Jacki Thomas Laughlin Mitchell v John Watkinson and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Barling |
| Judgment Date | 19 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1472 |
| Docket Number | Case No: B2/2013/2780 |
| Court | Court of Appeal (Civil Division) |
[2014] EWCA Civ 1472
Lady Justice Arden
Lord Justice Christopher Clarke
and
Mr Justice Barling
Case No: B2/2013/2780
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (THE HONOURABLE MR JUSTICE MORGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Driscoll QC and Mr Tim Harry (instructed by Keystone Law) for the Appellant
Mr Stephen Jourdan QC and Mr David Mitchell (instructed by Knights Solicitors LLP) for the Respondents
Hearing dates: 26 June 2014
Introduction
This is the judgment of the Court, to which we have all contributed.
In this appeal the appellant challenges the decision of Morgan J that the paper title of her late husband, Mr Henry Arthur Lawrence Vernon Mitchell ("Lawrence"), to a small area of land in Charlton Kings, Cheltenham, Gloucestershire ("the disputed land") was extinguished by virtue of section 17 of the Limitation Act 1980 ("the 1980 Act") on 8 October 1986. The appellant succeeded to Lawrence's interest in the land on his death on 9 January 2009, and was thereafter registered as the proprietor. The judgment was given on 25 July 2013 in the context of a claim by the appellant for possession and other relief, brought against the respondents, as representatives of the current members of Charlton Kings Cricket Club.
There are two principal issues in the appeal:
(i) In October 1974, when the last payment of rent was made, was the tenancy of the land in question a written tenancy made between the parties to a written tenancy agreement dated the 10 June 1947, or an oral agreement created in about October 1947 on the terms of that written tenancy agreement?
(ii) If the answer to that question is that the tenancy was an oral tenancy, did the tenant continue in possession until October 1986 (i.e. until the end of the twelve years required for the purposes of adverse possession)?
Background to the dispute
The background to the proceedings can be shortly stated. What follows is based upon the findings of fact of the learned Judge and/or is uncontroversial as between the parties, save where otherwise indicated.
Between 15 and 25 April 1947 Lawrence's father, Mr Arthur Mitchell ("Arthur") executed a deed of gift in favour of Lawrence in respect of 1,254 acres of land. The deed was dated 25 March 1947. The land so gifted included Ordnance Survey field number part 171, comprising four areas of land extending to about 5 acres which the Judge called: the "northern section", the "middle section", the "southern section" and the "pond area". The southern section is the disputed land.
On 10 June 1947 Arthur entered into a written tenancy agreement ("the Written Tenancy Agreement") demising these four areas of land to Messrs Mews, Staddon and Ryder
"as Trustees of the Ryeworth Cricket Club (hereinafter called respectively "the Trustees" and "the Club" the expression "the Trustees" including the trustees for the time being of the Club)…"
Arthur entered into the Written Tenancy Agreement as
" "Landlord" which expression shall where the context so admits include the person for the time being entitled to the reversion immediately expectant on the determination of the term hereby created…"
The Written Tenancy Agreement provided that the term was to start on 25 March 1947 and was to continue from year to year and to be terminable on at least six months notice on either side expiring on 29 September. The rent was one pound per year payable half yearly on 25 March and 29 September.
A schedule to the Written Tenancy Agreement set out the "Obligations of Trustees". These included obligations to make arrangements for laying out and maintaining the demised premises "as a proper cricket bowls and/or tennis club", to use the demised premises "as a private cricket bowls and or tennis ground and Club pavilion only or for such other games or recreations" as the landlord approved in writing, and "not to allow (except for grazing, mowing or other agricultural purpose) any persons except the Landlord members and servants of the Club and guests of members to use the demised premises for any purpose".
It is common ground that the Ryeworth Cricket Club ("the Club") was an unincorporated association. The learned Judge made no finding as to the existence or non-existence of any trust document referable to the description of the tenants as "Trustees". Hereafter we refer to the tenants as "the Trustees" or "the tenants" or by individual name, depending on the context.
On 26th September 1947, Mr Staddon, the secretary of the Club, sent a cheque for ten shillings to Johnson & Co, solicitors acting for Arthur, "for payment of half year's rent….as under 1 Tenancy Agreement between Mr Arthur Mitchell and the above Club." This was due on 29th September 1947. On 2nd October 1947, Johnson & Co replied to Mr Staddon, enclosing a receipt for the rent. In addition the letter stated: "Since the Agreement was entered into the property has been made over by Mr Arthur Mitchell to Mr H.A.L.V. Mitchell and we should be obliged if you would pay future instalments of rent to Messrs Edwards Son & Bigwood & Mathews" who were Lawrence's agents.
That statement was not, of course, accurate, as the gift of the land to Lawrence had taken effect before the entry into the Written Tenancy Agreement. This inaccuracy has to a great extent shaped the present dispute.
Also on 2nd October 1947, Johnson & Co wrote to Messrs Edwards Son & Bigwood & Mathews, enclosing the Club's cheque for ten shillings and stating that the former had sent a receipt to Mr Staddon with a request that future payments be made to Messrs Edwards Son & Bigwood & Mathews for the credit of Lawrence. They added that under the tenancy agreement with the Club the rent was £1 per annum payable half yearly on the 25th March and 29th September.
On 4th October 1947, Messrs Edwards Son & Bigwood & Mathews replied to Johnson & Co, acknowledging receipt of the letter and cheque, and stating that they would pay the cheque into Lawrence's account. They also noted that the Club had been asked to send the rent direct to them in the future.
It is common ground that the Club paid a rent of £1 per year to Lawrence's agents until 1964, that in 1965 the payment of rent increased to £20 per year, payable by two instalments, and that payment of rent in this sum continued until the last payment was made on 8th October 1974. This was after the death of the last surviving tenant named in the Written Tenancy Agreement, Mr Staddon, who died on 22nd June 1974. The other two, Mr Mews and Mr Ryder, had died on 18th May 1948 and 5th November 1972 respectively.
It was common ground before the Judge (as it was before us): (1) that there existed a tenancy which was vested in these three tenants in 1947 and under which Lawrence was their landlord, (2) that this tenancy vested in Mr Staddon alone by survivorship following the deaths of the other two, (3) that when Mr Staddon himself died on 22nd June 1974 the tenancy did not come to an end but formed part of his estate and continued up to and after 8 October 1974, and (4) that this tenancy had never been determined or replaced by a new tenancy. However, the nature and source of the tenancy, and in particular whether it was "without a lease in writing" within the meaning of paragraph 5(1) of Schedule 1 to the 1980 Act, was and is hotly contested.
There was no evidence before the Judge as to whether Mr Staddon left a will, and no evidence as to whether his estate was administered by anyone. The Judge stated that there was nothing to enable him to identify any person in whom the tenancy was vested after the death of Mr Staddon or to determine whether the tenancy was vested in the Probate Judge under section 9(1) of the Administration of Estates Act 1925. This latter was accepted to be the default position if Mr Staddon had died intestate and there had been no grant of letters of administration.
To complete this brief history: on 14th March 1975 Lawrence conveyed the middle section to four members of the Club for £2,500. This land was described as "now used as a cricket field". The conveyance stated that the purchasers were to hold the land conveyed on the trusts declared by a deed of even date made between the purchasers of the one part and the Club of the other part. The whereabouts of that deed are unknown; it was not put before the Judge, who considered it likely that the trusts involved title being held for the benefit of members of the Club on some terms or other. Evidence was adduced on the basis of which he indicated that the purchase price appeared to have been financed by loans eventually repaid by the Club. At the time of the trial two of the purchasers/trustees were surviving and holding the legal title to the middle section on the trusts in question.
At some point in 1979 Lawrence conveyed the northern section to a Mr Phillips.
On 18th January 2002 title in relation to land which included the disputed land was registered in Lawrence's name at HM Land Registry.
In about 2003 the Club merged with another club to form the Charlton Kings Cricket Club.
On 9th January 2009 Lawrence died. His widow, the appellant, obtained probate of his will and on 7th June 2011 she was herself registered as, and remains, the registered proprietor of the disputed land. The claim for possession was issued in October 2011.
The relevant legislation
Sections 15 and 17 of the 1980 Act...
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