Taylor and Another v Lawrence and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PETER GIBSON,LORD JUSTICE CHADWICK,LORD JUSTICE KEENE
Judgment Date04 Feb 2002
Neutral Citation[2001] EWCA Civ 119,[2002] EWCA Civ 90
Docket NumberB3/2000/0265,Case No: 2001/2419

[2001] EWCA Civ 119

IN THE SUPREME COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WATFORD COUNTY COURT

(His Honour Judge Peter Goldstone)

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Peter Gibson

Lord Justice Chadwick

Lord Justice Keene

B3/2000/0265

(1) Richard Mark Taylor
(2) Kim Priscilla Taylor
Claimants/Respondents
and
(1) Joseph Dwight Lawrence
(2) Ruth Amanda Lawrence
Defendants/Applicants

MR TIM COWEN (Instructed by Messrs Matthew Arnold & Baldwin, 20 Station Road, Watford, Herts. WD1 1HT) appeared on behalf of the Respondents.

1

Thursday 25th January 2001

LORD JUSTICE PETER GIBSON
2

1. This is an appeal by the defendants, Mr and Mrs Lawrence, from the order made on 12th November 1999 by His Honour Peter Goldstone sitting as a Deputy Circuit Judge in the Watford County Court. The order was made at the end of the trial of a boundary dispute which the judge determined in favour of the claimants, Mr and Mrs Taylor. The Deputy Judge refused the defendants permission to appeal but permission was granted to them by this court (Mantell LJ and Sumner J) on 3rd March 1990 at a without notice hearing.

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2. The factual background to the dispute is this. The claimants own a property called “Cetlas” in Farm Road, Northwood, Middlesex. The defendants own the adjoining property called “Highgate”. Both properties have houses built in 1955 or 1956. Originally the boundary between the properties was marked only by two wooden posts. The original owner of Highgate, Ian Moore, who remained there until 1991, gave evidence, which the Deputy Judge accepted, that he had put in about six small concrete posts connected by a wire strand from the garden end towards the house. Mr Moore later erected some taller concrete posts and a wooden fence, slotted into those posts, along a line which he described as being “well inside my property”. That was to act as a screen. The original owner of Cetlas until 1984 was a Mr Griffiths, with whom Mr Moore got on very well. The land is on a slope and Mr Griffiths decided to level an area adjacent to the boundary with Highgate and at that point to build in concrete what was called a car port on which cars would be parked. Mr Griffiths, as the judge found, built a concrete plinth, as Mr Moore said, to square up the car port. The plinth was placed, as the judge also found, on the Highgate side of the boundary. It encroached some 18 inches. In 1984 Mr Griffiths sold Cetlas to a Mr Watson, and he in 1995 sold that property to the claimants. Mr Moore sold Highgate in 1991 to a Mr and Mrs Millett and they in turn sold that property to the defendants in 1994. 3. On 18th March 1997 the defendants erected a brick wall on the plinth on the basis that it was on their land. The claimants claimed that they had the title to that land and that the defendants were trespassing. These proceedings were commenced in June 1987. The claimants sought the removal of the wall and an injunction to prevent future trespass. They also sought damages. On 2nd October 1998 the claimants amended their particulars of claim, by order of the District Judge, to claim in the alternative that, if they did not have title to the land on which the wall was built, that and certain other land shown on a plan had been in the possession of the claimants and their predecessors in title since about 1956 and that that possession was adverse to any rights of the defendants and their predecessors in title. They claimed a declaration that they are the beneficial owners of the land, including that on which the wall was built.

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4. At the trial it was conceded by the claimants that their alternative claim for possession could go back no earlier than to the 1960s. That was because of certain evidence which had been given by Mr Moore. It is clear that if there was adverse possession of the land in the 1960s, it was for a period well in excess of the limitation period of 12 years. The defendants put in a defence, denying the claimants' claim. That defence was settled by counsel; but since June 1999 the defendants have acted in person. His Honour Judge Viljoen heard a number of interlocutory applications in the case, but on 16th August 1999 the evidence of Mr Moore, who was called as a witness for the defendants and who would not be available in November at the time fixed for the trial, was taken in open court before the Deputy Judge. The defendants later made an application to him that Judge Viljoen should be the trial judge, but on 21st September the Deputy Judge dismissed that application. The defendants also applied for summary judgment, but that too was dismissed by the Deputy Judge on 28th October.

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5. The main trial commenced on 9th November 1999 and continued over the next two days. On 12th November the Deputy Judge delivered judgment. He identified two issues. The first was whether the defendants had the paper title to the disputed land. He said that he was quite satisfied that the plinth on which the defendants had built the wall was within the boundaries of Highgate and that until the particulars of claim were amended to raise the alternative claim for adverse possession, the claimants' claim was doomed to failure. The second issue was whether the claimants' predecessors had been in adverse possession of the disputed land for more than 12 years. On this the Deputy Judge held that a cause of action in trespass accrued to Mr Moore when the car port was built by Mr Griffiths in the early 1960s. The Deputy Judge further held that occupation adverse to the ownership of the defendants' predecessors in title continued until the 1990s, and that what the claimants' predecessors did constituted adverse possession for a period in excess of the limitation period. It followed that the claimants' claim succeeded. The Deputy Judge ordered the defendants to remove the brick wall and to reinstate the claimants' land. He granted an injunction, restraining the defendants from entering the claimants' land or interfering with it. He awarded the claimants £190 damages. He ordered the claimants to pay two-thirds of the defendants' costs until service of the amended particulars of claim, and he gave the claimants their costs thereafter.

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6. When the defendants appeared on 3rd March 2000 before this court seeking permission to appeal, Mantell LJ, in a judgment with which Sumner J agreed, said that the defendants were seeking to argue essentially three grounds of appeal. The first was that the Deputy Judge misunderstood or misdirected himself with regard to the necessary components of an adverse possession claim, and that there was no evidence to show that the possession relied on by the claimants was accompanied by the necessary intention to possess. The second was that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the claimants, there was an appearance of bias. The third was that the Deputy Judge conducted the hearing in an unfair manner, limiting the examination of the defendants' witnesses in a way in which the claimants had not been limited. Mantell LJ regarded all three grounds as arguable, but the third as being of lesser weight. No other grounds of appeal are referred to in the judgment, although six grounds were listed in the notice of appeal. The order of the court simply was that the defendants should have permission to appeal.

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7. Before this court Mr and Mrs Lawrence have appeared in person. Mr Lawrence has conducted the argument on behalf of himself and his wife for the most part, although Mrs Lawrence has added some further submissions as well. They have been prepared to confine the grounds of appeal to two main grounds which are within the grounds considered by Mantell LJ.

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8. The first ground is that the elements requisite for adverse possession to be established, that is to say of exclusive control and intention to possess, were not established by the claimants at the trial and that they were not even mentioned by the Deputy Judge. It is trite law that for a claim of adverse possession to succeed there must be both factual possession and an intention to possess. The Deputy Judge's judgment can be criticised, perhaps, for dealing with the adverse possession issue compendiously and for not focusing on the individual elements. But it does not necessarily follow from that criticism that his decision on that issue was wrong. It is appropriate to consider whether on the facts he properly reached the conclusion that adverse possession had been made out.

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9. The facts as found were essentially these:

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(1)In 1962 Mr Griffiths levelled that part of his garden adjacent to the boundary with Highgate, laid concrete on it and built the plinth when making the car port and constructed small posts at the edge of the concrete to support the car port.

11

(2)Mr Moore, knowing what Mr Griffiths was about to do, erected a fence as a screen on a line inside the boundary of Highgate.

12

(3)Mr Moore was not bothered by what Mr Griffiths did as that was taking place behind, that is to say on the far side of, his screen. He abandoned interest in the area proximate to the boundary at this point and was content for Mr Griffiths to occupy it if he was so minded.

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(4)Mr Griffiths' son, Charles, who was about 17 at the time of the concreting, helped his father, as did his 15 year old brother Richard, with the concreting work. It was Charles Griffiths' belief that the plinth was within the boundary of Cetlas.

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(5)The concreted area, including the plinth, was used for car parking by the claimants' predecessors in title.

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10. Mr Lawrence challenges the first finding to this extent. He says that it was...

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