IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE COOKE)
B e f o r e :
LORD JUSTICE NEUBERGER
SIR MARTIN NOURSE
|THE CONTAINERISED STORAGE COMPANY LIMITED||Defendant/Appellant|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR GEORGE LAURENCE QC and MISS CLARE STADDON (instructed by Messrs BP Collins, Gerrards Cross SL9 8EL) appeared on behalf of the Respondent
Crown Copyright ©
"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."
"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."
"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."
"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."
"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."
"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'."
"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.
"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?
Q. That is correct?
"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."
"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."
"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."
"The law has always regarded fencing ... as a strong indication of possession: see the old case of Marshall v Taylor (1895) 1 Ch 641."
"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."
"... 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."
"... 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."
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.