Beaulane Properties Ltd v Palmer

JurisdictionEngland & Wales
CourtChancery Division
Judgment Date23 March 2005
Neutral Citation[2005] EWHC 1071 (Ch),[2005] EWHC 817 (Ch),[2005] EWHC 1460 (Ch)
Docket NumberClaim No: HC04C00132

[2005] EWHC 1460 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before

Mr N Strauss QC

(Sitting as a Deputy Judge of the High Court)

Beaulane Properties Ltd
Claimants
and
Palmer
Defendant

MR PETER KNOX (instructed by Nyman) appeared on behalf of the Claimant

MR STEPHEN WOOLF (instructed by Seakens & Co) appeared on behalf of the Defendant

THE DEPUTY JUDGE:

1

On the non-contentious matters I make an order for possession in 28 days and I award damages and interest to be assessed.

If this application is to be pursued the parties should seek to agree directions. If they have not been agreed within two months of today, the parties have liberty to apply to me for further directions.

I dismiss the counterclaim.

The first contentious matter is the question of costs. The following factors are relevant. First of all, it is agreed on a rough and ready basis that approximately 60 per cent of the overall costs relate to the factual issues (on which the claimants lost) and 40 per cent to the human rights issue (on which they won).

Secondly, a number of offers were made between June and July 2004. In essence, the claimants offered first £10,000, and ultimately £20,000, plus the defendant's reasonable costs. They also offered a continuing licence terminable by three months' notice. Those offers were not accepted. However, at the time of those offers the only issues in the case were the factual issues on which the claim was lost.

The human rights issues were raised in November 2004, by which time the offers which had been made in June and July had lapsed. They were not revived but nor, on the other hand, did the defendant make any offer in the light of those issues having been raised. On when the costs were incurred, roughly speaking, three-quarters appear to have been incurred after November 2004.

Finally, an important factor which I have to take into account is that the claimants won overall on an issue that was raised in November 2004, at a time when about one-quarter of the costs had already been incurred.

It seems to me that I should not attach any weight to the offer in circumstances in which, at the time it was made, essentially the defendant was right on the then issues in the case, and in circumstances in which it was not revived when the other issues came into play.

Therefore, looking at the costs over the whole period (which I think I ought to do), the starting point is that there is a slight balance in the defendant's favour; 60 per cent of the costs relate to issues on which he has largely succeeded. On the other hand, I have to give substantial weight to the fact that the claimants have ultimately succeeded in a case in which, looking at the matter of time, the issue on which they have succeeded was raised when only about one-quarter of the costs had been incurred. Inevitably there is a rough and ready element in any assessment of costs in this kind of situation. I do not think it is in the parties' interests to have an issue-based order because that can lead to substantial further argument in circumstances in which they are actually broadly agreed as to what the approximate proportions are of the costs attributable to each issue. I think that the fair order here is that the claimants should have 20 per cent of their overall costs.

2

Moving to the second contested issue, which is whether I should award an interim payment, and, if so, whether it should be stayed, the amount of the total costs are approximately £72,000. 20 per cent of that is approximately £15,000, so an interim payment of £9,000 seems to me to be appropriate. I make an order for such an interim payment but I do propose to stay it pending the outcome of any appeal, because I think that in all the circumstances that is the right thing to do when there is at least a substantial possibility that what I have held will be overturned as a result of the European Court's decision.

Finally, on permission to appeal, there are discrete issues. There are, first of all, the issues relating to the postponement of the commencement of the limitation period until the end of June 1991, which are dealt with in the judgment at paragraphs 58 through to 61. I refuse permission to appeal on those issues because the defendant would have to succeed on both to get anywhere and I do not think that there is any arguable issue on deliberate concealment. I am slightly more doubtful on the other issue, but that by itself would not help the defendant. I direct that any application to the Court of Appeal should be made in the usual way within the usual time.

As regards the human rights issues, I adjourn any application for permission to appeal for three months, in the hope that by that stage the position will become clear as a result of the ECHR's decision. I give liberty to apply for permission to appeal within that period and I direct that, in the first instance at least, that should be done by consecutive written submissions. If the matter proves more complicated we may have to have a hearing, but I will try to avoid that.

If for some reason the ECHR has not given its judgment by that time, and there need to be an extension of time and that can be done by application in writing in the first instance. I think it is better that I retain control of these issues until the ECHR has given its decision.

[2005] EWHC 817 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Before

Nicholas Strauss QC

(Sitting as a Deputy Judge of the High Court)

Claim No: HC04C00132

Between
Beaulane Properties Limited
Claimant
and
Terence Charles Palmer
Defendant

Mr. Peter Knox, instructed by Messrs Vyman, appeared for the claimant;

Mr. Steven Woolf, instructed by Messrs Seakens, appeared for the defendant.

I direct that pursuant to CPR PD 39A para. 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

N. Strauss Q.C.

Deputy Judge

Chancery Division

Introduction

1

In this case, the claimant ("Beaulane") has since 6th October 1992 been the registered owner of a field in Harlington, near Heathrow Airport, which is registered under title no. NGL339357. It is in the Green Belt and it has not so far been possible to obtain planning permission for residential or industrial development. Beaulane claims an order restraining the defendant ("Mr. Palmer") from entering or using the field. Mr. Palmer's case is that he acquired adverse title to the land by enclosing it and by allowing his own cattle and horses, and subsequently horses belonging to other people whom he charged £10 per week, to graze on it for in excess of 12 years, ending in October 1998.

2

There is a factual issue as to whether Mr. Palmer's use of the land was sufficient to found a claim for adverse possession. Mr. Palmer's case is that he had exclusive possession and control of the disputed field at all times after 1st October 1986, prior to which he was a licensee. Beaulane's case, based on the evidence of several of its witnesses who say that they went past the field, or on it to play cricket, for picnics or for other recreational purposes, is that Mr. Palmer made no substantial use of the land for grazing horses until about the beginning of the year 2003.

3

Beaulane also contends in the alternative that, for a variety of reasons, even if Mr. Palmer had exclusive possession of the land from October 1986, time did not begin to run until the end of June 1991. If that is the position, the 12 year period ended in June 2003 and Beaulane seeks to take advantage of the provisions of the Human Rights Act 1998, which came into force on 2nd October 2000.

4

In J.A. Pye (Oxford) Ltd v. Graham [2000] Ch. 676, Neuberger J. concluded his judgment, which was subsequently affirmed in the House of Lords, dismissing the claim by the registered owner of a field on which the defendant had grazed his horses for over 12 years, ending before October 2000, as follows:

"A frequent justification for limitation periods generally is that people should not be able to sit on their rights indefinitely, and that is a proposition to which at least in general nobody could take exception. However, if as in the present case the owner of land has no immediate use for it and is content to let another person trespass on the land for the time being, it is hard to see what principle of justice entitles the trespasser to acquire the land for nothing from the owner simply because he has been permitted to remain there for 12 years. To say that in such circumstances the owner who has sat on his rights should therefore be deprived of his land appears to me to be illogical and disproportionate. Illogical because the only reason that the owner can be said to have sat on his rights is because of the existence of the 12 year limitation period in the first place; if no limitation period existed he would be entitled to claim possession whenever he actually wanted the land. Of course one can well see the justification for saying that the owner should not be entitled to recover damages for trespass going back more than six years; that involves rather different considerations. I believe that the result is disproportionate because, particularly in a climate of increasing awareness of human rights including the right to enjoy one's own property, it does seem draconian to the owner and a windfall for the squatter that, just because the owner has taken no steps to evict a squatter for 12 years, the owner should lose 25 hectares of land to the squatter with no compensation whatsoever."

5

The new provisions relating to the acquisition of title by adverse...

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13 cases
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    • United Kingdom
    • Court of Appeal (Civil Division)
    • 29 January 2008
    ...of control of use rather than deprivation of possessions. The characterisation by the High Court (Mr Nicholas Strauss QC) in Beaulane Properties Ltd v Palmer [2006] Ch 79 at [136][164] of the extinguishment of the beneficial ownership as a case of deprivation of possessions must be regarded......
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    ...(UK) and in the doctrine of adverse possession. As Mr Strauss QC, sitting as a deputy High Court judge in England, observed in Beaulane Properties Ltd v Palmer, this enactment constituted “a radical change in the law” 147. The change was described by Mr Strauss QC in the following way 148: ......
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    ...explained that it is accepted on behalf of the defendants that the decision of the European Court in Pye coupled with the decision in Beaulane v Palmer [2005] 3 WLR 554 puts the last date by which adverse possession of 12 years' duration must be completed as 1 October 2000. That concession ......
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    • Court of Appeal (Civil Division)
    • 26 October 2006
    ...in Pye (Oxford) Limited v. United Kingdom [2003] 1AC 419 and in the ECHR (Application no. 44302/02: 15 November 2005) and Beaulane Properties v. Palmer [2006] Ch 79. It is unnecessary to say any more about the points, as they are not pursued by Mr Rehman's new counsel, Mr Hamilton. 19 The j......
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3 books & journal articles
  • A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?
    • United Kingdom
    • Federal Law Review Nbr. 37-3, September 2009
    • 1 September 2009
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    • Melbourne University Law Review Vol. 31 Nbr. 1, April 2007
    • 1 April 2007
    ...J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419, 446-7 (Lord Hope). The same concerns were expressed in Beaulane Properties Ltd v Palmer [2005] 4 All ER 461, 505 (Nicholas Strauss QC), where it was held that the law was unfair to registered proprietors. These proprietors do not rely on posses......
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    • The Modern Law Review Nbr. 69-4, July 2006
    • 1 July 2006
    ...Goymour, Angus Johnston and Richard Nolan forhelpful comments on earlier drafts of this article.1See,eg,BeaulanePropertiesLtd vPa lmer [2005] EWHC817 (Ch);[2006] Ch 79, [188]^[203]; J.A.Pye(Oxford) Ltd vUnited Kingdom(ECHR App No 44302/03; Judgment (Merits):15 November2005),[68]^[75]; L eed......

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