or four quad biking escapades. That was not the evidence of either Divesh or of Mr Alexandrou. In the absence of an explanation in the Decision as to why the Deputy Adjudicator made them, I conclude that those findings were against the weight of the evidence.
The evidence of Divesh was that he went on the occasional quad biking excursion onto the disputed land, but that Mr Alexandrou went frequently. True it was that Divesh was unclear about precisely which fields he had gone quad biking in, but he was clear that he went on a number of occasions, and gained access to the disputed land through the gate at the bottom of Dolphin Manor’s garden. He was adamant that the gate was never locked. The Deputy Adjudicator could have rejected that evidence entirely, but he did not do so and, in my judgment, it was not open to him to find that there had been only three or four quad biking excursions. That was an entirely arbitrary number.
Mr Alexandrou also gave evidence about quad biking. Again, his evidence was clear. He said that he had been quad biking frequently with friends and members of the Somaia family, and had travelled extensively over the disputed land without any difficulty. Again, the Deputy Adjudicator could have rejected his evidence entirely, but there was no justification for placing an entirely arbitrary limit on the number of quad biking excursions taken by Mr Alexandrou.
One other matter that I should mention is the Deputy Adjudicator’s finding that “a small part of the [disputed] land was used for parking visitor’s cars” when Ketan hosted a large social event. Divesh’s evidence was that there were several parties, including two major ones at which 40 or 50 cars were parked. That important evidence was not challenged, although Mr Sava had said that it was not possible to gain access to the disputed land at that entrance. I conclude that even at the gate at the Camlet Way entrance the disputed land was not fenced in such a way that the Somaias were excluded from it.
Divesh’s evidence in relation to picnics was that he went on picnics with his nieces and nephews. He described where he went on the disputed land. He described how he used to walk on the disputed land without difficulty. He was never asked how frequently the picnics took place, and he never placed any limitation on their frequency. The finding that there was only “the very occasional picnic” was against the weight of the evidence.
Finally, I must deal with the finding that Mr Alexandrou gave a detailed account of what was agreed at a meeting between Mr Sava and Ketan. The Deputy Adjudicator found that no such meeting took place, and if I had not concluded that in other respects his findings were against the weight of the evidence, I would not have spent time considering Mr Alexandrou’s evidence about the meeting.
Mr Alexandrou’s evidence was contained in Paragraph 7 of his draft Witness Statement, of which he confirmed the accuracy with one or two amendments on dates. In Paragraph 7 Mr Alexandrou states that a meeting between Mr Sava and Ketan took place in Ketan’s London offices. He says that he was not present at the meeting. In cross-examination, he explained that the office was in Edgware, and he confirmed that he was not present at it. He showed Mr Sava into Ketan’s office, but took no part in the meeting. I simply do not understand the basis upon which the Deputy Adjudicator found that Mr Alexandrou gave a detailed account of what was agreed at that meeting. I therefore conclude that the finding in Paragraph 95 of the Decision that Mr Alexandrou gave “a detailed account of what was agreed” at the meeting about which he gave evidence was not based on Mr Alexandrou’s evidence.
There is one further matter that I should mention in relation to the relative credibility of Mr Sava and the Appellants’ witnesses. Towards the end of his cross-examination Mr Sava was asked about a number of judgments that it was said had been made against him. He denied that, apart from one judgment, the judgments had been against him. The document to which he was referred said that there were 11 county court judgments against businesses with the name of Glebe Farm, Mr Sava’s trading name. Mr Sava’s response was that these were judgments against people to whom he had rented space and who owed him money. I do not come to any conclusion as to whether Mr Sava was telling the truth when he denied that those judgments were against him. I did, however, find it surprising that Mr Sava was unable to deal more robustly with this evidence. As I understand the position from the transcript, the document relied upon by the Appellants was not a document which had just emerged and which took Mr Sava by surprise.
In relation to Mr Sava’s financial affairs I should also mention Mr Frangoudis, who was called to give evidence as Mr Sava’s accountant. Mr Sava had told the Deputy Adjudicator that his accountant prepared his accounts for him, as well as his tax returns. Mr Frangoudis recalled registering Mr Sava for VAT in 1993, and prepared draft accounts for him for one or two years. He did not have copies of those draft accounts. Mr Frangoudis never prepared Mr Sava’s tax returns, and had resigned as Mr Sava’s accountant.
I found that evidence difficult to reconcile with Mr Sava’s evidence, and, as there was no reason to doubt what Mr Frangoudis said, it reinforced my conclusion that Mr Sava’s evidence had to be approached with great caution.
Mrs Sava also gave evidence. The Deputy Adjudicator found that she gave her evidence in “a measured and honest way”, and accepted it. I have, therefore, considered her evidence very carefully. Mrs Sava’s Witness Statement does not go into great detail as to dates or activities carried out by Mr Sava on the disputed land, but, importantly, she confirms Mr Sava’s evidence. She repeated that confirmation in her cross-examination. I give full weight to that evidence. However, as I have concluded that I cannot place any real weight on Mr Sava’s evidence, Mrs Sava’s evidence cannot provide sufficient corroboration to lead me to conclude that Mr Sava has been in factual possession of the disputed land for 12 years prior to the 13th October 2003.
During the hearing Mr Cowen placed considerable emphasis on some letters that were produced by Mr Philip Long, SS Global’s Receiver. Mr Long had no first-hand knowledge of the letters, but had found them in some files which had come into his possession. The first letter was dated the 3rd September 1996 and was from a firm of solicitors to Ketan. It referred to a “Grazing Arrangement”, and to a conversation with Ketan the previous day in which he had informed the writer that a local farmer had been given authority in around 1992 to use the land for grazing. The letter also recorded that Ketan had told the writer that in 1995 a payment of £500 had been made to his father for the occupation during the previous year, and that in 1996 a similar amount was offered but rejected. The writer advised Ketan that the worst scenario on those facts was that an agricultural tenancy had been created, and asked for further information. It does not appear that anything then happened.
In February 1998 Ketan again approached solicitors, this time a different firm. He wanted to know whether “Chris”, presumably Mr Sava, had gained any legal rights by virtue of being allowed onto the land in return for payment. Again, no further action appears to have been taken. There were further letters in the file, but none of them advanced the matter.
Finally, there is an Attendance Note dated the 20th December 1998, which refers to someone called “Louis”, who is said to have asked to use the land for grazing horses, and who is said to have locked the entrance.
Mr Cowen relied upon those documents as being documents against the Appellants’ interest which demonstrated that Mr Sava might have acquired some sort of agricultural tenancy over the disputed land. Mr Roberts submitted that the documents were not evidence of anything and that no weight should be attached to them.
I am satisfied that it is proper for me to treat those documents as evidence. The real issue is as to the weight that I give to them. In the absence of any explanation of the documents from Ketan, I do not propose to attach any weight to them. I should add that there was included in the trial bundles a Witness Statement from Ketan. In the Decision the Deputy Adjudicator explains that Ketan was in prison abroad (he wrongly identifies the country as being Uganda instead of Kenya) and that he did not give evidence. So far as I am aware no application was made to adduce Ketan’s Witness Statement in evidence, and, in any event, in that Witness Statement, which I have read but to which I pay no regard, there is no mention of any approach by Ketan to solicitors in respect of the disputed land.
Summary
For the reasons that I have explained above, I have come to the conclusion that the Deputy Adjudicator erred in his assessment of the evidence in a number of important respects. I have concluded that Mr Sava was not in factual possession of the disputed land on the 13th October 1991, and that his claim to have acquired title to the disputed land must, therefore, fail.
For completeness, I should add that I have concluded that there are no inferences which I should draw from the evidence or from the Deputy Adjudicator’s findings of fact that would have led me to the opposite conclusion.
POSTSCRIPT
Under cover of a letter dated the 23rd August 2007, and after I had largely completed this judgment, Mr Sava’s solicitors sent to me a bundle of documents to which I was asked to give consideration. Unsurprisingly, the solicitors for SS Global and Delphis objected to me looking at the documents.
I have concluded that I should not look at those documents. The objections to me looking at the documents referred to in paragraphs 1 and 2 of Mr Sava’s solicitors’ letter that have been raised by the solicitors for SS Global and Delphis are, in my judgment, well made, and in the absence of any justification for the failure to adduce the evidence at the hearing before the Deputy Adjudicator and an application for permission to adduce them on the appeal, it would not be appropriate for them to be put in evidence at this stage. As to the notes prepared by Mr or Mrs Sava on the evidence given to the Deputy Adjudicator that are referred to in paragraph 3 of Mr Sava’s solicitors letter and the proposed amendment to the transcript, I simply say that I agree with the comments made by the solicitors for SS Global and Delphis.
Finally, I should mention an exchange of correspondence between the parties’ solicitors and the Clerk to the Deputy Adjudicator. Mr Sava’s solicitors invited the Deputy Adjudicator to consider whether a typographical error had appeared in the transcript and suggested that the reference to Mr Sava moving onto the disputed land “some months before October 1991” should not have read “…October 1990”. The solicitors for SS Global and Delphis objected to the approach to the Deputy Adjudicator.
I do not propose to take account of this correspondence. I note, however, that if Mr Sava’s solicitors were correct, there would have to be further amendments made to other parts of the Decision: see, for example, Paragraph 91.
CONCLUSION
I have, therefore, concluded that the appeal must be allowed. In the light of my overall conclusions on the Deputy Adjudicator’s findings of fact, I have not attempted to state which of Grounds 1-15 of the Grounds of Appeal have succeeded. I do not believe that it is necessary for me to do so.
I have also concluded that even if I had not decided that the appeal must be allowed because a number of the Deputy Adjudicator’s findings of fact were against the weight of the evidence, I would have allowed the appeal because even on the basis of those findings of fact Mr Sava had not established factual, that is sole and exclusive, possession over the disputed land for 12 years before the 13th October 2003. Nor had he demonstrated to the whole world, by clear and affirmative evidence, his intention to possess the disputed land.
I have no doubt that at some stage after 1995 when Mr and Mrs Sava received £150,000 in respect of the surrender of Rectory Farm, Mr Sava did acquire factual possession of the disputed land, but that is not enough to entitle him to succeed in his application.
I appreciate that my conclusions will be a bitter and, possibly, devastating blow to Mr and Mrs Sava, who have suffered other grievous blows in their personal life over recent years. They will undoubtedly feel that they have wasted many years and a great deal of money. However, that is the gamble that Mr Sava took when he entered the disputed land as a trespasser at a time when he did not have the ability to exclude the paper title owner from possession, and when he spent large sums of money in developing land to which he had not acquired title.
I quoted above the sentence from Lord Denning MR’s judgment in Wallis’s Cayton Bay Holiday Camp Ltd. v Shell-Mex and BP Ltd. [1975] QB 94 at page 103, when he said that “the line between acts of user and acts of possession is too fine for words”. No such statement could, in my judgment, be made about the facts of the present case. While I have no doubt that at some date after the 13th October 1991 (and, in my judgment, well after) Mr Sava did obtain factual possession of the disputed land, equally I have no doubt that he did not obtain such possession before the 13th October 1991. He used the land, and he occupied the land, but he did not do so in such a way as to exclude the Appellants.
The Deputy Adjudicator never explained how the activities that he found that Mr Sava did on the disputed land prior to the 13th October 1991 could, on the authorities, amount to factual possession, nor did he explain how the Appellants were excluded from the land prior to that date. In the absence of such explanations I am able to consider the matter afresh. That I have done, and, for the reasons given above, I would allow the appeal.
Finally, I would again like to express my thanks to Mr Cowen and Mr Roberts for the assistance that they provided to me throughout the hearing. This case raised an interesting and difficult legal issue through which they guided me with great skill.
I would be grateful if a Minute of Order could be prepared in accordance with the terms of this judgment.