Couper and Another v Albion Properties

JurisdictionEngland & Wales
JudgeLord Justice Lewison
Judgment Date03 March 2014
Neutral Citation[2014] EWCA Civ 300
Docket NumberCase No: A3/2013/3149
CourtCourt of Appeal (Civil Division)
Date03 March 2014

[2014] EWCA Civ 300





Royal Courts of Justice


London, WC2A 2LL


Lord Justice Lewison

Case No: A3/2013/3149

Couper & Anr
Albion Properties

Mr H O'Donoghue (instructed by Rowling Giles Solicitors) appeared on behalf of the Applicant

Mr J Ollech (instructed by Hogan Lovells International LLP) appeared on behalf of the Respondent

Lord Justice Lewison

This is an application for permission to appeal against an order made by Arnold J on 29 November 2013. The background to the case can be taken from the first two paragraphs of the judge's mammoth judgment, which runs to 702-paragraphs.


Mr Couper is an artist who has had a longstanding interest in the River Thames and other waterways. He was joined in the action by the trustees of the Couper Collection Charitable Trust, which is a charitable trust which he founded and administers. Mr Couper and the Trust own a collection of barges, other boats and pontoons referred to as the Couper Collection, which have for many years been moored off what is now known as Albion Wharf, which is on the south bank of the Thames between Battersea Bridge and Albert Bridge. The boats house an art collection which is open to the public and Mr Couper also lives there.


Albion Properties Limited owns the adjacent land on which there is a mixed use development called Albion Roadside. Hutchison Wampoa Properties Europe Limited, part of the Hutchison Wampoa Group, are Albion Properties' agents and the Port of London Authority is the statutory body with responsibility for the River Thames.


The judge set out the nature of the claims in paragraph 2 of his judgment as follows:

"There are a considerable number of claims and counter claims in these proceedings. The claimant's primary claims are fourfold. First, they claim the benefit of ancient mooring rights entitling them to moor the boats in pontoons where they are currently moored. Secondly, they claim to have acquired title to part of the riverbed by adverse possession. Thirdly, they claim to have acquired title to a section of river wall at Albion Wharf, referred to in these proceedings as the Couper Collection Quay, or CCQ for short, by adverse possession. Fourthly they claim to have acquired various easements by prescription. In addition, the claimants have a number of secondary claims for conspiracy, for harassment, for misfeasance in public office and the slander of title. APL counter claims for a declaration that it has title to the CCQ and for nuisance. PLA counter claims for a declaration that it is the owner of the riverbed and that it is entitled to remove the claimant's works from the river."


The judge decided all of those issues against Mr Couper and the trustees. Although grounds of appeal were formulated in respect of all the points on which the judge found against Mr Couper, the appeal proposed no longer seeks to challenge the judge's dismissal of the claims for conspiracy, harassment or misfeasance in public office.


This application has been presented on Mr Couper's behalf by Mr Hugh O'Donoghue of counsel instructed by Rowling Giles Solicitors, both of whom have commendably been acting pro bono.


An appeal to this court is an appeal against an order made by a judge in the lower court. Even if the judge's reasons leading up to the making of the order are in part erroneous, unless an appeal would change the order itself then an appeal will fail. It is incumbent upon a would be appellant to persuade the court not only that there is a real prospect of arguing that the judge's reasoning was in part wrong, but also that there is a real prospect of success in altering the order which the first instance judge made.


The second general point I should make about appeals to this court is that this court is not here to retry the case; we are limited to a review of the judge's decision. That has particular importance when it comes to questions of fact and even more important when it comes to questions of the credibility of witnesses and the weight to be given to particular pieces of evidence.


The first point raised is that the judge misunderstood the burden of proof. The point arises in this way. Under section 63 of the 1963 Act a licence is not required if a mooring chain was placed in the River Thames before 29 September 1857. The background to that is that there had been a dispute in the 19th century between the Crown and the City Corporation over ownership of the bed of the River Thames. That dispute led to proceedings which were ultimately compromised by articles of agreement between the Crown and the City Corporation which led up to the first of the acts which vested title to the river in the Thames Conservators and thence in the Port of London Authority.


The question for the judge was whether Mr Couper had to prove, on the balance of probabilities, that the mooring chains in question were in place by September 1857 or whether it was for the Port of London to prove, on the balance of probabilities, that they were not.


The judge discussed this question in paragraphs 626 to 634 of his judgment and he came to the conclusion that the burden of proof lay on Mr Couper. In so doing he disagreed with the view expressed by Mann J in the Port of London Authority v Tower Bridge Yacht and Boat Company Limited [2013] EWHC 3084 (Ch). In that case Mann J held that the burden of proof — that is to say prove the negative — lay on the Port of London Authority. In paragraph 289 of his judgment Mann J said that he had read the judgment of the judge in the Couper case and that Arnold J had read his draft judgment. He said right at the end of his judgment:

"As Arnold J's judgment demonstrates there are common issues of principle in the two cases and as it happens we have come to different decisions on some of them. That includes the burden of proof which, as a real issue let alone a common issue, was not perceived at the time as arising in a significant way, at least not as the matter was presented to me. Having had the benefit of having considered the views of Arnold J I have not been persuaded to change my views where they are different. He has not been persuaded to change his."


Plainly where there is a disagreement between two High Court judges there must be a reasonable prospect of success in an appeal against either of them. But the question is: does it make any difference to the order which the judge in fact made in our case? What he said in paragraph 634 of his judgment was this:

"In the present case, as will appear, I am not driven to resort to the burden of proof. Secondly, even if the burden of proof was on the PLA I would reach the same conclusion."


On the face of it therefore the judge is saying that whether...

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