Long and Others v Sava
| Jurisdiction | England & Wales |
| Judge | Mr Peter Leaver QC |
| Judgment Date | 28 September 2007 |
| Neutral Citation | [2007] EWHC 2087 (Ch) |
| Docket Number | Case No: 2004/0867/0879/0880 |
| Court | Chancery Division |
| Date | 28 September 2007 |
[2007] EWHC 2087 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM THE DEPUTY ADJUDICATOR TO HM LAND REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Leaver Qc (sitting As A Deputy Judge Of The High Court)
Case No: 2004/0867/0879/0880
Mr Gary Cowen (instructed by Addleshaw Goddard LLP) for the Appellants
Mr Michael Roberts (instructed by Ashton Graham) for the Respondent
Hearing dates: 12 th, 13 th, 16 th and 18 th July 2007
INTRODUCTION
This is an appeal from the Decision of Mr John Hewitt, sitting as the Deputy Adjudicator to Her Majesty's Land Registry, given on the 20 th October 2006 (“the Decision”). The hearing before the Deputy Adjudicator had taken place over 4 days in April 2006, during which he heard evidence from a number of witnesses, and one day in June 2006, during which he heard the parties' closing submissions.
The hearing before the Deputy Adjudicator was in respect of an application by Mr Christos Kyriacou Sava (“Mr Sava”) to change the register in respect of part of the titles NGL349241 and NGL597449. By the Decision the Deputy Adjudicator directed that the Chief Land Registrar should give effect to the application in respect of title NGL 349241 and in respect of part of title NGL 597449.
On the 12 th January 2007 the Deputy Adjudicator refused the Appellants permission to appeal from the Decision. The Appellants renewed their application for permission to appeal to the High Court and on the 26 th February 2007 Henderson J granted them permission.
The appeal is in respect of both the Deputy Adjudicator's findings of fact and his application of the law. It is the Appellants' submission that the Deputy Adjudicator made findings of fact that were against the weight of the evidence and that he failed to identify sufficiently his reasons for coming to the conclusions which he stated in the Decision. Accordingly, a large part of the hearing was taken up with a detailed analysis of the transcripts of the evidence given at the hearing.
I am grateful to both Mr Gary Cowen, counsel for the Appellants, and to Mr Michael Roberts, counsel for Mr Sava, for the care and economy with which they took me through the evidence. Their submissions on both fact and law were always concisely and clearly stated. In the result they made what might have been an extremely difficult exercise considerably easier than I had anticipated. Although they referred me to some of the important evidence, I have taken the opportunity, when writing this judgement, to read the whole transcript, including the closing submissions.
THE DISPUTED LAND
The land with which this litigation is concerned is situated in green belt land in Hadley Wood in the London Borough of Barnet. It is comprised of the whole of land registered under Title No. 349241 and part of land registered under Title No. 597449.
On the 1 st August 1990 a company incorporated in the British Virgin Islands, Ashirwad Limited (“Ashirwad”), acquired the land registered under both Title Nos. 349241 and 597449. The land comprised in Title No. 329241 is open green belt land of some 27 or 28 acres, which lies immediately behind and to the south of the land comprised in Title No. 597449. At the date of its acquisition by Ashirwad the open land was owned by a local builder/developer, McSharry. Although at some stage in the past the land may have been cultivated, it appears that at the date of Ashirwad's acquisition it was used by McSharry either for winning or storing aggregates or for storing and dumping building materials.
The land comprised in Title No. 597449 contains a large house, known as Dolphin Manor, which has a substantial garden. The property is immediately adjoining, and abuts onto, the green belt land comprised in Title No. 329241. Access to Dolphin Manor is obtained off a road called Camlet Way.
Mr Sava claims to have acquired by adverse possession the whole of the green belt land comprised in Title No. 329241, to which I shall refer in the remainder of this judgment as “the Farm”, and a corridor of land comprised in Title No. 597449, which runs from Camlet Way down to the Farm, to which I shall refer as “the corridor”.
On the 6 th July 1992 Ashirwad acquired a further parcel of land. This land, which is registered under Title No. 523113, also runs from Camlet Way. It is adjacent to and abuts onto Dolphin Manor, and contains a large house, which is known either as Ashirwad House or as Glebe House. I shall refer to it as Glebe House.
It is common ground that the ultimate beneficial owner of Ashirwad is a Mr Ketan Somaia (“Ketan”). I was told that Ketan is presently in prison in Kenya. I was not given any information about the circumstances in which Ketan came to be in prison. He played no part in the proceedings before the Deputy Adjudicator, although his name was frequently mentioned. It appears that until he became unable to do so, Ketan and his immediate family occupied Dolphin Manor and that, after it was acquired, his extended family and staff occupied Glebe House. No doubt one of the advantages of occupying Dolphin Manor was that it enjoyed the facility of a helipad.
On the 26 th March 2001 Ashirwad charged the land on which Glebe House stands (Title No. 523113) to The Delphis Bank Limited (“Delphis”). Ashirwad entered into a further charge over that land in favour of Delphis on the 9 th October 2001. On the 12 th October 2001 Ashirwad charged the disputed land to Delphis. Shortly before that date, on the 13 th August 2001, Ashirwad had charged the land on which Dolphin Manor stands (Title No. 597449) to SS Global Limited (“SS Global”), and on the 9 th October 2001 further charged that land to Delphis. The priority of charges as between Delphis and SS Global is regulated under a Deed dated the 14 th March 2002. Nothing turns on the terms of the charges although these proceedings were commenced against the Law of Property Act Receivers appointed by Delphis, which is itself now in receivership, and SS Global. I shall refer to Delphis and SS Global jointly as “the Appellants”.
THE DECISION
(a) General
The Decision runs to some 30 pages and contains 102 paragraphs. It is divided into a number of sections, one of which is entitled “Findings and Reasons”. That section covers the last 4 pages and 17 paragraphs of the Decision. In the earlier part of the Decision the Deputy Adjudicator sets out the background to Mr Sava's application, and summarises the legal framework that is relevant to the Decision. He also summarises the evidence of the witnesses who gave evidence at the hearing.
The Appellants' criticism of the Decision was twofold. First, it was submitted that the Deputy Adjudicator had failed adequately to state the reasons for his findings of fact, and, secondly, it was submitted that a number of his findings of fact were against the weight of the evidence. Each of those criticisms required a detailed textual analysis of the Decision, and the second required a detailed consideration of the transcript of the evidence given at the hearing.
Although it is common ground that the Deputy Adjudicator's summary of the legal principles accurately states the relevant law, Mr Cowen, counsel for the Appellants, criticises the Deputy Adjudicator's application of those legal principles to the findings of fact that he made in the section of the Decision to which I have referred entitled “Findings and Reasons”.
Much of the hearing before me was taken up with an analysis of the findings of fact that were clearly made by the Deputy Adjudicator, and a debate as to whether other relevant findings of fact were made. That debate centred around whether Paragraph 98 of the Decision should be understood to contain findings of fact as to the use of the disputed land made by or on behalf of the Appellants during the period when Mr Sava claimed to have occupied the disputed land to the exclusion of the Appellants.
At one stage during the hearing I asked Mr Cowen and Mr Roberts whether I should send the matter back to the Deputy Adjudicator to make further findings of fact, or to clarify the findings that he had made. Although his primary submission was that the Deputy Adjudicator's findings of fact were clear and decisive in Mr Sava's interest, Mr Roberts submitted that if I did not accept that primary submission, I should take the course of remitting the matter. Mr Cowen submitted that I should not do so.
Mr Roberts' first submission in relation to the issue of whether I should remit the matter to the Deputy Adjudicator was that if an appeal is to be based on the insufficiency of the reasoning of the judge, an application should be made to the judge when permission to appeal is sought for him to state additional reasons. If no such application is made, the party who wishes to appeal cannot subsequently be heard to complain about the insufficiency of the reasoning. No such application was made by the Appellants in the present case. Accordingly, so Mr Roberts submitted, I should work on the basis of the findings of fact that were undisputed, and draw such inferences as I thought fit from those findings and from the evidence generally as to other findings that were implicit in the Decision rather than explicit.
I was referred to a number of authorities in relation to this issue. In his judgment in English v Emery Reimbold & Strick [2002] 1WLR 2409 Lord Phillips of Worth Matravers MR said:
“ 25 Accordingly,...
To continue reading
Request your trial
-
[1] Lucien Callwood v [1] The Registrar of Lands
...case that they were in exclusive, peaceful, open and uninterrupted possession. Higgs & Anor v Nassauvian Ltd [1974] UKPC 24 considered; Long v Suva [2007] EWHC 2087 (Ch) applied. 4. Taken individually and cumulatively, the appellants' acts of user do not conclusively demonstrate the require......
-
Lucien Callwood et Al v The Registrar of Lands et Al
...case that they were in exclusive, peaceful, open and uninterrupted possession. Higgs & Anor v Nassauvian Ltd [1974] UKPC 24 considered; Long v Suva [2007] EWHC 2087 (Ch) applied. 4. Taken individually and cumulatively, the appellants' acts of user do not conclusively demonstrate the requir......
-
Lucien Callwood Urman Callwood Gertrude Callwood-Coakley Wendell Callwood Claimants v The Registrar of Lands Defendant v Sheila Callwood Schulterbrandt John Schulterbrandt objectors
...86 LGR 472, 479 and cited in Pye at page 436H. 21Powell v McFarlane (1978) 38 P&CR 452 Slade J said, at page 472 22 Page 447. 23 Long and others v Sava [2007] EWHC 2087 (Ch) , para. 62 - 24 Registrar's Notes, page 9. 25 Higgs and another 26 [1974] UKPC 24 (14 October 1974) 27 [2000] UKPC......
-
Wong Wai Chi Susanna v Lam Lai Chun And Another
...(2nd edition), §§13-18 to 13-22; Boosey v Davis (1987) 55 P&CR 83; Wilson v Martin’s Executors [1993] 1 EGLR 178; SS Global Ltd v Sava [2007] EWHC 2087 [53] [2004] 1 P&CR 34 [54] Gainfield Investment Ltd v Lam Yi Lai [2016] 3 HKLRD 771 ...