Edington v Clark
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE UPJOHN |
| Judgment Date | 19 July 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0719-1 |
| Date | 19 July 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J0719-1
Lord Justice Ormerod
Lord Justice Upjohn and
Lord Justice Davies
In The Supreme Court of Judicature
Court of Appeal
From His Honour Judge Baxter
Bow County Court
MR IAN DAVIDSON (instructed by Messrs Belmont & Co.) appeared as Counsel for the Appellants (Defendants).
MR IAN McCULLOCH (instructed by Messrs Carter & Bell) appeared as Counsel for the Respondent (Plaintiff).
MR RONALD BELL (instructed by Messrs Forbes & Son) appeared as Counsel for the Third parties.
I regret that Lord Justice Ormerod is unable to be here this afternoon out the Judgment I am about to read is the Judgment of the Court.
We have before us an appeal by the defendant and a cross appeal by the plaintiff from a decision of his Honour Judge Baxter given on the 12th February, 1963, in the Bow County Court. It raises two completely independent questions of law both of some importance.
The first question, which arises on the plaintiff's cross appeal, is whether the plaintiff, by offering to purchase some land of which the Judge held he had been in possession for over 12 years, thereby acknowledged the title of the person who was the true owner so as to prevent him from acquiring a title by adverse possession. The second question, which arises on the defendant's appeal, is whether, since the alteration of the Supreme Court Rules in 1959, there is jurisdiction either in the County Court or in the High Court to order an unsuccessful plaintiff to pay the costs of a third party either directly or by permitting a successful defendant to add the costs payable by him to the third party to the costs recoverable from the plaintiff.
The facts lie in a very small compass and relate to certain premises known as Nos. 121/123 Poplar High Street, E. 14. Before the war these premises were built on and were occupied by tenants who paid their rent to the third parties, who are the trustees of the Whitley House Trust. The legal estate in these premises was and is registered at the Land Registry in the name of the Official Custodian for Charities as trustee for the Whitley House Trustees. During the war these premises were bombed and became a vacant bombed site and in about 1947 the plaintiff occupied these premises and used them as a car park and for other purposes connected with his business. During the course of the years he erected a fence round these premises. Before the learned County Court Judge there was much dispute as to whether in fact the plaintiff had acquired possession for12 years and upwards as against the Whitley House trustees. He decided this question in the plaintiff's favour and there has been no appeal from that finding of fact. The sole question, therefore, is whether certain letters which the plaintiff wrote amounted to an acknowledgment of the title of the Whitley House Trustsee as freeholders.
The first letter is dated the 26th April, 1954, and was written by the plaintiff to a Mr L. T. Scott. The evidence was that the plaintiff knew that Mr Scott was the agent for the true owners of these premises but he did not know the identity of those owners. The letter is very short: "Dear Sir, Re 121/123 Poplar High Street, E. 14. Re the above mentioned plots of freehold land I herewith offer the sum of £275 subject to contract. Yours faithfully". That produced no definite reply and so on the 14th October, 1954, Mr Edgington again wrote to Mr Scott: "Dear Sir, Re 121/123 Poplar High Street. Regarding the sale of the above numbered property I herewith make an offer of £320. If this offer is accepted I hereby authorise you to proceed on my behalf in this matter". Though irrelevant to the point at issue, as a matter of history it may be added that subject to contract this offer was accepted and the plaintiff paid a deposit of £32.
Negotiations continued but ultimately came to an end because at that time the London County Council were negotiating to acquire the premises compulsorily and in May 1955 the plaintiff accepted a return of his deposit. However, the London County Council never did acquire these premises and the plaintiff continued in possession until September of 1961 when the defendants entered into the premises in fact as weekly tenants of the Whitley House Trustees and have remained there ever since. On the 28th May, 1962, the plaintiff issued his plaint against the defendants in the County Court (the premises admittedly being of a net annual value of less than £100) claiming an injunction restraining their trespass, damages and for other relief. Thedefendants entered a defence and served a third party notice on the Whitley House Trustees. Pleadings were delivered and the matter came before the learned County Court Judge on the 12th February this year for trial.
The learned Judge held that the letters we have read amounted to an acknowledgment of the title of the third parties so as to prevent the plaintiff's acquisition of an adverse possessory title and he therefore dismissed the plaintiff's action against the defendants with costs. He further ordered that Judgment be entered for the third parties against the defendants and ordered the defendants to pay the third parties' costs.
The question then arose as to the right of the defendants to recover the costs so ordered to be paid by them over against the plaintiff. The hour was late and there was little argument on this matter but the learned County Court Judge himself took the point that he had no jurisdiction to order recovery of costs payable by the defendants to the third parties over against the plaintiff, and that is how the second question arises.
We turn to the first point. The relevant statutory provisions are to be found in Section 23(1)(a) and Section 24 of the Limitation Act 1939: "23(1): Where there has accrued any right of action (including a foreclosure action) to recover land or an advowson or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and (a) the person in possession of the land, benefice or personal property acknowledges the title of the person to whom the right of action has accrued, the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment". "24(1): Every such acknowledgment as aforesaid shall be in writing and signed by the person making the acknowledgment. (2) Any such acknowledgment or payment as aforesaid may be made by the agent of the person by whom it is required to be made under the last foregoing section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged,or, as the case may be, in respect of whose claim the payment is being made".
Apart altogether from authority, it would seem to be a very clear case and it so appealed to the learned County Court Judge. If a man makes an offer to purchase freehold property, even though it be subject to contract, he is quite clearly saying that as between himself and the person to whom he makes an offer, he realises that the offeree has a better title to the freehold land than himself and that would seem to be the plainest possible form of acknowledgment.
Mr McCulloch, however, has ingeniously argued that when an intending purchaser makes an offer to purchase, he does not thereby acknowledge that the vendor can prove or establish the title which the purchaser is entitled to have on a sale and purchase of land and he says that the letters properly understood merely mean: "If you can prove your title which I am bound to accept, then I will buy", and accordingly, so the argument proceeds, there is no acknowledgment of the vendor's title. We are quite unable to accept that argument. Of course an intending purchaser does not acknowledge that the vendor has a marketable title when he makes an offer to purchase. That is a matter for inspection of title and requisitions at a later stage. But what he does acknowledge is that as between the intending purchaser and the vendor, the vendor has the batter title to the land and that seems to us all that is required. True the plaintiff did not know the identity of the owner but he knew he was dealing with the agent of the owner, and that, in our judgment, is sufficient (see Section 24(2)).
There appears to be no reported case dead in point in England. Mr McCulloch did rely on the case of Doe d. Curzon v. Edmonds, reported in 6 Meeson & Welsby, p. 295. The facts in that case were rather complicated but it is unnecessary to say more than that the person in possession wrote a letter to the true owner saying this: "Although if matters were contested Iam of opinion that I should establish a legal right to the premises, yet under all the circumstances I have made up my mind to accede to the proposal you made of paying a moderate rent on an agreement for a term of 21 years". Baron Parke in his Judgment said: "With respect to the other point" (that is whether that letter constituted an acknowledgment) "although it is unnecessary to decide it, it is clear that the effect of the acknowledgment is a question for the Judge. Here however the learned Judge was quite right in the opinion he expressed that it was no acknowledgment of title because there was no final bargain". Mr McCulloch naturally relies on the concluding words of that Judgment. That authority is a very useful illustration of the fact that it is not possible to lay down any general rule on what constitutes an acknowledgment. The question as to whether a particular writing amounts to an acknowledgment must depend on the true construction of the document in all the surrounding circumstances and it is quite plain that in that case there was no acknowledgment by the writing, for it challenges the...
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