Roberts v Crown Estate Commissioners
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindsay |
| Judgment Date | 14 March 2007 |
| Neutral Citation | [2007] EWHC 513 (Ch) |
| Docket Number | Case No: TLC 11/07 |
| Court | Chancery Division |
| Date | 14 March 2007 |
[2007] EWHC 513 (Ch)
The Hon. Mr Justice Lindsay
Case No: TLC 11/07
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M. Wonnacott (instructed by Darwin Gray) for the Claimant
Mr C. Harpum (instructed by Lee & Pembertons) for the First Defendant
Mr T. Braithwaite (instructed by Farrers) for the Second Defendant
Mr B. Denyer-Green (instructed by Lee & Pembertons) for the Third Defendant
Hearing dates: 16 th, 17 th, 18 th, 19 th, 22 nd, 23 rd, 26 th, 29 th, 30 th & 31 st January
and 1 st & 2 nd February 2007
Judgment Approved by the Court
for handing down
(subject to editorial corrections)
Mr Justice Lindsay
A. Introduction
This case raises both familiar and novel issues in the law as to adverse possession and limitation. It is framed as a number of preliminary issues but, to most intents and purposes, it is as if there were four separate actions for adverse possession rolled into one. In each of the four cases the land said to have been acquired by adverse possession consists of parts of the foreshore and bed of the tidal estuary of the River Severn, on its Welsh side, to the south-west of the First Severn Road Bridge. The areas claimed consist of many thousands of acres of sand- and mud-flats and similar land running seaward from the Welsh shoreline and, in three of the four cases, the area claimed runs down to the deep water channel which, rarely in the middle of the estuary, takes its erratic and changing course as the historical boundary as it earlier ran between England and Wales.
A feature of the action as a whole (as opposed to the preliminary issues) is that each of the parties claiming by adverse possession claims also not merely to have paper title to the area which he or it claims to have acquired by adverse possession but to have had that paper title, by himself, itself or by respective predecessors and to have been in possession for centuries. Unusually, therefore, it is those who, in the preliminary issues as to adverse possession, are the “squatters”—a convenient word I shall use (but not pejoratively) for those who claim by adverse possession – who are the very same persons who, in the main action, will assert that they have paper titles prior to that of he, the Claimant, who, in the preliminary issues before me, can claim only in reliance upon a paper title.
That situation arises in this way: the Claimant, Mr Roberts, who appears by Mr Wonnacott, has over the years indulged his close regard for Lordships or Manors, their histories and the law in relation to them by acquiring a number of Manors. He has acquired over 60 of them. He has become well known to others interested in this rather esoteric branch of the law and, though not himself a lawyer, is consulted by others with similar interests. He probably knows as much as any lawyer (and more than many lawyers) about Lordships and about that particular class of them known as Lordships Marcher, kinds of Manors or Lordships on the Marches of Wales which, for reasons going back to the time of Edward I, may still have rights distinguishing them from the ordinary run of Manors. Mr Roberts claims (and, as I shall explain, that claim is not in dispute at this stage) that he has acquired the Lordships Marcher (moving southwards and westwards as I describe the Manors) of Mathern, Caerleon and Magor. Describing those Manors by reference to places on land, they relate, running south-westwards, to areas off Chepstow, to areas off Portskewett, further down, off Redwick and stopping a little short of being off Goldcliff. Mr Roberts also claims that the Manor of Porton is a sub-manor of his Lordship Marcher of Magor.
Mr Roberts' acquisition of such Manors or Lordships is fairly recent; he acquired Caerleon on 12 th October 2003, Magor on 15 th October 1997 and Mathern (via a trusteeship) on 27 th July 2000. Relying on such acquisitions, Mr Roberts set about registering a Caution against first registration at HM Land Registry but soon found himself, in relation to registration, in conflict with the First Defendant, Swangrove Estates Limited (“Swangrove”), which appears by Mr Harpum, as to Mathern and Caerleon, with the Second Defendants, the Crown Estate Commissioners (“the Commissioners”) who appear by Mr Braithwaite, as to Caerleon and Magor and with Mr John Hanbury-Tenison as the Third Defendant, who appears by Mr Denyer-Green, as to a slim area, parallel with and closest to the shore, an area which is said to be within the Manor or sub-manor of Porton (and hence is claimed by Mr Roberts, as part of a sub-manor, to fall within his Lordship Marcher of Magor). That strip, although often bearing different colours on the almost countless maps, charts and plans produced during the course of the hearing, was coloured light green on the plan annexed to the Third Defendant's defence. I will call that area, the Porton Green Area, “the PGA”.
Finding there to be conflicts between rival claimants, HM Land Registry directed that there should be proceedings in this Division to resolve them and accordingly on 7 th July 2005 Mr Roberts began proceedings against Swangrove, the Commissioners and Mr John Hanbury-Tenison. In the plan annexed to his Particulars of Claim he clearly defined the respective areas claimed against the Defendants respectively. In each case the area claimed has a readily visible boundary only at the shoreline side, with each other boundary being either unmarked riverbed or water, depending in part on the state of the very considerable tides that affect the Severn.
In their respective defences, each of the Defendants not only sets out his or its respective alleged paper title to the area claimed from that Defendant by the Claimant but pleaded also, relying on adverse possession and limitation, that if (which was denied) Mr Roberts did have the title which he claimed and if (which was denied) his title has the consequences Mr Roberts claimed for it, then, even so, the Defendant respectively concerned had, by himself, itself or their respective predecessors, acquired title by adverse possession against Mr Roberts and his predecessors.
Mr Roberts did not find himself able to assert adverse possession by himself or his predecessors against any Defendant so it became clear that if all or any Defendants could prove adequate adverse possession as against the Claimant or his predecessors it would become unnecessary to delve into the relative strengths of the historical titles upon which, if they had to, each of the parties would rely. As Mr Roberts' claimed title runs back, he says, to the law stated in the Liber Cardiff de Confuetudinibus Walliae as to the law applicable in the Marches of Wales following the conquest of the Principality of Wales in 1282, a resolution of the issues arising between the parties not by a contest of titles but by way of a resolution of the questions of adverse possession dangled before the parties a possibly more economical way of settling their differences in a manner that would satisfy HM Land Registry. Accordingly on 16 th February 2006 in the Cardiff District Registry District Judge Hendicott ordered that there should be a split trial with all claims for adverse possession to be tried first. He directed that there should be a pre-trial review before Judge Wyn Williams QC on 6 th November 2006.
The matter was restored to HHJ Wyn Williams QC on 6 th November 2006 when the Judge gave further directions but the Minute of Order which he directed was never agreed or otherwise formalised. The basis on which issues of adverse possession were to be tried as preliminary issues remained still unagreed when the matter first came before me on 16 th January 2007. After hearing argument I ruled in two eventually unopposed paragraphs, the first of which may be said to have been redundant in the sense that the learned District Judge had already covered the ground, but the Order I made provided as follows:
“1. Every claim of adverse possession pleaded by any one or more Defendants against the Claimant shall be tried as a preliminary issue.
2. For the purposes only of the hearing of and judgment upon such preliminary issues, then, so long and so often as, at any time relevant to any such allegation of adverse possession, the Claimant claims that in a particular capacity he was then or that his predecessors to that capacity were then true owner or owners of any of the estates, rights or interests in land the present ownership of which is in question in this action, it shall be assumed that the Claimant was then or such predecessors were then in such capacity and that such capacity then entitled him or such predecessors to such estates, rights or interests.”
Thus only adverse possession has been in issue before me, on assumptions favourable to Mr Roberts.
For ease of reference by Counsel and witnesses to particular parts of the areas with which I have been concerned, a fresh version of the plans annexed to the Particulars of Claim was produced based on the Ordnance Survey of the area and identifying all parts of the bed of the Severn from Oldbury Sands (north and east of the First Severn Road Bridge) down to the seaward boundary of Magor. The squares on the Ordnance Survey, each representing one square kilometre, were numbered from 1 to 153 on this plan, which was referred to as “the numbered” map or plan. Each of the numbers represented, with respect to land to which one or other defendant claimed possession, one square kilometre either of riverbed or, in parts, also of the immediately adjacent...
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