Max Couper and Another v Albion Properties Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 08 October 2013 |
| Neutral Citation | [2013] EWHC 2993 (Ch) |
| Docket Number | Case No: HC06C04432 |
| Court | Chancery Division |
| Date | 08 October 2013 |
[2013] EWHC 2993 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Arnold
Case No: HC06C04432
Lord Thomas of Gresford QC and Dingle Clark(instructed by Irwin Mitchell) for the Claimants
Stephen Jourdan QC and Ciara Fairley(instructed by Hogan Lovells International LLP) for the First and Third Defendants
Jonathan Small QC and Joseph Ollech(instructed by Sally Mashiter) for the Second Defendant
Hearing dates: 18–21, 24–28 June, 1–4, 8–9 July 2013
Contents
| Topic | Paragraphs |
| Introduction | 1–2 |
| The witnesses | 3–18 |
| The statutory context | 19–40 |
| The area in question | 41–45 |
| The absence of expert evidence | 46–50 |
| The facts | 51–468 |
| APL's counterclaim that it has title to the CCQ (subject to the Claimants' adverse possession claim) | 469–502 |
| The Claimants' claim for adverse possession of the CCQ | 503–524 |
| APL's counterclaim for nuisance | 525–545 |
| The Claimants' claim to "ancient mooring rights" | 546–598 |
| The Claimants' claim for adverse possession of the riverbed and anchors | 599–615 |
| The Claimants' claims to easements | 616–622 |
| The PLA's counterclaim for a declaration that it is entitled to remove the Claimants' works from the river | 623–647 |
| The Claimants' claim for conspiracy | 648–661 |
| The Claimants' claims for slander of title | 662–675 |
| The Claimants' claim against the PLA for misfeasance in public office | 676–684 |
| The Claimants' claim against APL and HWPEL for harassment | 685–700 |
| Result and comment | 701–702 |
Introduction
The First Claimant, Max Couper, is an artist who has had a long-abiding interest in the River Thames and other waterways. The Second Claimants are the Trustees of the Couper Collection Charitable Trust, also known as the Couper Collection Public Trust, a charitable trust founded and administered by Mr Couper ("the Trust"). Mr Couper and the Trust own a collection of barges, other boats and pontoons, referred to as the Couper Collection, that have for many years been moored off what is nowadays known as Albion Wharf, which is located on the south bank of the Thames between Battersea Bridge and Albert Bridge. The boats house an art collection which is open to the public. They also provide a local amenity in other ways, as described below. The First Defendant ("APL") owns the adjacent land, on which is now located a mixed-use development called Albion Riverside. The Third Defendant ("HWPEL") is a member of the same group of companies as APL, the Hutchison Whampoa Group ("HW"), and acts as APL's agent. The Second Defendant ("the PLA") is a statutory body with responsibility for the River Thames as described below.
There are a considerable number of claims and counterclaims in these proceedings. The Claimants' primary claims are four-fold. First, they claim the benefit of "ancient mooring rights" entitling them to moor the boats and pontoons where they are currently moored. Secondly, they claim to have acquired title to part of the riverbed by adverse possession. Thirdly, they claim to have acquired title to a section of river wall at Albion Wharf referred to in these proceedings as "the Couper Collection Quay" (or CCQ for short) by adverse possession. Fourthly, they claim to have acquired various easements by prescription. In addition, the Claimants have a number of secondary claims: for conspiracy, for harassment, for misfeasance in public office and for slander of title. APL counterclaims for a declaration that it has title to the CCQ and for nuisance. The PLA counterclaims for declarations that it is the owner of the riverbed and that it is entitled to remove the Claimants' works from the river.
The witnesses
The Claimants' witnesses
Max Couper. Mr Couper was born Max Lovegrove and changed his name by deed poll in 2006. I shall refer to him as Mr Couper throughout. Regrettably, Mr Couper was not a satisfactory or reliable witness. He clearly feels very strongly that he and the Trust have been bullied by HW and by Fosters (as to whom, see below) and that the PLA has become subservient to the interests of these powerful landowners. When he gave evidence he gave vent to this emotion by constantly making speeches and arguing the case rather than giving straight answers to simple questions. I repeatedly had to intervene to try to focus his attention on the need to answer counsel's questions, but despite my interventions he continued in the same manner. Furthermore, some of his evidence was inconsistent. Yet further, I did not believe some of his answers. I will give some examples below. I do not think Mr Couper was being deliberately untruthful in his evidence. Rather, his conviction that he was in the right and that HW, Fosters and the PLA were in the wrong prevented him from giving objective and accurate testimony. Overall, I do not feel able to rely upon his evidence except where it is supported by other reliable evidence.
Albert Lovegrove. Mr Lovegrove is Mr Couper's father. He is a retired airline director and international transport consultant. He had just turned 86 when he gave evidence. Furthermore, he was not in good health. He was asked to give evidence about events of long ago. Understandably, his recollection was very poor.
Eileen Lovegrove. Mrs Lovegrove is Mr Couper's mother. Having the advantage of being four years younger and in better health, her recollection was better than that of her husband, but was still poor.
Donald Fergusson. Mr Fergusson is a retired business man. Despite being 85 when he gave evidence, he was mentally alert and had as good a recall of the events of the 1980s and 1990s as could reasonably be expected. As he fairly accepted, however, he had difficulty in being precise about such events.
Peter Wilder. Mr Wilder is a graphic designer. He is a long-standing friend of Mr Couper and was a trustee of the Trust from 2002 to 2012. Mr Wilder was a straightforward witness who did his best to assist the court. As he accepted, however, he had difficulty in accurately recalling events in the 1980s and 1990s. On the points that matter, I did not have confidence as to the accuracy of his recollection for the reasons explained below.
Carole Tongue. Carole Tongue has had a distinguished career in a variety of positions in public life, including serving as Member of the European Parliament for London East from 1984 to 1999. She has been a trustee of the Trust since 2004, but had some involvement prior to that. Parts of her witness statement were copied from that of Nick Skeens. More importantly, she made it clear both in her witness statement and her oral evidence that she is passionately committed to the Trust and its endeavours, to the extent that she was unable to give objective evidence. Thus she did not shrink from accusing the PLA of "forgery", of behaving in "a dishonest and unaccountable manner" and of using "bullying tactics, deception and chicanery". Little of her evidence was germane to the issues anyway.
Nick Skeens. Mr Skeens is a journalist, writer and public relations professional. He has been a trustee of the Trust since June 2003 and Chair since September 2003. He has been a friend of Max Couper's since 1988. His witness statement suffered from similar defects to Ms Tongue's, although he was more restrained in his oral evidence. Nevertheless, the upshot is that I do not consider him to have been a reliable witness.
Dean Leslie. Mr Leslie is a court attorney for New York Supreme Court, an Adjunct Professor of Law at New York Law School and recently qualified as an English solicitor. He has been a trustee of the Trust since 2002. His witness statement, which he drafted himself, was a disgrace. Running to no less than 343 paragraphs, it consisted largely of contentious commentary on documents and events of which he had no personal knowledge, expressions of opinion and argument. The Defendants objected that large swathes of it were inadmissible, and the Claimants conceded that many paragraphs should be struck out. The remainder of the Defendants' objection was resolved by consent by a direction that the Defendants were not required to challenge Mr Leslie's interpretations of documents in cross-examination. Had it not been resolved in that way, I would have struck out those paragraphs as well: compare J.D. Wetherspoon plc v Harris [2013] EWHC 1088 (Ch). My confidence in the reliability of Mr Leslie's evidence was further undermined by his claim during cross-examination that the act of putting on gloves could constitute an assault on another person and by the fact that it became apparent that he had confused two different incidents about which the Claimants complain. Accordingly, I place no weight on his evidence save where it is corroborated by other reliable evidence.
Judith Attar. Ms Attar is a researcher. She was employed as a researcher to Martin Linton MP, who was the local Member of Parliament, from 1999 to 2007. She gave evidence about a meeting she attended at the PLA's offices. Her recollection was that she had met Martin Gartside, the PLA's Corporate Affairs Manager, at the meeting. Mr Gartside gave unchallenged evidence that he did not attend the meeting and had never met Ms Attar. It is therefore clear that Ms Attar's recollection was mistaken. This is of no real consequence to the issues in this case, however.
HW's witnesses
Nicholas Orbell. Mr Orbell is a chartered surveyor with particular expertise in maritime surveying. From 1 August 1997 to 17 April 2000 he was...
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