Mohammed Sheraz Akhtar & Ors v Mohammed Ali Khan & Ors

cross claims for prescriptive easements for the benefit of and over adjoining properties; and

claims for damages/injunctive relief for assault, battery, harassment, nuisance and/or trespass.

The strip of land running the whole length between the Property and Foleshill Road (“the Triangular Strip 1”).

A strip of land running part of the length between the Property and Lockhurst Lane (“the Triangular Strip 2”).

The Claimants claim damages in nuisance/trespass against the Defendants for –

The Claimants claim injunctive relief –

C1 and C2 claim damages in trespass to the person allegedly suffered during the course of the Confrontation. Specifically, it is claimed that -

The Claimants claim that they have been harassed by the Defendants both during the Confrontation and subsequently through abuse, threats, intimidation, mockery and physically preventing access to the Property. Consequential relief is sought pursuant to the Protection from Harassment Act 1997 –

“[8.] In or around 1990, Mr Boota sub-let the Property to Mr Tom Gormley who ran a car sales business “T G Cars” at the Property. At some point HSS Tool Hire took over occupation of the Property from T G Cars and occupied the Property until in or around 2000 when they surrendered their lease.”

In his written evidence, C1 was unsure whether HSS Tool Hire took over occupation of the Property by way of an assignment of the existing lease to Mr Gormley or by the grant of a new lease. No copies of any lease agreements are now available, but it is the Defendants’ case that because the Vinmalpo Lease continued to exist, the lease to Mr Gormley must have been a sub-lease as originally pleaded in the Particulars of Claim.

“[2.] …. Although the Lease dated 28 November 2000 was between [Griffin] and [Mr Boota], [Griffin] was sold by its directors to Mr. Ilyas Khokar on 6^th June 2008. Therefore as from 6^th June 2008, the new and sole director of [Griffin] was Mr. Ilyas Khokar….”

“[32.] In our legal system, if a judge finds it more likely than not that something did take place, then it is treated as having taken place. If he finds it more likely than not that it did not take place, then it is treated as not having taken place. He is not allowed to sit on the fence. He has to find for one side or the other. Sometimes the burden of proof will come to his rescue: the party with the burden of showing that something took place will not have satisfied him that it did. But generally speaking a judge is able to make up his mind where the truth lies without needing to rely upon the burden of proof.”

General observations upon the evidence of witnesses of fact

Evasive and argumentative answers;

Tangential speeches avoiding the questions;

Blaming legal advisers for documentation (statements of case and witness statements);

Disclosure and evidence shortcomings;

Self-contradiction;

Internal inconsistency;

Shifting case;

New evidence; and

Selective disclosure.

Interference with memory

"[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.

[20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."

Importance of corroborating contemporaneous documents, if available

[57] "………….. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth."

“[22.] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Absence of contemporaneous documentary evidence

“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”

Failure to call a witness of fact to give evidence

“From this line of authority I derive the following principles……

In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."

“[41.] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority….is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

C1

It was C1’s case that the Khan family are notorious within and feared by the local community. However, if true, why then did C1 decide that it was a good idea to take his three sons (including two of whom were then minors) with him in the middle of the night to remove the fence panels in what was clearly intended to provoke a response from the Khan family and bearing in mind –

It was C1’s written evidence that following the Confrontation he was repeatedly threatened, intimidated, and harassed by the Khan family and their associates to such an extent that he “really feared for both my own safety and that of my family”. Despite those expressed fears, C1 did not apply for an interim protective injunction until 14 April 2021, some 19 months after the Confrontation. Even then the interim injunction that was sought was only to prohibit the Defendants from harassing C1, and no specific protections were sought against threats or use of violence. In those circumstances, it is perhaps unsurprising that the interim application was refused by Mr Justice Murray on 16 April 2021, and notwithstanding that it was made without notice and without hearing from the Defendants.

It was C1’s written evidence that the erection of the Road Fence on the Triangular Strip 1 has adversely impacted upon his ability to attract and retain paying tenants. In support of that assertion, C1 relies upon:

In his written evidence C1 stated that when Mr Boota passed away he “took the lead in looking after the Property”, but he did “not recall entering any deed of surrender in respect of any lease”. In his oral evidence, C1 initially said that so far as the Vinmalpo Lease having been closed at the Land Registry in 2013, he had “no idea it was done”, “beyond me”, “don’t know who ended the lease in 2013” and “not aware about the lease back then”. That claimed lack of knowledge is somewhat surprising when considering that the Vinmalpo Lease was closed at the same time as the Property was transferred to the Claimants as part of their inheritance following the death of Mr Boota. At that time, not only had C1 in his own words “taken the lead in looking after the Property”, he was also a personal representative of the estate of his late father. Later in his oral evidence, C1 sought to blame the probate solicitor, another Mr Khan allegedly related to the Defendants by marriage, for unilaterally closing the Vinmalpo Lease.

The plan attached to the Fastlane Tyres license marks the Yard as “Shared Car Park”. In his written evidence, C1 explained that this “means shared with any other occupier of the Property for example a person leasing or having a licence of the front portion of the Property”. Initially, in his oral evidence, C1 said that he retained the front portion of the Property on Foleshill Road, which he was “running as a sole trader” before changing his evidence to say that he and his son were “running two businesses between us”, and so there was “nothing to be divided between us”. When asked, if that was the case, why was it necessary to grant a license, C1 again changed his evidence to say that the businesses were split between him and his son.

In light of C1’s oral evidence that the title to the Vinmalpo Lease was closed by the solicitor then the probate file relating to Mr Boota’s estate was potentially an important piece of evidence throwing light upon why the Vinmalpo Lease was only closed in 2013. I repeat that C1 was a personal representative of his late father’s estate and so he could have, but failed, to disclose the probate file into these proceedings.

In his oral evidence, C1 said that he made a couple of video recordings in connection with the Confrontation, one made before the police arrived and one made in the immediate aftermath. He said that he had not disclosed the videos into these proceedings because it was all in his written statement. However, that explanation made no sense -

Later in his oral evidence, C1 said for the first time that he had lost his phone, which he claimed had other potentially relevant videos on it.

The Re-Amended Particulars of Claim positively assert that, following the merger of the leasehold and freehold titles in 1989, the registered title of the Vinmalpo Lease was by mistake not closed until 3 October 2013. However, in his oral evidence, C1 admitted that he had no knowledge of his late father’s businesses whilst his father was alive, which begs the question how does C1 know that there was a mistake as alleged.

The Re-Amended Particulars of Claim allege that “the First Defendant grabbed the First Claimant from behind by the neck and threw him to the ground causing bruising to the First Claimant’s legs”. (Footnote: ⁴) Having been shown the Bodycam Footage, C1 accepted that it was D2, not D1, who caused C1 to fall to the ground . It was C1’s evidence that at the time of the incident he had not seen who pushed him to ground and it was C2, who told him D1 was responsible.

In his written evidence, C1 stated that he sustained “bruising to my legs when I had been thrown to the ground” during the Confrontation. C1 disclosed photographs of bruising to the front of his thighs. However, the mechanics of the fall(s) shown on the BodyCam Footage are not consistent with causing the alleged injuries. In his oral evidence, C1 was unable to explain how it was that he had sustained bruising to the front of his thighs as a result of the alleged battery.

C2

The leaseholder under the Vinmalpo Lease can cross the Triangular Strip 1 by right.

The boundary lines of the Property, particularly in respect of Foleshill Road, are shown to be the same on the plan annexed to the Vinmalpo Lease and the plan annexed to the Griffin Lease with both incorporating the Triangular Strip 1.

Mr Boota was an honourable man, who would “not lease something not entitled to do.”

Mr Boota intended to continue the Vinmalpo Lease after purchasing the freehold of the Property. Following Mr Boota’s death the Vinmalpo Lease was terminated by mistake.

After being moved across the road by the police, he “couldn’t really see what was going on” because of the “police vans and cars in front……[and] I’m not sure I told my brother” that D1 pulled C1 over.

At the “critical time” of the Confrontation there were only “5 or 6 Khans present”.

D2

In his oral evidence, D2 initially said in evidence that he did not really know about the acquisition of the Triangular Strips from Coventry City Council in 2018, which he said was dealt with by D1. Later D2 said in evidence that it was “mostly me and [D2] who in negotiations with Coventry City Council” regarding the redevelopment of the Property. The relevant planning permissions were obtained in 2017 and 2019. In those circumstances, it is inconceivable that D2 did not know fully about the acquisition of the Triangular Strips in the intervening period.

The Claimants’ solicitors sent by recorded delivery a letter dated 6 October 2014 addressed to Café Khan’s (“the Cease and Desist Letter”) requesting inter alia that it refrain from unlawfully using “a side access door which leads to our client’s property… without consent” and permitting “your customers to park their vehicle on our clients’ property during the evenings without consent.” When shown the Cease and Desist Letter, D2 sought to distance himself from the Café Khan’s business by incongruously claiming that “I am involved in the business but not a stakeholder.” D1 had of course originally acquired the Neighbouring Property in 2013 before transferring the freehold title to D1 in 2015. Further, on his own evidence, D2 was closely involved in the negotiations with Coventry City Council from 2017 to 2019 over the proposed redevelopment of the Neighbouring Property. Still further, later in his oral evidence D2 went into considerable detail about the frequency and timings of deliveries by suppliers accessing Café Khan’s via the Side Door.

D2 denied in his oral evidence that the Cease and Desist Letter was ever received. He further said that “We discuss things as a family. If had received letter we would discuss with family. I believe it is fake. He has changed so many solicitors’ firms.” Later in his oral evidence, D2 said that he did not know about the business arrangements made between D5 and Mr Khokhar. Therefore, it appears on D2’s evidence that the Khan family would have discussed the Cease and Desist Letter, if received, but would not have discussed either D1 acquiring the Triangular Strips or D5 taking over the running of Mr Khokhar’s business operating on the Property next door.

D2 said in his oral evidence that it was never a condition of the planning permission that there be parking in the Yard for the proposed residential units. D2 was then taken to the planning conditions dated 21 January 2019, which included that “[5.] Prior to occupation of the proposed development hereby approved the car parking area shall be provided in accordance with the approved details Block Plan …. And the car parking area shall not thereafter be used for any other purpose.” The Block Plan attached to the Construction Management Environmental Plan dated December 2018 clearly shows 9 car park spaces marked out on the right hand side of the Yard. In addition, the Block Plan records – “CLIENT Zia Khan”.

Perhaps unsurprisingly when faced with this documentary evidence, D2 changed his oral evidence to say that the Block Plan merely “reflects what we already entitled to do”, but earlier in his oral evidence he had said that the Defendants “always parked on the left hand side of the Yard.” D2 then changed his oral evidence again to say that “when the sales cars removed at night our customers parked in the opposite spaces with no objections.”

It is the Defendants’ case that the Yard was shared with the Property such that the Neighbouring Property primarily used the Yard at night for customer parking. Taking the Defendants’ case at its highest, such user would not give rise to an easement for permanent residents’ parking over the Yard as envisaged by the Block Plan.

D5

In his written evidence, D5 stated that he “was in actual occupation [of the Property] from 2015 as I had taken over the business given [Mr Khokhar] was focused on retirement.” However, in his oral evidence, D5 variously said -

D5’s evidence was confused and confusing. It was not clear whether D5 believed he had taken over Mr Khokhar’s business, was employed by Mr Khokhar or was in partnership with Mr Khokhar.

D5 said in his oral evidence that he had been frustrated that the Claimants were not agreeable to assigning the Khokhar Lease to him because it had always been his childhood dream to run a business doing up cars. I found that evidence to be utterly fanciful –

Mr Khokhar

In his written evidence, Mr Khokhar stated that “[5.] I was the occupier of the [Property] between the period of 2008 – 2019”. In his oral evidence, Mr Khokhar confirmed that “I was still running the place in 2019.”

However –

Later in his oral evidence, Mr Khokhar said that “In 2015, I was still working at the Property on a daily basis. I don’t remember working there in 2016. Think I handed over the business to D5 in 2017 or 2018.”

Mr Khokhar’s evidence as to when he ceased to be involved in the business at the Property was also confused and confusing being any of 2015, 2017, 2018 or 2019.

In his oral evidence, Mr Khokhar said that he never gave permission for the Khan family to use the Yard for parking, since it was always a shared area. “It basically belongs to both sides.”

However, in his witness statement dated 2 May 2018 filed in support of his claim for a declaration that the Claimants had unreasonably refused to give consent to an assignment of the lease to the Property, Mr Khokhar stated –

When asked to explain this inconsistency, Mr Khokhar said in his oral evidence of his earlier witness statement –

When then asked how did the solicitor know what to put in the witness statement if not told by Mr Khokhar, he replied in his oral evidence –

Mr Khokhar’s explanation lacked any credibility.

Other witnesses

They were seeking to recall events and/or conversations going back over many years; and

With the exception of Mr Davie, none of them can be regarded as detached or objective observers –

It was the evidence of Mr Parvez Akhtar that -

It was the evidence of Mr Hussain that -

Whilst I did not find that the evidence of Messrs Parvez Akhtar and Hussain was tainted by indicators of unreliable witness evidence, it strikes me that they cannot both be correct in their recollections.

The Claimants’ and the Defendants’ respective claim and counterclaims for easements are based upon acquisition by prescription and the doctrine of “lost modern grant”.

Under the doctrine of “lost modern grant”, an easement is presumed if it can be shown that there has been at least 20 years’ uninterrupted use.

Such use must be “as of right”, which means without force, without secrecy and without permission (nec vi, nec clam, nec precario).

“as of right”

“[14.] …… the legal meaning of the expression "as of right" is, somewhat counterintuitively, almost the converse of "of right" or "by right". Thus, if a person uses privately owned land "of right" or "by right", the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is "as of right", it is without the permission of the landowner, and therefore is not "of right" or "by right", but is actually carried on as if it were by right – hence "as of right". The significance of the little word "as" is therefore crucial, and renders the expression "as of right" effectively the antithesis of "of right" or "by right".”

“without secrecy”

“On principle, it appears to me that a prescriptive right to an easement over a man's land should only be acquired where the enjoyment has been open - that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment.”

“without permission”

“The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is “as of right”; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not “as of right”. Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence. The positive act or acts may take different forms. The grant of oral or written consent is the clearest and most obvious expression of permission. But there is no reason in principle why the grant of permission should be confined to such cases. Permission may also be inferred from the owner’s acts. It may be that there will not be many cases where, in the absence of express oral or written permission, it will be possible to infer permission from an owner’s positive acts. Most cases where nothing is said or written will properly be classified as cases of mere acquiescence. But there is no reason in principle why an implied permission may not defeat a claim to use “as of right”. Such permission may, however, only be inferred from overt and contemporaneous acts of the owner.”

“without force”

“[13.] The phrase “without force” carries rather more than its literal meaning. It is not enough for the person asserting the right to show that he has not used violence. He must show that his user was not contentious or allowed only under protest. This appeal is concerned with what constitutes protest on the part of the owner of the land for these purposes.

…….

[31.] ……….. In the present case, there were two sign clearly visible to all users of the car park and clearly informing all users that it was a private car park for the use of Club patrons only. The signs were never vandalised or, until 2007, removed and no occasion arose for their replacement. In those circumstances,…… the answer would appear to be clear that the signs were by themselves sufficient to make contentious the parking of cars and other vehicles by the appellants, their suppliers and customers.”

In the course of their car sales/repair businesses, Griffin, and later Mr Khokhar, would park motor vehicles across the whole of the Top Yard thereby blocking vehicular access to the Yard from Foleshill Road and across the Triangular Strip 1.

Therefore, Griffin and Mr Khokhar would usually access the Yard via the entrance from Lockhurst Lane, which was controlled by a gate.

At the end of the working day, Griffin and Mr Khokhar would move the motor vehicles to the Lower Yard to be secured safely behind the Yard Fence thereby enabling Café Khan’s to use the Top Yard for parking during the evening/night.

Having undertaken a site visit it was abundantly clear that, prior to the recent erection of the Road Fence, Foleshill Road would have been used as the main entrance to the Property by the businesses operating there from time to time.

Historically, the entrance to the Yard from Foleshill Road was unrestricted with a dropped kerb to the road running along the whole length of the entrance to the Yard. The front of the building faced onto Foleshill Road and was situated between the fronts of (i) the restaurant(s) on the Neighbouring Property with parking spaces on the forecourt and (ii) a row of shops again with parking spaces on the forecourt. The obvious and established entrance to the Property was over the Triangular Strip 1.

By contrast, Google Street View Images captured during the day in November 2010, October 2012, September 2015, July 2016 and April 2017 show the gate on Lockhurst Lane shut. Indeed, the later images show the banner on the gate hanging off and weeds growing in the entrance entirely consistent with the back entrance being used only occasionally.

Determination of the Vinmalpo Lease

Parties’ respective cases

Upon Mr Boota’s acquisition of the freehold estate of the Property, on 23 January 1989, the leasehold estate and the freehold estate merged such that the Vinmalpo Lease was consequently determined.

In the alternative, the Vinmalpo Lease was determined on or around 17 October 1990 by way of the compulsory purchase by Coventry City Council of all the existing interests and rights in respect of the Triangular Strip 1, including the freehold estate and any leasehold estate.

By mistake the following entries at the Land Registry were not updated following the determination of the Vinmalpo Lease (whether in 1989 or 1990) and as such are incorrect –

There ought to be alteration and/or rectification of the Land Register (in particular with regards to the above entries) so that it reflects the Vinmalpo Lease being determined on 23 January 1989 (or in the alternative on 17 October 1990).

Applicable legal framework

“[30.] ….. Where the lesser interest is a tenancy, the greater interest is the reversion immediately expectant upon its determination and both estates become vested in the same person, the judge observed that at common law a merger would be regarded as occurring automatically. That is, I consider, correct, at any rate in cases in which the two estates become vested in the same person in the same right. The approach of the common law does not, however, provide a solution to the present case because a different principle applies in equity and the equitable rule now prevails. The rule in equity was that there would only be a merger if the party in whom the two estates vested intended a merger. Section 185 of the Law of Property Act 1925, headed ‘Merger’, (and substantially re-enacting section 25(4) of the Judicature Act 1873) provides that:

It is, therefore, upon the equitable principles relating to merger that attention must be focussed. Mr Warwick’s submissions raised an issue as to the equitable solution that the court should apply to the facts of the present case in circumstances in which there was (as the judge found) no evidence as to EDF’s intention in relation to merger when the two estates became vested in it.

[31.] We were referred to just two authorities on merger. The first was Ingle v Vaughan Jenkins [1900] 2 Ch 368, a decision of Farwell J.…..

…………

[33.] The second authority was Capital and Counties Bank Limited v Rhodes [1903] 1 Ch 631, a decision of this court ……

………

[40.] With respect to Mr Warwick’s careful submissions, both in opening and reply, I regard them as mistaken at every point and would not accept them. The starting point is that whereas the ordinary rule at law was that the coalescence of a lease and its reversion in the same person (‘A’) in the same right would result in a merger and extinguishment of the lease, in equity it was open to A to form an intention, and declare accordingly, that there should be no such merger and extinguishment. Equity further developed the principle that in any case in which A did not expressly evince such an intention, or in which there was no other evidence of such an intention on his part, there was a presumption against any intention for a merger if such would be against his interest. In a case in which there was no express declaration or other evidence as to A’s intentions, the focus of equity’s inquiry was therefore exclusively on his interests: and if a merger would be against his interests, he is presumed to have intended against any merger. That is the principle that was applied in Ingle and this court in Rhodes made it clear that it regarded Ingle as having been correctly decided. The equitable principles now prevail over the principles applicable at law.

………..

[44.] In my judgment the task for the judge in relation to this issue was to consider whether there was any evidence of any intention on the part of EDF as to whether there should be a merger. He found, in paragraph [69], that there was none. Having so found, he had next to consider whether it was or was not in EDF’s interests that there should be a merger. He found that it was not and that finding led him, correctly in my judgment, to the conclusion that he should presume that no merger was intended. That was the approach that Ingle (endorsed by Rhodes) required him to adopt and he was correct to do so. That it may perhaps have been, or might turn out to be, contrary to the interests of the co-reversioners that there should be no merger is irrelevant.”

“Alteration pursuant to a court order

[2] (1) The court may make an order for alteration of the register for the purpose of—

[3] (1) This paragraph applies to the power under paragraph 2, so far as relating to rectification.

Determination of the Vinmalpo Lease on 23 January 1989?

Any evidence of any intention on the part of Mr Boota as to whether there should be a merger?

“Mr Boota intended to continue it as far as I’m aware. The lease was terminated by mistake without our knowledge. Solicitor did it without instructions. Mr Boota would never have intended to close the leasehold title.”

“[7.] The Defendant possesses the freehold interest in the property and the Defendant is not a Tenant and so there are no other person or entities who have an interest in the reversion other than the Defendant…..”

The document is dated 20 August 2010 some 22 years after Mr Boota acquired the freehold title.

Although dated, the document was not signed.

The document was not put to any of the witnesses at trial, and so the provenance of the document is uncertain.

The Lease Renewal Proceedings were settled by way of a Tomlin Order dated 17 June 2011, which provided that Mr Khokhar be granted a new lease on similar terms to the Griffin Lease subject to certain changes in respect of the term, the rent, the deposit and completion. However, the extent of the Property being demised remained unchanged. When finally granted in 2017, albeit after Mr Boota’s death and the leasehold title having been closed at the Land Registry, the demised property was defined by reference to the plan attached to the Griffin Lease, which included the Triangular Strip 1.

Whether it was or was not in Mr Boota’s interests that there should be a merger?

“I wouldn’t have closed it……why surrender something that didn’t cost me anything. Silly of me.”

The compulsory purchase completed in 1990. Compulsory purchase is a relatively protracted process, and so it is likely that the process was ongoing at the time that Mr Boota acquired the freehold title in 1989. Indeed, it may well be the reason that Mr Boota exercised the option at that time to acquire the freehold title in order to seek to maximise the level of compensation payable by Coventry City Council. If there was no merger then when Coventry City Council finally acquired the freehold title of the Strips of Land, including the Triangular Strip 1, it would have been subject to Mr Boota’s continuing leasehold interest. It was the written evidence of C1 that Mr Boota had only received a small payment from Coventry City Council by way of compensation. Therefore, had Coventry City Council proceeded with the road widening scheme to the full extent as originally planned there was the potential for Mr Boota to re-negotiate additional compensation for the purchase of his continuing leasehold interest. It was argued by counsel for the Claimants that Mr Boota lacked the commercial acumen to realise or understand this opportunity, but the evidence before me was that Mr Boota was a successful businessman.

If there was a merger, then in the absence of any easement being reserved for the benefit of the Property then, pending the planned road widening scheme, there would be no lawful access to the Property over the Triangular Strip 1. It was argued on behalf of the Claimants that it is probable that an easement would have been reserved for the benefit of the Property as part of the compulsory purchase process. However, under the Land Registration Act 1925 s.19(2) (as then applicable), any such reserved easement would not take effect as a legal interest unless and until entered on the register against the registered freehold title of the Strips of Land. There is no evidence of any such registration, which in my view makes it unlikely that an easement was reserved for the benefit of the Property, and so it would clearly not have been in the interests of Mr Boota that the Vinmalpo Lease be determined by way of merger.

Determination of the Vinmalpo Lease on 17 October 1990?

It would make no sense at all for Coventry City Council to acquire only the freehold interest and leave a subsisting leasehold interest.

It is very likely that full enquiries would have been made at the Land Registry to identify those estates in the Strips of Land which subsisted and had to be acquired.

“If the user is equally consistent with user by permission and user as of right the user is not sufficient for prescription. Thus, in referring to the doctrine of lost grant, it was said by Fitzgibbon LJ [in Hanna v Pollock [1900] 2 I.R. 664 at 671]:

“[35.] Where the court is asked to choose between two explanations for the user both explanations must produce the result that the user was lawful. Where there are said to be two explanations for the user, each of them involving a lawful origin for the user, one has to ask whether both explanations are reasonably possible. If there are two reasonably possible lawful origins then the position is as stated in Gardner v Hodgson's Kingston Brewery Company [1903] AC 229 per Lord Lindley at 239: "[i]f the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established …". This approach was applied in Odey v Barber [2008] Ch 175 at [36].”

Conclusion

There was no merger and the Vinmalpo Lease subsisted until 2013 when it was closed at the Land Registry.

The user before 2013 was ‘by right’ being the entitlement arising under the various sub-leases, including the Griffin Lease and the Khokhar Lease, which were granted out of Mr Boota’s subsisting leasehold estate and which included the Triangular Strip 1.

“[c.] the First to Fifth Defendants have been familiar with the site since 1996, when Mr Akhtar leased the Neighbouring Property to Mr Hussein and Mr Ali. Between 1996 until about 2002, the staff and customers of the restaurant which was operated from the Neighbouring Property, as well as other visitors and licensees, would habitually park in the yard which comprises the Top Yard and the Bottom Yard;

[d.] following the erection of the fence by Griffin in about 2002, and until 2016:

…….

[f.] throughout the periods which are referred to in paragraphs (c) and (d) (above), the door in the northern elevation of the restaurant would be used by staff of the restaurant and visitors and other licensees (but not customers) as a means of access to the restaurant building from the car parking areas which they used;”

20 years’ user

As already noted prior to the erection of the Road Fence, there was unrestricted and easy access to the Yard from Foleshill Road with a dropped kerb across the whole length of the entrance.

The car sales/repairs businesses operating from time to time at the Property would close at around 5pm, which broadly coincided with the opening times of the restaurant businesses operating from the Neighbouring Property.

Having regard to the open nature of the Yard and the cross over of the operating times of the neighbouring businesses, it was inevitable that the staff, customers and suppliers of the restaurant businesses at the Neighbouring Property would park in the Yard from the late afternoon/early evening until late at night. It was Mr Hussain’s evidence that the Yard was “very accessible” and was used for parking by his customers. Mr Parvez Akhtar conceded that Café Khan’s “was very busy and when I used to visit there were lots of vehicles and they probably did park on the Yard.” It was Mr Davie’s evidence that he regularly drank at the pub located on Lockhurst Lane opposite to the Property. At closing time, he would go to eat for about an hour at the Shahi Palace, and later Café Khan’s, two or three times a week. He would see other customers parking in the Yard.

Having parked on the Yard, it was also inevitable that suppliers would then access the restaurants at the Neighbouring Property via the Side Door. It was the oral evidence of Mr Hussain that there would be deliveries once or twice a week.

C1 was unable to challenge the evidence of Messrs Hussain, Parvez Akhtar and Davie in this regard because in his oral evidence C1 admitted that it was only on “very few occasions” that he would attend the Property in the evenings because he himself was working evenings at his family’s restaurant business in Rugby.

“without permission”

Car parking Bottom Yard

In Roberts v Fellowes -

It was the oral evidence of D2 that –

It was D5’s evidence that –

Use of the Property

It is not disputed that Mr Khokhar’s was in financial difficulties and wished to rid himself of the obligations under lease.

In his witness statement dated 2 May 2018, Mr Khokhar stated “Although the [P]roperty was empty… I allowed Mr Khan to utilise the grounds of the [P]roperty for the parking of customers’ vehicles………. His premises lack sufficient convenient parking facilities and it was and continues to be useful to him to utilise the [P]roperty for this purpose. The effect of this arrangement, which is informal in nature, is that Mr Khan pays the rent that I am liable to pay under the lease.”

Whilst Mr Khokhar initially sought in his oral evidence to distance himself from that earlier written evidence, later in his oral evidence he said that he told D5 to “run the business on my behalf and do whatever you want from there…. They can run the business and they have all the rights I had [under the lease]”.

It is not seriously disputed that, by 2015 at the latest, D5 was in occupation of the Property and paying the rent.

D5 stated in his written evidence that:

The BodyCam Footage shows D5 telling the police that the Defendants were entitled to erect the Temporary Fence on the Yard because they had taken a sublease of the Property from Mr Khokhar.

“without force”

“[21.] In the light of the development of the authorities, it cannot now be said, even if it ever could, that to avoid acquiescence, the owner of the relevant property must take steps through physical means or legal proceedings actually to prevent the wrongful user.

…..

[40.] In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps in order to prevent the wrongdoers from acquiring a legal right. In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be "as of right". Protest against unauthorised use may, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. But I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings.”

An inability to park cars on the Yard would adversely impact upon, initially Café Khan’s business, and later upon the Defendants’ ability to redevelop the Neighbouring Property. In his oral evidence D2 acknowledged that “it would have been a problem.” The Defendants were clearly strongly motivated by a desire to secure rights over the Yard once their use was challenged by the Claimants.

It is therefore no coincidence that shortly after the Cease and Desist Letter was sent the Defendants began to take steps to acquire control over the Yard -

It was a striking feature of this case that D1, who is the registered owner of both the Neighbouring Property and the Triangular Strips, failed without any proper explanation to give evidence at trial. In addition, D2 confirmed in his oral evidence that he had not considered it necessary to disclose the conveyancing file relating to the acquisition of the Triangular Strips. He explained that “My brother have it….. he knows more about it, he deal with it…..My brother dealing with paperwork.” I consider that this missing witness and documentary evidence would have been highly material going as it would to address (i) whether or not the Cease and Desist Letter was received and (ii) the rationale for purchasing from Coventry City Council the Triangular Strips, which had no real value in and of themselves. In all the circumstances, I consider it appropriate to draw an adverse inference that, if made available, such evidence would have strengthened the Claimants’ case that (i) the Cease and Desist Letter was received and (ii) the Triangular Strips were acquired as ransom strips as part of a wider scheme to seek to secure control over the Yard for the Defendants’ benefit after receiving the Cease and Desist Letter.

“[52.] I agree with the judge that the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner’s case on whether the user was as of right. But it will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of that case…..”

Conclusion

The Defendants’ use of the Bottom Yard was “by right” from at least 2006 when that use was permitted/licensed by Griffin in their capacity as the then tenants of the Property.

The Defendants’ use of the Yard more generally was “by right” from at least 2015 when that use was permitted/licensed by Mr Khokhar in his capacity as the then tenant of the Property.

In the alternative, from 2014, the Defendants’ use of the Yard was rendered contentious as a result of the Cease and Desist Letter.

For the period prior to 26 February 2020, being the date that the Claimants forfeited the Khokhar Lease -

It is not seriously disputed that on 8 March 2020, approximately a week after the Claimants forfeited the Khokhar Lease, C1 encountered the Defendants, who were at the Property removing their goods from storage in the building. The Torts Notice displayed by the bailiffs, who effected the forfeiture of the Khokhar Lease, expressly stated that “the goods.. being held on the site… are available for collection..”

C1 claimed that the Defendants left debris on the Property arising from the demolition works at the Neighbouring Property and which had to be cleared away. However, there is no documentary evidence confirming the extent and/or cost of any such clearing up.

For the period from 26 February 2020, the Blue Container remained, for no good reason, on the Property and even now some 4 years after the Claimants regained possession. However, the Claimants have not pleaded or evidenced any loss or damage caused by the presence of the Blue Container. Nor have the Claimants evidenced the commercial rates that might otherwise be chargeable for equivalent storage. In my judgment, the Claimants have failed to prove this particular claim in damages, which is dismissed. However, the Defendants do need to remove the Blue Container immediately, and I will make a mandatory injunction to that effect.

I have found that the Defendants embarked upon a campaign to appropriate the Property, and which ultimately led to the Confrontation.

The Defendants have continued to place the Blue Container on the Property even after the Claimants forfeited the Khokhar Lease thereby terminating the permission/license granted by Mr Khokhar for the Defendants to do so. I further find that the continued presence of the Blue Container is an attempt by the Defendants to exert continuing control over the Property and as a means of ‘staking out their territory’.

The injunction will be for the period of 4 years, which corresponds broadly to the length of time that the Blue Container has remained on the Property since the Claimants regained possession.

Battery

Analysis and conclusion

“[71.]….. the large group rushed to where we were from where they had parked. I kept backing off…..The group seemed to circle us. One of the group grabbed me from behind by my neck and threw me to the ground. Afterwards I was told by [C2] that [D2] was the one who had thrown me down.

[72. ]…. more police arrived. I saw that my sons and my brother were across the road and I tried to join them. I thought that I could get away from the group by leaving via the Neighbouring Property/the junction of Foleshill Road and Lockhurst Lane. It was very scary and in the commotion this is where I found myself. [D2], a large man of over 6 feet tall, forced me back up against the railings and leant against me. I could not breathe – I told him that I could not breathe. Thankfully, he leant off me and in that moment I managed to jump over the railings of the Neighbouring Property at the junction.”

“[20.] …… We were rushed by the group who were acting aggressively towards us. The group were verbally abusive and aggressive towards me, my nephews and my brother. One of them, I think it was [D2], grabbed [C1] from behind and threw him to the ground. The police (the first two officers who were at the scene) were present but did very little.

[21.] More police had arrived at the scene and I was told by the police to move across to the opposite side of the road and I followed their instructions……..

[22.] The Khan family and their associates were aggressive and threatening towards us for around 45 minutes from across the road. They swore, shouted, and used threatening phrases….”

It may well be that, if the police officers had not by chance been present as events unfolded, the incident could have been very much worse. However, generally what I saw is a lot of bad tempered shouting, swearing, squaring up, posturing, pushing and shoving from both sides interspersed with repeated shouts of “whose the gangsta?”

D3 is heard shouting and gesturing, “You threatened me before, come on then” before being told by a police officer, “Any more of that and you’ll be locked up.”

C2 is told by a police officer, “Your causing a breach of the peace and if you stay here you’ll be arrested.” The police officer moves C2 to the opposite side of the road and then tells C2, “If you cross this road again, I’ll arrest you.”

Rather than backing off as he alleges, C1 is shown advancing towards a Khan family member, who is arguing with one of C1’s sons. He grabs the Khan family member before D2 intervenes and pushes C1 away causing C1 to fall to the ground.

C1 then quickly jumps up and advances towards D1 with his arms raised pushing D1 in the chest back towards the road before D1 pushes C1 back and to the ground.

A period of relative calm then breaks out during which the Khan family members speak separately to the police officers urging them to arrest the Akhtar family members for criminal damage.

During the early part of this lull, C1 is stood further down the road with his back to the railings, which are only waist high, and with D2 leaning against him. D2 said in his evidence that he only did that to get C1 to calm down. The video shows that C1 is not isolated as he alleged, but surrounded by his 3 sons and a police officer all looking up the street. Nobody, including C1, appears concerned in any way. C1 taps D2 on the chest and D2 immediately moves away. Contrary to C1’s evidence, there is no dramatic escape to safety with him jumping over the railings.

The police log records (with my emphasis) - “Disorder….No further police action required……Both parties advised that the matter is civil and needs to be settled through court and it was not something that is going to get sorted out in the middle of the night. There were no allegations of assault…... The group who owned the fencing and the neighbouring property felt that the steel metal fence had been damaged but there was no evidence of this as it was put back together before police left……Log can be closed – civil dispute. Public safety/welfare concern for safety....None.”

Unconvincingly, C1 sought to explain away not reporting the alleged assault and battery to the police because they “had been wearing body video cameras and I had assumed everything had been recorded”. However, the police log further records that “both parties given… this log number should they wish to report anything further at a suitable time where it can be dealt with appropriately. Officers have BWV footage of this incident that will be saved [in] evidence…”

Although the photographs of the alleged bruising to his thighs are not time stamped, it was C1’s evidence that he took them immediately after the Confrontation when he got home. Yet he apparently chose to make no further report to the police with that photographic evidence and despite having been given the police log number for that very purpose.

The alleged injuries are not consistent with the mechanics of C1 having fallen backwards to the ground. The more plausible explanation for the cause of any such injuries caused that night is C1 admittedly having to drag the fence panels when removing them because they were so heavy. In his oral evidence, C2 said that it was only possible to lift the large metal panels to knee height. The BodyCam Footage shows the fence panels being dragged between knee and waist height.

On 2 August 2019, C1’s solicitors wrote to D1 threatening injunctive relief if the replacement fence was not removed. The letter also stated:

C1 was clearly frustrated by the Defendants’ refusal to remove the Temporary Fence erected on the Property without the Claimants’ permission such that he was well up for the Confrontation that he had deliberately provoked.

C1 was clearly highly agitated and, rather than backing off, he was very much on the front foot. He was first to lay hands on members of the Khan family, which then resulted in him being pushed back.

C2 was also an aggressor as evidenced by him having to be removed by the Police and threatened with arrest.

D2’s actions towards C1 were justified, reasonable and proportionate in circumstances where he was seeking (i) to protect another person being violently confronted by C1 or (ii) to calm C1 down.

“[30.] …… Where….. the quality of the conduct said to constitute harassment is being examined, Courts will have in mind that irritation, annoyances, even a measure of upset arise at times in everybody’s day-to- day dealings with other people. Courts are well able to recognise the boundary between conduct, which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be an order which would sustain criminal liability….”

Analysis and conclusion

I have already found that rather than being an innocent victim, C1

Nor was C2 an innocent victim and as evidenced by the Bodycam Footage, which shows that during the Confrontation the police (i) moved C2 to the opposite side of the road because he was causing a breach of the peace and (ii) warned C2 that if he moved back he would be arrested.

Rather than leaving the scene under the protection of the police, C1 and C2 chose to remain for a prolonged period of time in order to continue the feud.

C1’s solicitors’ letter dated 2 August 2019 referred to C1 having been intimidated by 10-15 individuals during the Confrontation. However, the letter fails to mention that:

C1 has disclosed a video taken on 29 February 2020. I have viewed the video, which shows C1 standing outside the front of the Property filming the Neighbouring Property and two of the Defendants stood outside their property several feet away from C1. A few innocuous words are exchanged including C1 saying “Yes I can see you clearly now.” There is no allegation of harassment arising from this particular incident. However, it is inconceivable that, if C1 was so fearful of the Khan family following the Confrontation as is claimed, C1 would simply have turned up at the Property by himself a few months later, stand next to two of the Defendants, and film them and the Neighbouring Property.

The next day, on 1 March 2020, C1 returned to the location. It was C1’s written evidence that he was sat in his car over the road watching the firmed up Road Fence being erected when D4 mocked him by gesturing at his crotch and coming towards C1. In his oral evidence C1 said that D4 “wanted to bash my head in. The car was locked but his body language was intimidating. I have the right to park there and record him.” Again, I have viewed the video. It does show D4 touching his crotch in a mocking way, but it does not show D4 coming towards C1 whether in a threatening manner or at all. D4 can be seen laughing and joking with passers-by one of whom he then approaches.

In his written evidence, C1 stated that, on 8 March 2020, he was “chased from the Property” having attempted to gain access from Foleshill Road. When asked why he had not disclosed a video of this alleged incident C1 replied that he was worried that his phone, which was expensive, might be damaged “by the shoving and pushing.” However, that explanation made no sense. C1 has disclosed several videos taken on his phone of other alleged incidents including the video of the alleged incident that occurred immediately afterwards when he was “forced from the Property” by D2. Therefore, the reasonable inference that I draw is that a video of this particular alleged incident was not taken because C1 did not feel threatened, intimidated or harassed in any way.

C1 has disclosed a video of the 2^nd alleged incident that occurred on 8 March 2020 when he was “forced from the Property” when attempting subsequently to gain access to the Property from Lockhurst Lane. I have viewed this video, and there is no evidence whatsoever of D2 having used force against C1. D2 is seen calmly ambling towards C1 with both hands in his pockets before closing the gate across which there is an unremarkable exchange of words with each claiming it is their land.

The last alleged incident took place on 8 March 2020. It makes absolutely no sense that, if C1 was being harassed, intimidated and threatened as alleged, it then took him a further 13 months to make an application to the court for a protective injunction. Unsurprisingly, in light of the unreasonable delay in making the application, the injunction was refused.

an injunction mandating the Defendants to remove the Blue Container from the Property; and

an injunction for a period of 4 years restraining the Defendants from trespassing onto the Property whether to facilitate development of the Neighbouring Property or otherwise.