Crown Estate Commissioners v Roberts
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE LEWISON |
| Judgment Date | 13 June 2008 |
| Neutral Citation | [2008] EWHC 1302 (Ch) |
| Docket Number | Case No: HC0504081 |
| Court | Chancery Division |
| Date | 13 June 2008 |
[2008] EWHC 1302 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Honourable Mr Justice Lewison
Case No: HC0504081
Mr Frank Hinks QC and Mr Thomas Braithwaite (instructed by Farrer & Co. LLP) for the Claimant.
Ms Stephanie Tozer (instructed by Darwin Gray) for the Defendants.
Hearing dates: 16, 19, 20, 21, May 2008
Approved Judgment
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.
Mr. Justice Lewison:
Introduction 2
Procedural history 3
Historical overview 4
The sales to Mr Roberts 19
Did the status of a Lord Marcher carry privileges with it? 22
The approach to the construction of grants by the Crown 23
Welsh customary law 24
Franchises 26
The right of wreck 28
Several fishery 31
Treasure 34
Sporting rights 35
Estrays 35
The effect of the conveyance 36
Are Mr Roberts' rights exercisable over the foreshore? 38
Result 43
APPENDIX I 44
APPENDIX II 46
Introduction
, the year in which King Henry II died, is generally regarded as the beginning of legal memory. However, the story in this case starts at least half a century earlier, which has made the fact finding exercise unusual, to say the least. Mr Roberts, the first defendant in this case, claims to be entitled to exercise royal prerogative rights over the Pembrokeshire foreshore and the narrow sea. His claim is based on what he says are the ancient prerogative powers exercised by the Lords Marcher in Wales, established during the Norman Conquest of Wales, and, he says, never abolished, to which he claims to have succeeded. Many of the terms describing these rights are unfamiliar now, so there is a glossary in Appendix 1 to this judgment. What Mr Roberts now claims are the following rights:
i) Wreck de mer;
ii) A several fishery (i.e. an exclusive right to fish in the sea);
iii) Treasure trove;
iv) Sporting rights; and
v) Estrays.
I should, however, make it clear, that although this judgment contains a good deal of historical material, I am not resolving controversies between historians and scholars but deciding the issues in this case on the basis of the evidence before the court.
Procedural history
In 2002 The Pembrokeshire County Council and the Pembrokeshire Coast National Park Authority applied to register leasehold titles to a large part of the foreshore of the Pembrokeshire coastline. The applications were made on the basis that the land was comprised in leases granted by the Crown Estates Commissioners and formed part of the Crown demesne lands as a result of a presumption that the foreshore and the narrow sea belongs to the Crown. Mr Roberts objected to the registration and made a statutory declaration in support of his objection. He claimed to be the Lord Marcher of St Davids and in that capacity to be “the lawful successor to the temporalities, lands and sovereign rights of Saint David and his successors as sovereign chiefs and Lords Marchers.” The tenor of the declaration was to the effect that the Crown had no title to foreshore within the Welsh marches; that as Lord Marcher of St Davids he was entitled to the foreshore and that the dispute should be dealt with by the Imperial Crown or Justices specially assigned for the purpose “as between two component parts of the Empire.”
The Commissioners began these proceedings claiming declarations as to their title to the foreshore and seeking to remove Mr Roberts' caution against first registration. Their claim was put on two bases: first, that the foreshore was part of the Crown demesne or allodial land; and second, that if that were wrong, the Crown had acquired title to the foreshore by adverse possession. Mr Roberts did not in the event object to the jurisdiction of this court; and has not insisted on his claimed right to have this dispute decided by specially assigned judges. The pleaded defence was that:
i) Mr Roberts is the Lord Marcher of St Davids as successor in title to the Bishop of St Davids;
ii) The Lordship Marcher of St Davids is a manor or lordship held in capite of the Crown in right of its dominion in Wales;
iii) By grants, especially a charter of 1115 and a confirmation in 1384, and by ancient use and reputation the Lordship Marcher of St Davids included a freehold estate in the land to which the Commissioners claimed title;
iv) That in any event Mr Roberts and his predecessors had been in possession of a freehold estate in those lands; and that anything which the Crown might have done which was inconsistent with that possession was “by way of intrusion upon their prior possession”;
v) But if any of the acts relied on by the Crown were sufficient to vest possession in the Crown at the time they were done, then the Crown only acquired possession in a freehold estate in the parcel over which the act in question was done.
There was no separate plea that any particular right (such as a right of wreck or a right to treasure trove) was exercisable over the land to which the Crown claimed title; and no counterclaim for any declaration as to the existence of any rights. However, in her skeleton argument, served on the day before the trial was due to begin, Ms Tozer, who appeared for Mr Roberts, said that the Crown's claim to have acquired title by adverse possession was now conceded in the light of the decision of the Court of Appeal in Roberts v Swangrove Estates Ltd [2008] 2 WLR 1111; and the skeleton argument advanced reasons why Mr Roberts was entitled to exercise rights over the land. It was unclear to me from the skeleton argument precisely what rights Mr Roberts was claiming to be entitled to, but fortunately on the following day Ms Tozer produced a table setting out the rights that Mr Roberts then claimed. They were:
i) Wreck de mer;
ii) Wharfage;
iii) Sporting rights;
iv) A several fishery;
v) Treasure trove;
vi) Mises and profits consisting of chief rents paid by freeholders;
vii) Court baron;
viii) Court leet and lawdays; and
ix) Estrays.
The Commissioners did not object to the raising of a wholly new and unpleaded case, although the start of the trial was deferred for a few days. However, the report of their expert, Mr Fletcher-Tomenius, had been prepared on the basis of Mr Roberts' pleaded case (namely a claim to ownership of the foreshore) with the result that it did not address the individual rights that Mr Roberts claimed. After Mr Hinks, appearing with Mr Braithwaite for the Commissioners, had concluded his opening address some of Mr Roberts' claims were abandoned, with the result that what now remains in issue are the rights I have set out at the beginning of this judgment.
Historical overview
As every schoolboy knows (or at least used to know) William the Conqueror defeated King Harold at the battle of Hastings in 1066. Part of his transformation of Anglo-Saxon England was the introduction of the feudal system of landholding. The theory was that all land in England was held of the Crown, radical title having been acquired by conquest. In order to reward his followers, William made grants of land to them. The immediate grantees were called tenants in chief (although they held in fee) and they held directly from the Crown (in capite). In return for their grants they were required to provide services. Typically the services would be the provision of knights to serve in the royal army (“knight service”); but they could also include other services, such as carrying the king's banner or holding his head when he felt seasick (“grand sergeanty”). The tenants in chief, in their turn, were able to make sub-grants of lands to others who held of them, again in fee, and again in return for services. These were called mesne tenants, and the process of sub-grants was called subinfeudation. Thus there was created what is called the feudal pyramid, with the king at the apex and the occupants of the land at the base. All land was held of a lord. This was summed up in the maxim; “Nulle terre sans seigneur.” The status of lordship, including the right to receive the tenant's services, was called seignory.
In addition to these types of tenure there were also what were known as spiritual tenures. The one that is relevant for present purposes was called frankalmoign (“free alms”). This type of tenure arose if no fealty was demanded and no specific services were reserved. The tenant's only obligation was to pray for the soul of the grantor. There were restrictions on the alienation of land held in frankalmoign. Since the only obligation was the tenant's obligation to pray, it followed that, if the tenant ceased to be a spiritual person or corporation, tenure by frankalmoign could no longer exist, and the land became held in socage: Co Litt 98a.
One of the units of grant was the manor. Manors were known in Anglo-Saxon times. Within the manor the lord kept land for his own use, known as demesne land. He would also grant out land to tenants, in return for services. Typically these were agricultural services; and the tenants held by customary tenure. Over time this evolved into the form of tenure known as copyhold, and this, in turn, was eventually abolished in 1922. The uncultivated residue of the manor was the waste of the manor and was held by the lord of the manor, although it might be held subject to customary rights, such as rights of common. One of the essential ingredients of a manor was its court. The principal court was the court baron, which amongst other things settled property disputes between the tenants of the manor. It also dealt with...
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