Anthony Charles Clapham v Dee Narga

Hearing dates: 12 and 13 December 2023

APPROVED JUDGMENT

This judgment was handed down remotely at 10.30 am on Friday 22 December 2023 by circulation by email to the parties or their legal representatives and by release to the National Archives.

I. The Appeal

By Appellant's Notice dated 21 February 2023 the Appellants, Mr and Mrs Clapham and Mrs and Mrs Wright, applied for permission to appeal against the Order dated 7 March 2023 (the “ Order”) made by His Honour Judge Hedley (the “ Judge”) dismissing their claims for declaratory relief in relation to (1) the location of the boundary between their properties, 24 to 26 the Green Thrussington Leicestershire, and the property of the Respondent, Ms Narga, at Brook Barn, Seagrave Road Thrussington Leicestershire; and (2) their claim that they were entitled to be registered as proprietors of two strips of land between their properties and hers.

The Judge dismissed these claims after a full trial which took place on 28 to 31 March 2022 and on 18 May 2023 and he handed down a reserved judgment on 15 September 2022 (the “ Judgment”). On 6 February 2023 he dealt with consequential matters before making the Order. Where I refer to paragraphs below in square brackets, I intend to refer to paragraphs in the Judgment (unless otherwise stated or coupled with a citation from authority). I also adopt the defined terms and abbreviations which the Judge used in both the Order and the Judgment.

In the Grounds of Appeal which were filed with the Appellant's Notice the Appellants advanced three grounds of appeal. The first ground (“ Ground 1”) was that the Judge had been wrong to hold as a matter of law that the Appellants were not entitled to be registered as the proprietors of the two strips (defined as the “ Wrights' Strip” and the “ Claphams' Strip”) located between the north of the Brook and the Fence. Ground 1 turns on the application of both the Land Registration Act 1925 (the “ LRA 1925”) and the Land Registration Act 2002 (the “ LRA 2002”) to the rights of a squatter who establishes adverse possession to land before first registration at the Land Registry and on a subsequent transfer of the land by the owner of the paper title to a purchaser.

The Appellants' second ground (“ Ground 2”) was that the Judge erred as a matter of law in finding that the boundary between No 25 and Brook Barn followed the line of the north edge of the south bank of the Brook. Their third ground (“ Ground 3”) was that the Judge also erred as a matter of law in finding that the boundary between No 26 and Brook Barn followed the same line of the north edge of the south bank of the Brook. Brook Barn, No 25 and No 26 were formerly in common ownership and Ground 2 turns on the construction of the 1982 Conveyance by which Mr Crowden, who formerly owned all three properties, conveyed No 26 to Mr Allen, Mr and Mrs Wright's predecessor in title. Ground 3 turns on the construction of the 1988 Conveyance by which Mr Crowden's executors conveyed No 25 to Mr and Mrs Wright (who had by this time already purchased No 26).

The Judge refused permission to appeal. In relation to Ground 1 he explained his reasons for refusing permission as follows. He recorded that he had found that the Claimants had acquired title by adverse possession under section 15 of the Limitation Act 1980 but that their title was defeated by the operation of sections 11 and 29 of the LRA 2002 because it had not been registered. He recorded the Claimants' argument that the 2002 does not operate to resurrect a title acquired by adverse possession but considered that they had no real prospect of success because the 2002 Act has a specific mechanism to deal with the position where (as in this case) no exact boundary has been determined. In relation to Grounds 2 and 3 he refused permission for the following reasons:

“(2) and (4) each raise issues about the factors which I have taken into consideration in construing the conveyances of Nos 25 and 26 the Green. As to No.25 (the 1988 conveyance): it is said that I erred in considering in the factual matrix the earlier plan to the conveyance of No.26 in 1982 and that this plan could not be a relevant fact in considering the later conveyance of No.25. However, as a matter of fact it was plainly a plan which the parties to the conveyance had in their possession at the time of the 1988 conveyance. As to the 1982 conveyance of No.26 it is said that I placed too much weight on the conveyance plan. Both of these issues are in reality evaluation of the facts.

For the reasons set out in my judgment the clear interpretation of the conveyances of both 25 and 26 lead to the conclusion that the boundary was the north edge of the south bank of the brook. The presumption does not apply either as a presumption in its own right (because there are conveyances to construe) or, on the facts, as an aid to construction.”

By Order dated 17 May 2023 Zacaroli J granted permission to appeal on Ground 1 and ordered that the appeal should be heard with a time estimate of 1 day. He considered the Judgment to be “thorough and compellingly reasoned” but that the Appellants' Skeleton Argument contained arguments which were “more than fanciful” and that this appeared to be an issue on which there was no direct authority. He agreed with the Judge in relation to Grounds 2 and 3 and refused permission to appeal. By letter dated 2 June 2023 the Appellants' solicitors, Crane and Walton LLP (“ C&W”), applied to renew the application for permission to appeal orally on Grounds 2 and 3. For ease of reference I will refer to the appeal on Ground 1 as the “ Appeal” and the oral renewal on Grounds 2 and 3 as the “ PTA”.

The Appeal was listed before me for hearing in person at 10.30 am on 12 December 2023 and the PTA was listed before me remotely at 2 pm on 13 December 2023. Mr Tom Morris appeared on behalf of the Appellants and Mr Jonathan Gale appeared on behalf of the Respondent at the hearing of the Appeal. Mr Morris appeared together with C&W on the remote hearing of the PTA. I am grateful to both Mr Morris and Mr Gale for the quality of their submissions at both hearings. For the reasons which I set out in this judgment, I dismiss the Appeal but grant permission to appeal on Grounds 2 and 3.

II.The Proceedings Below

A. The Statements of Case

Mr Morris settled the Amended Particulars of Claim dated 5 December 2021 (the “ Particulars of Claim”) which set out succinctly and clearly the nature of the Appellants' claims. In paragraphs 1 to 20 he identified the parties and their respective properties together with the relevant physical features of the land. In paragraphs 21 to 26 he alleged that on the true construction of the 1982 and 1988 Conveyances the legal boundary between No 25, No 26 and Brook Barn lay along the line of the Fence. In paragraph 27 he alleged that Mr and Mrs Wright had been in exclusive possession of No 26 and No 25 respectively since the date of each conveyance and in paragraph 28 he pleaded that in the premises:

“(i) the Wrights were in possession of the Wrights' Strip for a period of at least 12 years prior to the coming into force of the Land Registration Act on 13 ^th October 2003; (ii) throughout this period, the title to Brook Barn was unregistered; (iii) by reason of section 15(1) of the Limitation Act 1980, the title to the Wrights' Strip of the Defendants predecessors in title was extinguished; (iv) the Wrights have since then held a new legal estate in the Wrights' Strip and are entitled to be registered as the freehold proprietors of the Wrights' Strip; (v) the Defendant did not obtain any title to the Wrights' Strip when Brook Barn was conveyed to her; (vi) alternatively, even if the Wrights did not obtain a new title to the Wrights' Strip by a date prior to the coming into force of the Land Registration Act 2002, then the Wrights are entitled to be registered as the freehold proprietors of the Wrights' Strip pursuant to paragraph 5(4) of Schedule 6 to the Land Registration Act 2002 or by reason of paragraph 18 to Schedule 12 to the Land Registration Act 2002.

The Particulars of Claim did not contain a claim by Mr and Mrs Clapham in relation to the line of the boundary between No 24 and Brook Barn (because it was not possible to locate the relevant conveyance) and their case was limited to a claim for adverse possession. In paragraphs 29 to 32 Mr Morris alleged that they and their predecessors in title had been in single and exclusive possession of the Claphams' Strip for at least twelve years prior to 13 October 2003. In paragraph 32 he set out the Claphams' case in the same way as he had done for Mr and Mrs Wright in paragraph 28 (above).

Paragraphs 33 to 35 of the Particulars of Claim set out the Claphams' claim in relation to the Treehouse Land (which is not the subject matter of either the Appeal or the PTA). Paragraphs 36 to 39 contained a claim for damages against the Respondent for trespassing on the Appellants' land and paragraphs 40 and 41 set out the relief which the Appellants claimed. The relief which Mr and Mrs Wright claimed was as follows:

“(i) a declaration that the boundary between 26 the Green and Brook Barn is the line of the Fence; (ii) alternatively, a declaration that...