Markfield Investments Ltd v Evans
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE SIMON BROWN |
| Judgment Date | 09 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1109-3 |
| Docket Number | Case No: B2/2000/2353 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 November 2000 |
[2000] EWCA Civ J1109-3
Lord Justice Simon Brown
Lord Justice Mummery and
Lord Justice Latham
Case No: B2/2000/2353
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM H.H. JUDGE SAMUELS QC
TRURO COUNTY COURT
Mr M Treneer (instructed by Hancock Caffin of Truro TR1 2EY) for the Apellants
Mr C Elliot (instructed by Follett Stock of Truro TR1 1QH) for the Respondent
This appeal raises a short point of law in connection with adverse possession. The appellants hold the paper title to the land in question; the respondent is in exclusive occupation of it. The appeal is brought against the order of Judge Samuels QC in the Truro County Court on 22 May 2000 made on the hearing of a preliminary issue, ruling "that the [respondent's] claim to have acquired adverse possession of the relevant premises was not interrupted by the issue and subsequent dismissal for want of prosecution of the action by Lym Limited against the [respondent]". The appellants, let me explain at once, are the successors in title to Lym Limited (a company in liquidation) (whom I shall call Lym). The action by Lym against the respondent (the first action) was brought on 7 August 1990 and dismissed for want of prosecution on 5 January 1999. It is the appellants' contention that the mere fact of issuing (or perhaps issuing and serving) proceedings for the recovery of land stops time running in favour of the person in adverse possession.
Although the point arising is a pure point of law, I will briefly sketch in the factual background so as to show its practical consequences in the present circumstances.
The relevant property is a dwellinghouse and land known as "Riverside", Weir, Restronguet, Falmouth, in Cornwall. The respondent claims to have been in continuous and exclusive occupation of the property since the summer of 1977, jointly with a Mr Hoskins until 1989 and thereafter alone. The appellants say that in 1978 Lym removed from the land a number of trespassers then occupying it, and that on each of three inspection visits subsequently made in 1979 they found the property unoccupied.
Early in 1990 Lym instructed contractors to carry out works of clearance in the garden. The appellant acknowledges as much but denies that these works were inconsistent with her continuing exclusive possession. She furthermore asserts that she had in any event by 1990 been in continuous adverse possession for twelve years and was accordingly entitled to the land as against Lym.
On 7 August 1990, as stated, Lym commenced the first action which was ultimately dismissed for want of prosecution on 5 January 1999. The present action was then brought on 22 July 1999 and it is, of course, in this second action that the preliminary issue was directed to be tried. Whatever its outcome, either side could still succeed in their claim for possession. But whereas if the appeal fails the respondent will only have to establish that Lym's clearance work in 1990 did not end her exclusive occupation of the land (as an alternative to twelve years occupation prior to the clearance work), if it succeeds she will have to establish that she had been in continuous occupation since before August 1978 (despite Lym's evidence that the property was vacant in 1978/1979).
Those considerations, however, are essentially by the way. The sole issue before us is whether the first action, despite its dismissal for want of prosecution, nevertheless had the effect of preventing the respondent in the second action from praying in aid her continued occupation during the eight and a half years whilst that first action remained alive as years of adverse possession.
Before addressing the argument it is convenient first to set out the material provisions of the Limitation Act 1980.
S.15(1) provides:
"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."
S.17 provides:
"Subject to … (b) S.75 of the Land Registration Act 1925; at the expiration of the period prescribed by this Act for any person to bring an action to recover land … the title of that person to the land shall be extinguished."
S.75 of the Land Registration Act 1925 provides that the paper owners' registered title is not extinguished by the adverse possession but is held on trust for the adverse possessor who may then apply to have himself registered with the title.
Schedule 1 to the 1980 Act supplements s.15 by dictating when a cause of action accrues. The relevant paragraphs are:
"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."
"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...
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Ofulue and Another v Bossert
...effect of abortive proceedings for possession on the running of time under section 15 was considered by the Court of Appeal in Markfield Investments Ltd v Evans [2001] 1 WLR 1321. In that case, the paper title owners had brought a claim for possession against the occupier of the land, and t......
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Ofulue and Another v Bossert
...the first set of proceedings would have stopped time running so long as those proceedings were on foot, but not thereafter: see Markfield Investments Ltd v Evans [2001] 1 WLR 1321, BP Properties v Buckler (1988) 55 PC&R 337. In my judgment this principle must apply where proceedings are per......
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JA Pye (Oxford) Ltd v United Kingdom (44302/02)
... ... On 30 December 1983 Mr Evans, a chartered surveyor acting for Pye, wrote to Pye suggesting that Mr John Graham be granted a ... ...
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Ofulue et al. v. Bossert, (2009) 397 N.R. 118 (HL)
...revd. (2005), 43 E.H.R.R. 43; (2007), 46 E.H.R.R. 1083 (Grand Chamber), refd to. [paras. 67, 68]. Markfield Investments Ltd. v. Evans, [2001] 1 W.L.R. 1321 (C.A.), refd to. [para. 70]. Edgington v. Clark, [1964] 1 Q.B. 367, refd to. [para. 76]. Johnston v. Smith, [1896] 2 I.R. 82, refd to. ......