REF/2011/0053

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

JANET CATO

APPLICANT

and

 

(1)   SEAN PATRICK MURPHY

(2)   EILEEN MURPHY

RESPONDENTS

 

Property Address: 2 Beaconsfield Road, Aston Clinton, Buckinghamshire HP22 5JU

 

Title Number: BM354486 and BM248263

 

Before: Mr Rhys Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House, 30-34 Kingsway, London WC2B 6EX

 

On: Tuesday 30^th August 2011

 

Applicant representation: Miss Cato in person

Respondent representation: Mr Janusz of Counsel instructed by Messrs Swatton Taylor Dutton Solicitors

___________________________________________________________________________­

 

D E C I S I O N

___________________________________________________________________________

 

KEYWORDS – Respondents’ application to strike out the Applicant for abuse of process and/or under Rule 32A – application for determined boundary – same boundary in dispute in earlier County Court proceedings – earlier proceedings struck out for breach of Court orders – determined boundary application struck out as an abuse of process – in the alternative application struck out as having no real prospect of success

 

CASES CITED –

Birkett v James [1978] A.C 297

Securum Finance Ltd v Ashton [2001] 1 Ch 291

Kusum Jayasinghe v Don Liyanage [2010] EWHC 265 (Ch)

Chief Land Registrar v Silkstone & others [2011] EWCA Civ 801

INTRODUCTION

1. The Applicant is the sole registered proprietor of a parcel of land with a frontage to Buckland Road, Aston Clinton, Buckinghamshire, under title number BM248263 (“the Applicant’s land”). The Respondents are the registered proprietors of the house and grounds known as 53 Buckland Road, under title number BM354486 (“No.53”). Both titles lie to the south and west of Buckland Road, which runs more or less from north-west to south-east. The Applicant’s land consists of a narrow strip of land which runs along the full length of the north-western boundary of the Respondent’s land. Close to the frontage with Buckland Road – at the north-eastern end of the parcel – it widens out and runs diagonally across the front of the Respondent’s land, forming a triangle which at its widest point occupies approximately one-half of the Respondents’ Buckland Road frontage. Accordingly, the parties share a common boundary – being the south-eastern boundary of the Applicant’s land and the north-western boundary of the Respondents’ land. By an application dated 26^th October 2010 the Applicant applied to HM Land Registry under section 60 of the Land Registration Act 2002 for the exact line of this common boundary to be determined (“the DB application”). The DB application was supported, as it must be, by a plan, which was drawn by the Applicant’s surveyors to a scale of 1:500, numbered S-10-004-10 and dated 13^th October 2010 (“the DB plan”). The Respondents objected on 8^th November 2010, and the dispute was referred to the Adjudicator on 18^th January 2011.

 

THE CLAIMS RAISED IN THE STATEMENT OF CASE

2. The Applicant served her Statement of Case on 23^rd February 2011. In the section described as “Reasons for supporting original application” the Applicants defined the Applicant’s Land as “Parcel F”, and the Respondents’ land as “No.53”. The Applicant’s Statement of Case contains the following allegations:

“The boundary between Parcel F and No.53 is plotted in red as A-B-C on the “DB plan”, a topographical boundary survey plan numbered S-10-004-10 annexed hereto and marked EX2. In or around 1990, the Respondents removed a hedgerow that delineated the southern boundary of the visibility splay preserved for a future roadway….together with approximately 24 metres of chain-link fencing defining the boundary between Parcel F and No.53. Thereafter, the Respondents erected new close-boarded fencing to enclose a substantial portion of Parcel F within the curtilage of No.53. In May 1993, the Respondents acknowledged to the Applicant that they had misaligned the boundary fencing ad agreed in writing through the Applicant’s solicitors to reinstate the said boundary hedgerow/fencing to the correct position as and when required to do so, notably when Parcel F was required to provide an access road for the development of Parcel D (identified at Annex 2 of Appendix 1 to the Statement of Case)……By virtue of the Respondents’ agreement in 1993 to reinstate the boundary hedgerow/fencing to its original position as and when required to do so, they are not entitled to retain the land they have enclosed within the curtilage of their property. The Applicant is entitled to have the boundary hedgerow/fencing restored to its correct position.”

 

3. In the section of the Applicant’s Statement of Case headed “Facts upon which the Applicant intends to rely”, the Applicant included the following allegations :

“6) In or about May 1993, the Applicant noticed that changes had been made to the alignment of the boundary fencing between No.53 and Parcel F, as follows:

a.      the mature hedgerow across the frontage of No.53 had been grubbed out, thus completely removing any evidence of the visibility splay preserved for the future roadway;

b.      approximately 24 metres of the chain link bounding fencing between No.53 and Parcel F had been removed;

c.       Parcel F had been substantially cleared of its trees adjacent to the new fencing;

d.      new close-boarded fencing had been erected which had a line of sight to the west of a telegraph pole located on the roadside verge rather than to the east of it;

e.       the new close-boarded fencing now formed a junction with Buckland Road adjacent to the telegraph pole

f.        a gateway had been incorporated into the new close-boarded fencing adjacent to the side entrance to the house;

g.      old fencing panels had been dumped on Parcel F adjacent to the gateway…………….

A sketch plan of the new configuration of No.53 is provided as document EX22.

The net effect of the above-mentioned changes meant that:

a. the frontage measurements of No.53 had been extended by some 1.77 metres (8.81 feet) from 39’9” to 45’6” (12.11 metres to 13.88 metres)

b. the distance between the western flank of the dwelling and the new close-boarded fencing had been increased by “straightening” the boundary fencing line;

c. the ‘triangular’ area of land which was part of Parcel F and formerly preserved to create a visibility splay for the future roadway (represented by points A, B and G on Appendix 1, Annex 7) was now included within the curtilage of No.53;

d .there was unimpeded access onto Parcel F from No.53 through the gateway in the new close-boarded fencing.”

 

4. The Applicant’s case, quite simply, was that the alleged changes to the boundary fence made by the Respondents in 1990 and first noticed by her in 1993, had altered the physical boundary between Parcel F and No.53. The true legal boundary between the two titles is, according to the pleading, “…plotted in red as A-B-C on the ‘DB plan’, a topographical boundary survey plan number S-10-004-10 annexed hereto and marked EX2”. The DB plan, which conforms to the Land Registry’s exacting requirements as to scale and accuracy, was drawn by SLC Associates of Aylesbury, and shows the claimed boundary taken from “the 1954 Conveyance plan”. This is a reference to the Conveyance dated 12^th April 1954 (“the 1954 Conveyance”) and made between J. Alfred Pratt & Co (1928) Ltd (1) and Mrs D.M. Cato (2) whereby both the Applicant’s land and No.53 were conveyed to the Applicant’s mother, thus forming the root of title to both properties. The property was described as “ALL THAT piece of land situate in the Parish of Buckland in the County of Buckingham near Buckland Wharf and having a frontage of 52 feet 3 inches or thereabouts on the N.E. side to the road leading from Buckland to Buckland Wharf which said piece of land is for identification purposes delineated and coloured pink and blue on the plan annexed hereto ….SUBJECT as to the land coloured blue on the said plan to a Planning Permission ……… under which the said piece of land coloured blue on the plan comprised one half width of a proposed Carriage way and footpath.” The land coloured pink on the plan forms what is now No.53, and the land coloured blue the Applicant’s land. As is apparent from this description, the Applicant’s land was subject to a planning condition that required it to be kept available and unbuilt on so as to form part of an intended estate road serving a potential development at the rear. In the event, however, the development did not require the use of the Applicant’s land for that purpose. The strip of land appears to be of no practical utility or value, although Ms Cato would, I think, dispute this. On 5^th September 1960 the land coloured pink on the plan – No.53 – was sold to a Mr Hudson, Mrs Cato retaining the land coloured blue, namely the Applicant’s land. The Applicant has applied for a determined boundary, on the basis that the physical boundary as it existed prior to 1990 marked the true boundary between Parcel F (the Applicant’s land) and No.53 (the Respondents’ land), as identified in the 1954 Conveyance. Her DB plan marks this alleged true boundary line as A-B-C. The degree of divergence between the existing physical boundary – the close-boarded fence – and the claimed boundary varies along its length. At the southern end of the fence – Point A on the DB plan – there is no divergence. At the northern end of the fence – close to Point B – the alleged true legal boundary is approximately 1.5 metres to the east. Furthermore, the south-eastern boundary of the intended visibility splay – the triangle of land at the front of No.53 – is marked on the ground by a low wooden fence and hedge placed there by the Respondents. According to the DB Plan, this feature is situated slightly to the north and west of the alleged true legal boundary. The divergence at the most easterly point (Point C) is zero – but is approximately 1 metre in the vicinity of Point B.

 

PREVIOUS PROCEEDINGS RELATING TO THE BOUNDARY

5. This is not the first occasion on which the line of this boundary has been in issue between the Applicant and the Respondents. On 16^th March 2006 the Applicant issued proceedings in the Aylesbury County Court (“the County Court proceedings”) against the first-named Respondent, Mr Murphy, and Wates Homes Limited (“Wates”). At paragraph 1 of the “Brief details of claim” the Applicant stated that: “The first defendant has moved the boundary fencing of his property, thus incorporating part of the claimant’s registered land. The claimant is seeking an Order from the Court for the boundary to be restored to its correct position.”. In the first section of her Particulars of Claim – headed “IDENTIFICATION OF LAND” – she identifies title number BM248263 as “Parcel F”, and “the adjacent property known as 53 Buckland Road” as “No.53”. These are the same definitions as are used in the Applicant’s Statement of Case in this reference. In the particulars relating to Mr Murphy – the first Respondent in this reference – she pleaded (at paragraphs 9 and 10) exactly the same allegations as I have quoted in paragraph 3 above, which are taken from the Applicant’s Statement of Case in this reference. In the prayer for relief following paragraph 30 of the Particulars of Claim in the County Court claim, the Applicant claims “A Declaration that the boundary between No.53 Buckland Road and the claimant’s registered title No.BM248263 is in accordance with line E-F, intersected by line G, as shown on Plan 4 of the Expert’s Report (FD.3).” The plan referred to is contained within an expert report by David J. Powell Surveys Ltd – the well-known boundary surveyors – and is based on a Boundary Survey drawn by SLC Associates in September 2001 and numbered S-01-004-01. The DB Plan is also drawn by SLC Associates, which is in fact a later and more detailed incarnation of S-01-004-01. However, the relevant dimensions are very substantially the same, making allowances for the fact that the DB plan has to be drawn to a very high degree of accuracy. The Particulars of Claim also seeks a mandatory injunction requiring Mr Murphy to remove the allegedly encroaching part of the fence, and to re-instate the original physical boundary.

 

6.      Apart from the fact that, at the date of the County Court proceedings, the Respondents’ title was unregistered, the claim with regard to the common boundary was to all intents and purposes the same. The claim for a declaration as to the true common boundary line is no different from the claim to register a determined boundary. The plans used in support of each claim are in substance the same. The wording of the two pleadings – the Applicant’s Particulars of Claim in the County Court and her Statement of Case in this reference – is identical in all material respects.

 

 

 

THE HISTORY OF THE COUNTY COURT PROCEEDINGS

7.      The court never finally resolved the boundary issue in the County Court proceedings, which were struck out, for the reasons I shall explain. As I have said, the claim was issued in the Aylesbury County Court, but was eventually transferred to Central London County Court. In early 2007, Mr Murphy – the first defendant to the claim – applied for summary judgment against the Applicant in concert with the other defendant, Wates. The basis of his application was as follows. The Applicant had pleaded in her Particulars of Claim that since 1990 the boundary feature between her land and No.53 – the close-boarded fence – was in the wrong position. It followed that Mr and Mrs Murphy (since No.53 was owned at all material times by both of them) had been in exclusive possession of the entirety of the land enclosed within that fencing, even if (which was denied by Mr Murphy) some of that land had originally formed part of the Applicant’s land (“the disputed land”) and the fence had been erected in the wrong position. He relied on section 15 of the Limitation Act 1980 to the effect that he had been in adverse possession of the disputed land for at least 12 years, thus (under section 17) barring the Applicant’s title. This formed the basis of his Defence and Counterclaim. The Applicant’s Defence to Counterclaim alleged that the Murphys’ occupation of the disputed land was with her express consent, thus negating adverse possession, relying on certain correspondence that passed between the parties (and with her solicitor) in 1993. Mr Murphy claimed that the correspondence clearly related to a different piece of land – the visibility splay at the front – and could not be read as requesting permission to occupy the disputed land. It was contended in the summary judgment application that the Applicant had admitted that Mr Murphy had been in possession of the disputed land for more than 12 years, and since the alleged written consent did not relate to the relevant land, the Applicant’s claim was bound to fail. In the alternative, and if summary judgment was refused, Mr Murphy asked the court to impose financial conditions on the Applicant’s prosecution of the claim. The application by Wates was based on different grounds, which are not directly material. Mr Murphy also applied to strike out certain allegations in the Statement of Case on the grounds that they were scandalous, irrelevant and prejudicial. These allegation (made at paragraph 7 of the Particulars of Claim and picked up at paragraph 29 b and c under “PARTICULARS OF COMPLIANT) was to the effect that the Respondents had, in applying for planning permission for the side extension to No.53, misrepresented to the planning authority the size of their plot. Paragraph 7 of the Particulars of Claim is repeated, word for word, as paragraph 4 of the “Facts on which the Applicants intends to rely” in the Statement of Case in this reference.

 

8.      The first defendant’s application for summary judgment was refused by District Judge Lightman on 3^rd August 2007, although Wates’s application largely succeeded. The court did however strike out Particular 29 b and c referred to above. The District Judge adjourned the question of whether “any costs conditions should be imposed upon the claimant” to a further hearing on 5^th September 2007. He also ordered the Applicant to pay both defendants’ costs of the summary judgment application “on an indemnity basis to be summarily assessed” at the hearing on 5^th September 2007. The District Judge made a number of orders on 5^th September 2007, including the following: “6. Pursuant to paragraph 8 of the order dated 3^rd August 2007, the claimant do pay into court to abide the event the sum of £12,000 by 4 p.m. 3^rd October 2007. In default of compliance, the claim against the first defendant do stand struck out automatically without further order and the claimant do pay the first defendant’s costs of the action to be detailed assessed if not agreed. 7. The claimant do pay the following further costs of the first defendant as follows by 4 p.m. 19 September 2007: - (a) of the application for a further expert, the sum of £659.18 (b) in relation to the second defendant’s application for summary judgment, the sum of £927.08 (c) of today’s hearing, the sum of £1688.47 8. The claimant do pay the costs of the first defendant in relation to the claim against the second defendant to be detailed assessed if not agreed. 9. Pursuant to CPR. 44.3(8), the claimant shall pay to the first defendant’s solicitors a sum on account of the costs referred to in paragraph 8 above viz £1000.00 by 4 p.m. 19^th September 2007.” He also gave detailed directions for trial before a Chancery Circuit Judge.

 

THE CLAIM IS STRUCK OUT

9.      On 25^th February 2008 the matter came back before the same District Judge. By this time, the Applicant had complied with the order to pay £12,000 into court, but had not paid the costs ordered to be paid to Mr Murphy under paragraphs 7 to 9 of the Order dated 5^th September 2007. Paragraph 1 of this order read as follows: “Time for the claimant to pay to the first defendant’s solicitors the sums referred to in paragraphs 7 to 9 of the order dated 5^th September 2007 be extended to 4 p.m. 29^th February 2008. In default, the action be stayed and the hearing listed for 9^th and 10^th April 2008 be vacated.” It seems that the Applicant had applied for permission to appeal the orders of August and September 2007 and, although no stay had been ordered, she failed to make payment of the costs by 29^th February 2008. In the event, therefore, her claim was stayed and the trial date vacated. On 3^rd March 2008 Mr Murphy’s solicitors wrote to the Applicant warning her that they were proposing to apply to strike out her claim. Correspondence with the Applicant ensued, in which she stated that she had no intention of withdrawing her claim against their client. On 19^th March 2008 Mr Murphy’s solicitors were informed that the Applicant’s application for permission to appeal had been refused, and wrote to the Applicant in these terms: “It seems to us that the only basis on which you can now seek to remove the stay is to pay our client’s costs and if you refuse to do that then it is inevitable, it seems to us, that we must apply to the court for your action to be struck out.” The costs were not paid, and Mr Murphy duly applied to the Court to strike out the Applicant’s claim. The application came once again before District Judge Lightman who, in a reasoned decision which has been transcribed and is in evidence before me, decided to strike out the Applicant’s claim. He seems to have done this on two grounds. First, because he regarded her claim as very weak. He explained (at paragraphs 6 and 10-12 of the Judgment) that he had only reluctantly allowed her claim to proceed when refusing Mr Murphy’s application for summary judgment, and indeed had given her only conditional leave to pursue the claim. He considered that he was entitled to take the weakness of her claim into account when considering the overall justice of the matter. Secondly, because he took the view the Applicant was guilty of “the failure, a deliberate failure” and “the deliberate refusal” to pay the costs ordered to be paid on 5^th September 2007. Taking all the relevant circumstances into account, he decided to strike out the Applicant’s claim, with costs. That order was sealed on 23^rd May 2008 and has not been appealed, successfully at least. Accordingly, from that date the County Court proceedings were struck out.

 

THE 2010 DETERMINED BOUNDARY APPLICATION

10.  As I have said, the Applicant applied to the Land Registry for a determined boundary. The first application was made on 25^th February 2010, and related to three boundaries. In the event, that application was cancelled, although the DB Form was retained and treated as supporting a second application, which is the one referred to the Adjudicator on 18^th January 2011 and relating to the common boundary between the Applicant’s land and the Respondents’ land. The Respondents’ objection was set out in their solicitors’ letters dated 5^th July and 5^th November 2010. As I read these letters, the basis of the objection was (a) that the Applicant had already “had one bite at this in the County Court” and (b) that her claim was “trumped” by adverse possession, as pleaded in Mr Murphy’s Defence and Counterclaim served in the County Court proceedings, to which express reference was made. The Applicant served her Statement of Case on 23^rd February 2011, in which the allegations made in the Particulars of Claim were repeated more or less word for word. On 31^st March 2011 the Respondents made an application to “dismiss the application as an abuse of process….”. The Adjudicator listed the matter for hearing under Rules 31 (preliminary issue) and Rule 32A (summary disposal). As developed in the Skeleton Argument of Mr Janusz, the Respondents’ Counsel, the basis for the application was two-fold. First and foremost, on the grounds that it would be an abuse of process for the Applicant to seek to re-litigate an issue which had already been the subject-matter of her County Court claim, struck out for default. Whilst accepting that there has been no finding or judicial determination as to the true boundary line, and accordingly no issue estoppel or res judicata applies, he relies on the wider doctrine of abuse of process, and cites Securum Finance Ltd v Ashton [2001] 1 Ch 291 as authority. Secondly, and in the alternative, the application is made for summary disposal under Rule 32A of the Adjudicator’s Practice and Procedure Rules as amended (“AR”), on the grounds that “ (a)…… the applicant…. has no real prospect of succeeding in the proceedings or on the issue; and (b) there is no other compelling reason why the proceedings or issue should not be disposed of summarily.” The basis of the application for summary disposal is that the Respondents’ defence based on adverse possession is bound to succeed. The argument runs like this. Even if the true boundary line under the 1954 Conveyance is as contended for in the Applicant’s DB application and plan, it is common ground that the Respondents constructed the fence in 1990, the physical boundary has remained in the same position ever since, and accordingly they have been in exclusive possession of the disputed land since that time. The Applicant’s only answer to their adverse possession claim is the argument based on alleged consent. If, as the Respondents contend, that argument is bound to fail, it follows that the adverse possession argument is bound to succeed, and the Applicant’s case must fail since the legal boundary must reflect the position of the fence. I shall deal with these two separate and alternative claims in turn.

 

ABUSE OF PROCESS – THE LAW

11.  The law with regard to abuse of process, at least insofar as it applies to litigation in the civil courts, has been comprehensively explained by the Court of Appeal in the Securum Finance case referred to above. In this case, the claimant bank had already issued proceedings against the defendants, based on guarantees given by them for a third party’s debt. Those proceedings had been struck out for want of prosecution. The claimant bank commenced new proceedings against the same defendants, who applied to strike out the new claim on the basis of (inter alia) an alleged abuse of process. The Court of Appeal held that certain claims made in the new proceedings were identical to claims made in the original proceedings – essentially, the claim for sums due under the guarantee. These claims were not, however, statute-barred. However, it held that other claims – based on the claimant’s legal charge – were different. In the event, it considered that it was right to strike out the duplicate claims, even though they had been brought within the limitation period, for abuse of process. In doing so, the court distinguished Birkett v James [1978] A.C 297. However, it did not strike out the new claims. Chadwick LJ summarised the abuse of process argument thus:

“52. In my view, for the reasons which I have sought to give, it is open to this Court to strike out the claim for payment made in the present action. That is a claim which, in substance, is indistinguishable from the claim for payment made in the first action. If that claim stood alone it could be said with force that to seek to pursue it in a second action when it could and should have been pursued, properly and in compliance with the Rules of Court, in the first action is an abuse of process. It is an abuse because it is a misuse of the court’s limited resources. Resources which could be used for the resolution of disputes between other parties will (if the second action proceeds) have to be used to allow the Bank a “second bite at the cherry”. That is an unnecessary and wasteful use of those resources. The Bank ought to have made proper use of the opportunity provided by the first action to resolve its dispute in relation to the claim for payment.”

 

12.    Chadwick LJ considered that the pre-CPR law, exemplified by Birkett v James [1978] AC 297, was no longer valid. In a lengthy passage, he explained the development of the “change of culture” under the CPR as follows:

 

“30. The power to strike out a statement of case is contained in CPR Rule 3.4. In particular, Rule 3.4(2)(b) empowers the court to strike out a statement of case (which includes part of a statement of case – see Rule 3.4(1)) if it appears to the court that the statement of case is an abuse of the court’s process; but that does not limit any other power of the court to strike out – see Rule 3.4(5). In exercising that power the court must seek to give effect to the overriding objective set out in CPR Rule 1.1 – see Rule 1.2(a). The overriding objective of the procedural code embodied in the new rules is to enable the court “to deal with cases justly” – see Rule 1.1(1). Dealing with a case justly includes “allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”. 31. In the Arbuthnot Latham case this court pointed out, in a passage at page 1436E which I have already set out, that:

 

“In Birkett v James [1978] AC 297 the consequence to other litigants and to the courts of inordinate delay was not a consideration which was in issue. From now on it is going to be a consideration of increasing significance.”

The effect on other litigants of delay in the proceedings in which that delay has occurred is, now, a factor to which the court must have regard when considering whether to strike out those proceedings. But, equally, the fact that earlier proceedings have been struck out on the grounds of delay is a factor to which the court must have regard when considering whether to strike out fresh proceedings brought to enforce the same claim. The reason, as it seems to me, is that, when considering whether to allow the fresh proceedings to continue, the court must address the question whether that is an appropriate use of the court’s resources having regard (i) to the fact that the claimant has already had a share of those resources in the first action and (ii) that his claim to a further share must be balanced against the demands of other litigants.

 

32. The House of Lords recognised, in Birkett v James [1978] AC 297, that the power to strike out a first action could be exercised where the plaintiff’s conduct amounted to an abuse of process – see at page 318F – and, further, recognised that the court would have power, in an appropriate case, to strike out a second action (founded on the same claim) notwithstanding that it was commenced within the limitation period “on the grounds that, taken as a whole, the plaintiff’s conduct amounts to an abuse of the process of the court” – see at page 320H-321A. But the House did not accept that the necessary ingredient of abuse would be present where “all that the plaintiff had done has been to let the previous action go to sleep”. In the Arbuthnot Latham case [1998] 1 WLR 1426, at page 1436G, this Court spoke of “the change in culture which is already taking place will enable the courts to recognise for the future, more readily than heretofore, that a wholesale disregard of the rules is an abuse of process”; and, at page 1436H, of “the more ready recognition that wholesale failure, as such, to comply with the rules justifies an action being struck out, so long as it is just to do so”. Following the Arbuthnot Latham case there have been numerous observations in this court which are to the same effect – see Lord Justice Nourse and Lord Justice Thorpe in Choraria v Sethia (unreported, 15 January 1998; CA Transcript 7 of 1998), Lord Justice Auld (with whom Lord Justice Robert Walker agreed) in Miles v McGregor (unreported, 23 January 1998; CA Transcript 51 of 1998), Lord Justice Hirst and Lord Justice Peter Gibson in Lace Co-ordinates Ltd v Nem Insurance Company Limited (unreported, 19 November 1998; CA Transcript 1717 of 1998), Lord Justice Henry (with whom Lord Justice Pill agreed) in Shikari v Malik (unreported, 5 May 1999; CA Transcript 922 of 1999), Lord Justice May (with whom Lord Justice Waller agreed) in Co-operative Retail Services Ltd v Guardian Assurance Plc (unreported, 28 July 1999; CA Transcript 1319 of 1999), and Lord Justice Ward and Lord Lloyd of Berwick in UCB Corporate Services Limited v Halifax (SW) Limited (unreported, 6 December 1999).

 

33. The judge was alive to the need to revisit the principles in Birkett v James [1978] AC 297. At page 13 in the transcript of his judgment he said this:

“The fact that the legislature has determined that a claimant is entitled to a particular period of time within which to commence proceedings does not seem to me necessarily to mean that if he chooses to commence an action well within that period and then conducts the action in such a dilatory fashion that the claim is ultimately struck out for want of prosecution he should be able to conduct himself in that way safe in the knowledge that, provided he issues fresh proceedings within the limitation period, those proceedings cannot be struck out as an abuse of process. Court time is precious and there is an important public interest in its proper use.”

But the judge did not think it right to pursue those thoughts, having regard to the way in which the application had been argued before him. Understandably, perhaps, he took the view that the task of revisiting Birkett v James in the light of the developments in this area of the law since Grovit v Doctor [1997] 1 WLR 640 was best left to an appellate court.

 

34. For my part, I think that the time has come for this Court to hold that the “change of culture” which has taken place in the last three years – and, in particular, the advent of the Civil Procedure Rules – has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the CPR in mind – and must consider whether the claimant’s wish to have “second bite at the cherry” outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this Court in the Arbuthnot Latham case – in a passage at page 1436H-1437B:

“The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389. The position is the same as it is under the first limb of Birkett v James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed.”

 

13.  In the present case, of course, the Applicant’s county court claim was struck out, not for delay, but on the grounds of deliberate failure to comply with the costs orders of the court. To this extent, the first limb of Birkett v James would have applied. In any event, the application for a determined boundary is not subject to the Limitation Act at all. A claim to a declaration as to the true boundary line is probably subject to the equitable defences of laches, acquiescence and delay rather than the Limitation Act. A claim to possession would be subject to a 12-year limitation period, and for damages for trespass to a 6-year limitation period. However, in the light of the decision in Securum Finance, a second claim can be struck out as an abuse of process even if the limitation period (if applicable) is still running. A claim struck out for delay is now treated in the same way as a claim struck out for contumelious default – the claimant must in both cases establish “some special reason” why a second, identical claim should be allowed to proceed.

 

14.  The doctrine as explained in Securum Finance goes farther than the doctrine of issue estoppel, or the rule in Henderson v Henderson. In considering whether the new claim is an abuse of process, the court will look at all the circumstances, including the allocation of its own resources. However, Securum Finance was of course decided in relation to court proceedings, and the CPR were the relevant rules of procedure. The form of the reference before me is not identical to court proceedings. In particular, the claim is not initiated by the Applicant directly, but indirectly in the sense that her application has been referred to the Adjudicator by the Land Registry under section 73(7) of the Land Registration Act 2002. More accurately, perhaps, the dispute created by the Respondents’ objection to the DB application has been referred to the Adjudicator for resolution. Does the jurisprudence relating to abuse of process – encapsulated by the decision in the Securum Finance case – apply to this jurisdiction? I should also add that the “overriding objective” – as set out at Part 1 of the CPR – is not identical to the “overriding objective” applicable to the adjudication by virtue of Rule 3 of the AR. In particular, the following element of the overriding objective is absent from Rule 3: “…… allotting to it [a case] an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.” However, the overriding objective is the same in both cases - namely, to deal with matters “justly” – and the specific elements set out in the CPR and AR are stated to be “included” within the umbrella definition.

 

THE NATURE OF PROCEEDINGS BEFORE THE ADJUDICATOR

15.  In order to answer this question, it is necessary to consider the nature of proceedings before the Adjudicator. Once a dispute has been referred, and jurisdiction is accepted, the resolution of the dispute proceeds as if it had been commenced by the issue of a claim form. The Statements of Case are equivalent to the Particulars of Claim and Defence in court proceedings. The AR contain a comprehensive set of procedural rules, governing issues such as disclosure of documents and exchange of witness statements, which have much in common with the Civil Procedure Rules. The oral hearing is conducted in accordance with the rules of evidence applicable in court proceedings, with cross-examination, and to all intents and purposes it is indistinguishable from a court hearing. The nature of proceedings before the Adjudicator have been considered by the courts on a number of occasions. For example, Briggs J in the case of Kusum Jayasinghe v Don Liyanage [2010] EWHC 265 (Ch) described the Adjudicator’s function in this way:

“The procedural code regulating the discharge by the Adjudicator of functions conferred by the Act is set out in The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003 No 2171). Those rules (“the Practice and Procedure Rules”) expressly incorporate the Overriding Objective, in a form which, although modified to suit the particular functions of the Adjudicator, broadly corresponds with that to be found in the Civil Procedure Rules: see paragraph 3. Viewed as a whole, the Practice and Procedure Rules contain a procedural code plainly designed to enable the Adjudicator to resolve, where necessary, disputes about substantive rights, rather than merely to conduct a summary process designed to ascertain whether there exists an arguable claim. They include, for example, power to give detailed directions, power to require statements of case, power to consolidate proceedings, to add or substitute parties, to require disclosure and witness statements, power to conduct site inspections and power to compel the attendance of witnesses.”

In other words, if the Adjudicator decides to decide a dispute himself, the process of dispute resolution is no different, in any material respect, from resolution by the court.

 

16.  The view that proceedings before the Adjudicator are equivalent to court proceedings has been supported in other decisions. Most recently, the Court of Appeal had occasion to consider the Adjudicator’s powers and functions in the case of Chief Land Registrar v Silkstone & others [2011] EWCA Civ 801. A dispute relating to a right of way had been referred to the Adjudicator by the Land Registry under section 73(7) of the 2002 Act. The right of way claimed by the Silkstones had been protected by a unilateral notice, and the owner of the servient land, Mr Tatnall, applied to cancel the notice on the grounds that no right of way existed. Shortly before a final hearing was due to take place, the Silkstones purported to withdraw their application to the Land Registry, whilst intimating that they might bring court proceedings at a later date when they had stronger evidence in support of the claim. The Adjudicator refused to accept the withdrawal, and went on to hear the case in the absence of the Silkstones, ruling in favour of Mr Tatnall and ordering the Chief Land Registrar to cancel the unilateral notice.

 

17.  The Silkstones appealed, and the Chief Land Registrar was joined as a party, on the basis that he disagreed with the Adjudicator’s view that the dispute could be resolved on the merits even after the original application or objection had been withdrawn. Floyd J in the High Court upheld the Adjudicator’s decision, and his decision was in turn appealed to the Court of Appeal. The issue was summarised by Rimer LJ as follows:

“29. It is not, I consider, necessary to refer to any other provisions of the AR [the Adjudicator’s Rules]. A consideration of the AR discloses, however, an omission that has caused this case’s journey to this court: namely, the absence of any provision dealing expressly with the (if any) right of a party to a reference to withdraw or discontinue his case or as to how the adjudicator might deal with any such claimed withdrawal or discontinuance. In that respect the AR can perhaps be regarded as unusual.

30. The former Rules of the Supreme Court catered in RSC Order 21 for the withdrawal of steps in an action and for the discontinuance of an action and counterclaim. In defined circumstances this could be done without what used to be called the court’s ‘leave’ (a short, familiar word derived from Old English but now compulsorily superseded in legal parlance by ‘permission’, a word of twice the length derived from the proscribed language of the ancient Romans). Otherwise the discontinuance of an action or counterclaim, or the withdrawal of any claim made in either, could only be done with leave, which could be on such terms as to costs, the bringing of a subsequent action or otherwise as the court thought just. Subject to such terms, any such discontinuance or withdrawal would not be a defence to a subsequent action for the same, or substantially the same, cause of action. If the party who had so discontinued or withdrawn had incurred a costs liability to any other party which had not been satisfied when any new like action was commenced, the court could stay the new action until the costs were paid. CPR Part 38 provides more generously than its forebear for the right of a claimant to discontinue all or part of a claim without the need for permission, although the defendant is entitled to apply to have the notice of continuance set aside. The discontinuing claimant is ordinarily liable to pay the defendant’s costs of the discontinued claim; and, if he discontinued after the filing of the defendant’s defence and proposes to start a new claim arising out of the same (or substantially the same) facts, he will need the court’s permission; and if the claimant only partly discontinues, his prosecution of the remainder of the claim will be stayed until he has paid the costs of the discontinued claim.

31. The above summary is not intended to be a comprehensive account of the former RSC Ord 21 or the present CPR Part 38. It is, however, intended to show that under both sets of provisions there was and is not, at any rate in all cases, an unqualified right on the part of a claimant to discontinue and then to start a second set of proceedings advancing the same or substantially the same claim. The court could and can control the extent to which this can be done. The purpose of its jurisdiction in that respect is to prevent the claimant abusing the process of the court and unfairly harassing the defendant by repeated claims.”

 

18.  Rimer LJ concluded that the Adjudicator was not obliged to abort the adjudication merely because the objector decided to withdraw.

“48. I would summarise the position in my own words as follows. A reference to an adjudicator of a ‘matter’ under section 73(7) confers jurisdiction upon the adjudicator to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application. If the adjudicator does not choose to require the issue to be referred to the court for decision, he must determine it himself. In the case of an application under section 36 to which an objection has been raised, the relevant issue will be the underlying merits of the claim to register the unilateral notice. Neither party can by his unilateral act (including by his expressed withdrawal of his application, objection or case) bring the reference to an end. Equally, neither party can be compelled to advance a case to the adjudicator that he no longer wishes to advance. A party who conveys such a wish to the adjudicator can be regarded as conveying his wish to ‘withdraw’ his application, objection or case but it is then for the adjudicator to rule in his discretion as to how to deal with any such withdrawal. That will require a consideration of all the circumstances.

49. It may perhaps, particularly at the early stage of a reference, be regarded by the adjudicator as just simply to permit the withdrawal and to make an order terminating the reference, making any appropriate direction to the registrar and dealing with costs. If the order says no more, it would no doubt leave an objector free to revive the same claim. That may not necessarily be unjust.

50. In other cases, particularly when the reference is significantly advanced, to deal with a withdrawal on terms like that may be unjust. It may still be appropriate in such cases for the adjudicator to terminate the reference but he may consider it just to do so not only on terms as to costs, but also on the basis of a direction to the registrar requiring him to reject any future applications of a specified kind from the withdrawing party (see rule 41(2) of the AR). The imposition of such a direction is not a matter that requires the consent of the withdrawing party. It may in other cases, particularly those in which the reference is far advanced, such as was the position in the present case, be appropriate for the adjudicator to proceed to the substantive hearing, rule upon the merits of the issue and then make such order as is appropriate.”

 

19.  It is clear from this decision that, in upholding the decision of Floyd J., the underlying concern of the Court of Appeal was to interpret the rules and legislation governing the Adjudicator’s functions in such a way as to prevent an abuse of process from taking place. On this occasion, the abuse in question was the Silkstones’ tactical withdrawal of their objection – to avoid an adverse finding against them – whilst leaving open the possibility of litigating the issue in court (or by further application) at some future date. To my mind, this decision reinforces the view that proceedings before the Adjudicator are to be treated in all material respects as equivalent to court proceedings. In my judgment, there is no good reason why the rules that have developed in civil litigation preventing an abuse of process should not apply equally to the dispute resolution process that arises from a reference to the Adjudicator.

 

WHY THE DB APPLICATION AMOUNTS TO AN ABUSE OF PROCESS

20.  In my judgment, and subject to one point which I shall explain, there is no doubt that, if these proceedings were court proceedings, the application for a determined boundary would be regarded as an abuse of the process, and would be struck out. The reasons are as follows. First, the application for a determined boundary is no different from the claim for a declaration as to the true boundary line contained within the County Court proceedings. The form is different, but the substance is exactly the same, and the evidence and other material relied on by the Applicant is virtually identical. Secondly, the County Court proceedings were struck out for wilful and deliberate failure to comply with court orders, in the full knowledge (because the Applicant was warned by Mr Murphys’s solicitors) that this would result in an application to strike out. As I have said, this would probably have amounted to “contumelious” default within the first limb of Birkett v James, such as to prevent the Applicant from bringing fresh proceedings within the limitation period even under the pre-CPR rules. Thirdly, I do not regard the absence of a reference to the Tribunal’s resources, in the definition of “overriding objective”, as in any way detracting from the applicability of the Securum Finance decision to this case. The specific elements of the overriding objective set out respectively in the CPR and AR are in both cases included within the overall obligation to deal with cases justly. They are specific examples of the way in which a just disposal of cases takes place. In my judgment, a requirement to have regard to the Adjudicator’s resources, and his allocation of them to any particular case, is too obvious to require stating: it must impliedly be included within the overriding objective. The Land Registry and its customers are entitled to expect that his resources are not wasted on re-litigating disputes that have already been dealt with in court. The need to allocate resources is just as pressing in relation to the Adjudicator as to the courts – there is no difference in principle. Accordingly, in my judgment the criteria set out in Securum Finance are met and I conclude that the Applicant may not pursue her claim to a determined boundary, since that would amount to an abuse of process. I accept, of course, that in principle the Applicant has a right to make an application to the Land Registry for a determined boundary under section 60 of the Land Registration Act 2002. However, if she frames that application in the way that she has, by asserting the existence of the alleged legal boundary line A-B-C on the DB Plan, the Respondents’ objection to it on the basis that it is an attempt to re-litigate the same boundary, is entirely valid. This is not a perfect solution to the problem, since in a sense it leaves unresolved the issue of the true boundary line (no declaration having been granted in the earlier proceedings). However, in reality the boundary line is clearly marked by the Respondent’s fence and I do not foresee any difficulties in practice by taking this course. I shall therefore strike out the Statement of Case and direct the Chief Land Registrar to cancel the Applicant’s application for a determined boundary. I should add that I do not regard the allegation relating to planning permission as even remotely justifying a “concealed fraud” argument (potentially relevant to the adverse possession claim) or as constituting “some special reason” why the Applicant should be allowed to re-litigate the boundary. The fact of the mater is that the Applicant, as she recognises, has been well aware of the position of the Respondents’ fence since 1993 and there can have been no possible concealment of her alleged cause of action.

 

21.  There is, however, one caveat. I have referred in this Decision to the visibility splay at the road frontage of No.53, also referred to as “the triangle” in the 1993 correspondence. Mr Murphy accepted in 1993 that this land belonged to the Applicant, and it will be recalled that the parties agreed that he could maintain this area as part of his garden without acquiring any rights over it. Many years ago the Respondents erected a fence marking what they contended to be the south-eastern side of the triangle, and a hedge was planted into which the fence has become subsumed. This diagonal fence line joins the western boundary fence of No.53 at a point which is shown on the DB Plan, although it has not been given a designation (but I shall call it “the Intersection Point”). As I understand it, the section of the fence which ran from the Intersection Point northwards towards Buckland Road was removed in 2004, at the Applicant’s insistence, so that the “triangle” is not enclosed within the fence-line. However, the line of the boundary claimed by the Applicant both in the County Court proceedings and in the DB application includes the line B-C, which (on her case) is the south-eastern edge of the triangle by reference to the 1954 Conveyance. Point B, according to the Applicant, is situated to the south and east of the Intersection Point. Although the Respondents have never challenged, in principle, the Applicant’s ownership of the splay, they have never agreed Point B as the south-eastern point of the triangle. As I understand it, they contend that the south-eastern point of the triangle is formed by the Intersection Point, which is consistent with their claim that the fence marks the true legal boundary. It is only to this extent that it can be said that the Applicant’s DB application is disputed in relation to the triangle/splay. Although I am striking out the Applicant’s DB application as it is currently framed for the reasons stated, this would not prevent her from re-applying to register the south-eastern side of the triangle as a determined boundary. However, it is likely that this boundary line would run from the Intersection Point to Point H on the DB Plan. No doubt if a renewed application is made limited to this small section of the boundary, the Respondents may well not enter an objection. This is not intended as an encouragement to the Applicant to seek to re-litigate (whether by way of another DB application or otherwise) any part of the boundary line marked by the close-boarded fence - any attempt to do so would itself be an abuse.

 

THE ADVERSE POSSESSION ISSUE – RULE 32A

22.  Against the possibility that I am wrong in striking out the DB application as an abuse of process, I must go on to consider the alternative ground for striking out the Applicant’s Statement of Case, under Rule 32A of the AR, the material terms of which are set out earlier in this Decision. In order to understand the Respondents’ argument, I shall have to describe their claim to have obtained a title by adverse possession in a little more detail. I have already quoted the following passage from the Applicant’s Statement of Case, namely: “In or around 1990, the Respondents removed a hedgerow that delineated the southern boundary of the visibility splay preserved for a future roadway….together with approximately 24 metres of chain-link fencing defining the boundary between Parcel F and No.53. Thereafter, the Respondents erected new close-boarded fencing to enclose a substantial portion of Parcel F within the curtilage of No.53.” For the purposes of this part of the Decision, I shall adopt the hypothesis that the fence, the physical boundary between the parties’ titles, was indeed erected not on the true boundary line but marginally to the west of it. As the extract from the Statement of Case makes clear, it is accepted by the Applicant that the Respondents’ fence – the effect of which according to her was “to enclose a substantial portion of Parcel F within the curtilage of No.53”– was erected as long ago as 1990. I may add that Mr Murphy’s witness statement served in the County Court proceedings in support of his application for summary judgment, states in terms that the fence was erected in early 1990, and I do not understand that this date was ever disputed. It follows, therefore, that the Respondents have been in factual possession of the land enclosed within the fence since that date. Indeed, as appears to be accepted on all sides, the land in question forms part of the Respondents’ garden. Assuming that animus possidendi is established – and given the erection and maintenance of the fence in this position it is hard to see how it would not be – the Respondents would have acquired a title to the land in or around early 2002 under section 15 of the Limitation Act 1980. The Applicant’s land first became registered in December 1999. By 2002, therefore, 12 years’ adverse possession would have been enjoyed, and the Applicant would have held the adversely possessed area upon trust for the Respondents under section 75 of the Land Registration Act 1925.

 

23.  However, the claim to title by adverse possession – raised both in the County Court proceedings and in the objection to the Applicant’s DB application – is resisted by the Applicant. She does so by alleging that the Respondents’ occupation of the disputed land – the area within the fence-line that allegedly forms part of the Applicant’s title – was done with her consent or licence. If this is true, this would prevent the Respondents’ undoubted possession of the land from qualifying as adverse possession. She would have remained in possession of the disputed land through her licensees. The issue of consent is, therefore, critical. In order to understand the Applicant’s case on adverse possession, I must give a little more of the factual background to the dispute.

 

WAS CONSENT TO THE RESPONDENTS’ POSSESSION GIVEN IN 1993?

24.  As is common ground between the parties, prior to the erection of the Respondents’ fence in 1990, the intended visibility splay forming part of the Applicant’s title, and occupying land between the Respondents’ house and Buckland Road, was kept open, as originally intended. When the Respondents came to remove the old fence, and erect a new boundary fence, they also straightened the boundary between the two titles by running the fence as far as the road itself. In effect that cut off part of the visibility splay, or “triangle”, from the Applicant’s title. On 17^th May 1993 the Applicant wrote to “The Occupier” of 53 Buckland Road in these terms: “I was in your area recently and noticed that the boundary fencing separating No.53 Buckland Road from the adjacent vacant land has been re-positioned……The position and line of the new boundary fencing to No.53 Buckland Road, which can be determined by simple measurement from adjacent fixed reference points, now flanks the right-hand (North East) of No.53 Buckland Road and runs out in a straight line to Buckland Road. Thus, the curtilage of No.53 Buckland Road, as delineated by the new boundary fencing, includes a parcel of land which does not belong to the property……..If you are the owner of …No.53 Buckland Road, will you please arrange for fencing between the property and the adjacent land to be reinstated according to the legal boundary………” There was enclosed with this letter a copy of the plan attached to the 1954 Conveyance.

 

25.  Mr Murphy replied in an undated letter. He said this: “….having investigated the matter by reference to deeds it does appear that the fence at the front of the property has been incorrectly positioned. I would ask you to accept my apologies for this oversight, and I would confirm that that during the coming summer months I will arrange for the fence to be removed and the legal boundary to this small “triangular” piece of land restored. As it had been my intention to grass the front of the property I trust you will not object if, for appearance sake, I be allowed to continue to keep this “triangle” neat & tidy. Whilst writing perhaps you will forgive me for asking as to whether you would be prepared to sell this “triangular” portion of land? Furthermore, if I am correct in assuming that you also own the narrow strip alongside 53 Buckland Road perhaps you may wish to sell this too. I would add that the only reason for this request would be to enhance the garden for a young growing family.”

 

26.  On 2^nd July 1993 Miss Cato replied to this letter, indicating that she wished to visit the property in order to carry out a survey of the boundary. It would appear (see the Applicant’s witness statement dated 18^th July 2007 at page 53 of the Bundle) that there was a meeting on site between Mr Murphy and Miss Cato, but no progress was made, and eventually her solicitors wrote to him on 1^st October 1993, in purported reply to his undated letter referred to above. This is what they said: “On a recent site visit it has been noted that your fencing continues to enclose portion of our client’s land. However, on the strict understanding that you will gain no rights over that small triangle of land and that you simply have a right to maintain this portion to enhance the look of your garden you are able to continue to maintain this. You must understand that our clients have the right to return of this property on demand. A further note of concern is the gateway on the north west side of your fence which gives you direct access to the strip of land belonging to our client. It would appear that a path has been trodden and we would ask you to note that you have no legal right of passage over this portion of land by incorporating a gate way. Please confirm in writing by return:

1. That you agree you will only be allowed access to the small triangle of land on the strict understanding it is for maintenance rights only and to enhance the look of your garden; and

2. That you have only a temporary right of way over the passage out of the gate way in your fence to the north west of your property and no legal rights whatsoever.”

 

27.  Mr Murphy replied on 18^th October 1993, as follows; “The content of your letter has been noted and I appreciate that permission is being given for us simply to maintain the small triangle of land to simply enhance the look of our garden, and accordingly as requested I hereby confirm…”, and he repeated the numbered points 1 and 2 of the letter under reply. He was thus accepting that he was being allowed to maintain the “small triangle” without acquiring any rights over it, and also that he only had a temporary right of way over the Applicant’s land to and from the gate in the Respondents’ fence.

 

28.  The Applicant contends that this exchange of correspondence evidences her granting of permission to the Respondents to continue to maintain their fence in the incorrect position, thus rendering their possession of any part of her land enclosed within their fence permissive. In paragraphs 7 to 11 inclusive of her Statement of Case she refers to the correspondence between May and October 1993, and also to a meeting with Mr Murphy on site on or about 7^th July 1993, in which she “made it clear to him that Parcel F was not for sale since it was required for a future development and that he should therefore restore the boundary fencing to its former alignment.” In the witness statement dated 27^th August 2011 filed by the Applicant in opposition to the application to strike out, she deals with the adverse possession issue as follows: “13. …….Thus, in my letter addressed to “The Occupiers” of No.53 dated 17 May 1993…..I was obviously referring to the fencing that had been erected with an incorrect alignment along the western flank of the house, running north to south. I could not possibly have been asking them to “reinstate” fencing on the triangle – fencing that was never there in the first place – and, moreover, because the intended purpose was the very area of land that needed to be kept clear of any obstruction. 14. It is therefore clear from the correspondence and subsequent conversations with Mr Murphy outside his home in 1993 that I gave the Respondents permission to occupy all the land they had taken – the elongated triangle and the small triangle – until both were required for a road. Adverse possession is defeated by express permission to occupy. 15……….A licence to occupy is still recognised if implied permission is justified on the actual facts of the case as in Pulleyn v Hall Aggregates (Thames Valley) Ltd. Thus, adverse possession would be defeated by an implied licence to occupy.” This last point relates, I believe, to the Applicant’s allegation that the Respondents were aware that “Parcel F” had been earmarked to provide road access to a future development. Accordingly, in some way their continued occupation of some part of Parcel F was impliedly licensed by the Applicant, pending the commencement of the development. In other words, she had no present use for the land and therefore was content to allow them to occupy the land in the meantime. Taking her Statement of Case together with her witness statement, she seems to be alleging both express permission, and implied licence.

 

29.  For the sake of completeness, I should also describe the way that the Applicant put her case with regard to adverse possession in the County Court proceedings. Her case is set out in paragraphs 4 and 5 of her Defence to Mr Murphy’s Counterclaim in the County Court proceedings. She referred to the correspondence between the parties between May and October 1993 and alleged that “by 18 October 1993, the Claimant had given the First Defendant express permission to occupy the land he had enclosed within his new close-boarded fencing on the understanding that he would re-instate it to its true position as ad when required to do so…”. In paragraph 5 she submitted that “Acts done by permission of the paper title owner are not adverse to him” and “Acknowledgment of the paper title owner defeats adverse possession…”. Her case is therefore based both on an allegation of express permission, and an acknowledgment of title presumably derived from Mr Murphy’s 1993 correspondence. These arguments are expanded in her witness statement of 18^th July 2007 (in answer to the claim to summary judgment). At paragraph 20.1 she says that: “By virtue of correspondence and by face-to-face negotiations in 1993, I gave the First Defendant permission to leave the new fencing where he had placed it until such time as it was required for the construction of a road.” The only face to face meeting referred to in the witness statement (at paragraph 8) is the meeting with Mr Murphy on site on 7^th July 1993 at which the Applicant claims that she “explained to him that Parcel F was not for sale …. and that he should reinstate the fencing to its correct position. By October 1993 he had failed to respond to my request.” At paragraph 20.2 she alleges that the First Defendant offered to purchase Parcel F “thereby acknowledging that he did not own it”.

 

30.  When District Judge Lightman refused Mr Murphy’s application for summary judgment, he gave a reasoned decision. He seems to have decided that there were two possible grounds for allowing the Applicant’s case to proceed – in other words, two reasons why her “defence” to the adverse possession claim might be arguable. First, on the basis of the Human Rights Act 1998 – he refers in his judgment to the first instance decision in Beaulane Properties Ltd v Palmer [2005] EWHC 817. I do not think this point is pursued by the Applicant before me, and if it were I would reject it without hesitation on the basis of the decision in J.A Pye (Oxford) Ltd v United Kingdom [2007] ECHR 700 and Ofolue v Bossert [2009] UKHL 16. The law of adverse possession is not a breach of the ECHR and Beaulane, whilst never formally overruled, is wrong in principle and has not been followed. The second reason is described thus at paragraph 14 of District Judge Lightman’s Judgment (page 108 of the exhibit to Mr Murphy’s witness statement dated 17^th August 2011). “I glean, rightly or wrongly, that behind the [1993] correspondence there clearly were discussions between Mrs.Cato and Mr.Murphy, of which I have little or no knowledge, which might throw some extra light on the dispute, as to whether there has been adverse possession.” This statement fed into his decision at paragraph 16: “Secondly, I cannot say with hand on my heart that if this goes to a trial, a judge would not, after he hears evidence, conclude that there is adverse possession.” Ignoring the confusing double negative, this seems to be saying that an exploration of the evidence at trial – especially, perhaps, oral discussion in 1993 – might lead to a rejection of the claim to adverse possession.

31.  The question that I must address, on this application, is whether the Respondents’ allegation of adverse possession is bound to succeed – or, rather, whether “the applicant…. has no real prospect of succeeding in the proceedings or on the issue; and (b) there is no other compelling reason why the proceedings or issue should not be disposed of summarily.” For this purpose, “the proceedings” and “the issue” may be treated as the same, namely the Respondents’ objection to her application based upon the allegation that her title (to the land enclosed within their fence) has been defeated by adverse possession. The phrase “no real prospect of succeeding” is identical to, and based on, the equivalent provisions in Part 24 of the CPR. The law relating to Part 24 is therefore entirely in point. The prospect of success must therefore be “real” – not false, fanciful or imaginary. The claim must be better than merely arguable.

 

32.  The specific issues raised by the Applicant, in this reference and in the County Court proceedings, are as follows: (a) express permissions and/or (b) implied licence and (c) acknowledgement of title. I shall deal with these points in turn. Although the express permission point seems to be based primarily on the 1993 correspondence, it must be noted that she also refers in her Statement of Case to “subsequent conversations with Mr Murphy outside his home in 1993….” in which she allegedly gave the Respondents permission to occupy the land. This is echoed by the reference in her July 2007 witness statement to “face-to-face negotiations in 1993” whereby, allegedly, she gave permission to Mr Murphy to occupy the land. However, I cannot find any other evidence or pleading which identifies specific conversations or negotiations, other than the site meeting which took place on or about 7^th July 1993, which is mentioned in her Statement of Case and in her July 2007 witness statement. Indeed, far from giving him permission to remain in occupation of the alleged encroachment, she alleges that at the site meeting she instructed Mr Murphy to reinstate the original boundary line. It was due to his failure to do so that she instructed her solicitors to write the letter of 1^st October 1993. If the Applicant is to persuade me that the alleged oral permission is anything other than “false, fanciful or imaginary” I would need to have a properly pleaded allegation supported by some verification. All that I have are the unparticularised references to conversations in which permission was given, which are directly contradicted by her case with regard to the site meeting on 7^th July 1993. I conclude, therefore, that the Applicant has no real prospect of succeeding in establishing the grant of oral permission.

 

33.  Furthermore, in my judgment the 1993 correspondence, all of which has been exhibited and is referred to above, does not grant, or even purport to grant, permission to the Respondents to maintain the alleged encroachment along the length of the common boundary. Whatever the Applicant may have meant by her letter of 17^th May 1993 – whether, as she contends, it was intended to refer to the whole length of the new fencing, or just to the visibility splay – it is crystal clear that Mr Murphy interpreted it as referring to the visibility splay only. A fair and sensible reading of his undated reply to the Applicant’s letter makes this abundantly clear. First, he prefaces his letter with an acknowledgment that “the fence to the front of the property has been incorrectly positioned”, and states that he will “arrange for the fence to be removed and the legal boundary to this small “triangular” piece of land restored”. which he describes variously as “this small “triangular” piece of land”, “this “triangle” and “this “triangular” portion of land.” Secondly, he goes on to say that: “As it had been my intention to grass the front of the property I trust you will not object if, for appearance sake, I be allowed to continue to keep this “triangle” neat & tidy.” This again makes it obvious that he is referring only to the area of land in front of his house which, according to its shape as identified in the 1954 Conveyance plan, forms a triangle. When he asks if the Applicant would be prepared to sell “this “triangular” portion of land” it obviously relates to the front visibility splay and not to any other piece of land. Finally, when he asks if the Applicant owns “the narrow strip alongside 53 Buckland Road”, and offers to buy it, he is referring to the remainder of Parcel F, namely that part which falls outside his boundary fence.

 

34.  The letter from the Applicant’s solicitors dated 1^st October 1993 is stated to be a reply to Mr Murphy’s undated letter. Accordingly, the reference to “a portion of our client’s land” and the “small triangle of land” can only relate to the front visibility splay, and not as the Applicant now contends, to an “elongated triangle”, being a strip of land inside the whole length of the Respondents’ fence to the south which allegedly forms part of Parcel F (i.e the disputed land). Again, Mr Murphy in his reply on 18^th October 1993 says: “I appreciate that permission is being given for us simply to maintain the small triangle of land to simply enhance the look of our garden…..” The permission granted by the Applicant – for access to the “small triangle of land” – only relates to the front visibility splay. The Applicant’s interpretation of the correspondence as granting permission for occupation of the “elongated triangle” is quite untenable, indeed perverse. This is reinforced by the second limb of the permission granted by the letter of 1^st October 1993, to have access to the gate installed in the Respondents’ fence. If indeed the Applicant was directing her mind to the alleged encroachment of the entire length of the Respondents’ fence, it is inconceivable that this would not be made express and the “triangle” of land more accurately defined. Having regard to the correspondence, therefore, I have no hesitation in holding that the Applicant is unable to establish even an arguable case that permission was given to the Respondents to maintain any encroachment on the Applicant’s land.

 

35.  Nor am I persuaded that an implied licence is even arguable. An implied licence cannot be assumed, merely because a squatter’s possession is not inconsistent with some future or intended use of the land by the paper title owner – see paragraph 8(4) of Schedule 1 to the Limitation Act 1980. If the facts support such an implied licence, of course, effect will be given to it. In the present case, however, no such facts are alleged. In the conversation in July 1993 relied on by the Applicant, she states that she instructed Mr Murphy to reinstate the boundary fencing because the land was required for the future estate road. relies upon. This is manifestly not a licence, express or implied, to maintain the trespass. The only realistic conclusion, having regard to the 1993 correspondence and the Applicant’s own evidence as to what transpired in 1993, is that her only objection was to the Respondents’ occupation of the visibility splay.

 

36.  Finally, for the reasons that I have explained, the correspondence from Mr Murphy in 1993 cannot amount to an acknowledgment of title within the meaning of the Limitation Act 1980. The offer to buy “the triangle” and Parcel F was made on the basis that the only part of the boundary fence that was incorrectly aligned was the section enclosing the triangle or visibility splay. Again, I consider that it is impossible to read Mr Murphy’s letters as acknowledging the Applicant’s ownership of land which had already been enclosed within the Respondents’ boundary fence.

 

CONCLUSIONS

37.  Accordingly, I am of the view that both limbs of rule 32A are satisfied, even if the claim is not an abuse of process, since the Applicant’s DB application has no real prospect of success and “there is no other compelling reason why the proceedings or issue should not be disposed of summarily”. On both grounds, therefore, I shall direct the Chief Land Registrar to cancel the Applicant’s DB application dated 25^th February 2010. In reaching this decision I have taken into account the comprehensive submissions of both parties, including Ms Cato’s submissions lodged after the hearing (at my invitation) and Mr Janusz’s written submissions in response. I am also minded to award the Respondents their costs of this reference from the outset, and I direct the Respondents to lodge and serve a detailed breakdown of their costs within 7 days of the date of this Decision. Ms Cato may make written submissions with regard to costs also within 7 days of receiving the costs breakdown – she must also serve these on the Respondents’ new solicitors, Pictons, at the same time.

 

Dated this 11^th day of October 2011

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY