Colin Dawson Windows Ltd and Borough Council of King's Lynn & West Norfolk and Winifred Howard 1 /2
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Jonathan Parker |
| Judgment Date | 20 January 2005 |
| Neutral Citation | [2005] EWCA Civ 9 |
| Date | 20 January 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2004/1146 |
[2005] EWCA Civ 9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Norwich County Court
His Honour Judge Darroch
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix and
Lord Justice Jonathan Parker
Case No: B2/2004/1146
Nicholas Caddick & George Hayman (instructed by Messrs Dawbarns Pearson) for the Appellant
David Berry (instructed by Messrs Berry & Walton LLP) for the Respondant
This appeal arises out of a claim for adverse possession of some land, a claim which the judge found was made good. The land in question is now part of a site used as a car-park by the claimants, Colin Dawson Windows Limited ("Dawsons"). The site is an open space beside North End Yard in King's Lynn. A number of small terraced houses had at one time stood on that site, but in 1958 the houses were demolished pursuant to a clearance order (the King's Lynn (North End Yard) Clearance Order 1958). Mrs Winifred Howard, the defendant, used to live in a house in North End Yard which was demolished in 1958. She counter-claimed by reference to a paper title to "No 4 North End Yard" alleged to form part of the cleared site being used by Dawsons.
The judge, HHJ Darroch, sitting in the Norwich County Court, found that Mrs Howard had proved her paper title to part of the site – even though the demolished house in question appears to have become known over the years not as No 4, but as No 4A North End Yard – but that she had lost her title to Dawsons by the time of her counter-claim in these proceedings on 26 June 2003. Dawsons had been in possession and use of the site as a car-park since about August 1987. He found that Dawsons had established the necessary intention to possess and that such possession was adverse and did not depend on an implied licence, for which Mrs Howard had contended. He also found that there was no acknowledgment of title. He therefore gave judgment for Dawsons on their claim and dismissed Mrs Howard's counterclaim.
Mrs Howard now appeals on the ground that the judge ought to have found that there was an implied licence at least until negotiations for sale of the land petered out sometime after August 1991, just within twelve years before the counterclaim of 26 June 2003. There is a respondents' notice whereby Dawsons argue that the judge was wrong to find that the paper title had been established. On behalf of Dawsons, Mr David Berry, solicitor advocate, also raises an entirely new point, first taken in his skeleton argument dated 31 August 2004, to the effect that Mrs Howard had never had any interest in the land until the personal representative of her late husband's estate, as recently as 26 June 2003, had assented to the vesting of the land in her. Therefore, he says, she could not in any event have given an implied licence to Dawsons such as would prevent adverse possession.
It follows that the following principal issues arise on this appeal: (1) Was the judge wrong to find the paper title to the land previously occupied by No 4A North End yard (the "land") to have been proved by Mrs Howard? (2) Was the judge wrong to have rejected finding Dawsons' possession of the land to have been pursuant to an implied licence? (3) Should Dawsons be given permission to argue a new point relating to Mrs Howard's interest in the land, and, if so, does the failure to assent to her inheritance until June 2003 in any event prevent the establishment of a relevant implied licence?
The paper title
North End Yard is a narrow paved alley which runs roughly north and south. At its southern end it emerges at right angles into Hextable Road. The car-park site occupies a broadly rectangular area to the east of North End Yard and towards its southern end. Immediately south of the car-park is a small area of unoccupied land and then a small, detached single story building, occupied by a bookmakers' business which fronts on to Hextable Road itself. On the western side of North End Yard and broadly opposite the car-park is a converted chapel, which also fronts on to Hextable Road, occupied by Dawsons as their window manufacturing headquarters. At the northern end of the converted chapel an extension to it has replaced a pair of semi-detached houses which had previously stood on that site. Running northwards up North End Yard behind Dawsons' premises, that is to say on the western side of North End Yard, is a terrace of houses, numbered 4 to 10. On the eastern side, the cleared open space where the houses demolished in 1958 had stood includes the car-park occupying approximately half of its area to its south but also extends northwards behind the car-park up to a point roughly opposite No 9. Northwards again of the cleared site is another terrace of houses, numbered upwards from No 16. That is a description of North End Yard as it is today.
A plan of North End Yard as it existed before the demolition was attached to the 1958 Order. It shows, to the west of North End Yard, the chapel, then the pair of semi-detached houses which have at some time been demolished (but not pursuant to the Order) in the area where Dawsons' premises now extend behind the chapel, and then the row of terraced houses which I have described above as numbered 4 to 10. The 1958 plan, however, contains no numbering of those houses. To the east of North End yard the 1958 plan shows first the small detached bookmakers' building and then a row of eleven terraced houses. Those eleven houses lie within a rectangular box drawn on the plan with broken lines and represent the houses to be demolished under the Order. Only those eleven houses are numbered on the plan. The numbering begins at the southern end with No 3A, then No 4A, which the judge found to have been the Howards' house, then No 5A, then No 6, then Nos 9 to 15 in sequence. No explanation exists of this eccentric numbering.
Thus No 4 exists on the western side of the Yard, as part of a terrace numbered 4 to 10; and No 4A used to exist on the eastern side of the Yard, as part of a terrace which included Nos 6, 9 and 10, but all those eastern side houses were demolished in 1958.
It seems reasonably clear that at some time the houses in North End Yard were renumbered; but it is no longer possible to reconstruct the logic of the process.
Which house then did the Howards live in, and can Mrs Howard prove, as the judge found, that it was a house which lay within the area now occupied by Dawsons' car-park, viz No 4A?
The Howards' house was conveyed to Mr Howard by a conveyance dated 20 February 1946. There is no plan attached and the house is merely described as "ALL THAT messuage or dwellinghouse property known as Number 4, North End Yard, King's Lynn". There is also reference to a "passage or entry from the Street", presumably a reference to North End Yard itself. However there is a previous conveyance of "Number 4 North End Yard King's Lynn" dated 3 December 1937 which, although also lacking a plan, gives a further description of the property, as follows:
"and being near the site of Fisher Bridge at North End in King's Lynn aforesaid abutting upon a messuage now or lately of Matthew Fox towards the North upon land now or late of Langley towards the East upon a messuage now or late of John Langley towards the South and upon a passage or entry Eight feet in width towards the West".
This description places the property in question between two other houses, one north and the other south, with land towards the east and a passage eight feet in width towards the west. The "passage or entry" towards the west is presumably North End Yard. Thus the judge found that this description put the conveyed property "No 4" on the eastern side of North End Yard. This cannot be a reference to the present-day "No 4" on the western side of North End Yard, for that was an end of terrace house and had no other home immediately to its south.
Mrs Howard's evidence takes the matter somewhat further, even if, being old and infirm, she was not cross-examined on her witness statement. She there described her former home from memory. She said:
"I can remember the layout and position of the property. The property was an old one and was narrower at the front than it was at the rear, basically a wedge shape. The front door of the property faced the chapel, which is now the Claimant's premises. It was a two storey property with a rear yard, this having an access onto the alleyway between North End Yard and Lansdowne Street. There were two downstairs rooms, being a kitchen, a very large rear room and also one small bedroom upstairs and one large bedroom at the rear. The kitchen was entered from the front of the premises from the door opposite the chapel. There were various outbuildings in the yard, including a coal storage area. The property was the second one in the row of cottages from the Hextable Road/Pilot Street end. South of the first cottage was bookmakers premises, which was actually made of wood at that time. There is still a bookmakers on that side, although the premises has been extended and is now of brick."
All of this is consistent with the plot marked "4A" on the 1958 plan attached to the 1958 Order. Not only is this evidence consistent with that plan, but it may reasonably be said that only No 4A of the demolished houses can be described as "wedge shape" as distinct from rectangular. Moreover, No 4A was opposite the chapel porch, and outbuildings are marked on the plan in its rear yard. It was the...
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