Jacki Thomas Laughlin Mitchell v John Watkinson and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 25 July 2013 |
| Neutral Citation | [2013] EWHC 2266 (Ch) |
| Docket Number | Case No: 2BM30107 |
| Court | Chancery Division |
| Date | 25 July 2013 |
[2013] EWHC 2266 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
The Priory Courts, 33 Bull Street, Birmingham B4 6DS
Mr Justice Morgan
Case No: 2BM30107
Mr David Taylor (but not on 6 th June 2013) and Mr Timothy Harry (on 6 th June 2013 only) (instructed by Keystone Law) for the Claimant
Mr David Mitchell (instructed by Knights LLP) for the Defendants
Hearing dates: 26 th, 27 th, 28 th February and 1 st March and 6 th June, 2013
The case in summary
For many years, members of the Mitchell family owned the freehold of land on the east side of Greenway Lane, Charlton Kings, Cheltenham. In 1947, three members of the Ryeworth Cricket Club were granted a tenancy of some of the land owned by the Mitchell family, with the intention that the tenanted land would be used for the purposes of a cricket club.
In order to describe the relevant events in this case, it is useful to refer to four different parts of the land which was the subject of the 1947 tenancy, as follows:
(1) there was a northern section which the Mitchell family later sold (in 1979) to a Mr Phillips; there is no issue in these proceedings as to this northern section;
(2) there was a middle section which was sold to four trustees for the Ryeworth Cricket Club in 1975; in these proceedings, it is accepted that the surviving trustees are the current freehold owners of that land; the middle section was used for the purposes of the Ryeworth Cricket Club and is now used for the purposes of another club, the Charlton Kings Cricket Club, which was formed following the merger of the Ryeworth Cricket Club with the Whitefriars Cricket Club.
(3) there was an area of land which is immediately to the south of the middle section and which is the subject of the Claimant's claim to possession; the Claimant is the registered proprietor of the registered title in relation to this area; the Particulars of Claim referred to this land as "the disputed area"; there is a dispute as to the use which was made of the southern section from time to time; the Defendants say that this land was used and occupied together with the middle section for the purpose of a cricket field and outlying areas and that the Claimant's title to this land is barred by the provisions of the Limitation Act 1980 ("the 1980 Act");
(4) there was an area of land comprising a pond and some trees and shrubs to the south of the "disputed area" as described in (3) above; the Claimant is the registered proprietor of the registered title in relation to this area; this fourth area was not part of "the disputed area" as defined in the original pleadings; however, in more recent pleadings, the Second Defendant appears to claim that the Claimant's title to this area (as well as to the "disputed area") is barred by the provisions of the 1980 Act.
In view of the fact that there is, or may be, a dispute as to both areas of land referred to in (3) and (4) of paragraph 2 above, it is no longer appropriate to refer only to the area referred to in (3) of paragraph 2 above as "the disputed area". I will therefore refer to the four areas of land referred to in paragraph 2 above as (1) "the northern section", (2) "the middle section", (3) "the southern section" and (4) "the pond area".
The First Defendant is an honorary Vice President of the Charlton Kings Cricket Club and the Second Defendant is a member of that club and is sued in a representative capacity on behalf of the members of that club.
At the trial, the parties adopted different positions as to the continued existence of the 1947 tenancy in relation to the southern section and the position of the 1947 tenancy in relation to the pond area was not addressed. For most of the trial, the Second Defendant contended that the 1947 tenancy in relation to the southern section had merged in the freehold or been surrendered, probably in 1975 when the trustees of the club acquired the freehold of the middle section from the then landlord. The Second Defendant obviously took this stance as he must have considered that this would assist his case that the Claimant's title to the southern section was barred by adverse possession. Conversely, the Claimant adopted the position that the 1947 tenancy had not been determined at any time. The Claimant appears to have adopted that stance in the belief that would help her establish that her title was not barred by adverse possession although she recognised that, if the tenancy still subsisted, she would not be entitled to possession of the southern section until that tenancy was lawfully determined.
In the course of closing submissions, counsel for the Second Defendant resiled from his earlier stance. Reference was made to the possible operation of paragraph 5 of schedule 1 to the 1980 Act. I will set out that paragraph and describe its operation later in this judgment. The Second Defendant then wished to assert that the tenancy had continued at all material times and sought to rely on paragraph 5 of schedule 1 to the 1980 Act. Counsel who then appeared for the Claimant wished to reconsider his earlier case that the tenancy had continued at all material times.
For reasons which I gave at the time, I permitted both parties to reconsider their positions. I directed that each side should serve a pleading setting out his or her final position in relation to the 1947 tenancy and the effect of paragraph 5 of schedule 1 to the 1980 Act and I directed that the matter would then be restored for further argument.
The pleading served by the Second Defendant positively asserted that the 1947 tenancy had continued at all material times in relation to the southern section. Although this had not been envisaged during the trial, the Second Defendant followed through the logic of his position by contending or appearing to contend that the same position must also have pertained in relation to the pond area. The Second Defendant then relied upon paragraph 5 of schedule 1 to the 1980 Act to bar the Claimant's title to the southern section and the pond area.
The pleading served by the Claimant also asserted, or at any rate accepted, that the 1947 tenancy continued at all material times. The Claimant denied that the Second Defendant was able to rely on paragraph 5 of schedule 1 to the 1980 Act to bar the Claimant's title or that the Claimant's title had otherwise been barred by adverse possession.
The statutory provisions
The provisions of the 1980 Act which are of principal relevance in this case are sections 15 and 17 and paragraphs 1, 5 and 8 of schedule 1.
Sections 15 and 17, so far as material, provide:
"15 Time limit for actions to recover land.
(1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
…
(6) Part I of Schedule 1 to this Act contains provisions for determining the date of accrual of rights of action to recover land in the cases there mentioned.
…
17 Extinction of title to land after expiration of time limit.
Subject to—
(a) section 18 of this Act;…
(b) …
at the expiration of the period prescribed by this Act for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished."
Paragraphs 1, 5 and 8 of schedule 1, so far as material, provide:
" Accrual of right of action in case of present interests in land
1 Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance.
…
Accrual of right of action in case of future interests
…
5(1) Subject to sub-paragraph (2) below, a tenancy from year to year or other period, without a lease in writing, shall for the purposes of this Act be treated as being determined at the expiration of the first year or other period; and accordingly the right of action of the person entitled to the land subject to the tenancy shall be treated as having accrued at the date on which in accordance with this sub-paragraph the tenancy is determined.
(2) Where any rent has subsequently been received in respect of the tenancy, the right of action shall be treated as having accrued on the date of the last receipt of rent.
…
Right of action not to accrue or continue unless there is adverse possession
8(1) No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession"); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land.
(2) Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession.
… "
Title to the southern section and the pond area was registered at HM Land Registry on 18 th January 2002. The Land Registration Act 2002 made fundamental changes to the law as to adverse possession in relation to registered land....
To continue reading
Request your trial