[2025] EWHC 1955 (KB)

The Judge was wrong to grant an easement under the lost modern act.

The Written Submissions deal with this at paragraphs 13, 14 and 19.

The first ground is a pleading point. It is right that the words ‘lost modern grant’ do not appear in the pleading. However, the Defence and Part 20 Claim use clear language to put into issue an entitlement to use the Path to access the Contested Land: see paragraphs 14, 16(b)(iii). A pleading point was not taken at the time, the case on easement was opened and dealt with in the evidence. This is not an arguable ground of appeal.

Secondly, the Applicant submits that the Judge was wrong to grant a right of way ‘when the court established that the respondent lied about date and method of entry to appellant’s pathway’. This relates to whether the gate to the path was first locked in 2022, as Mr Hunter originally said in evidence, or 2019, as the Judge found. Mr Hunter accepted in examination in chief that it was possible that he was mistaken in his recollection that the gate was locked towards the end of 2022, at paragraph 9 of his witness statement. He did that before confirming the truth of the statement, on oath. Mr Hunter clearly did not lie on oath about the date when the gate was locked and, contrary to the Applicant’s Written Submission, the Judge plainly did not find that Mr Hunter had done so. The Judge simply recorded his finding that, on this point, he accepted that the gate was locked from 2019, about which Mr Hunter had agreed he may have been mistaken.

At paragraph 19, Mr Askan makes the wholly misguided submission that it was ‘a serious miscarriage of justice’ to allow Counsel for the Club to deal with this issue in Evidence in Chief. Quite to the contrary, it was plainly appropriate for Mr Hunter to recognise, prior to swearing to the truth of his evidence, that he had come to consider that part of it may have been mistaken, and for Mr Hunter to be given the opportunity in Examination in Chief for a correction to his written statement be made.

This ground does not, in any event, engage with the point of substance which is that the period since locking the gate, whether 2019 or 2022, would not be sufficient to have deprived the Club from any rights it had by then acquired in respect of use of the Path. This substantive finding of the Judge is plainly correct (and not subject to appeal in any event).

This Ground is not reasonably arguable.