England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(Recorder Marshall-Andrews QC)

		Royal Courts of Justice Strand London WC2 Thursday 14 June 2001

Thursday 14 June 2001

LORD JUSTICE CLARKE:

Introduction

1. This is an appeal brought with the permission of Latham LJ from an order dated 23 February 2001 made by Mr Marshall-Andrews QC sitting as a recorder in the Oxford County Court. By the order the recorder granted a declaration that the claimant is the freehold owner of certain land which has been described in the action as "the disputed land". In this appeal the defendants seek an order setting aside the order made by the recorder. They seek a declaration that they are the owners of most of the disputed land. They also seek an appropriate rectification of the Land Register.

History

2. The disputed land is a small area of land at the rear of nos. 9 and 11 Ock Street, Abingdon. I attach to this judgment a plan dated 30 December 1977, to which I shall refer further below. The plan, which is orientated with the south at Ock Street at the top and north at the bottom, shows that nos. 9 and 11 Ock Street cover the same area in plan. That is because no. 11 is above no. 9. They are both next door to no. 7. No. 7 and nos. 9 and 11 both have frontages on to Ock Street but, until very recently, neither had vehicular access to the rear. Again, until comparatively recently, the area at the rear of no. 7 entirely comprised gardens. The disputed land is that to the rear of nos. 9 and 11.
3. A Mr Allee originally owned nos. 9 and 11 and traded from them as a master butcher until his death in 1959. At that time, with one possible exception, he owned no land to the rear of the structure of nos. 9 and 11, which covered a somewhat smaller area than shown on the plan. With the same possible exception, all the land to the rear of nos. 9 and 11 was part of the garden of no. 7. That possible exception is that the plan shows a building on the west side of the property, which I understand is or was a shed. I am not sure whether that shed was originally part of nos. 9 and 11, but whether it was or not is not relevant to the issues on this appeal.
4. Mr Allee had a son, Gerald, and a married daughter, Maureen, whose name was and is Mrs Walters. The claimant company was incorporated in October 1959 for the purpose of the purchase of nos. 9 and 11, which was financed by Mr and Mrs Walters. Nos. 9 and 11 continued to be operated as a butcher's shop. The day to day running of the shop was done by Mr Gerald Allee. From 1962 the directors of the company were Gerald and his wife, and Mr and Mrs Walters. No. 7 was acquired by Gerald Allee in about 1962, and between 1962 and 1975 he and Mrs Allee lived there.
5. In 1967 and/or 1968 there was a reconstruction of nos. 9 and 11 under which the butcher's shop continued to operate from the ground floor, no. 9, with a suite of offices on the first floor, no. 11. There was also an extension built at the back on land which belonged to no. 7. It is the building, together with the extension, which are shown on the plan to which I have referred. When planning permission was given for the extension on 17 May 1967 it was expressly given subject to two conditions. The first read:

"At such time as a rear service road is constructed, loading and off-loading shall be confined to the rear of the premises."

6. In 1975 the claimant's company bought no. 7, with the result that it then owned all the land and gardens of both no. 7 and nos. 9 and 11.

The 1978 Conveyance

7. In 1978 the claimant entered into a contract with the partners of the solicitors' firm David Hodson & Company to sell part of the property to them. At that time, the firm had four partners, namely Mr David Hodson, Mr David Morton, Mr Cyril Champkin and Mr Roger Elliot. The contract has unfortunately not survived but the conveyance has. The four partners were each parties to the conveyance and are described in it as "the purchasers". Clause 1 of the conveyance, which is dated 9 September 1978, is in these terms:

"1. THE VENDOR as beneficial owner hereby conveys unto the Purchasers ALL THAT messuage or dwellinghouse and garden thereto belonging situate and known as Number 7 Ock Street Abingdon in the County of Oxford shown edged red on the plan hereto annexed EXCEPTING AND RESERVING unto the Vendor and its successors in title agents tenants or assigns:-

(a) Provided that within eighty years from the date hereof the Purchasers are able and do provide an access way into the rear garden of the premises hereby conveyed to and from Stratton Way or Bath Street Abingdon aforesaid a right of way at all times and for all purposes with or without motor vehicles over and along the strip of land not exceeding Twelve Feet in width leading from any said access way into the said rear garden to the rear of the Vendor's adjoining premises the said strip of land to be in such a position or line as is delineated by the Purchasers

(b) Provided that the Purchasers do within eighty years from the date hereof obtain permission from the Local Authority (and use in accordance with that permission) for the use of the whole or any part of the said garden ground at the rear of the property hereby conveyed as a car park for the parking of at least twelve motor vehicles the right to use at all times no more than two car parking spaces the position of which shall be determined by the Purchasers TO HOLD the same unto the Purchasers in fee simple SUBJECT to the exceptions and reservations hereinbefore contained".

It is, I think, common ground that both provisos should be read either as if the word "if" were included after the words "provided that" or on the basis that in their context the words "provided that" mean "if".

8. The land conveyed is thus defined as the land edged red on the plan which, although it cannot of course be seen on the copy, is the line round no. 7, excluding both the buildings at nos. 9 and 11 and the area to the rear of the buildings which is expressly described on the plan as "land to be retained by Nos 9-11". It is not (and, to my mind, could not be) suggested that the disputed land was conveyed to the defendants on the true construction of the conveyance, which, of course, incorporated the plan.
9. Proviso (a) seems to me to be consistent with that approach. It provides that if, as I understand has happened, the defendants are able and do provide an access way into the rear garden, the company shall be entitled to a right of way over and along a 12 foot strip leading "from any said access way into the said rear garden to the rear of the Vendor's adjoining premises". The reference to the "said rear garden" is to the rear garden of no. 7 as shown on the plan and the reference to the "Vendor's adjoining premises" is, as I see it, a reference to the whole of the company's premises at nos. 9 and 11, including the "land to be retained by Nos 9-11", namely the disputed land.
10. As a result of the conveyance it was necessary to make appropriate amendments to the title to the two properties at the Land Registry. Those amendments were made in accordance with the meaning of the conveyance as I have just described it. In accordance with what I understand to be the normal practice, the defendants filed a plan, said in the document annexed to be dated 9 September 1978, although I observe that it appears to have the date 8/78 written on it. A certified copy of that filed plan is on the register and shows plainly that the land registered as part of no. 7 excludes the disputed land. Thus the title to no. 7 was registered in respect of the land marked red on the plan annexed to this judgment, which, as I have explained, excludes the disputed land and the title to nos.9 and 11 was registered so as to include the disputed land.
11. It follows from those conclusions that, in order to obtain the declarations they sought by counterclaim, the defendants had to show either that they were entitled to rectification of the conveyance and the register or that they had adverse possession for the requisite period. I shall consider those topics in turn.

Rectification

12. It is to my mind important to have the relevant principles in mind before considering the facts. The principles are not in dispute. The underlying principle is stated in paragraph 43-01 of the 30th edition of Snell's Principles of Equity as follows:

"If by mistake a written instrument does not accord with the true agreement between the parties, equity has power to reform, or rectify, that instrument so as to make it accord with the true agreement. What is rectified is not a mistake in the transaction itself, but a mistake in the way in which that transaction has been expressed in writing. 'Courts of Equity do not rectify contracts; they may and do rectify instruments purporting to have been made in pursuance of the terms of contracts.'"

As Snell put it at paragraph 43-06:

"The general rule is that rectification will not be granted unless there has been a mistake in expression which is common to all parties."

The burden of proof and the standard of proof are put thus by Snell at paragraph 43-15:

"He who seeks rectification must establish his case by 'strong irrefragable evidence'. The standard of proof remains the civil standard of the balance of probability. However, since the alleged intention contradicts the written instrument, the evidence must be sufficient to contradict the inherent probability that the written instrument truly represents the parties' intention because it is a document signed by them."

13. It is not in dispute that those are the relevant principles, so that it is not necessary to refer to the authorities relied upon by Snell in support of them. I merely note in passing that the striking phrase "strong irrefragable evidence" derives from Countess of Shelburne v Earl of Inchiquin (1784) I Bro CC 338 per Lord Thurlow at 341.
14. The defendants' case that they are entitled to rectification depended almost entirely upon the oral evidence of Mr Hodson, who remains a partner of the defendant firm, whereas the remaining partners who signed the conveyance do not. Mr Morton is no longer alive. Neither Mr Champkin nor Mr Elliot was called to give evidence. Although it is fair to say that it is most unlikely that either of them applied his mind to the details of the transaction, there is to my mind no reason to suppose that they did not think that the conveyance and the plan accurately represented what was agreed. The same is true of Mr Morton, who did the conveyancing and who was also responsible for the subsequent registration of the title.
15. The defendants' case as pleaded does not plead a clear case on rectification of the conveyance. By paragraph 3 of the defence and counterclaim it purports to admit that: "By a Conveyance or Transfer ('the Land Registry transfer') made on or about 9th September 1978" the defendants purchased from the claimant the freehold property no. 7 Ock Street, including the disputed land. That appears to be an assertion based upon the true construction of the conveyance. In paragraph 4 it is alleged that: "By oral and subsequent written agreement made in or about mid-1978 between [the parties]" the claimant agreed to sell all the property, including the disputed land, "save for a strip extending to a width of approximately three feet around the rear extension to numbers 9 and 11 Ock Street", which, it is alleged, was retained "for the purposes of carrying out maintenance to the said rear extension". Paragraph 5 is in these terms:

"The Disputed Land save and except for the said strip three feet in width was erroneously excluded from the plan annexed to the Land Registry Transfer and thereafter excluded from the Registration at HM Land Registry in favour of the Defendant."

16. Before the trial in February 2001, Mr Hodson made two witness statements, one dated 20 November 2000 and the other dated 22 January 2001. The only part of those statements which is directly relevant to the plea of rectification is to be found in paragraph 3 of the first statement, as follows:

"My recollection is that at some point before Contracts were exchanged I was shown the Contract documentation by David Morton and this included a Contract Plan which was based on one of the plans from one of the old Conveyancing documents. What I noticed immediately was that the Solicitor acting for the Vendor Company N Allee Limited, Mr Brian McGhie of what was then Messrs Morland & Son of Abingdon had delineated the extent of the property to be sold to us erroneously because he had clearly not realised that the premises shown as no.s 9/11 Ock Street on the Conveyance Plan had been extended in to what was the rear gardens of no. 7 and 9/11 Ock Street. It is as well to bear in mind that no. 7 Ock Street had been the Allee family home and instead of the family living over the shop they in effect lived next door to it. I remember speaking to Mr Brian McGhie to point out that, the effect of his plan was to give us a portion of his clients' adjoining building which they wanted to retain as part of the shop premises. I recollect meeting Mr McGhie on the site to discuss where the line should be drawn around the back of the building known as no. 9/11 Ock Street so as to allow access for N Allee Limited around the back of their building for repair and maintenance purposes. There was a rear door in the small extension (to which I refer later in this statement) and that door still exists today. Although I cannot be certain about it, my recollection is that Brian McGhie and myself agreed that it would be sensible to invite Adkin to prepare a more accurate plan for annexure to the Conveyancing document. This is almost certainly a plan prepared by Adkin a copy of which was used on the Conveyance of the 9th September 1978 and copies of which appear to have been used on all the subsequent Lease documents relating to 9/11 Ock Street referred to in the Claimants bundle of documents. Interestingly, having now seen a copy of the Conveyance of the 9th September 1978 and the Plan annexed to it I note that although my three then Partners signed the Plan the Plan was not actually signed by me."

17. That evidence makes no reference to Mr Allee being present and is put in tentative terms. Mr Hodson's concern was that the original plan was an old plan which showed nos. 9 and 11 before the extension. Although he refers to a discussion about access for maintenance purposes, that statement falls far short of the kind of irrefragable evidence of agreement or common intention required to support a claim for rectification. Indeed, it says that it was agreed that it would be sensible to invite Adkin to prepare a more accurate plan for annexure to the conveyancing document and that that was "almost certainly" the plan annexed to the conveyance.
18. That is, of course, the very plan relied upon by the claimant, which contains the rubric "Land to be retained by Nos 9-11" against the disputed land, and which was signed by Mr Hodson's three partners, including Mr Morton (although only two signatures can be seen on the copy, Mr Champkin's signature can be seen on the original between them), and expressly referred to in the conveyance which was signed by all four partners, including Mr Hodson. There is no clear statement in paragraph 3 of Mr Hodson's witness statement that the plan did not accord with an agreement made by the parties or even with the common intention of the parties. Mr Hodson merely says that he notes that the plan was not "actually signed by me."
19. At the trial the recorder heard the evidence of a number of witnesses, including Mr Hodson, Mr Thomas, who was a partner in Adkin & Co at the time, and Mr and Mrs Walters. Mr Allee was not called to give evidence, but that does not seem to me to be surprising because Mr Hodson did not say that Mr Allee attended the site meeting until he was giving his oral evidence. Mr Thomas said that he was specifically instructed by Mr Allee to retain the disputed land to the rear of nos. 9 and 11 and not to include it in the sale. The recorder described Mr Thomas' evidence in this regard in this way at page 5A-D (page 72 of the bundle):

"It has been said to me by Mr Thomas, who is a partner in Adkins, that the purpose of that extension was to enable there to be access to the outbuildings, which have now been demolished, and also to provide land for the envisaged possible use of loading. Mr Thomas said to me that it could have been a smaller piece that was retained if it was for access, but it was made larger for the purpose of loading and unloading. That to me, looking at the plan, the background and the history of the matter, seems to make perfect sense. Indeed, that is what is urged upon me by the claimants in their evidence in chief which I have in written form."

It is thus plain that the recorder accepted the evidence of Mr Thomas. He was, in my judgment, entitled to do so.

20. The recorder described Mr Hodson as an entirely honest witness. He summarised Mr Hodson's evidence with regard to the meeting on site and expressed his conclusions in this way (page 8 of the judgment):

"As a result, he tells me, a site meeting took place halfway through 1978. At that site meeting was the solicitor, Mr McGee [sic], Mr Allee himself and Mr Hodson. That site meeting is important. It is important from all perspectives, but in particular it is relied upon by the defendant company as being the main verbal agreement on which it is possible to proceed to rectification. Thus it is important to look at the terms of what was discussed and what was decided.

Mr Hodson, of course, is attempting to recollect a conversation which took place the best part of a quarter of a century ago. Not surprisingly, therefore, we are not dealing with the exactitudes of speech, we are dealing with the impression of what occurred and what was required by the parties. I am perfectly prepared to accept it on that basis. This is not in this respect an exact science. I must do my best to formulate the burden of what was said between these parties. I do so, relying on what Mr Hodson has told me. I heard Mr Hodson, I asked him questions and I rely upon the words which he spoke and also the overall and clear impression which he was able to convey from the witness box.

The critical part of his evidence concerns the conversation where he said the need to have an apron around the shop was discussed. Indeed it was, let us accept that immediately. The conversation then went on or it was part of the same conversation (it does not really matter for these purposes) as to land use. What Mr Hodson told me was this. He said that Mr Allee said he did not want the garden, but if ever access was obtained 'I would like to retain access for loading and unloading' - Mr Hodson's words. At this stage I intervened because I wanted to understand precisely the burden (not the exactitude) of what Mr Hodson was saying. Having done so, I made my own note which in substance I read back to him in these terms: 'The conversation which we had in the garden should have been relayed to Adkins for them to draw up the plan. That is to say, that the extension needed to be put on and the additional land to allow for the loading and unloading of vehicles.' That was the burden of what I put to Mr Hodson so that I could understand it, and with that he agreed [my emphasis]."

The recorder continued:

"Thus it was, in a perfect world, that after that meeting Adkins, the solicitors, or whoever had the task of presenting a plan which properly bore out the wishes of the parties as expressed at that meeting in the garden.

This was not very difficult because that plan already existed as Mr Bromley had already drawn up a plan for precisely this purpose, namely to provide enough land there, firstly for access to the buildings and secondly to provide room for commercial use, that is to say the loading and unloading of the vehicles. That is the plan which came winging back as part of the conveyance. It was signed by three of the partners of Hodson & Co, but it was not signed, noticeably so, by Mr Hodson, but Mr Hodson signed the conveyance itself to which this document was attached. That is the history.

The first question I have to ask myself in these circumstances is: has there been a fundamental error, a mistake, which would found the equitable relief of rectification of this document? It seems to me to be absolutely clear from what I have said that the answer to that question must be no. There was not, in my judgment, a mistake between the parties such as would rectify this document. The document in fact reflected the overall burden of what was said in the middle of 1978. Whether there was a bit more land than Mr Hodson anticipated or a bit less land than Mr Hodson anticipated is not for these purposes relevant. The plain fact is that it came back with land delineated for the purposes which I have set out and it was signed by the parties. In those circumstances, in my judgment, rectification cannot lie."

21. Mr Lochrane submits that the recorder did not set out Mr Hodson's evidence accurately and that, as a result, his conclusion is flawed. In particular, he complains about the passage which I have emphasised and submits that the recorder's quotation towards the end of it does not reflect Mr Hodson's evidence.
22. I accept Mr Lochrane's submission to this extent. The recorder's note is not an absolutely accurate account of what Mr Hodson said. He said in his examination in chief that he remembered that Gerald Allee was present. A little later he said (page 100 of appeal bundle 1):

"I do remember Gerald telling me that he did not want the garden, but that if at some stage in the future access was ever obtained into the back garden of no. 7, then it would be extremely useful for him to have rear loading facilities and, if possible, parking facilities. There was no mention of retaining any land.

Q. Other than the maintenance strip?

A. Yes. We agreed that they needed an access way around the rear extension. The discussion turned to the very remote possibility then that we would at some stage in the future get vehicular access into the back garden. It was impossible to lay down lines of access at that stage because no-one had any idea where, if ever, that access might come in. This arrangement in A and B of the conveyance was cobbled together to try and meet all those possibilities, to achieve, if it ever transpired, rear loading facilities for the butcher's shop and a couple of car parking spaces, if we managed to get more than 12. I wasn't party to drafting A or B, but that was what they were designed to achieve. So when I left that discussion, it was on the basis that we would need to have a plan prepared to show what was being kept and what was being sold, mainly in relation to the extension building. I knew they had a very good plan drawer at Adkins. I wasn't aware at that stage of the existence of that 1997 [sic; read 1977] plan. . . .

Q. Did you see that at all at the time of the conveyance?

A. no.

THE recorder: Did you have this discussion about the possibility of rear access at this meeting?

A. Yes.

MR PEARSON: So was there ever any more than one meeting?

A. No. It was an on site quite extensive discussion about how we could achieve these objects in the event that this happened, that we managed to get access to the back of no. 7. So when I left the meeting, I left it on the basis that someone would prepare a fresh plan."

I am bound to say that, as at the end of his examination in chief, Mr Hodson's evidence did not support a claim for rectification.

23. Then at the end of his examination in chief the recorder asked him a number of questions. They included the following (page 18 of the transcript):

"Q. Yes, Gerald Allee was there. You came away on the basis that a proper plan was going to be drawn up.

A. Yes.

Q. Whence comes the 3 feet? Was that a term of art?

A. no. It was approximately the width of those paving slabs which were there at the time around the building.

Q. Was that actually discussed?

A. The need to have a strip round the building so that they would have access for maintenance work and the like was discussed, yes.

Q. But the 3 feet figure was not mentioned.

A. I can't . . .

Q. What you say, at the top of page 204, is: 'Although I cannot be certain about it, my recollection is that Brian McGee and myself agreed that it would be sensible to invite Adkin to prepare a more accurate plan for annexure, almost certainly the plan prepared.' Accuracy in the first sense means put the extension on, but you had also discussed the fact that it would be an apron or a curtilage round it.

A. Yes. By then we were well used -- I think Berkshire, as it then was, became a compulsory registration area in about 1964. We were well used to the need to be a bit more accurate with plans if you were going to be subject to first registration.

Q. The next point I want to raise is this. You remember Mr Allee saying to you, 'Look, I don't want the garden', which then of course was vast.

A. Yes.

Q. But, words to this effect, 'If you ever get access, I would like to retain the right of access', and I think you said for loading and unloading.

A. Yes. Of course, the two things could have meant one and the same, depending on where the car parking spaces ended up.

Q. I agree. But that plainly was desirable from a butcher's point of view so that he could get a vehicle in and load and unload at the back of his premises.

A. I accept what Mr Walters says about the difficulties of parking at the front of those buildings in Ock Street. There is double yellow lines there. So you were dependant upon the traffic wardens being kind.

Q. Insofar as it has any construction at all, there is Mr Allee saying 'I am not interested in the garden except if ever the time comes when we get access and then I would want access because I want loading and unloading facilities which I don't have at the moment.'

A. Yes.

Q. Was that conveyed, in either its particular form or otherwise, to Adkins & Co?

A. I would doubt very much whether Adkins would have been involved at that stage, other than to be asked ---

Q. 'Draw up a plan.'

A. --- to draw up a plan, usually by the vendor's solicitors.

Q. But somebody must have said to Adkins, 'Look, the plan 1 is defective. We want you to draw up a plan and we want the plan to take into account the following things.' That, presumably, would have been what was discussed.

A. In a perfect world, that is what I would have expected to be discussed. But, of course, I reported back to David Morton the result of the discussions I had had and after that ---

Q. Let us assume the best for all possible worlds. What one would have expected to happen would be for the contents of that conversation as a whole to be reported back to Adkins.

A. Yes.

Q. 'You have not the extension on because you have just simply followed the old ordinance [sic] survey.

A. To be fair, the Adkin plan did not feature in the original contract documentation. The plan that was attached to the contract was one off the old title documents. The Adkins plan played no part in it then.

Q. You are absolutely right. When you received your copy of the conveyance, you observed that what had simply been stuck in was an old A. which showed nothing.

A. Yes.

Q. No extension, nothing. So then you have a conversation and say 'We have to sort this out.'

A. Yes.

Q. The conversation that we knew about in the garden.

A. Yes.

Q. That conversation you would have expected to have been relayed back to Adkins who were drawing up the plan.

A. If I had been acting for the vendors, I would have met Adkins' plan drawer on site and said 'That is where the line is agreed to be'.

Q. What, you would have said to Adkins, 'We have discussed this.'

A. Yes.

Q. And what we want you to draw is a plan which allows for the extension.

A. Yes.

Q. And also allows for what we have discussed at some future stage, although it was stated in the past, for loading and unloading of vehicles at the rear of these premises.

A. I don't know whether I would have gone into that much detail. I would certainly have told them what we had agreed about where the boundaries should lie.

Q. That is what they should have been told.

A. Yes.

Q. Then they would go away and draw it.

A. Yes.

Q. Using their own commonsense.

A. Yes. The plan we ended up with was the one they had already drawn 12 months earlier.

Q. We know that now. That may be apparent.

A. Yes."

24. While the reference to that evidence in the recorder's judgment is cryptic and may not be quite accurate, it does reflect Mr Hodson's evidence that Mr Allee said that, if possible, he wanted to be able to load and unload vehicles at the back of his premises. I accept the submission that Mr Hodson did not say that Mr Allee said that he needed to retain the land for that purpose, but the recorder plainly thought that he would need to retain some land for that purpose.
25. It appears to me that if the right of way was simply to be over a 12 foot strip of land to the buildings at nos. 9 and 11, there would be likely to be insufficient space for loading and unloading. I accept Mr Lochrane's submission that a right of way would include a right to load and unload: see, for example, Bulstrode v Lambert [1953] 1 WLR 1064. However, there would be no right to park vehicles at the rear of the premises for any significant length of time unconnected with loading and unloading and even for loading and unloading a strip of 12 foot would be inadequate by comparison with the area of land in dispute which it is, I think, agreed was some 25 foot in width. It was thus potentially important for the claimant in the future to retain land for those purposes. That is what Mr Allee told Mr Thomas, as the recorder accepted. It seems to me to be almost inconceivable that Mr Allee agreed to sell all the land except for a small area around the extension for maintenance purposes. It is plain from the notation on the plan dated 1977 that it had been decided by then to retain the disputed land. It is clear from the evidence of Mr Thomas that the reason was to load and unload vehicles if it ever became possible to do so. That evidence is supported by the statements of Mr and Mrs Walters. It makes no sense for Mr Allee to have changed his mind subsequently.
26. If he had changed his mind and reached an agreement to that effect with Mr Hodson, I can see no reason why he should not have so instructed his agent and his solicitors, yet it is plain that he did not. If there was such an agreement or common intention, as the defendants now say, I can see no reason why it should not have been acted upon by both sides and reflected in the conveyance.
27. It seems to me that, whether or not the recorder quoted Mr Hodson's evidence precisely, his evidence fairly read as a whole does not amount to the kind of irrefragable evidence required to show that the terms of the conveyance did not reflect the agreement or common intention of the parties. There is simply no explanation for any such mistake.
28. In my judgment all the pointers are to the conclusion that the conveyance reflected the true intentions of the parties. I have already referred to the note on the plan, which was dated well before the contract and conveyance. I have also referred to the importance of retaining the disputed property for possible use for loading or unloading in the future, especially given the conditions imposed in the 1967 planning consent. In addition, it is plain from the actions of the claimant after the conveyance that it acted on the basis that it had retained the disputed property, because when it leased nos. 9 and 11 to third parties it included the area in dispute.
29. For all these reasons, like the recorder, I would hold that the defendants are not entitled to rectification of the conveyance or the register, and I would dismiss this ground of appeal.

Adverse Possession

30. The recorder rejected the defendants' case that they were in adverse possession of the land for a period of more than twelve years before the commencement of the proceedings. The facts found by the recorder may be summarised as follows:

(1) There was at no stage any mark on the ground which showed which parts of the garden belonged to no. 7 and which parts belonged to nos. 9 and 11. Of course until the 1978 conveyance the disputed land had been part of the garden of no. 7 and there was no reason for any delineation between them.

(2) After the conveyance the position remained the same. Indeed there was a pond which was, and I think is, partly in the garden of no. 7 and partly in the disputed area.

(3) The defendants and their employees cultivated and used the whole area, including the disputed area, as a garden.

(4) The defendants also used the outbuildings of the disputed area for various purposes, although they were not used much.

(5) The land was virtually never entered by the claimant or by its lessees. The recorder said (at page 12C):

"I accept the overwhelming weight of the evidence that the only occasions on which it was used was either for the purposes of maintenance, when ladders were brought on to the land when building works were done on it, or for standing by the open door and smoking from time to time. That is not use of the land. Indeed, the use of the ladders was perfectly explicable on the basis of normal good neighbourliness and comity.

It is quite clear that there were a number of old butcher's slabs and an old butcher's trolley, which was stored within the outbuildings. That, in my judgment, does not amount to possession which would have been sufficient to defeat a claim for adverse possession, had that been available to the defendants."

31. The question is whether in all the circumstances the defendants have established adverse possession as that expression is used in the authorities. It just happens that this very morning I was party to the handing down of a judgment in a case called London Borough of Lambeth v Blackburn in which the relevant principles and some of the leading authorities, including Buckinghamshire County Council v Moran [1990] Ch 623, are discussed in some detail. I shall not repeat here what I said there. However, in that case we were considering factual possession and intention to possess (or animus possidendi) in very different circumstances from those in the instant case. Here, the recorder held that, in so far as the defendants were in possession of the disputed property, they were in possession with the consent of the claimant.
32. In these circumstances I should refer to paragraph 8(4) of Part 1 of Schedule 1 of the Limitation Act 1980, which provides as follows:

"For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land. This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."

In Moran, Slade LJ expressed the principle in this way, at page 636H:

"Possession is never 'adverse' within the meaning of the Act of 1980 if it is enjoyed under a lawful title. If, therefore, a person occupies or uses land by licence of the owner with the paper title and his licence has not been duly determined, he cannot be treated as having been in 'adverse possession' as against the owner with the paper title."

33. The recorder held that the claimant had given the defendants a licence to use the disputed area. He expressed his conclusions in this way (page 78A):

"That does not end the matter because thereafter Mr Hodson made use of the premises in accordance with the general nature of the agreement in 1978 as he had recalled it to me: that Mr Allee had said 'I do not want the garden'. How does one decipher that? Plainly, if he is saying 'I do not want to own any part of the garden', that conflicts with what he then subsequently said, namely 'I want access for loading and unloading if access is obtained'. So there was a conflict. I come to the conclusion, plainly, that when he said 'I don't want the garden', what he meant was 'I do not want the use of it', and indeed he did not. He was perfectly happy to allow Mr Hodson, on the basis of amity and good neighbourliness, to cultivate that as part of the much wider garden. Again, this is the importance of the matter: this was but a small part of a very much bigger garden. There was no delineation, indeed there was a pond. As I have already indicated, Mr Thomas told me (and I accept) that the purpose of the delineation was only to establish a legal boundary and not a physical one. The purpose of that was to allow for loading and unloading possibly in the future.

What, therefore, is the significance of that? It seems to me in those circumstances, applying as best I can a legal framework to that agreement, that what was in fact granted in that critical meeting in 1978 was a bare licence. It was a bare licence to cultivate the bit of land which had been delineated for a specific purpose, namely future use. It was a bare licence in order to use it as part of the general cultivation of the much wider and bigger garden. That is precisely, I find as a matter of fact, what Mr Hodson in fact did."

A little later the recorder said (at page 79H-80B):

"Indeed, it is the defendant who asks me to construe that ancient and informal conversation so I must construe it one way or another, and that is how I do: a bare licence was in fact granted, and was granted in such terms that it would remain until such time as access was obtained to the garden at the rear, at which point it would revert to the claimants' use in order that they could load and unload commercial vehicles if they so chose."

34. For my part I see no basis for criticising the recorder's conclusion that the disputed area was being cultivated and used with the consent or licence of the claimant. In a skeleton argument by Mr Pearson, who appeared on behalf of the defendants before the recorder, he submitted that this case was not advanced on behalf of the claimant and that it is not open to it now. Mr Lochrane has sensibly not put it in that way in the course of his oral argument. It is true that it was not pleaded but, as Mr Templeman observes in his skeleton argument, it arises out of Mr Hodson's oral evidence. The recorder expressed a provisional view in the course of counsel's final submissions to the effect that there was a licence, and in my judgment the defendants had every opportunity to meet the point and there was no injustice to them in allowing the claimant to rely upon it.
35. As to the merits of the argument, Mr Hodson's evidence was clear that Mr Allee told him that he wanted to be able to have rear loading facilities and if possible parking facilities. I accept Mr Templeman's submission in his skeleton argument that, at any rate once the rectification claim fails, those remarks must have been made in the context of the right of way over the garden of no. 7 and the retention of the area to the rear of nos. 9 and 11. It was thus clear that, just as the defendants' use of the garden of no. 7 was subject to the right of way, so any use or possession of the disputed area was subject to the claimant's title and prospective future use for loading and unloading and for parking.
36. Whether I would have gone so far as to infer a grant of a licence until the claimant could exercise a right of way over the garden of no. 7, so as to be able to load and unload at the rear of the premises, I am inclined to doubt. But the recorder was entirely justified in holding that the defendants cultivated and used the disputed area with the claimant's consent. It is said that that finding was inconsistent with the evidence of Mr and Mrs Walters, but I do not understand them to be saying that the claimant did not consent to the use of the land as a garden, at least for the time being. The defendants thus had a licence to cultivate and use the garden and, in all these circumstances, the recorder was in my judgment justified in holding that the claimant gave the defendants a bare licence to occupy and cultivate the land. It follows that he was right to hold that the claim to adverse possession fails. It also follows that it is not necessary to consider the further question whether the defendants had the necessary animus possidendi, and I therefore say nothing about the recorder's reasoning in that regard.
37. For the reasons which I have given, I would dismiss this appeal.

MR JUSTICE MAURICE KAY: I agree.

LORD JUSTICE PETER GIBSON:

38. Despite Mr Lochrane's valiant attempt to get this appeal on its feet, I am left in no doubt but that this appeal must be dismissed. The evidence that was relied on by the appellants fell far short of the convincing proof required in order to counteract the cogent evidence of the parties' intention displayed by the conveyance itself, that being a document signed by the parties.
39. That evidence was the more cogent for two reasons. One was that the property was described by reference to a plan. That plan had on it an express notation, which made clear that the disputed land was to be retained by the respondents and that plan was also signed by three of the four partners in the appellant firm, including the conveyancing partner who appears to have had carriage of the conveyancing. Second, where solicitors are involved in a transaction of this sort, one must assume that the document which they have signed represents their intentions unless clear evidence is produced as to why this should not be so. In the present case, the evidence was limited to that of Mr Hodson himself and, for the reasons given by my Lord, there are a number of difficulties in relation to that evidence. I am therefore left in no doubt but that rectification was rightly refused by the recorder.
40. As for adverse possession, there are a number of obstacles in the way of the appellant. It is sufficient to decide this case on the ground on which the recorder himself relied, that the occupation by the appellants was permissive. Given that there was consent, it is not in dispute that no adverse possession could be established.
41. For these as well as the reasons given by my Lord, Lord Justice Clarke, I too would dismiss this appeal.

ORDER: Appeal dismissed with costs

ANNEX