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 CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COOKE)

		Royal Courts of Justice Strand London, WC2
		23rd March 2005

1. LORD JUSTICE PETER GIBSON: I will ask Lord Justice Neuberger to give the first judgment.
2. LORD JUSTICE NEUBERGER: This is an appeal from a judgment of His Honour Judge Roger Cooke in the Central London County Court given on 7th October 2002. He decided that Generay Ltd ("Generay") had acquired title by adverse possession to a strip of land ("the strip") on the Wembley Stadium Trading Estate in the London Borough of Brent. The strip appears to be about 450 or 500 feet long and runs approximately north south, and it is about 6 to 8 feet wide, although its width may vary along its length.
3. The freehold of the strip was registered at HM Land Registry with title number NGL770835. The Containerised Storage Company Ltd ("CSC") has been the registered proprietor of the strip since 19th March 1999. Although this case relates to registered land, all the relevant events occurred before the Land Registration Act 2002 came into force, so it is common ground that the provisions of the Limitation Act 1980 ("the 1980 Act") apply.
4. The basic facts are as follows. In 1924 the British Empire Exhibition was held at Wembley. Thereafter, various parts of the site were sold off. Part of the site now forms an extensive trading estate, and this case is concerned with a few parcels of land on that estate. Although there are a number of buildings on those parcels, it is only necessary to refer to a two of them which are relevant to one point.
5. Part of the site consists of a somewhat irregularly-shaped yard ("the yard"). The yard for present purposes is sufficiently described as being an elongated parallelogram, whose longer parallel sides run roughly north-south. Generay was the tenant of the yard from 1987, and then became its registered proprietor at HM Land Registry on 6th March 1998 with title number NGL592154.
6. The strip runs along about three-quarters of the length of the eastern boundary of the yard, from its south eastern corner. To the immediate east of the northern portion of the strip and running along about a quarter of its eastern boundary (i.e. for about 100 feet) is a small piece of land known in these proceedings as "the notch". The strip continues northwards along the eastern side of the yard, and the northern extension to the strip ("the northern extension", as I will call it) is also registered at HM Land Registry in the name of Generay.
7. On 1st December 1999 Generay started the present proceedings against CSC seeking a declaration that Generay had acquired title to the strip by adverse possession. Generay's case was that it had enjoyed possession of the strip continuously since sometime in 1987. CSC defended the proceedings and counterclaimed for possession of the strip on 12th November 2001.
8. The case came before Judge Cooke, and there was considerable oral and documentary evidence and wide-ranging argument. Generay were represented by Mr Kim Lewison QC and CSC by their "Property Manager", Mr Paul Todd. In a full and detailed reserved judgment, Judge Cooke found that Generay had established that it had indeed been in possession of the whole of the strip continuously for a period of 12 years up to 12th November 2001, the date when Generay first sought possession, and accordingly he concluded that Generay had established title to the strip by adverse possession. He therefore gave judgment for Generay on the claim and on the counterclaim. In reaching his conclusion, he dismissed a large number of arguments which had been raised on behalf of CSC by Mr Todd.
9. On this appeal (brought with the permission of Mummery LJ) Mr Paul Morgan QC (who now appears for CSC) has advanced only three of those arguments. I shall deal with them in the reverse order in which he developed them before us. Before doing so, however, I should briefly refer to the law relating to adverse possession, much of which is not in dispute.
10. First, the relevant limitation period for adverse possession is 12 years which must have been accumulated by the time, but not necessarily immediately before the time, possession proceedings are brought by the paper title owner (see section 15(1) of the 1980 Act).
11. Secondly, so far as the commencement of time is concerned, paragraph 1 of Schedule 1 to the 1980 Act provides:

"Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance."

12. Thirdly, this is subject to paragraph 8(1) of the same Schedule, which provides:

"No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as 'adverse possession'); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land."

13. Fourthly, so far as a squatter is concerned, paragraph 8(2) of the same Schedule provides:

"Where a right of action to recover land has accrued and after its accrual, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be treated as having accrued and no fresh right of action shall be treated as accruing unless and until the land is again taken into adverse possession."

14. Fifthly, by virtue of paragraph 4 of Schedule 1, where land is subject to a lease, time can only start running against the freeholder once the lease expires.
15. Sixthly, in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paragraph 40, Lord Browne-Wilkinson (with whom the other members of the House of Lords agreed) said this:

"In Powell's case 38 P&CR 470 Slade J said, at p 470:

'(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi").'

Counsel for both parties criticised this definition as being unhelpful since it used the word being defined —possession— in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ('factual possession'); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ('intention to possess'). What is crucial is to understand that, without the requisite intention, in law there can be no possession."

16. Seventhly, in paragraph 41 in the same case Lord Browne-Wilkinson said this:

"In Powell's case Slade J said, at pp 470-471:

'(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.'

I agree with this statement of the law which is all that is necessary in the present case."

17. Finally, and eighthly, in the following two paragraphs in his speech in Pye's case, Lord Browne-Wilkinson dealt with intention to possess, and in paragraph 43, after referring again to Powell's case, he said this:

"Slade J reformulated the requirement (to my mind correctly) as requiring an 'intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow'."

18. I turn to the three points raised by Mr Morgan on this appeal.
19. First, he contends that part of the strip was in fact included in the property demised by a lease granted on 27th May 1958 by British Transport Commission ("BTC") (the then freeholder) to Drings Ltd for a term expiring in September 2035. There is no doubt that such a lease ("the 1958 lease") was granted. Accordingly, if (a) the 1958 lease included part of the strip and (b) the 1958 lease, in so far as it extended to any part of the strip, continued beyond 12th November 1989, i.e. into the 12-year period before CSC counterclaimed for possession, paragraph 4 of Schedule 1 to the 1980 Act could be invoked by CSC to defeat Generay's claim to have acquired title by adverse possession to that part of the strip.
20. For the purposes of dealing with this point, I am prepared to assume (without deciding) that part of the strip was indeed included in the 1958 lease. The problem facing CSC's argument, however, is that that part of the property comprised in the 1958 lease was, in my clear view, surrendered by Drings' successor in title, T Wall & Sons Ltd, by a deed dated 3rd April 1974. That part of the property appears to me clearly to have included all those parts of the strip, if any, as were included in the 1958 lease.
21. The contention that part of the strip was included in the 1958 lease rests on the assumption that the western boundary of a block of land thereby demised, and shown on a plan annexed to the 1958 lease, extended to the western side, rather than only to the eastern side, of the strip. The plan attached to the 1974 deed identifies that block of property as that which is being surrendered. Although there are no precise markings on either of these plans as to the exact location of any boundary, the two blocks of property look the same on the two plans. In any event, it seems to me fanciful to think that the parties to the 1974 deed would have intended, at least without any indication whatever to that effect in the deed, that the tenant under the 1958 lease should retain a long thin sliver of land, wholly separated from any other land of which the tenant retained or enjoyed possession.
22. Realistically, Mr Morgan has not done other than put the facts before us and briefly advance his client's contention. I would unhesitatingly reject this, CSC's first point.
23. CSC's second point also relies on the effect of paragraph 4 of Schedule 1 to the 1980 Act, but in relation to a smaller part of the strip and by reference to a different lease. The part of the strip involved is a small triangle at the northern end of the strip, comprising some 70 square feet ("the triangle"). The lease concerned was granted on 6th December 1957, again be BTC, but this time to Berry's Electrical Ltd. The term of this lease ("the 1957 lease") was 35 years from 24th June 1955. It seems clear that the 1957 lease was not surrendered, and that it expired by effluxion of time on 24th June 1990. Accordingly, if it extended to any part of the strip, Generay's claim must fail in relation to that part of the strip, as time could only have started to run against CSC as freeholder from 24th June 1990, less than 12 years before CSC's counterclaim for possession in November 2001.
24. The second issue therefore resolves itself into deciding whether (as CSC contends) the 1957 lease did include the triangle or whether (as Generay argues) it did not.
25. Investigation of that question has involved examination of a number of entries in the Charges Registers and of a number of plans in relation to various registered properties registered at various times at HM Land Registry. However, in my opinion, the issue can and should be resolved by concentrating on the plan attached to the 1957 lease, a copy of which had indeed been retained by the Land Registry. Although that plan ("the lease plan") is not ideal for present purposes, it is in my opinion sufficient. It identified three pieces of land as being demised by the 1957 lease, of which the relevant one for present purposes is shown as comprising 1,098 square yards.
26. The western boundary of that plot ("the plot") is shown as going along the western side of an embankment. That embankment, judging by the lease plan and confirmed by other plans to which we were referred, abutted the eastern boundary of the strip. Along much, indeed possibly all, of the length of strip, the embankment has been removed and reformed, but it is still in place to the north of the strip, i.e. on the eastern boundary of what I have called the northern extension. It is quite apparent from a detailed drawing prepared by Mr George Laurence QC and Miss Clare Staddon, who appear for Generay, that if any part of the strip was included in the plot, and in particular if the triangle was thereby included, then the western boundary of the plot would, at least at its southern end, have been not along, but to the west of, the western side of the embankment. Yet it is clear, as I have mentioned, from the lease plan that that was not so. The western boundary of the plot was a straight line running along the western side of the embankment.
27. Both Mr Morgan and Mr Laurence sought to draw assistance for their respective cases, as I have mentioned, from plans relating to titles other than the 1957 lease at the Land Registry. I do not find them helpful.
28. First, none of them was directly concerned with the question of the leasehold title to the triangle or to any land including the triangle.
29. Secondly, the various plans are mutually inconsistent and their combined effect inconclusive, as is explained in a letter from Mr Colin Tate of the District Land Registry dated 25th June 2002.
30. Thirdly, while Land Registry plans can, I accept, often be of assistance, sometimes decisive assistance, in identifying precise boundaries, it is always salutary to bear in mind the general boundaries rule embodied in Rule 278 of the Land Registration Rules 1925. Certainly in the present case, where there is a lease plan from which one can draw a pretty clear conclusion as to the question of whether particular land was or was not included in the lease, it does not seem to me appropriate to rely upon the Land Registry plans to which our attention has been drawn.
31. Accordingly, I would reject CSC's second point.
32. That then leaves Mr Morgan's third point, which is of a different nature. It is that, on the facts, Generay did not enjoy 12 years' uninterrupted possession of some of the strip, namely that part which ran along the notch, i.e. to the west of the notch (i.e. the northernmost 100 feet or so of the strip). This contention arises from the fact that, between about October 1997 and January/February 1998, it is said that Generay excluded itself from this part of the strip.
33. The circumstances were these. In or about 1996 the then owners or persons entitled to possession of the freehold of the notch (whom I shall refer to as "Highnorth") began proceedings in the Uxbridge County Court against Generay and Mr Eugene Hickey, the director of Generay, alleging that they had trespassed into the notch. Generay defended the proceedings.
34. Shortly before the proceedings came on for hearing in the County Court on 10th November 1997, Generay erected (apparently on counsel's advice) an orange plastic tape fence about 4 feet high, with a view to indicating that they were not occupying the notch. The erection involved placing a line of timber on the ground which was then used to support vertical rods on which the tape fence was placed. On top of the tape fence a horizontal strip of white and orange plastic was fixed. As I have mentioned, the height of the fence was about 4 feet.
35. The tape fence appears to have been in place, as I have mentioned, for about three months, from sometime in October 1997 to January or February 1998. The evidence of Mr Hickey in the present case indicated that it had been damaged by a lorry and replaced with a more substantial fence. To all intents and purposes, this more substantial fence ran along the line, or very close to the line, representing the boundary between the eastern side of the strip and the western side of the notch, for the whole of the length of the notch.
36. There is no doubt that the tape fence ran to the west of that line. The precise extent to which it fenced off part or all of the northern 100 feet or so of the strip has been a matter of debate. There is no doubt, however, that, apart from the 100 feet or so running north-south, there was a much shorter length of the tape fence which ran pretty well along the northern boundary of the strip.
37. Two questions arise. First, the extent to which the strip was enclosed with the notch by the fence. It is clear that at least some of the width of the northernmost 100 feet or so of the strip was fenced off. CSC contends that the whole, or virtually the whole, of the width of the strip was thereby fenced off: whereas Generay argues that it was much less than that, possibly about 1½ feet.
38. The second question is whether the judge was right in concluding that, to the extent that an area of the strip was so fenced off, Generay's claim to have acquired adverse possession nonetheless succeeded. I shall deal with those questions in reverse order.
39. The first question is whether the rather unusual act of temporary, voluntary self-exclusion by the squatter, in this case Generay, constituted an interruption to possession such as to defeat its claim to have taken title by adverse possession. In this connection, Mr Morgan relies on paragraph 8(2) of Schedule 1 to the 1980 Act. He says that the continued possession required of Generay was interrupted for a period of three to four months in 1997/1998, and that that is fatal to Generay's claim, in so far as it relates to that part of the northern section of the strip which was enclosed with the notch ("the north-eastern part"). Generay had not been in possession for 12 years before October 1997 and, ex hypothesi, it had not been in possession for 12 years since January/February 1998.
40. In this connection it is necessary to refer to some of the evidence given to Judge Cooke. In paragraph 27 of his proof of evidence, after referring to the Uxbridge County Court proceedings, Mr Hickey said this:

"Some weeks before the trial I had arranged for temporary fencing to be erected following a pre-trial conference with counsel."

He then referred to the netting fence and continued:

"The line for the fence was estimated by me not measured using an accurate plan, and to make the point that we were no longer using the notch and to give us room to erect a permanent fence, the temporary fence was placed well inside our yard, probably enclosing the pathway."

The pathway there referred is clearly the strip.

41. Mr Hickey was cross-examined on this evidence by Mr Todd, and we have been provided with a full transcript of that rather long cross-examination. The following questions and answers seem to me to be relevant:

"Q. ... You installed that fence at that point to show to the court that you were not -- you were unable to get on to Boxer's land?

A. Yes.

Q. That is correct?

A. Yes."

42. A little later Judge Cooke said this:

"Mr Hickey, I know it is late, I know you have had a long day, but could you just concentrate on the question please.

A. Yes, we excluded ourselves your Honour, from the piece inside the tape, as Mr Todd explained to the court, for the duration of the hearing.

JUDGE COOKE: I appreciate that. The point Mr Todd is making is that you excluded yourself not only from the notch, but from additional land on your side as well. That is the point, isn't it, Mr Todd?

Q. That is correct.

JUDGE COOKE: Right, that is the.... Did you or did you not?

A. We obviously did. ...

JUDGE COOKE: Yes, 'we obviously', is the answer, 'did exclude ourselves from part of the land on our side even if we did not have to.'

A. Yes precisely, your Honour."

43. The judge's conclusion was expressed in these terms:

"I do not think that the tape fence can amount to an abandonment of possession. It was clearly a temporary structure for a temporary litigation purpose, not directed at the owner of the strip."

44. However, he went on to say:

"But once the permanent in a fence of a more permanent kind was in place, then it seems to me that to the extent it enclosed part of the strip with the notch it would be difficult to say that the claimants continued to possess that small part of the width of the notch. Erecting the fence and curb was a clear demonstration that they did not and did not intend to."

45. I do not agree with those observations in so far as they relate to the tape fence. In this case, for reasons connected with other litigation, Generay excluded itself from what I have called the north-eastern part. For a period whose duration is not identified, but was clearly not a fleeting or transitory period, it appears to have been three months to four months over the New Year 1998. That exclusion was by fencing is not itself without significance. As Judge Cooke said himself in his judgment:

"The law has always regarded fencing ... as a strong indication of possession: see the old case of Marshall v Taylor (1895) 1 Ch 641."

46. In that connection I would also refer to the more recent case of London Borough of Hounslow v Minchinton (1997) 74 P&CR 221, where the erection of a fence was described as "strong evidence of discontinuance of possession" by Millett LJ at page 230.
47. This case is unusual because the fencing, although erected by the person claiming adverse possession, was intended to show that he was excluding himself from part of the subject property, not occupying it. But that to my mind does not alter as a matter of principle the significance of fencing.
48. Of course fencing is not conclusive. In the present case the purpose of the tape fencing was the subject of cross-examination, as I have mentioned. It is clear from that cross-examination, as Mr Morgan says, that the purpose of the tape fence was to exclude Generay from the notch. By placing the tape fence on the strip it must follow that, at least in so far as any part of the strip was the same side of the fencing as the notch, that the purpose was to exclude Generay from that part of the strip.
49. In my view, on the evidence during the period that the tape fence was erected, Generay was plainly intending to exclude itself from the north-eastern part, and it is hard to see how that could be consistent with it now saying that it was actually in possession of the north-eastern part or intending to be in possession of the north-eastern part. Because occupation and possession are not the same thing, it would obviously be possible for a person to exclude himself from occupying premises of which he retained possession. However, where one is concerned with a claim for adverse possession of open land, I think it would require exceptional facts before a person who was a stranger to the land could satisfy a court that he had retained possession of the land during a period when he had intentionally excluded himself from that land, especially where that was accomplished by the means of physically fencing off the land from adjoining land which that person occupied. The fact that the exclusion was intended to be temporary does not appear to me to assist Generay. Nothing I say in this context applied to more temporary absence. Adverse possession obviously does not require a person to maintain a 24 hours a day physical occupation. However, in this case there is positive exclusion, albeit, rather unusually, self-exclusion. A person can obtain title by adverse possession even though he may envisage his occupation being temporary. Similarly, in my view he may lose it by an exclusion from possession, even though that exclusion may be temporary. But there must be an exclusion from possession, as opposed merely to a temporary absence.
50. I am unimpressed by the judge's characterisation of the self-exclusion as being "not directed at the owner of the strip". The purpose of the tape fence was to exclude Generay from any form of occupation of the north-eastern part. One cannot normally exclude oneself from possession of one piece of land in relation to one party, but remain in possession of that land from the point of view of another party (save in, for instance, a landlord and tenant context).
51. Mr Laurence suggests that there is no discontinuance of possession during 1997/1998 by Generay, because no one else entered into possession. In that connection he relies on judicial analyses of what constitutes exclusive possession. Thus in Buckinghamshire County Council v Moran [1990] Ch 623, at page 644E-F, my Lord, Lord Justice Nourse, said:

"In order that title to land may be acquired by limitation, (1) the true owner must either (a) have been dispossessed, or (b) have discontinued his possession, of the land; and (2) the squatter must have been in adverse possession of it for the statutory period before action brought. Adopting the distinction between dispossession and discontinuance ... I take the first case to be one where the squatter comes in and drives out the true owner from possession and the second to be one where the true owner goes out of possession and is followed in by the squatter. In the light of that distinction, a very fine one, it is sometimes said that the intention of the true owner may be material in this way."

52. Similarly, in the London Borough of Hounslow v Minchinton case to which I referred, Millett LJ said at page 232-233 of an earlier case:

"... is in my view merely authority for the proposition that discontinuance of possession by the true owner itself is neither here nor there, unless it is accompanied or followed by adverse possession by another party."

53. In my judgment, those observations are of no assistance here. There is by no means a complete equivalence between the position of an allegedly dispossessed paper title owner and an allegedly dispossessed squatter. That is well illustrated by the observation of Lord Justice Nourse at page 645B in his judgment in the Buckinghamshire County Council case:

"... I have come to a belief that the intention of the true owner, although it may have some influence in theory, is irrelevant in practice."

54. A squatter who vacates the property and leaves it empty cannot claim nonetheless to be in possession. The position is very different in the case of a paper title owner, as indeed is illustrated by point one made by Slade J in Powell's case, as quoted in paragraph 40 of Lord Browne-Wilkinson's speech in Pye's case.
55. Mr Laurence also contends that Generay's intention in erecting the fence was only for good neighbourliness and for the purpose of the Uxbridge County Court litigation. But, with respect, that seems to me to beg the essential question which is whether Generay, whatever its reasons for the erection of the fence, actually discontinued its factual possession and/or its intention to possess the land to the east of the tape fence, and as to that it seems to me that the evidence was clear.
56. Mr Laurence also relies on the proposition that Highnorth cannot possibly have assumed that Generay intended Highnorth to take up possession of the strip. Again, it seems to me that that argument might have some force if it were the paper title owner who was excluding himself, but not where it is the potential squatter.
57. Accordingly, respectfully differing from Judge Cooke, I would for my part hold that adverse possession was in principle established.
58. That then brings me to the second question which arises in relation to this third issue, namely the extent to which the northern 100 feet or so portion of the strip was fenced off; i.e. to what width was the north-eastern part of the strip fenced off by the tape fence.
59. In this connection I should mention that there are a number of contemporaneous photographs of the tape fence which were before the judge and which we have seen. They enable one to identify the location of the tape fence by reference to buildings. From its north-western corner, the western and longer run of tape fence goes south for about 100 feet in what appears to be virtually a straight line, until it reaches a stanchion which is just about north of the north-eastern corner of a large shed, which is (at least very much in the main) in the yard. Also running from its north-west corner the northern run of the tape fence goes east for a much shorter distance, more or less along the northern boundary of the strip and into the notch, possibly at the northern boundary of the notch, until it hits the south-western corner of a building which is at least partly on the notch. I refer in this connection to photographs 8, 20, 21 and 235 to 238.
60. The main question to be determined is the length of the latter run of the tape fence; that is, along its northern run. Once that length is determined, it will be possible to decide how much of the width of the strip is included in the fenced-off area. It appears from a very full and careful plan produced by Mr Laurence and Miss Staddon (page 30 of their bundle of plans), that that section of the notch which was covered by the east-west section of the tape fence is around 1½-2 feet (but that remains to be checked), and that the remainder of the northern run of the fence is on the strip.
61. Mr Morgan contends that the width of the northern section of the tape fence is 8 feet in total. If that is correct, although it is not possible to express a concluded view (at any rate at this stage), it would mean that all or virtually all of the northern 100 feet or so section of the strip would have been included in the fenced-off area, and therefore would be excluded from that part of the strip to which Generay could claim adverse possession.
62. In my view, Mr Morgan's contention is correct. First, there is the evidence of Mr Hickey in cross-examination before Judge Cooke. His evidence was that the northern section of the tape fence was 8 feet long. The figure of 8 feet was given unprompted, in the sense that the figure was not put to him but volunteered. It is true that the figure was mentioned when he was looking at photograph 8 and can be said to be something of a non-expert assessment. But it came from Generay's own witness and, perhaps even more importantly, from a person who was responsible for putting up the tape fence and who was present on the land at the time the tape fence was there, and was therefore able to express a view which no doubt was at least not inconsistent with his recollection.
63. The notion that the whole or virtually the whole of the 100-foot northern section of the strip was included in the fenced-off area is supported by other evidence given by Mr Hickey to the judge. I have already quoted paragraph 27 of his statement, where he referred to "the pathway" as being fenced off (where his reference to the pathway is to the strip). Furthermore, both in his short statement given in the Uxbridge County Court and in the skeleton argument put forward by counsel appearing for Generay and Mr Hickey in the County Court, the statement was made that the pathway (not just part of the pathway) was included with the notch in the area fenced off. A measurement of 8 feet for the northern line of the tape fence is also consistent with the photographs, especially with photograph 8 to which I have referred. That photograph is taken facing directly on to the northern line (going east-west) of the fence, which is very clearly shown, and in front of which there are three traffic cones which provide a useful reference for measuring. Whilst scaling off from photographs, even clear and close photographs such as photograph 8, can be dangerous once one attempts to be precise, it seems to me impossible to argue that the length of the northern run of the tape fence from that photograph can be less than 7 feet, or indeed more than 9 feet.
64. Mr Laurence contends that it would be unfair to determine the length of the northern side of the tape fence in this court, and that determination of the issue should either be adjourned for agreement or should be remitted to the County Court for determination.
65. I can see no real prospect of any agreement in that connection. Mr Morgan has rejected that possibility on his client's behalf. The aggressive way in which the litigation was conducted on behalf of CSC by Mr Todd was the subject of criticism by the judge, and given the evidence to which I have referred it is unlikely in the extreme that agreement is possible.
66. So far as sending the case back is concerned, I would be very reluctant to take that course, bearing in mind the cost and delay involved. But if I thought it was unfair to Generay to determine this issue now, then there would be no alternative. However, I can see no such unfairness. The evidence to which we have taken appears to me either to be unclear, or to be not inconsistent with the length of the northern tape fence in question being about 8 feet, or to be positively consistent with it. Generay was represented both below and in this court by leading counsel. The matter was clearly an issue or potential issue before the judge. There is no suggestion of Generay not being able to put before us evidence that was before the judge. In my view we are in a position to determine, and we should so determine, the length of the northern run of the tape fence.
67. I appreciate that, because of the nature of the evidence and of the plan, it is not possible for me to articulate in clear terms where the boundary runs and whether, in particular, the conclusion I have expressed involves the whole of the approximately 100-foot northern section of the strip being excluded from Generay's right to adverse possession and therefore subject to CSC's ownership. However, it seems to me that, in light of the conclusion I have expressed as to the length of the northern run of the fence, and in light of the clear indication from photograph 8 as to where the 8 feet starts from in terms of its eastern point, it should be possible, without difficulty, for the parties to agree. But for my part, at any rate, I would be happy to hear any submissions that counsel wishes to make on this in light of what I have said, if my Lords agree.
68. Accordingly, for the reasons I have given, to a limited extent in relation to the third point, but only in relation to the third point as I have characterised it, I would allow this appeal.
69. SIR MARTIN NOURSE: I agree with the judgment of my Lord, Lord Justice Neuberger, to which I cannot usefully add anything of my own.
70. LORD JUSTICE PETER GIBSON: Although we are differing from the judge on one point, there is nothing I would wish to add to the judgment of Lord Justice Neuberger, both on that and on the other points taken in the appeal, with which judgment I am in full agreement, save to pay tribute to counsel on both sides for their careful and lucid arguments.
(Discussion as to costs)
71. LORD JUSTICE PETER GIBSON: We are now asked to determine what costs should be awarded both here and below. We think it appropriate to have regard to the respective parties' successes and failures on the various issues and to determine costs by reference to that factor. We also think it appropriate that rather than award costs on each of the issues by itself, we should award proportions of the total costs. We have regard in making the order to the conduct of the parties, and in particular to the unfortunate failure on the part of the appellant in relation to the deed of surrender to recognise much earlier what was the inevitable outcome on the appeal of the existence of that deed. We think that the way the appeal was argued and dealt with in this court may not entirely reflect the time spent on, and the costs of, preparation.
72. We think that the appropriate order is to give to Generay 50% of the costs of the appeal. We should make clear that in making that order we are including all the costs, including the costs in relation to evidence put in by Mr Todd and the documents which were exhibited to that evidence.
73. So far as the costs of the trial is concerned, there has to be an adjustment because of the success of the appellant in this court on the tape fence area. We think that the appropriate proportion of the costs of the trial which Generay should recover should be three-quarters of those costs.
74. We reluctantly will remit the question of damages for trespass back to the judge, but we express the hope that the parties will adopt a pragmatic approach and reach a sensible agreement, rather than incur yet further legal costs on that dispute.
75. As for the terms of the order, we will leave it to counsel to attempt to agree the appropriate terms. But, of course, if there is no agreement then the matter will have to come back to this court.

ORDER: Appeal allowed in relation to the third point only; CSC to pay 50% of Generay's costs of the appeal, including the costs in relation to evidence put in by Mr Todd and the documents which were exhibited to that evidence; CSC to pay 75% of Generay's costs of the trial; the question of damages for trespass remitted back to the judge; counsel to attempt to agree the appropriate terms of the order, but if there is no agreement then the matter to come back before the court.

(Order not part of approved judgment)