England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Peter Leaver QC sitting as a Deputy High Court Judge
[2007] EWHC 2087 (Ch)

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/11/2008

Lord Justice Rimer :

Introduction

1. This is an appeal by Christos Sava against an order dated 28 September 2007 made by Mr Peter Leaver QC, sitting as a Deputy High Court Judge of the Chancery Division. It is brought with the permission of Carnwath LJ. The respondents are (1) SS Global Limited ("Global"), (2) Ipe Jacob, and (3) Richard White. Global is incorporated in the British Virgin Islands. Mr Jacob and Mr White are receivers of Delphis Bank Limited ("Delphis"), appointed under the Law of Property Act 1925 ("LPA"). Delphis is incorporated in Mauritius.
2. By his order, Mr Leaver allowed the respondents' appeal against a Decision dated 20 October 2006 of Mr John Hewitt, sitting as a Deputy Adjudicator ("the Adjudicator") to HM Land Registry, given after a five day hearing in April and June 2006. The Adjudicator had found that Mr Sava had acquired a title by adverse possession to certain land and directed the Chief Land Registrar to give effect to his decision by rectifying the relevant registered titles. Mr Leaver reversed that decision, holding that Mr Sava's claim to have acquired title had not been made out. Mr Sava sought before us to have the Adjudicator's decision restored. Mr George Laurence QC and Mr Mark Wonnacott (neither of whom appeared below) represented Mr Sava. Mr Jonathan Gaunt QC and Mr Gary Cowen represented the respondents (Mr Cowen having also represented them below).

The paper titles to the relevant properties

3. The main issue before the Adjudicator arose from Mr Sava's application to HM Land Registry to be registered as the proprietor of land known as Beech Hill Farm ("the land") situated in Green Belt land in Hadley Wood in the London Borough of Barnet. It comprises some 27 or 28 acres. Mr Sava claimed to have been in adverse possession of the land since some time in 1990. The land is registered under Title No. NGL349241.
4. The land lies immediately to the north of, and adjoins, the garden forming part of Dolphin Manor, registered under Title No. NGL597449 (although the garden itself forms part of Title No. NGL349241). Dolphin Manor fronts on to Camlet Way to the south. Mr Sava also sought to be registered as the proprietor of a narrow strip of land ("the corridor"), being a track running from just off Camlet Way northwards through the eastern side of Dolphin Manor and into the land. A feature of Dolphin Manor that assumed central relevance in the appeal is that at all material times before and after 1990 there was also a driveway running northwards through approximately the centre of its rear garden to a field gate through which access could also be had into the land. I will call this "the garden gate".
5. Adjoining Dolphin Manor to the west and south lie land and buildings now known as Ashirwad House, but formerly called Glebe House (as I shall call it), registered under Title No. NGL523113. That too fronts on to Camlet Way. No part of that land adjoins the land and Mr Sava made no claim in respect of it.
6. At the time of the hearing before the Adjudicator, the registered proprietor of all three titles (the land, Dolphin Manor and Glebe House) was Ashirwad Limited, the first respondent to Mr Sava's application. Ashirwad was incorporated in the British Virgin Islands and its ultimate beneficial owner was Mr Ketan Somaia. In 1990 Ashirwad bought the land from its then registered proprietor, Mr McSharry, a local builder/developer. At that stage the land was used by Mr McSharry either for winning or storing aggregates or for storing building materials. Ashirwad was registered as proprietor on 1 August 1990, and on 12 October 1991 it charged the land to Delphis.
7. Mr McSharry had built Dolphin Manor, which he also sold to Ashirwad in 1990. On 1 August 1990 Ashirwad was registered as proprietor of that land as well and on 13 August 2001 it charged it to Global. That charge was followed on 9 October 2001 by a second charge to Delphis and on 14 March 2002 by a deed regulating the priority between Global and Delphis.
8. In 1992 Ashirwad bought Glebe House and was registered as proprietor on 6 July 1992. Ashirwad charged it to Delphis on 26 March 2001 and granted a further charge to Delphis on 9 October 2001.
9. Dolphin Manor and Glebe House are substantial properties, the former having a helipad. Following Ashirwad's acquisitions, Mr Somaia and his immediate family occupied Dolphin Manor when in the United Kingdom; Mr Somaia's extended family and staff occupied Glebe House.

The proceedings before the Adjudicator

10. On 5 March 2004 Mr Sava lodged an application at HM Land Registry to change the register in respect of the land and corridor. He supported it with a statutory declaration. Notices of objection were served by the respondents, being (1) Ashirwad, (2) Mr Long and Mr Satow, (LPA receivers of Ashirwad appointed by Global), (3) Mr Jacob and Mr White (LPA receivers appointed by Delphis) and (4) First City Bank Limited.
11. On 27 November 2004 the Chief Land Registrar referred the disputes to the Adjudicator pursuant to section 73 of the Land Registration Act 2002. On 20 April 2005 First City Bank ceased to be a party. Since 6 February 2006 Ashirwad has also taken no part in the proceedings. Mr Somaia, although not a party, might be thought capable of giving relevant evidence but did not do so. He was incarcerated overseas at the time.
12. The hearing before the Adjudicator commenced on 24 April 2006. Mr Sava was represented by counsel, Mr Michael Roberts. Mr Cowen represented the two sets of receivers. By the time of the Adjudicator's decision, the receivers had assumed possession of Dolphin Manor. Dolphin Manor was, and is, vacant; Glebe House is occupied by members of Mr Somaia's family and is currently the subject of separate proceedings. The receivers opposed Mr Sava's claim to have acquired title to the land and corridor. They claimed that both remained comprised within the charges. They wish to sell the land and Dolphin Manor (including the corridor) – and also Glebe House -- and apply the proceeds towards the discharge of the sums due under the charges.

The Land Registration Act 2002; adverse possession

13. The Land Registration Act 2002 came into force on 13 October 2003 and introduced a new regime relating to the acquisition of title to registered land by adverse possession. Mr Sava elected to take advantage of the transitional provisions, which meant that to succeed in his claim he had to show that he had dispossessed Ashirwad of the land and corridor by no later than 13 October 1991 by taking possession of them himself (see paragraph 18 of Schedule 12). If he thereafter remained in such possession for the 12 year period expiring on 13 October 2003, the land and corridor would be held in trust for him by the registered proprietor and he would be entitled to be registered as proprietor. The question raised by his application was whether he had entered into possession of the land and corridor by 13 October 1991. If he had, it is not suggested that Ashirwad subsequently dispossessed him so as to stop time running in his favour under the Limitation Act 1980.
14. The relevant provisions of the 1980 Act are these. Section 15(1) precludes the bringing of an action by anyone to recover land after 12 years from the date when the right of action accrued to him or to some person through whom he claims. Paragraph 1 of Part 1 of Schedule 1 provides that where such a claimant (or person through whom he claims) has been in possession of land, and has while entitled to it been dispossessed or discontinued possession, the right of action shall be treated as having accrued on the date of dispossession or discontinuance. Paragraph 8 provides:

"(1) 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. …

(4) 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."

15. The applicable law has been clarified by the decision of the House of Lords in J.A.Pye (Oxford) Ltd and another v. Graham and another [2002] UKHL 30; [2003] 1 AC 419. The judge cited extensively from the speech of Lord Browne-Wilkinson, but I do not think it necessary to do likewise. For the purposes of the appeal, it is sufficient to note the following.
16. The question before the Adjudicator was "simply whether [Mr Sava] has dispossessed the paper owner [Ashirwad] by going into ordinary possession of the land for the requisite period without the consent of the owner" ([2003] 1 AC 419, paragraph [36]). Possession is single and exclusive; and so if Mr Sava was in possession, Ashirwad was not (paragraph [38]). As to what constitutes possession, Lord Browne-Wilkinson approved the statements of principle by Slade J in Powell v. McFarlane (1979) 38 P & CR 452 (paragraph [40]). Absent contrary evidence, the paper owner is deemed to be in possession, as being the person with the prima facie right to possession. If the law is to attribute possession to someone who has no paper title to be in possession, he must be shown to have both factual possession and the requisite intention to possess. Those two elements mean respectively (i) a sufficient degree of custody and control; and (ii) an intention to exercise such custody and control on one's own behalf and for one's own benefit. The latter is an essential element in the assumption of relevant possession. As Lord Browne-Wilkinson said, "[i]t is not the nature of the acts that [the occupier] does but the intention with which he does them which determines whether or not he is in possession." (paragraph [40]).
17. As to what constitutes factual possession, Lord Browne-Wilkinson approved, at paragraph [41], this passage from Slade J's judgment in Powell (1979) 38 P & CR 452, 470-471:

"Factual possession signifies an appropriate degree of physical control. It must be single and conclusive [and Lord Browne-Wilkinson read "conclusive" as meaning "exclusive"] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … 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."

In expressing agreement with that, Lord Browne-Wilkinson commented that in Pye "[t]he Grahams were in occupation of the land which was within their physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate." In the present case there was much discussion before us as to whether Mr Sava's occupation of the land could be said to have been of the like quality. In particular, whatever else he did to manifest his claimed assumption of possession by 13 October 1991, he took no steps to prevent Ashirwad from continuing to enjoy free access to the land via the garden gate.

18. As to what amounts to a sufficient intention to possess, the occupier need not also demonstrate an intention to own. The only question is whether he has an intention to possess (paragraph [42]). The requisite intention includes (again drawing on Slade J in Powell) "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 reasonably practicable and so far as the processes of the law will allow." (paragraph [43]).
19. As to the question, raised by earlier authorities, whether the acts of the squatter must be inconsistent with the intentions of the paper owner, Lord Browne-Wilkinson summarised the legal position as follows (paragraph [45]):

"The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such inference could be properly drawn in cases where the true owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases."

The facts found by the Adjudicator; his conclusions

20. Mr Sava gave oral evidence. The Adjudicator found that he was not an ideal witness and that his evidence was at times confusing, contradictory and muddled, his confusion being at times as to dates, times and places. But the Adjudicator found him to be a genuine and honest witness, whose evidence he broadly accepted. He found that Mr Sava moved on to the land some months prior to October 1991 (thus rejecting his case in his statutory declaration and witness statement that he had moved on to it in either the spring or October of 1990). He accepted Mr Sava's evidence that when he went on to the land it was "his avowed intention to acquire a title to it by way of adverse possession." The Adjudicator found that in the early days Mr Sava's activities were limited to grazing sheep, horses and ponies. The boundaries of the land were then generally fenced or hedged, and required only limited further fencing to be carried out, which Mr Sava did, in order to keep the sheep within the fields in which he wished them to graze safely. He found that Mr Sava ensured that the main entrance gates were locked and that they were "ferociously guarded by him." That was a reference to Mr Sava's fixing of a gate at the entrance to the corridor off Camlet Way on which he placed a lock. Mr Sava's evidence in his statutory declaration was that he also erected a fence across the garden gate in 1992. That was the subject of dispute before the Adjudicator, who made no express finding as to it although it was probably implicit in his other findings that Mr Sava placed no obstacle to Ashirwad's access through the garden gate until about 1995. It is also to be noted (i) that although Mr Sava had stated in his statutory declaration that in 1990 he had erected a chain link fence along the sides of the corridor, the Adjudicator made no finding as to that; and (ii) that although in his witness statement he stated that when he moved on to the land, one of his first tasks was to put in a proper access along the corridor (and that he had contacted London Surfacing Limited, who provided the materials to make the road), the Adjudicator made no finding as to that either. The Adjudicator summarised his findings as to Mr Sava's activities by concluding that he had both an intention to possess the land and factual possession of it, and was in possession by 13 October 1991.
21. Mr Sava supported his case by evidence from other witnesses, to some of whom the Adjudicator made reference in his findings. One was his accountant, Mr Frangoudis, although he only started doing accountancy work for Mr Sava in 1993. His evidence was that Mr Sava had a fully operational business by then. Whilst finding Mr Frangoudis to be an honest witness, the Adjudicator derived little help from him as to when Mr Sava assumed possession because he had no corroborating documents to show when Mr Sava's business got underway and was relying solely on what Mr Sava had told him.
22. The Adjudicator accepted the evidence of Andrew Loizides, whom he found honest and reliable. His evidence was that Mr Sava had been a customer since 1988/89 and he worked for him two or three times a year. He first visited Mr Sava at the land in 1990 or 1991 to repair a car that would not start.
23. The Adjudicator also accepted the evidence of Dale Smith that he carried out work for Mr Sava on the land in about 1990, a time he could recall by associating it with the birth of his daughter in 1990. His evidence confirmed activity and preparation for farming in 1990/91, which was consistent with other evidence. Mr Smith recalled an occasion when he was working on the land with a digger. He was approached by two men working in the garden of Glebe House or Dolphin Manor asking if he would dig a pond. Following a discussion with Mr Sava, a price of £500 was agreed, which was given to Mr Smith in cash, which he handed to Mr Sava. In the event the idea of the pond was abandoned and Mr Sava gave Mr Smith an envelope to hand to the two men. Mr Smith assumed it contained a cheque for £500 by way of repayment, but did not actually see the cheque. He thought this happened in about 1995. This evidence was of particular relevance to a main plank of the respondents' case, to which I will come below.
24. The Adjudicator regarded Mr Slaymaker as an honest and reliable witness, but attached no weight to his evidence because he had no personal knowledge of activity on the land in 1990/1991. He could only speak to a visit he made in 1996, by when it was accepted by all that a thriving farming business was underway. The business he then saw comprised sheep, a hay crop, a small agricultural planting, a few plants growing.
25. Mr Andreas Savva gave evidence that he first visited the land in 1990, an event he recalled by reference to the fact that that was the time when some knee braces came off that he had been wearing following an accident. He said that Mr Sava was living in a caravan on the land and that he paid him £5 or £10 for permission to shoot rabbits. The Adjudicator was not, however, confident that Mr Sava had been in possession of the land since 1990 but was satisfied that he was in possession by October 1991.
26. Mr Sava's wife, Karen, gave evidence that in the 1990s she lived at Bartholomew Road, where she had a housing association tenancy and brought up their children. Mr Sava did not also live there: he lived in a caravan on the land. She explained how she recovered damages of £135,000 from the landlord of a farm where she ran a livery and riding school business and how this money was invested in the land, improving plant, equipment and facilities. She stressed that the farming business on the land started before 1995.
27. Central to the respondents' case was that there had been a meeting at Mr Somaia's office in Edgware in 1994 at which Mr Sava was given permission to use the land in exchange for a payment of £500. Mr Sava denied that there had been any such meeting, payment or permission. So did Mrs Sava. The Adjudicator rejected the evidence of Mr Divesh Somaia ("Divesh") that such a meeting had taken place attended by both Mr and Mrs Sava; and he also rejected Mr Alexandrou's hearsay evidence that there had been such a meeting, one at which he said only Mr (and not Mrs) Sava had been present. He found that there was no such meeting. He found that Mr Sava did make a payment of £500 to Mr Somaia but only in the circumstances explained by Mr Smith.
28. The Adjudicator's conclusion was as follows:

"97. Looking at the evidence overall I find that Mr Sava has established meaningful adverse possession of the Farm prior to 13^th October 1991 and that he has discharged the burden of proof that rests on him.

98. Virtually no meaningful evidence was presented as to the paper owner's use or intended use of the land. It seems to me that [Ashirwad] made no meaningful use of the land between acquisition in 1990 down to date. Such use as there was [was] limited [to] the very occasional picnic by members of [Mr Somaia's] family, three or four quad biking escapades and a small part of the land used for parking visitor's [sic] cars when [Mr Somaia] hosted a large social event. It appears that [Mr Somaia] was aware of Mr Sava's use of the Farm, certainly by 1996 when it appears that [Mr Somaia] first sought legal advice. Advice was again sought in 1998 but evidently no follow [up] action was taken.

99. Given that I find that the paper owner did not make any meaningful use of the land since the date of its acquisition and given that no evidence was put before me as to the current intentions of the paper owner, save that the Receivers of [Ashirwad] wish to sell the land, I find that I cannot find that the use of the Farm by Mr Sava was not inconsistent with the use and intended use by [Ashirwad] in the sense to be applied in Leigh v. Jack (1879) 5 Ex. D. 264."

29. The outcome was that the Adjudicator held Mr Sava entitled to have the register of title of the land rectified to show him as the proprietor; and he expressed the hope that the parties could agree which portion of the corridor should also be registered in his name, failing which he would determine it.

The appeal to Mr Leaver QC

30. The appeal before the judge challenged the Adjudicator's findings of fact and his application of the law. It was said that he had made findings contrary to the weight of the evidence and had given insufficient reasons for his conclusions. The challenge on the facts required the judge to engage in a consideration of the transcripts of evidence before the Adjudicator.
31. The judge rightly regarded the relevant inquiry before him as concentrating on the nature of Mr Sava's occupation of the land on or by 13 October 1991. Had Mr Sava shown that by then he had assumed single and exclusive factual possession of the land and corridor, coupled with the requisite intention to possess them? In considering that question, the judge embarked on a careful review of the evidence that was before the Adjudicator, having first correctly cautioned himself as to the disadvantage faced by an appellate court in reviewing findings of fact by the trial judge that were dependent upon his view of the credibility of the witnesses. He referred to the guidance in Assicurazioni Generali SpA v. Arab Insurance Group [2003] 1 WLR 577 in relation to appeals on fact. He directed himself as follows, correctly in my view (paragraph [75]):

"My approach to the Decision, therefore, is to give great weight to the Deputy Adjudicator's findings of fact, both those which are expressly stated and those which can be implied. That weight will be decisive unless I conclude from my consideration of the transcript of the evidence and from the submissions of counsel that any particular finding was so clearly wrong that it fell outside the generous ambit in which an appellate court might simply disagree with it. In making that assessment I bear in mind the limitations of judging the evidence of a witness merely from the transcript, and the advantage enjoyed by the Deputy Adjudicator in seeing and hearing the witnesses give their evidence."

32. The judge then made the preliminary observation that the Adjudicator's imprecise findings in relation to Mr Sava's evidence posed difficulties. His evidence was central. The Adjudicator had criticised him as not being an ideal witness and for giving evidence that was at times confusing, contradictory and muddled. The Adjudicator nevertheless found him to be "genuine and honest" and "broadly" accepted his evidence. That reflected that the Adjudicator accepted parts of it but not other parts. He did not, however, spell out which. As the judge put it, the Adjudicator did not, as he should have done, identify "what was the plum in his evidence, which was accepted, and what was the duff, which was not accepted."
33. The judge read the transcripts of all the evidence. He acknowledged that the exercise had demonstrated graphically the difficulty he faced, as an appellate court, in having to decide whether any of the findings of fact that were made were contrary to the weight of the evidence. That is because the words on the printed page do not give the appellate court the like advantage in assessing the facts as is enjoyed by the trial judge who sees and hears the witness uttering those words. Having cautioned himself against attempting to step into a ring that is the primary preserve of the trial judge, the judge said (paragraph [82]):

"With all those qualifications, however, I have to say that I formed a view of the evidence that is almost entirely the opposite of that stated by the Deputy Adjudicator. Although I agree with the descriptions of Mr Sava's evidence that I have quoted above, I found his evidence almost totally unconvincing. When one bears in mind that the onus was on Mr Sava to prove by clear and affirmative evidence that he was in factual possession of the disputed land by the 13^th October 1991 and that he had the requisite intention to possess, his evidence, in my judgment, fell far short of establishing either of those matters. At best it proved that he had been in occupation of part of the disputed land from some time in 1990 or 1991. It was impossible to reach any firm or precise conclusion as to what he had done or when. In particular, there was no evidence which established that he was in sole and exclusive possession of the disputed land by then."

34. The judge said that Mr Sava's evidence was to the effect that in 1990 or 1991 he heard the land was not being used and he thought it would be a good idea to go on to it. The judge accepted that his then intention was, if he could, to acquire it by adverse possession. Accepting in Mr Sava's favour that he did move a caravan or caravans on to the land in October 1990, the key question was whether what he did up to 13 October 1991 amounted to factual possession and also evinced an intention to possess. The judge assessed Mr Sava's evidence to be "so unsatisfactory" (and later, in paragraphs [109] to [111], he referred to further matters which caused him to assess Mr Sava's evidence "with great caution") that the best course was look first at the independent evidence on that topic before assessing Mr Sava's evidence.
35. The judge started by referring to Mr Bennison's evidence, which he regarded as important. The Adjudicator had summarised it briefly in paragraph [61] of his own judgment but had not referred to it when making his findings and forming his conclusions. The judge regarded that omission as surprising, because Mr Bennison was able to speak to the state of the land in September 1991, the crucial time. His evidence was that in September or early October 1991 he gave Mr Sava a demonstration of a tractor powered saw bench and log splitter that his company had put on the market earlier that year. He met Mr Sava at Rectory Farm (where Mrs Sava ran her riding school), put the saw on to Mr Sava's tractor and they drove across the fields to a point on the land at the northern end of the corridor. Mr Bennison could not recall much in the way of fencing. His recollection was that the reason Mr Sava wanted the saw was to cut up wood and produce stakes with which to do some fencing. Shortly before Mr Bennison's visit, Mr Sava had purchased 44 ewes that he had transported to the farm. The judge said that Mr Bennison's evidence was almost the only independent evidence of Mr Sava's occupation of the land before 13 October 1991. Having summarised Mr Bennison's evidence, and referred to some evidence from Mr Sava that a three-phase electrical supply was installed on the land before 13 October 1991 (although an Eastern Electricity work order showed that such a supply was not ordered until December 1995), the judge said:

"[90] That evidence leads me to the conclusion that although Mr Sava might have been a frequent visitor to the disputed land before October 1991, he did not in fact occupy it, as opposed to visit it regularly, until about October 1991. Certainly, he was not in sole and exclusive possession of the disputed land before October 1991: nor was there clear and affirmative evidence of his intention at that date. I have no doubt that during the period before he occupied it Mr Sava carried out some preparatory work on the disputed land which was designed to enable him to move onto it and to occupy it, and, eventually, but not until well after the 13^th October 1991, to possess it."

36. As to what that pre-13 October 1991 preparatory work was, the judge said that it amounted to (i) moving one or more caravans on to the land, (ii) erecting fencing along the corridor and putting a gate at the Camlet Way entrance, (iii) beginning the laying of a rudimentary track down the corridor and across the field adjoining Dolphin Manor into a further field lying to the north of it, and (iv) sorting out the rubble on the land left there by Mr McSharry, being rubble produced by the building of Dolphin Manor. Mr Sava's evidence showed that what he could do on the land at this stage was limited by his lack of funds.
37. As for the introduction of animals to the land, the first arrivals were Mr Sava's dog and the sheep he purchased in September 1991. Before late 1991, there would only have been horses on it if Mrs Sava had brought them from Rectory Farm. The Adjudicator had found that Mr Sava had ponies on the land by 13 October 1991 but the judge pointed out that there had been no evidence supporting that.
38. Mr Sava did not start to grow crops on the land until about 1995, a venture lending no assistance to whether he had taken possession by 13 October 1991. His evidence was, however, that he had planted seedlings for Christmas trees on the land rather earlier. Mr Slaymaker's ability to give evidence about the land resulted from a visit he had made to it in early 1996. He is an agricultural surveyor and his visit was part of an investigation by Barnet Borough Council as to whether Mr Sava had agricultural permitted development rights for the road he had by then constructed along the corridor and the fodder stores he had placed on the land. I have mentioned that the Adjudicator placed no weight on Mr Slaymaker's evidence because his knowledge of the land went back no earlier than 1996. But the important feature of his evidence was that he was adamant that he saw no Christmas trees growing at the time of his visit. On the face of it, negative evidence of that nature from a man of Mr Slaymaker's qualifications – and having regard to the reason for his visit – was evidence to which the Adjudicator might be expected to have regard. Its relevance was that it contrasted with Mr Sava's evidence that he had planted Christmas tree seedlings early in his occupancy. The judge expressed his own view that he had no doubt that, had that been so, Mr Slaymaker would have seen the fruit of that exercise.
39. A matter of central importance to whether or not Mr Sava had assumed factual possession – and had manifested an intention to possess -- by 13 October 1991 was the extent to which he carried out fencing operations on the land. The judge's assessment was that Mr Sava's evidence on that was extremely vague and unreliable. His assessment was that for the first few years of Mr Sava's occupation of the land he did little in the way of fencing apart from the erection of the fence along the corridor. "For the rest, he used scrap that he found on the land to reinforce the existing hedges and fences, but did not erect proper fences of his own until 1995." The judge found that, at the beginning, Mr Sava just used the scrap to make the place "secure", so that his sheep could not get out. He went to say:

"[96] … But a careful reading of Mr Sava's evidence makes it impossible, in my judgment, to conclude that he erected fencing in order to demonstrate that he had sole and exclusive possession of the disputed land before the 13^th October 1991. Between his arrival on the disputed land and 1995 Mr Sava carried out no fencing that demonstrated that he had exclusive possession of the land. It was only in 1995, after the surrender of Rectory Farm and the receipt of £150,000 from the London Diocesan Board, that Mr Sava had the funds that enabled him to carry out works to exclude people from the disputed land.

[97] The only act by Mr Sava that could be taken to be a demonstration of an intention to exclude people from the disputed land was the erection of a gate at the Camlet Way entrance. Mr Sava's evidence was that when he first went onto the disputed land there was a 'broken gate' which he 'fixed' …. He placed a lock on the gate as soon as he had mended it, and nobody apart from him has had the key to the gate since that time. However, as there was a way onto the disputed land through the garden of Dolphin Manor [through what I have called 'the garden gate'], that did not exclude members of the Somaia family and occupants of Glebe House or Dolphin Manor from getting onto the disputed land."

40. The point relating to the garden gate was important. If the intention to possess that a claimant such as Mr Sava has to demonstrate is an intention to exclude the world at large, including the paper owner, it is obvious that the way to support the manifestation of that intention would, in the present case, be to fence across the garden gate, lock it or otherwise prevent access through it. There is no merit in taking steps to exclude the world at large (even assuming that is what Mr Sava had done) if the paper owner is left in a position to enjoy the same free and unobstructed access to the land that he has always had. Mr Sava's evidence about this was all over the place. In his statutory declaration he said he had erected a chain link across the garden gate in 1992, which he confirmed in his witness statement. In cross-examination, however, he sought to improve on that by saying that the fence at that point had been erected in "1991 to 1992 and from 1990 it has those steel things, and they are still there." Whatever the meaning of that, the thrust of his evidence was that nobody from Dolphin Manor or Glebe House had gained access to the land via the garden gate since 1990. If so, that was an important fact in support of his claim, but it was one that the Adjudicator plainly did not accept, any more than did the judge.
41. The judge referred to what the Adjudicator said in paragraph [98] of his judgment, namely that from 1990 onwards Ashirwad had made no "meaningful" use of the land. With respect to the Adjudicator, his use of that epithet was unhelpful. It is not a term of art in this context and what he meant by it is obscure. He went on to say that the Somaia family's use of the land was limited to the "very occasional picnic", "three or four quad biking escapades" and "a small part of the land used for parking visitor's [sic] cars when [Mr Somaia] hosted a large social event." As to the first two findings, the judge said that the Adjudicator made them because he found the evidence of Divesh and Mr Alexandrou to be unreliable. The judge's view was, however, that the Adjudicator's findings were not justified by the evidence he had heard.
42. The judge explained his reasons for that, and his own conclusions, in paragraph [100] and following of his judgment. He observed first that there was no justification for the Adjudicator's rejection of Divesh's evidence as unreliable on the ground that it was "vague on a number of details" whilst accepting as genuine and honest the "confusing, contradictory and muddled" evidence of Mr Sava. The judge acknowledged that Divesh's evidence was in part vague and that he was sometimes uncertain about dates. But there was no vagueness or uncertainty in his evidence about Ashirwad's use of the land from 1990 to 1995. Any vagueness as to dates did not justify the rejection of his evidence as a whole as being unreliable. As for Mr Alexandrou, the only reason the Adjudicator appears to have advanced for also rejecting his evidence was that he was "a confident young man who gave his evidence with gusto and flamboyance." The judge expressed his agreement with that assessment but saw no reason why it should justify the rejection of Mr Alexandrou's evidence.
43. More concretely, the judge concluded that there was no justification for the Adjudicator's finding (in his paragraph [98]) that Ashirwad's use of the land following its acquisition of it in 1990 was as limited as he there described. The judge pointed out that that was not the evidence of either Divesh or Mr Alexandrou. As the Adjudicator provided no explanation for those findings, the judge concluded that they were against the weight of the evidence.
44. As to the evidence that Divesh and Mr Alexandrou gave, the judge summarised it as follows. First, Divesh's evidence was that he went on picnics with his nieces and nephews, describing where on the land he would picnic and how he would walk on to it without difficulty. He was not asked how frequently the picnics took place and he placed no limit on the number. The judge's conclusion was that the Adjudicator's finding that there was only "the very occasional picnic" was against the weight of the evidence.
45. Secondly, Divesh said that he went on occasional quad biking excursions on to the land but that Mr Alexandrou went on frequent such excursions. Divesh was unclear as to precisely which fields he had biked in but he was clear that he went on a number of outings, using the garden gate. He was adamant that that gate was never locked. As for Mr Alexandrou, he gave clear evidence that he had been quad biking frequently with friends and members of the Somaia family and had ridden extensively over the land. There was, the judge said, no evidential basis for the Adjudicator's arbitrary finding that there were no more than three or four quad biking outings.
46. The judge also referred to the Adjudicator's finding about the parking of visitors' cars on the land. He said that Divesh's evidence was that there were several parties, including two big ones at which 40 or 50 cars were parked. He said (at paragraph [105]):

"That important evidence was not challenged, although Mr Sava had said that it was not possible to gain access to the disputed land at that entrance. I conclude that even at the gate at the Camlet Way entrance the disputed land was not fenced in such a way that the Somaias were excluded from it."

It is relevant to a point raised on the appeal to this court that the judge understood that the visitors used the corridor to gain access to the land for parking cars.

47. The judge also commented on the Adjudicator's finding (in his paragraph [95]) that Mr Alexandrou had given "a detailed account of what was agreed at the meeting" in Edgware. The judge could not understand the basis of that statement when Mr Alexandrou had disclaimed being present at the meeting and had given no such account either in his witness statement or his oral evidence.
48. The outcome was that the judge felt unable to place any real weight on Mr Sava's evidence. His overall conclusion was that Mr Sava was not in possession of the land and corridor by 13 October 1991 with the consequence that his claim to have acquired the title to them failed. He allowed the appeal against the Adjudicator's decision.

The appeal to this court

49. As a preliminary matter, I record that Mr Laurence made an application to us to admit fresh expert evidence in the shape of a report from the Arboricultural Advisory and Information Service to the effect that Mr Sava's Christmas trees were probably planted on the land in "late 1991". This was sought to be adduced so as to undermine the judge's conclusion from Mr Slaymaker's evidence that it was improbable that Mr Sava had engaged in any early planting of Christmas trees. The new evidence was asserted by Mr Sava's solicitor, in his witness statement supporting the application, to be of high probative value because it is said to support Mr Sava's case to have been in possession. It is said to confirm the Adjudicator's acceptance that the trees were planted in 1991.
50. I cannot see that the Adjudicator made any such finding. In any event, if the finding were to be a material one, it would have to be that the trees were planted by 13 October 1991. The new evidence is relied on as proving that they were planted in "late 1991", which is not only insufficiently precise for Mr Sava's needs, it also conflicts with his own evidence that they were planted in 1992. If evidence as to the timing of the planting of the trees was regarded as important to Mr Sava's case, the expert evidence now sought to be adduced could have been adduced before the Adjudicator but it was not. There is no reason why it could not have been. Mr Laurence advanced the application briefly, and did not suggest that success on this appeal would or might depend on the admission of the further evidence. The whole thrust of his case was devoted to a quite different line of argument, namely that (apart from any planting of Christmas trees, whenever that might have happened) Mr Sava had anyway done enough by 13 October 1991 to establish himself in possession; and that the only question was whether Ashirwad had subsequently done sufficient to manifest its retention of possession. We did not formally rule on this application at the hearing of the appeal, although I think Mr Gaunt assumed that we were refusing it. I would refuse it.
51. The notice of appeal lists three grounds, for each of which permission has been given. Ground 1 is to the effect that, on the facts he found, the judge should have held that Mr Sava was in factual possession of the land and corridor by 13 October 1991 and was in error in not doing so. Ground 2 is to the effect that the judge's conclusion that there was no clear and affirmative evidence of Mr Sava's intention to possess was inconsistent with his acceptance of the Adjudicator's finding that Mr Sava intended to acquire ownership by adverse possession from the outset. Ground 3 is that the judge was wrong to place reliance on the evidence of Divesh and Mr Alexandrou, being witnesses whom the Adjudicator had disbelieved. That ground further raises the point that if the question whether Ashirwad retained possession does depend on the weight to be given to their evidence, the proper course would be to direct a re-trial.
52. I did not understand Mr Laurence to assert, let alone develop, ground 2 in his oral address to us. The essence of his submissions was that even on the judge's findings we should conclude that Mr Sava had done enough by 13 October 1991 to dispossess Ashirwad of the land and corridor so as to cause time to start running in his favour under the Limitation Act 1980. It was said that the undisputed evidence showed that during the period leading up to that date there had been a steady build up of possessory activity by Mr Sava, including (i) the laying of single phase electricity, (ii) the building of a breeze block structure on the land, (iii) the putting of two caravans on the land into one of which he moved, (iv) the moving of sheep on to the land by September 1991, and (v) the making secure of the hedges and fences around the land and fixing and locking the gate at the Camlet Way entrance to the corridor so as to contain the sheep. That submission essentially involved a development of ground 1 of the grounds of appeal.
53. It was, however, properly accepted by Mr Laurence that before, at and following 13 October 1991 the garden gate was unlocked, that access through it to the land remained as freely available to Ashirwad after that date as it had before and that it was not until about 1995 that Mr Sava put a lock on it. Mr Laurence submitted, however, that Mr Sava's omission at any earlier date to lock the garden gate, or otherwise to seek to prevent Ashirwad from enjoying access through it, provided by itself no answer to Mr Sava's claim to have assumed factual possession of the land by 13 October 1991.
54. Mr Laurence's point was that the opportunity of such access to Ashirwad was irrelevant unless the evidence showed that, following 13 October 1991, Ashirwad had in fact taken it. He accepted that if, for example, the evidence showed that (i) before that date Ashirwad had made regular quad biking excursions over the land, and (ii) within six months or so (as he said in opening) or nine months or so (as he said in his reply) after that date Ashirwad had again made like excursions, he could not contend that Mr Sava's occupation of the land by that date amounted to an assumption of possession. That would be because the continued acts of ownership exercised over the land by Ashirwad either side of the crucial date would be sufficient to manifest a retention by them of the possession that the paper owner is deemed to enjoy: and if the paper owner is in possession, the squatter is not. Mr Laurence's further submission was, however, that (i) any such manifestations of ownership by Ashirwad had to be proved to have happened within a limited time of the claimed assumption by Mr Sava of possession, which Mr Laurence ultimately fixed at about nine months; and (ii) that there was no basis on which it was possible to conclude that the evidence proved any sufficient such manifestations within that period. It mattered not that, say a year or so after 13 October 1991, Ashirwad might have purportedly resumed the acts of possession of the land it had engaged in before that date. It was by then too late. It followed, he said, that the Adjudicator was fully entitled upon the evidence to find that Mr Sava did assume possession of the land by 13 October 1991. In his reply, Mr Laurence also made it plain that it was in fact irrelevant whether Ashirwad had exercised any acts of ownership over the land prior to the crucial date of 13 October 1991. The critical question was whether it had done so within the subsequent period of nine months or so.
55. As to the evidence of what, if anything, Ashirwad had in fact done on the land, Mr Laurence defended the Adjudicator's finding that Ashirwad's activities on the land since its acquisition of it in 1990 had not been "meaningful". He did not defend the use of that unhelpful epithet, but he said that the heart of what the Adjudicator meant by it was clear enough and was justified. Mr Laurence explained the Adjudicator as meaning in the context that such activities as he found Ashirwad to have engaged in were too trivial and sporadic to amount to a retention of possession by Ashirwad. He made the following points.
56. As for picnicking, Divesh's evidence was that it took place after 1991, on unspecified dates between 1992 and 1995 (at one point in his cross-examination he fixed them as being in 1992/93). Mr Laurence submitted that such outings could not therefore be fixed as having been within nine months or so of 13 October 1991 (I might add that much of that nine month period is anyway not a popular time of the year for picnicking); and that, in addition, such use would not (as compared, for example, with quad biking) be a use that could be said to be attributable to the totality of the land. Mr Laurence's point was that picnicking on a small patch of the land's 27 acres could not be viewed as the manifestation of the paper owner's continued possession of the land as a whole.
57. As for car parking, Mr Laurence said that the evidence again only proved two or three such instances, which again could not be placed in the nine months immediately following 13 October 1991. By a proposed new ground of appeal (ground 4), which Mr Laurence sought permission from us to deploy, he also argued that the judge was wrong in his paragraph [105] to conclude that the Camlet Way entrance had not been effectively locked against Ashirwad so as to prevent Ashirwad from using it to gain access to the land for car-parking. Mr Laurence's point was that the correct interpretation of the evidence before the Adjudicator was that the car-parking took place not along the corridor and into the land at its northern end but along the driveway leading to the garden gate and into the land beyond that gate.
58. Mr Laurence may be right about the true interpretation of the car-parking evidence, although Mr Gaunt did not accept that he was and he pointed to features that supported the judge's interpretation. But Mr Gaunt's main responses to Mr Laurence's point were (a) a polite "so what?" and (b) a submission that it was not open to Mr Laurence now to take such a point. The thrust of Mr Gaunt's rhetorical question was that, accepting that Mr Laurence was right, all it proved was that Dolphin Manor's driveway leading to the garden gate was used after 1990 for more activities relating to the land than the judge had thought, including access to the land for car parking purposes. How, asked Mr Gaunt, does that help Mr Sava in his bid to say that he had dispossessed Ashirwad on 13 October 1991?
59. Mr Gaunt's second submission was that, if there was a mistake in the interpretation of the car-parking evidence, it was a mistake in which counsel (including Mr Sava's counsel) before the Adjudicator and also the judge all shared; and the case was presented below on the basis of that misinterpretation of the evidence. In those circumstances it is not now open to Mr Laurence, on a second appeal to this court, to invite the court to read the evidence in a different way.
60. In my judgment, Mr Gaunt is correct on both points. I agree with him that it is too late for Mr Sava to invite this court to interpret the evidence in a way that no-one appears to have interpreted it in either hearing below. But if that is wrong, I cannot see where the point takes Mr Sava. It simply means that Ashirwad's car-parking activities took place on a different part of the land and via a different access, namely the garden gate. It still does not enable Mr Sava to challenge that there was car-parking on the land by Ashirwad. But Mr Laurence is still entitled to say, as I understood him to, that anyway there is no proof that any such car-parking took place within the nine month period.
61. The real debate before us was as to the quad biking evidence. Mr Laurence accepted that there was evidence of quad biking beginning in 1990 and finishing in about 1994 or 1995. But again he focused on the claimed importance of seeing whether it proved any such use during the nine month period. The Adjudicator had found as a fact that the number of quad biking outings after 1990 was not "meaningful" and amounted to no more than "three or four" escapades. If that finding was justified, and is taken at face value, it might well be said that quad biking during the key period had not been proved. Mr Laurence's main submission was to the effect that it was not open to the judge to reject the Adjudicator's finding that the instances of quad biking were not "meaningful". He sought permission to advance these arguments by reliance on a yet further new ground of appeal (ground 5), for which he also sought permission from us. In substance, ground 5 was an expansion of the point raised by ground 3. We heard full argument on it from both sides.
62. In developing his submission, Mr Laurence said that the Adjudicator reached the conclusion he did on quad biking after considering the evidence of Mr Sava, Divesh and Mr Alexandrou. Mr Sava said it was untrue that the land was used for quad biking up to 1994. Divesh and Mr Alexandrou gave contrary evidence. Divesh's evidence was that he lived at Dolphin Manor from 1990 to 1995 and he said in cross-examination that for him quad biking was "occasional", as "I was not too much into quad biking but other members of the family were …." His outings would last half an hour or so. I interpret his evidence as meaning that it was "occasional" during the period 1990 to about 1995, when he moved to Dubai. He described in his evidence the field in which he used to bike, explaining that other family members would go further afield. He said that Mr Alexandrou and other family members were keener (my word) on quad biking and would spend "much longer" on their outings. Mr Alexandrou said in his own cross-examination that he used to bike all over the land, getting from field to field through the hedges and having no trouble with ditches. He continued biking until about 1994 or 1995. He broke his nose on one outing but that did not put him off. He would sometimes take children (Mr Somaia's daughter, his sister's child and other visitors) with him on his bike, and on those outings he would stay in the field nearest to Dolphin Manor. In re-examination he said that his quad biking outings had been frequent at the beginning, which he explained as meaning up to once a week. He did not, however, as Mr Laurence pointed out, say when "the beginning" started or ended.
63. Mr Laurence emphasised that the Adjudicator saw and heard the witnesses; and where their evidence conflicted, he preferred the evidence of Mr Sava. He was therefore entitled to make the "not meaningful" finding he did as to (inter alia) the volume of quad biking escapades. Mr Laurence properly conceded that the judge was right to find that the Adjudicator had no basis for finding the arbitrary number of quad biking excursions that he did; but he said he was wrong to reject his conclusion that the quad biking outings were not, collectively, "meaningful" in the sense explained by Mr Laurence.
64. The judge was further anyway wrong, Mr Laurence submitted, to accept the evidence on those matters given by Divesh and Mr Alexandrou. Both had given, it was submitted, dishonest evidence about the Edgware meeting which the Adjudicator had rejected (Mr Laurence's point being that their evidence on that topic was not a matter that could be referable to a failure of memory). In those circumstances, it was said that the Adjudicator was fully entitled to approach their evidence on other topics with caution; and the Judge ought to have done likewise. There was no basis on which, differing from the Adjudicator, the Judge could properly, as he did, accept at face value the evidence of Divesh and Mr Alexandrou as to the amount of quad biking.
65. I have considerable difficulty with Mr Laurence's submissions in so far as they were directed at -- at least in substance -- seeking to maintain the Adjudicator's finding that the quad biking escapades were as limited as he found them to be. First, assuming for present purposes that Divesh and Mr Alexandrou were being – and were regarded by the Adjudicator as being -- dishonest in their Edgware evidence, it is trite that it does not automatically follow that they were also being dishonest on other matters covered by their evidence. If a judge finds that a witness is lying on point A, he will be likely to consider his evidence on point B with special care. But it will by no means follow that the witness is also lying about point B. It will be for the judge to make his findings as to the reliability of that evidence.
66. In the present case it appears that the Adjudicator did not find that either Divesh or Mr Alexandrou was lying about their claims to have engaged in quad biking escapades. If he had not believed a word they said on that topic, he would have said so and would have found that there had been no quad biking. He did not do that but found that there had been no more than three or four quad biking escapades. Neither witness suggested that the outings were as few as that (they equate to at most two outings each over six years) and there was no evidence that justified such a finding. If what underlay the Adjudicator's finding was that he was implicitly of the view that each witness had exaggerated the number of outings, then he should have said so and explained why he regarded them as doing so. He should anyway have explained, given the tenor of the evidence from each witness, how he arrived at the remarkable finding that he did. Neither Mr Laurence, nor Mr Wonnacott who followed his leader with some succinct and helpful submissions, sought to defend the Adjudicator's woeful reasoning, which Mr Wonnacott bluntly described as "hopeless." Mr Wonnacott's further submission was that it was not for the judge, on a pure paper exercise, to accept as true the quad biking evidence that Divesh and Mr Alexandrou gave. The fair outcome, if the Adjudicator's factual conclusions are to be rejected, is, he said, to direct a re-hearing of Mr Sava's application.
67. Mr Gaunt, for the respondents, submitted that the central question in the case, and on this appeal, was whether on 13 October 1991 Ashirwad was excluded from the land and corridor. The relevance of the evidence of the use of the land that Ashirwad adduced in respect of the period from the summer of 1990 (when it acquired the land and Dolphin Manor) to about 1995 (when it is accepted the garden gate was locked) was that it went to show that it was not excluded. The tenor of the evidence that Ashirwad adduced before the Adjudicator was that it used the land for picnics, car-parking and quad biking throughout that period. It may be said, although I am not sure that Mr Gaunt did say it, that the picnicking and car-parking use was apparently relatively sporadic. But there was clear evidence, in particular from Mr Alexandrou, of the use of the land for quad biking over the period 1990 to 1995.
68. The relevance of such evidence, Mr Gaunt submitted, is that it goes to the question of whether the claimant squatter, in this case Mr Sava, has in fact taken physical control of the land so as to exclude all others (factual possession) and has done so also with the intention of doing so. His intention in this respect is to be determined not by his alleged subjective intention as explained in evidence 15 years on; it is his intention as assessed objectively that counts, namely by reference to his activities on the land. Contrary to Mr Sava's evidence that he had locked the garden gate in 1991, it is implicit in the Adjudicator's findings that he had not and that Ashirwad continued to use the land after 13 October 1991 for picnicking, car-parking and quad biking. That was a clear manifestation of continued possession of the land by Ashirwad which showed that it had not in fact been excluded from free access to the land by the garden gate. It also showed that Mr Sava had not even demonstrated an intention to exclude it.
69. The Adjudicator's answer to that was that, whilst there was such post-13 October 1991 use by Ashirwad, it counted for nought because it was not "meaningful". That apparently meant that there was not enough of it to count, the quad biking escapades being found to be no more than three or four in number. There was, Mr Gaunt submitted, no justification for that finding. The tenor of the evidence from Divesh and Mr Alexandrou was that the quad biking outings were considerable in number. The Adjudicator plainly did not consider that they were lying about there having been quad biking outings at all. Nor, if he regarded them as exaggerating their number, did he explain why. He simply made an unwarranted finding that was against the weight of the evidence. The appeal to the judge was one that lay on fact as well as law, and the judge was entitled to review the evidence in the way that he did and conclude that the weight of the evidence, in particular in relation to quad biking, showed continued use of the land by Ashirwad after 13 October 1991 via the garden gate and thus disproved that Mr Sava had either assumed factual possession or manifested the intention to exclude the world at large.

Discussion and conclusion

70. There is, I understand, in principle no issue between Mr Laurence and Mr Gaunt that if there was evidence of use by Ashirwad of the land via the unlocked garden gate during periods both before and after 13 October 1991, that would tend to show a retention of Ashirwad of possession of the land after that date and to disprove Mr Sava's claim to have taken possession of it by that date. Mr Laurence's submission was, however, that any such use after that date had to be shown to have been enjoyed during a limited window – which he put at about nine months – after 13 October 1991; that the Adjudicator was entitled to find that any such use after that date was so minimal as not to count at all; and that anyway it was not proved that any use took place during the nine-month window.
71. I am unable to accept that there is any principle of law to the effect that, in a case such as the present, it will only be acts of possession by the paper owner carried out during a limited period following the claimed ouster that will or may serve to defeat the claim that there had been such an ouster. Mr Laurence showed us no authority to such effect and I regard the proposition as contrary to principle.
72. It is perhaps worth noting first that the significance that the date 13 October 1991 has assumed in this case has little or nothing to do with anything that actually happened on that day, being one of which I suspect Mr Sava has no special memory. It is a date arrived at by the simple arithmetic involved in deducting 12 years from 13 October 2003, when the relevant provisions of the Land Registration Act 2002 came into effect. It is the latest date by which, in light of that Act, Mr Sava had to show he had assumed possession of the land and had thereby dispossessed Ashirwad. It is not, however, a date on which Mr Sava went to bed at night in the contented knowledge that he believed he had that day taken possession of the land and so ousted Ashirwad. If I may by way of analogy borrow the pun popularly, but wrongly, attributed to Sir Charles Napier, 13 October 1991 was not for Mr Sava a "peccavi" moment. It was simply the date by which he had to prove, if he could, that his preceding activities on the land, spread over an uncertain prior period, did actually amount to the taking of possession. If the 2002 Act had come into force a month earlier, the focus of this case would instead have been on 13 September 1991.
73. Despite this, Mr Laurence's submission is that the court should regard 13 October 1991 as not only the critical date by which Mr Sava had to prove his assumption of possession; but also as the date from which is to be measured the period of nine months within which Ashirwad had to prove, if it could, that it had continued in possession if it was to defeat Mr Sava's claim to have acquired possession. If it failed to prove any such continued possession during that period, then it was too late for it to prove it by reference to its use of the land during any subsequent period, apparently no matter how extensive that use might have been. Once the nine month period has elapsed, Mr Sava's claim to have assumed possession on 13 October 1991 became unimpeachable.
74. In my judgment that submission is wrong. There are four basic principles that I regard as applicable. First, it is Mr Sava who is claiming to have dispossessed Ashirwad and to have done so by 13 October 1991. The burden was therefore on him to prove that by that date: (i) he had assumed factual possession of the land, meaning the assumption of exclusive physical control of it (although what will amount to such control in any particular case will of course vary with the particular circumstances: see Powell's case, at (1979) 38 P & CR 452, at 471, per Slade J); and (ii) that he had by then the intention to possess it to the exclusion of the world at large, including the paper owner, Ashirwad. Second, if he was to discharge that burden, his evidence had to be unequivocal as to his assumption of factual possession and his intention to possess (see Powell's case, at 472). Third, if the evidence showed that he had discharged that burden as at 13 October 1991, it would follow that from that date he was in possession of the land and Ashirwad was not. Fourth, it would follow yet further that if within nine months – or nine years – of his assumption of possession Ashirwad purported to exercise rights of occupation over the land, those activities would not ordinarily negative his prior assumption of possession. He would remain in possession and could and would only be dispossessed if Ashirwad ousted him from possession and resumed exclusive possession itself, if necessary by bringing proceedings against him.
75. Those principles do not help Mr Sava's case since in my judgment it is obvious that his claim to have assumed exclusive possession of the land by 13 October 1991, and that he intended as from then to possess it to the exclusion of the world at large and Ashirwad in particular, was at best equivocal. That is because (quite apart from the judge's conclusion that he had by then done no more than preparatory acts in relation to his proposed occupation of the land), he had done nothing – and nor did he until 1995 – to exclude Ashirwad from enjoying the same free access to the land through the garden gate as it had since its acquisition of the land and Dolphin Manor in 1990. His omission to bar such access by 13 October 1991 makes hopeless his claim that he had by then assumed exclusive possession; or, perhaps more obviously, his claim that he had by then manifested an intention to exclude the world at large and Ashirwad in particular.
76. As it seems to me, Mr Laurence's submission is one that tacitly recognises that inadequacy in Mr Sava's case but seeks to overcome it by asserting that it matters not that the garden gate was not locked by 13 October 1991. The substance of the argument, although this is not how Mr Laurence put it, is that provided that Ashirwad did not actually use the garden gate by 13 July 1992 for the purposes of enjoying any use of the land, there arose by about August 1992 a presumption that Mr Sava was to be regarded as thereupon invested with a possession of the land – and retrospectively to 13 October 1991 – that he did not in fact have on 13 October 1991. That last point must be implicit in the submission, since the same argument recognises that if Ashirwad had used the garden gate for such purposes by 13 July 1992, Mr Sava would never have been in possession at all. The argument therefore carries within it the demonstration of its essential fallacy. It is, in effect, nothing other than an artificial attempt to shift to Ashirwad the burden of disproving a case that Mr Sava has not managed to establish at all.
77. I therefore reject Mr Laurence's "nine month" submission. I have focused in dealing with it on the evidence as to Mr Sava's acts and his intention (objectively assessed) as at 13 October 1991; and have done so because I regard that as strictly the most relevant part of the inquiry raised by his application. But that certainly does not mean that evidence of Ashirwad's subsequent use of the land via the garden gate is irrelevant. To the extent that there was such evidence, it shows that Ashirwad continued to enjoy possession of the land and demonstrates the frailty of Mr Sava's claim that he had both excluded them and had intended to exclude them from such possession. That will always be highly relevant in an adverse possession claim, and Lord Browne-Wilkinson succinctly recognised as much in Pye's case, at [2003] 1 AC 419, where, after referring to the decision of this court in Leigh v. Jack (1879) 5 Ex D 264, he said (paragraph [45]):

"The decision on the facts is not a surprising one. Quite apart from anything else, during the 20-year limitation period relied on, the paper owner (Mr Leigh) carried out works on the fence separating Grundy Street from Regent Road. That was inconsistent with a claim that he had either discontinued possession or been dispossessed."

Mr Gaunt referred to that observation in answer to the suggestion that any such works only counted against the claimant possessor if executed within a nine month period.

78. Having disposed of Mr Laurence's main submission, I can deal with the appeal shortly. I have said enough to show that I consider that the judge was fully entitled, despite the different view of the Adjudicator, to conclude that Mr Sava had not assumed possession of the land and corridor by 13 October 1991 and had not manifested the necessary intention to do so. For reasons which Mr Gaunt advanced, I also have no doubt that the Adjudicator was wrong to make the inadequate and unreasoned finding that he did to the effect that Ashirwad made no "meaningful" use of the land after its acquisition of the land in 1990. I likewise have no doubt that the judge was entitled, for the reasons he gave, to make the finding that he did that the weight of the evidence showed material continued use of the land by Ashirwad following that acquisition -- including after 13 October 1991 and up to 1995 -- in particular by quad biking. Those findings show that Mr Sava's claimed acts of possession not only did not extend to an attempt to exclude the paper owner from the land; they show that the paper owner was not in fact excluded. It continued to enjoy the land as before. It was never dispossessed.
79. I add that by a respondents' notice the respondents relied on certain correspondence that was before both the Adjudicator and the judge, being correspondence said to support the conclusion that, contrary to the Adjudicator's finding, Mr Sava's occupation of the land had always been with Ashirwad's permission and in exchange for the payment of £500. The documents comprise letters between Mr Somaia and his solicitors, and also a solicitors' attendance note, written in the 1990s. The judge declined to attach weight to them in the absence of evidence from Mr Somaia explaining them. Mr Gaunt's criticism of that was that the letters speak for themselves and need no such explanation. The Adjudicator referred to the documents in paragraph [83] of his judgment, but his overall finding was that Mr Sava did not make any payment of £500 for his use of the land and nor was his use permissive. For my part, I consider that that was a finding that he was entitled to make, and I would not regard the documents on which Mr Gaunt relied as sufficient to undermine the finding as one that was not open to him.

Result

80. The result is that I consider that the Adjudicator was wrong to accede to Mr Sava's application and that the judge was right to reverse his order. At the hearing of the appeal we did not formally rule on whether we should give permission to Mr Sava to appeal also on grounds 4 and 5. We heard full argument from both sides on both grounds (and, as I have said, ground 5 was essentially an extension of ground 3) and I would give permission to appeal on both grounds. But I would dismiss the appeal.

Lord Justice Moore-Bick :

81. I agree.