England and Wales Land Registry Adjudicator
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Cite as: [2016] EWLandRA 2015_546, [2016] EWLandRA 2015_0546
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REF/2015/0546
PROPERTY CHAMBER LAND REGISTRATION
FIRST-TIER TRIBUNAL
IN THE MATTER OF A REFERENCE
UNDER THE LAND REGISTRATION ACT 2002
BETWEEN
SEAMUS QUINN
APPLICANT
and
UNIQUE PUB PROPERTIES ALPHA LIMITED
RESPONDENT
Property Address: Room 8, The Wheatsheaf Inn, 2 Upper Tooting Road, London SW17 7PG
Title Numbers: TGL414298
Before: Judge Owen Rhys
Sitting at: 10 Alfred Place London WC1E 7LR
On: 3rd March 2016
Applicant representation: Mr Cherry of Counsel (Direct Access)
Respondent representation: Ms Tozer of Counsel instructed by Gosschalks Solicitors
__________________________________________________________________________________
D E C I S I O N
__________________________________________________________________________________
THE APPLICATION
1. The Respondent is the sole registered proprietor of The Wheatsheaf Inn, 2 Upper Tooting Road, London SW17 under title number TGL 414298 (“the Premises”). On 19th December 2014 the Applied applied to Land Registry to be registered as proprietor of part of the Premises on the grounds that he had been in adverse possession of it since 1989 and had barred the Respondent’s title. The application related to a room on the second floor of the Premises – Room 8 – and was made under paragraph 18 of Schedule 12 to the Land Registration Act 2002 (“the 2002 Act”), in other words on the basis that he had acquired a title to the Disputed Area prior to 13th October 2003. The Respondent lodged notice of objection on 11th May 2015, and the dispute was referred to the Tribunal on 11th August 2015. By an application made on 19th August 2015 the Respondent applied to strike out the Statement of Case and thus direct the Chief Land Registrar to cancel the application. Three separate but overlapping grounds were relied upon. First, that the claim had no reasonable prospect of success. Secondly, that the claim amounts to an abuse of process and ought to be struck out for that reason. Thirdly, that the Applicant had been guilty of a failure to co-operate with the Tribunal which could not therefore deal with the proceedings fairly and justly (and in accordance with its overriding objective). This last application is made under Rule 9(3)(b) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (“the 2013 Rules”). Ms Tozer, for the Respondent, submits that is any of these grounds are made out, the Tribunal should exercise its discretion in favour of the Respondent and strike out the Applicant’s case.
2. Before I consider the grounds of the Respondent’s application in more detail, it is necessary to set out the somewhat involved history of this dispute. The Premises were let to a company known as Standwood Limited (“the Original Tenant”) for a 5-year Lease dated 1st February 1991 (“the Lease”), by the then freehold owner Courage Limited. The Respondent, the successor in title of Courage, contends that the Premises had been leased either to the Original Tenant or to a predecessor in title of it by an earlier 5-year lease commencing on 31st January 1986, but it has not been able to produce the original of such a lease. This earlier lease would adversely affect the viability of the Applicant’s claim, but since its existence is in issue I shall consider it in more detail later in this Decision. The Lease was surrendered on 26th March 1992, and a new 20-year lease granted 2nd October 1994 (“the 1994 Lease”). On 8th December 2009 the Original Tenant went into administration, and on 10th May 2011 it assigned the lease to Antic Limited (“Antic”). The 1994 Lease expired on 26th March 2012, Antic held over under the provisions of Section 24 of the Landlord and Tenant Act 1954 and on 19th June 2012 issued renewal proceedings in the County Court. On 14th January 2013 Antic went into Administration and subsequently into liquidation. On 11th March 2013 Antic’s liquidator requested consent to assign the lease, which was refused. Despite this, the liquidator assigned the lease to Gregarious Limited (“Gregarious”) on 28th March 2014.
3. On 12th May 2014 the Respondent commenced proceedings against Gregarious for possession by way of forfeiture of the Lease on the grounds of the unlawful assignment. At a hearing before District Judge Langley at Central London County Court on 8th September 2014, the Defence was struck out but the claim for possession was adjourned to 15th October 2014, to allow the “residential occupiers of The Wheatsheaf Inn” to be served with the proceedings and the Order. The Applicant attended the hearing on 15th October 2014 in person, and was questioned by the District Judge as to the basis of his occupation. The Transcript of that hearing is in evidence before me. According to this, Mr Quinn told the Judge that he had been in occupation of Room 8 on the second floor for a period of over 20 years, and that he paid a rent of £200 per month for a “strong room”. It was the Respondent’s case at that hearing that Mr Quinn and the other occupiers were unlawful sub-tenants, whose tenancies (if any) were not binding on it. The District Judge made an order for possession. It was suggested by Counsel for the Respondent that Mr Quinn and the other residential occupiers might be able to apply for a vesting order, and the Judge advised them to obtain legal advice on their position. Mr Quinn then instructed Counsel and applied (some 10 days late) for permission to appeal the possession order, on the grounds that he had a good defence, namely that he had acquired title to Room 8 by virtue of adverse possession under the transitional provisions of the Land Registration Act 2002. Permission was refused by HHJ Saggerson on paper – “there being no reasonable prospects of success” – but the application was renewed at an oral hearing before HHJ Baucher on 23rd January 2015. The Judge made the following ruling: “What is clear to me is that this appeal is out of time. Applying what I have said in respect of Denton, I see no reason to extend the appeal out of time and it follows therefore that permission to appeal is refused. The court is not satisfied in any event that in relation to CPR 53.3 that there is any reason to interfere with the decision of court which has been given because it seems to me that in respect of the issues that District Judge Langley had to consider that those are the issues which she actually determined because those were the issues between the parties which were before her. So permission to appeal is refused.”
4. An application was made to the Court of Appeal to appeal this decision, and Vos LJ stayed the order of HHJ Baucher pending the obtaining of a full transcript, whereupon he directed that the application was to be referred to a single judge to consider whether to give permission to appeal. Skeleton Arguments were lodged by both the Applicant and the Respondent (the Appellant and Respondent on the appeal). There was some dispute as to the scope of HHJ Baucher’s order. The Respondent contended that she had refused permission to appeal on the merits, and therefore the Court of Appeal had no further jurisdiction in the matter under s. 54(4) of the Access to Justice Act 1999. Accordingly, there was no point in dealing with the Judge’s refusal to extend time, since even if time were extended the order to refuse permission was final and could not be appealed. The Applicant contended that the Judge had not considered the application for permission, but had refused the application only on the grounds that it was out of time. The Transcript was obtained, and the application for permission to appeal was decided by Floyd LJ on paper, on 29th May 2015. He refused the application and gave the following reasons:
“It is at least arguable that there is jurisdiction to hear the appeal. The focus of the argument before the judge was on the application for an extension of time. She declined to consider the merits in any depth, as would be appropriate on an application for an extension of time, but inappropriate if coming to a conclusion as to whether the appeal had a realistic prospect of success. Whilst the final sentence of paragraph 16 of the judgment might suggest the contrary, that paragraph is not at all clear.
However I can see no proper basis for interfering with the judge’s exercise of her discretion to refuse to extend time. Of course, if, as the applicant suggests, time had already been extended by the judge considering the application on paper, there would be nothing for the applicant to appeal against. The respondent is right on this point: the extension of time was not separately dealt with.
It was not suggested by the judge that the merits of the appeal were such as to have an impact on the decision to extend time. The landlord had submitted that it had a complete answer, in that a lengthy period of the alleged adverse possession was against the tenant and did not affect the landlord’s title. The applicant’s only answer was that this was a matter for evidence at trial. Something more would be needed to suggest that an appeal had a realistic prospect of success. In that connection I should note that there is nothing on the file to suggest that the applicant has responded to Vos LJ’s invitation to provide a further skeleton on his claim to adverse possession”.
The Applicant renewed his application at an oral hearing before Davis LJ, who refused the application by Order dated 3rd November 2015. No reasons are stated in the Order, but I have been shown a note of the oral judgment prepared by Ms Tozer’s Instructing Solicitor.
5. In the meantime, proceedings in this reference were continuing in the Tribunal. The Applicant filed his Statement of Case on 16th October 2015 (in response to an unless order made on 2nd October 2015). It is brief. The material part reads as follows: “4. The reasons the applicant makes the application are as follows: I have lived in Room 8 of the property continuously since 20th March 1989. I was asked to leave in July 1989 but I did not leave. It is my only home. I am on the electoral roll. All my post comes here. I run my business from there. I use the strong room, utility room, yard and car park. I have never paid any monies to a freeholder or lessee. The only monies I have ever paid was to a pub manager for use of the strong room, and that was only for a short while.” The Respondent’s Statement of Case, dated 20th October 2015, is also brief. Its case, set out in paragraph 4(a) to 4(e), may be summarised as follows. First, since the premises were in lease from 1989 to 1992, the Applicant cannot have enjoyed 12 years’ adverse possession against the freeholder, prior to the commencement of the 2002 Act (this being a case under the transitional provisions). Secondly, Rooms 8 did not exist as a separate entity prior to 2000. Thirdly, the Applicant was a full-time resident in Ireland for much of the alleged period of adverse possession. Fourthly, the Applicant had a business association with the tenant company and its Directors and his possession was not adverse. Fifthly, the Applicant’s evidence is not credible. The Applicant was ordered to serve a Reply to the Respondent’s Statement of Case, which he did on the last day allowed, 20th November 2015. The “Reply” consists of printed notes added to the Respondent’s original Notice of Objection to the application, a document filed with the Land Registry and not a Statement of Case at all. I mention in passing that it is hard to follow, poorly formatted and not conducive to understanding the issues between the parties which, given that it was submitted by Counsel (not the same Counsel as acted at the hearing before me), is disappointing to say the least.
6. The Respondent’s Statement of Case concludes as follows: “For the reasons stated above and in the Notice of Objection, the Respondent believes that the Applicant’s case has no real prospects of success.” That application was ordered to be dealt with at an oral hearing, which came before me on 3rd March 2016. The Applicant was represented by Mr Cherry of Counsel, and the Respondent by Ms Tozer, also of Counsel.
SUMMARY JUDGMENT - LAW
7. The first ground of the Respondent’s application is that the Applicant’s case is bound to fail – or, at least, that it has “no real prospect of success”. These words derive from the provisions of Part 24 of the Civil Procedure Rules, but of course this Tribunal has a different set of procedure rules, the applicable rule being Rule 9(3)(e) of the 2013 Rules. This permits a strike-out where “the Tribunal considers there is no reasonable prospect of the applicant’s proceedings or case, or part of it, succeeding” There is no guidance given in the 2013 Rules themselves as to the principles to apply. There are clear similarities between Rule 9(3)(e), and the Court’s power to grant summary judgment under Part 24, also having regard to the Practice Direction applicable to a Rule 9(3)(e) application. However, the form of words used in each case is different. Thus under CPR Part 24 summary judgment may be given where there is “no real prospect”, rather than “no reasonable prospect”, of succeeding. Furthermore, under Part 24 there is an additional hurdle for an applicant to overcome, namely that “there is no other compelling reason why the case or issue should be disposed of at trial”. Despite these semantic and other differences I cannot see that there was any intention to require a radically different test. The jurisprudence that has grown up around CPR Part 24, is extensive and the principles well-known. It would be right, in my judgment, to use the cases decided under Part 24 as strong guidance to the proper approach to an application under Rule 9(3)(e). If anything, the requirement of a “reasonable” prospect sets a lower threshold than the requirement of a “real” prospect, but for the reasons given I shall treat the tests as being in substance identical.
8. There is helpful guidance to be found in the White Book at CPR 24.2.3. The need to show a “real” prospect of success is said to rule out cases which are false, fanciful or imaginary. A case must be better than merely arguable, although obviously the respondent to an application is not required to show that the case will probably succeed at trial. A case may be held to have a “real prospect of success” even if improbable, although (under Part 24) a conditional order might be made in such circumstances. The hearing of an application for summary judgment is not a summary trial. The court should not conduct a “mini trial” of the issues. The underlying approach was described in this way by Lord Hope in Three Rivers DC v Bank of England [2001] UKHL 16:
“94. For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is - what is to be the scope of that inquiry?
95. I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”
SUMMARY JUDGMENT - EVIDENCE
9. The Respondent in this reference has provided a great deal of evidence (in the form of the Notice of Objection, signed by the Respondent’s solicitor Mr Hastie and bearing a statement of truth), intended to demonstrate that the Applicant’s claim to adverse possession has no real prospect of success. I have summarised its case on the facts at paragraph 5 above. I shall now consider these allegations in more detail. First, the issue of the lease. The Respondent has produced a document (page 45-86 of the Bundle) described on its frontsheet as “Courage Limited Five Year Lease For company lessee Second Term”. It is made between Courage Limited (“Courage”) and Standwood Limited, defined as “the Lessee” and relates to the Premises. The first page of the Lease contains various Particulars and defined terms. One of these is “7. The Date of Occupation” which is given as 31st January 1986. The date of commencement is defined as “First day of February 1991”. Under clause 1, Courage agreed to grant to the Lessee a licence to occupy the Premises pending the transfer of the Justices’ on-licence to the Lessee. The licence is stated to commence on the “Date of Occupation” – namely 31st January 1986. It is the Respondent’s case that the Lease was granted pursuant to an option to renew which was a standard term of Courage’s initial five-year Lease. A specimen lease has been produced by the Respondent which confirms this standard term. This Lease is described on its frontsheet as “Courage Limited Five Year Lease”. Ms Tozer for the Respondent submits that this is sufficient evidence that the Premises were in lease between 31st January 1986 and the date on which the Second Lease determined, namely 26th March 1992 (see the Deed of Surrender at page 87). If this is correct, it follows that the Applicant’s period of possession adverse to the freeholder Courage – the Respondent’s predecessor in title – cannot have commenced earlier than 26th March 1992. This is an application under Schedule 12 para.18 of the 2002 Act and is therefore predicated on the basis of 12 years’ adverse possession having been enjoyed prior to 13th October 2003. If indeed the Premises were leased by Courage continuously between July 1989 (when according to the Applicant he went into adverse possession) and March 1992, the Applicant cannot possibly have been in adverse possession vis a vis the freeholder for 12 years. His claim would be bound to fail.
10. The second point made by the Respondent is that Room 8 did not exist as a separate unit until some time after 2000. It relies on various documents to support this contention. In particular, it has produced expert submissions on behalf of both landlord and tenant under the 1994 Lease, prepared in connection with a rent review. Both submissions refer to the existence of seven bedrooms on the second floor of the Premises. The Arbitrator’s Award dated 31st March 2001 confirms this and attributed a letting value only to seven rooms. The Respondent says that an eighth room – Room 8 as occupied by the Applicant – can be shown not to have existed at the date of the rent review and the award in 2000 and 2001 and must therefore have been created at a later date. If this is right, obviously this causes the Applicant’s claim to fail.
11. The third point relied on is that there is no independent or documentary evidence prior to 2000 that the Applicant resided at the Premises. The Respondent points to the absence of any bank statements, utility bills, council tax and HMRC records, or indeed any single document establishing a link between the Applicant and any occupation of a room in the Premises. On the other hand, there is a great deal of such evidence which establishes that he resided full-time in Ireland for the whole of the period in question. It has produced a range of documents (see Tabs 8 and 9 o9f Bundle 3) in support of its case. I shall give some examples. In 2001 the Applicant became a co-Director with Seamus Murphy (a Director and guarantor of the Tenant) in relation to three companies registered in Ireland – Stonelane Investments Ltd, Kalwell Properties Ltd and Baywick Limited. On 18th April 2001 the law in Ireland was amended to require that at least one company director was resident in Ireland, or else a financial bond had to be given. Under the relevant legislation, a person was “resident in Ireland” if he or she resided there for at least 183 in the previous 12 months or 280 days in the previous 24 months. The Applicant and Seamus Murphy certified in 2001 to the Irish Companies Registration Office that Mr Quinn was resident in Ireland. In the 2001 and 2006 Annual Returns for Stonelane Investments Lts Mr Quinn is stated to be resident in Ireland. Other indications – such as the fact that as recently as 2014 his GP was a member of a practice in Edenberry, County Offaly, and that there is a Seamus Quinn resident in Edenberry – strongly suggest that the Applicant is a full-time resident in Ireland. This is said to be quite contrary to his case, and contrary also to the answers he gave to the District Judge Langley when she questioned him about his connection with the premises, in which he stated that if he was evicted from the Premises he would have nowhere else to live.
12. The fourth issue raised by the Respondent is the apparently close connection between the Tenant and the Applicant, which, it is said, makes it improbable that his occupation of Room 8 (if proved) was other than permissive. A numbers of matters are relied upon. As previously mentioned, the Applicant was a co-Director with Mr Murphy of three Irish companies. The Applicant was the sole director and shareholder of a company known as Goodplace Limited. At certain times, for company registration purposes, he gave his address as Suite 5, Blandel Bridge House, 56 Sloane Square, London SW1W 8AX – an address shared with Mr Mealey, another director of the Tenant. Goodplace Ltd and the Tenant had shared business interests, and the Applicant had business connections with Mr Keith John Chapman, another director or former director of the Tenant. Furthermore, the Applicant accepts that he paid £200 per month to the tenant of the Premises, albeit that he claims that this payment was only in respect of a “strong room” at the Premises. The Respondent points to the answers given by Antic – which took over the tenancy of the Premises in 2009 – in response to a request for information from the Respondent as to the residential occupiers. Antic’s response (see Tab 10) was to identify three residential occupiers, namely the Applicant, Ignatious Burns and Michael Keane. The current rent for all three individuals was stated to be £200, paid to the Gregarious pub manager. There is no mention of any strong room. It was on the basis of this information that the three individuals were served with notice of the possession proceedings and eventually attended before District Judge Langley.
13. The Applicant has not filed any evidence on this application. The only documents which bear a statement of truth are (a) the ST1 in support of the application, and (b) the original Statement of Case, dated 16th October 2015, which the Tribunal ruled was non-compliant with the Rules. This statement of truth is that of the Applicant’s direct access barrister, Mr Mark Smith. The contents of the Statement of Case are identical to the contents of the ST1 and equally sparse. The document dated 20th November 2015 and also described as a Statement of Case, intended to cure the defects identified by the Tribunal, does not bear a statement of truth. Although of course mindful of the judicial strictures cited in paragraph 8 above with regard to conducting a mini-trial, I merely note that the detailed and apparently comprehensive evidence filed by the Respondent remains unanswered, other than by means of the unsatisfactory notations on the Notice of Objection which, as I have said, are not supported by a statement of truth. Mr Cherry, in his Skeleton Argument, purports to answer some of the evidential points made by the Respondent, but at best the details he provides are based on instructions and there is no formal document, such as a witness statement or Statement of Case, to support them. Against that background, the Applicant submits that the issues raised by the Respondent are simply matters of evidence that must be explored in the course of an oral hearing. It would not be right, it argues, to make any findings at this stage of the proceedings and to do so would indeed be to conduct a mini-trial without disclosure or oral evidence and cross-examination. Mr Quinn is entitled to his day in court.
ABUSE OF PROCESS
14. The Respondent’s second ground for striking out the Applicant’s claim is that it constitutes an abuse of process. As Ms Tozer puts it in paragraph 9 of her Skeleton, “The Applicant has already had the opportunity to litigate his adverse possession claim, in County Court possession proceedings brought by the Respondent in 2014.”, and refers to the various steps in the possession action leading eventually to the dismissal of the Applicant’s application for permission to appeal. Although Ms Tozer concedes that “…at no stage in the litigation were the substantive merits of the adverse possession claim determined.”, she relies on the following passage from the judgment of the Vice-Chancellor in Henderson v Henderson 3 Hare 100 at 114-5:
“..where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies… not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time”.
She also cites Johnson v Gore Wood [2002] 2 AC 1 at 31A for the proposition that the underlying public interest behind the rule is that there should be finality in litigation and that a party should not be twice vexed in the same matter.
15. Mr Cherry for the Applicant, submits that the adverse possession issue has never been properly adjudicated by a court or tribunal, and that the failure to have it determined in the possession proceedings was simply the result of Mr Quinn’s lack of legal representation, coupled with the unfortunate delay in applying for permission to appeal. He too relies on Johnson v Gore Wood, in particular on the well-known passage in the speech of Lord Bingham at 31A-F as follows:
It may very well be, as has been convincingly argued (Watt, "The Danger and Deceit of the Rule in Henderson v Henderson : A new approach to successive civil actions arising from the same factual matter" (2000) 19 CLJ 287 ), that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
He emphasises the fact that it is necessary to engage in a “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court”. If that test is applied to the Applicant’s adverse possession claim, he submits, it is clear that the Applicant should be permitted to litigate the claim before the Tribunal.
APPLICANT’S FAILURE TO COMPLY WITH THE RULES
16. The Respondent also submits that the Applicant’s case should be struck out for an overall failure to comply with rules and time limits – “a consistent and established pattern of non-compliance and/or defective compliance which is likely to continue.”(see paragraph 16 of the Skeleton). There seems to be a history of non-compliance or inadequate compliance, itemised by the Respondent as follows:
(1) On 25 August 2015, the Applicant was directed by the Tribunal to produce his statement of case by 24 September 2015. On 29 September 2015 (after the deadline had expired, and after the Respondent’s solicitors had asked the Tribunal to strike out the claim for non-compliance), his barrister sought an extension of time, relying on a doctor’s letter dated 29th July 2015. No explanation was given as to why the extension was not sought before the period expired.
(2) An extension of time was granted, but the Applicant was warned that if he did not serve his statement of case by 19 October 2015, his claim might be struck out. The Applicant served a statement of case on or about 17 October 2015. On 21 October 2015, the Tribunal informed the Applicant that his statement of case was defective, for failing to list the documents on which he relied, and directed that this should be corrected by 4 November 2015.
(3) On 30 October 2015, the Applicant was also directed to serve a Reply to the Respondent’s statement of case, by 20 November 2015. A document was served but as previously explained, this document was wholly inadequate.
(4) On 10 December 2015, the Applicant was directed to inform the Tribunal of his new address for service by 18 December 2015. This has never been complied with.
(5) On 21 December 2015, the Applicant was directed to notify the Respondent 28 days before the hearing what documents he wanted in the Trial Bundle. The Respondent’s solicitor sought to remind the Applicant of this but since the Applicant had not complied with the direction to provide an address for service, had to write to 3 addresses to do so. The Applicant did not notify the Respondent of the documents that it wanted added to the bundle, and has apparently not otherwise engaged with the Respondent’s solicitor in preparing for the hearing (save one email requesting the bundle be delivered to Casteltroy LLP after it had already been delivered elsewhere).
17. Mr Cherry has not directly answered this point, or provided any explanation for this catalogue of inadequate compliance. In this connection, and although neither Counsel referred me to BPP Holdings v HMRC [2016] EWCA Civ 121, I must have regard to the views of the Senior President of Tribunals as expressed in paragraphs 37 and 38 of his judgment in that case. He held that the Tribunal’s overriding objective required the same approach to compliance with rules and orders as applied under the CPR, as exemplified in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd [2014] 1 WLR 3926. As he put it: “Flexibility of process does not mean a shoddy attitude to delay or compliance by any party.”
CONCLUSIONS: SUMMARY JUDGMENT UNDER RULE 9 (3)(e)
18. For the following reasons, I have come to the conclusion that the Applicant’s case has no reasonable prospect of success.
a. In the light of the evidence, I infer that the Premises were leased to a tenant at the time that the Applicant claims to have gone into adverse possession of Room 8 – July 1989 – and it remained leased until the surrender on 26th March 1992. Even if no further evidence came to light as regards the grant of a Lease in 1986, and the matter went to trial, the Tribunal would have to decide the lease issue on the basis of the existing documents and Mr Hastie’s evidence as to the practice of Courage Limited. I have regard to the reference in the Lease to the “Date of Occupation” as being 31st January 1986, and also to the description on its face as a “Second Lease”. The 1986 date is not an otiose or inoperative provision of the Lease – it is an integral part of the agreement between the parties since it suspends the rights of the tenant pending the transfer of the Justices’ Licence. Furthermore, the parties have deliberately distinguished between the “Date of Occupation” and “Date of Commencement” (in 1991). They have directed their minds to the commencement date in 1986. In my judgment, the Tribunal is entitled to draw this inference, on the balance of probabilities, that the Lease was indeed a second term, garnted pursuant to an option in the earlier lease. On the basis of this finding, the maximum period of adverse possession by the Applicant as against the freehold reversioner prior to 13th October 2003 was less than 12 years and an adverse possession claim based on the transitional provisions is bound to fail.
b. I also consider it unarguable that the Applicant could have been in adverse possession of Room 8 from 1989 onwards. The evidence supplied by the Respondent demonstrates that there were only seven rooms on the second floor of the Premises at the time of the inspections carried out by the valuers in connection with the 1999 rent review. Both valuers were directly concerned to establish the number of rooms available to let since that affected the overall letting value of the Premises. There is other material, relating to works required to be carried out by the local authority, which also suggests that Room 8 came into existence after 2000. No explanation has been offered by the Applicant for this apparent inconsistency. If he has an answer to this apparently conclusive evidence I would have expected it to have been provided at some point in the 18 months of litigation that followed his appearance before District Judge Langley.
c. It is not only the fact that Room 8 did not exist prior to 2000 that casts overwhelming doubt on the Applicant’s claim. The Respondent points to the absence of any document linking him with Room 8 until very recently. On the contrary, it is known that he was certifying to the Irish authorities, from 2000 onwards, that he was resident in Ireland. Such certification, if false, gives rise to criminal penalties, so it must be presumed that his certification was correct. His current GP practices in an Irish surgery and his carpal tunnel operation took place in Ireland. Yet his Statement of Truth in support of the application to the Land Registry states that Room 8 “is only home”. It is noteworthy that in his oral answers to District Judge Langley at the possession hearing, and with a view to resisting the possession order, he told her that “I don’t have anywhere to go” in the event of eviction from the Premises. At the very least, such a response is economical with the truth – at worst, it is an untruth.
d. Furthermore, there is a high degree of implausibility in the case that the Applicant puts forward. He accepts that (1) he entered into possession with the consent of Seamus Murphy, one of Tenant company’s directors: (2) he was obliged to share bathroom and kitchen facilities with other occupiers of the Premises; and (3) he has been paying rent of £200 per month to the manager of the pub. However, he contends that (1) consent from Mr Murphy was withdrawn in July 1989, and (2) his payment of £200 per month was in respect of the use of a strong room “and that was only for a short while”. However, apart from the very brief particulars given in the Statement of Truth in support of his application – reflected word for word in the Statement of Case in these proceedings – he has given no explanation as to how and why the consent was withdrawn, and as to how and why he contends that the payment of £200 per moth was made in respect of the strong room and not Room 8. Given that the normal rent for residential rooms on the second floor is £200 – as established both by the rent review Award and the document emanating from Antic in September 2015 – some explanation is required. If the pub manager was receiving £200 per month from Mr Quinn, which the freeholder considered was received in respect of Room 8 (see the documents at pp 427 and 428), there is a heavy burden on Mr Quinn to rebut the clear inference that the rent did indeed relate to Room 8.
e. Equally, there must be a heavy burden on him to displace the strong likelihood that he was there (if at all) with the consent of the Tenant. He accepts that Mr Murphy gave him permission to enter into possession, but contends that the permission was withdrawn. Given the continuing business relationship between the two, this needs clarification, yet none has been given. It is particularly unlikely given that the Applicant (even on his own case) was still using the strong room at the Premises and paying £200 per month to the pub manager. Yet he is asking the Tribunal to accept that he remained in occupation of Room 8, using the communal services on the second floor, without the consent or (presumably) knowledge of the Tenant.
19. For these reasons, I have concluded that the Applicant’s case is indeed false, or fanciful, and is bound to fail. The existence of the earlier lease is fatal in itself. The other matters I have referred to in paragraph 18(b) to (e) are also, taken together, such as to deprive the Applicant’s case from any reasonable prospect of success. His case as it currently stands is essentially mere assertion, which is contradicted and falsified by the documentation produced by the Respondent. In my judgment, this type of case falls within the line of authorities on summary judgment of which National Westminster Bank v Daniel [1993] 1 W.L.R. 1453 is a well-known example.
CONCLUSIONS: ABUSE OF PROCESS
20. If I should be wrong in my assessment of the Applicant’s case, and it should be found to have a reasonable chance of success, I need to consider the other main issue raised by the Respondent, namely abuse of process. I have outlined the parties’ respective submissions at paragraphs 14 and 15 above, and the history of the litigation is described at paragraphs 2 to 5 of this Decision. I did not find Ms Tozer’s argument to be attractive when she explained it during the course of her submissions. It seemed to me that it would be wrong to prevent the Applicant from obtaining a ruling on the merits of his adverse possession claim. If the tribunal were to make “a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case….”, it seemed to me that the fair outcome would be to allow the Applicant his day in Court, as Mr Cherry in effect submitted.
21. However, on further reflection, and on analysing the various steps of the litigation between 15th October 2015 (before District Judge Langley) and 3rd November 2015 (when his appeal route was finally closed), I agree that his pursuit of the adverse possession claim in this Tribunal is indeed an abuse of process. This is not a case where the Applicant has had no opportunity of raising his claim to adverse possession, since this claim formed the only ground for appealing the original possession order made in the County Court. His claim, if proved, would have provided a complete answer to the Respondent’s possession proceedings, since he would have been the beneficial owner of Room 8, with the Respondent (under section 75 of the Land Registration Act 1925) holding its title to Room 8 on a bare trust for the Applicant. In such circumstances, the Respondent could not have recovered possession of Room 8. However, ultimately both the Circuit Judge and the Court of Appeal decided that this potential defence had no reasonable prospect of success on appeal. This is how it was put by Floyd LJ on refusing permission to appeal: “It was not suggested by the judge that the merits of the appeal were such as to have an impact on the decision to extend time. The landlord had submitted that it had a complete answer, in that a lengthy period of the alleged adverse possession was against the tenant and did not affect the landlord’s title. The applicant’s only answer was that this was a matter for evidence at trial. Something more would be needed to suggest that an appeal had a realistic prospect of success.” Both HHJ Baucher and Floyd LJ had the benefit of the same submissions on behalf of the Respondent that I have heard on this application. The same fundamental objections were made by the Respondent to the Applicant’s case. Indeed, the Applicant made a witness statement in support of his application for permission to appeal which expressly adopted the evidence contained in his ST1 (which is repeated in his Statement of Case). In both instances, the court held that the adverse possession defence stood no reasonable or real prospect of success. Of course the judges were reaching that conclusion in the context of an application for permission to appeal, but it would seem wrong to me that a case such as the Applicant’s, which is held to have no real or reasonable prospect of success on appeal, could nevertheless be regarded as having a real or reasonable prospect of success at trial. Furthermore, to allow the Applicant’s case to proceed in this jurisdiction in substance amounts to a collateral attack on the earlier decisions. The proper forum for adjudicating the adverse possession claim was in the possession proceedings, since it provided a complete defence. If the Applicant is allowed to proceed in this jurisdiction, and is successful, the Tribunal would direct the Chief Land Registrar to give effect to his application in Form AP1 to be registered as proprietor of Room 8. The Applicant would thereupon become entitled to possession of Room 8 and the Respondent would become a trespasser. This would reverse the order of the County Court, and negate the decisions of HHJ Baucher and the Court of Appeal. This is a paradigm case of a party – the Respondent – being twice vexed in the same matter” in the words of Lord Bingham in the Johnson v Gore Wood case.
FAILURE TO COMPLY WITH THE 2013 RULES
22. Under Rule 9(3)(b) of the 2013 Rules the Tribunal may strike out a case “when the applicant has failed to co-operate with the Tribunal such that the Tribunal cannot deal with the proceedings fairly and justly……” The Respondent points to the series of delays and defaults on the part of the Applicant, and invites me to hold that the Applicant cannot now deal with the proceedings fairly and justly. In view of my conclusions on the first two limbs of the Respondent’s application, strictly I do not need to reach any conclusion on this third ground for striking out. Certainly, the Applicant’s conduct of this litigation can be fairly and accurately be described as dilatory and non-compliant with the Rules and specified time limits. As I have previously observed, the Applicant has failed to meet the Respondent’s detailed critique of his case with anything approaching the required degree of particularity, relying instead with the bare bones of an adverse possession claim as set out in the original ST1. No further particulars have been provided since that date, and the Applicant’s Statement of Case is equally bare – indeed, it echoes the ST1 word for word. This defective manner of conducting litigation does not suggest any confidence in the strength of the Applicant’s case, on the contrary it suggests that he has no answer to the fundamental objections that I have referred to.
THE ORDER
23. I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application on Form AP1 dated 19th December 2014. As to costs, it follows in my judgment that the Applicant should pay the Respondent’s costs of the entire reference up to and including the hearing before me. An estimate of costs is to be found at pages 1157-160 of Bundle 1, but I do not have a signed costs statement. I direct the Applicant to file such a statement with the Tribunal (and serve the same on the Respondent) by Friday 22nd April 2016. The Respondent may make submissions on the quantum of costs claimed 7 days thereafter, whereupon I shall make a summary assessment.
Dated this 12th day of April 2016
BY ORDER OF THE TRIBUNAL