[2024] UKUT 14 (LC)

As I have said, the Appellant appeals with the permission of the Judge. There are two grounds of appeal, as follows:

“1.

The learned Judge failed to follow a binding Court of Appeal authority, Zarb v Parry [2012] 1 WLR 1240; alternatively failed to give adequate weight to the Court of Appeal’s acceptance in that case (and a subsequent case) of the construction advanced by the Appellant.

2.

The learned Judge erred in law in construing Land Registration Act 2002 Schedule 6 paragraph 5(4) as requiring an applicant for adverse possession to show merely a reasonable belief that the land belonged to him for any 10 years of the period of adverse possession, rather than requiring the applicant to show that the reasonable belief persisted until the date of the application (ignoring ‘de minimis’ periods).”

In considering these grounds of appeal I find it convenient to divide them into three grounds of appeal, by splitting out the first ground of appeal into two grounds. The first of those grounds is whether the Judge failed to follow binding authority in Zarb (“Ground 1”). The second of those grounds is whether the Judge failed to give adequate weight to the acceptance by the Court of Appeal, in Zarb and IAM, of the construction of paragraph 5(4)(c) contended for by the Appellant (“Ground 2”). The third ground of appeal is the Appellant’s existing second ground of appeal, which is that the Judge went wrong in his construction of the Third Condition (“Ground 3”). In my analysis of the Appellant's grounds of appeal I will use my threefold classification of the grounds of appeal identified in this paragraph.

Turning to the cross appeal which, as I have said, is described as a contingent cross appeal, the grounds in support of the cross appeal are as follows:

“3.

If the Upper Tribunal concludes that the correct construction of paragraph 5(4) is that an applicant’s reasonable belief that the application land belongs to them must persist until the date of their application (ignoring de minimis periods):

a.

the learned Judge was wrong to find that the Respondents’ reasonable belief ceased in February 2018 because:

(i)

he impermissibly imputed to the Respondents the subjective belief of Mr Hodgson; and/or

(ii)

his conclusion that the Respondents’ reasonable belief that the application land belonged to them ceased in February 2018 was unsupported by the evidence;

and

b.

the period between the cessation of the Respondents’ reasonable belief that they owned the application land (October 2019) and the date of their application (10 December 2019) was de minimis.”

Permission has not been granted for the cross appeal. The question of whether permission to appeal was required for the cross appeal was raised in correspondence with the Upper Tribunal, following the Respondents filing a respondent’s notice with the “contingent cross appeal” incorporated therein. The Appellant’s solicitors objected to the cross appeal on the basis that no application for permission for the cross appeal had been made to the FTT, and on the basis that the Upper Tribunal should not grant such permission.

In response to this objection, the Deputy Chamber President issued the following directions on 26^th July 2023:

“1.

The respondents must confirm by 4 August 2023 whether they wish to rely on the contingent grounds of appeal in support of a contention that the Tribunal should make a different order from the order made by the FTT (and not simply as alternative grounds on which the order should be upheld, and the appeal dismissed).

2.

If the respondents do wish to rely on the contingent grounds for that purpose, they must first apply to the FTT for permission to appeal before renewing their application for permission to the Tribunal (if permission is refused by the FTT). If so, they should specify the order they will invite the Tribunal to make if those grounds are successful.

3.

If the respondents wish to rely on the contingent grounds only as alternative grounds on which the order should be upheld, and the appeal dismissed, they can properly be included in a respondent’s notice without the need for permission to appeal because they involve no challenge to the FTT’s order and therefore no cross appeal. In that event, the parties should liaise and jointly confirm to the Tribunal by 18 August 2023 whether the hearing of the appeal will require more than the single day currently allocated to it.

4.

The parties may apply for further directions if required.”

The directions given by the Deputy Chamber President sought clarity on whether the contingent cross appeal was a true cross appeal, seeking a different order to that made by the Judge, or the equivalent of a respondent’s notice, seeking to uphold the order of the Judge on different grounds to those relied upon by the Judge. If the contingent cross appeal fell into the second of these categories, the Deputy Chamber President confirmed that the contingent grounds of cross appeal could properly be included in the respondent’s notice filed by the Respondents, and did not require permission to appeal.

Following these directions, the Respondents’ solicitors wrote to the Upper Tribunal on 1^st August 2023, with the following confirmation:

“We refer to paragraph 1 of the Tribunal’s Order dated 26 July and confirm on behalf of the Respondents that they do not wish to rely upon the contingent grounds of appeal in support of a contention that the Tribunal should make a different Order from the Order made by the First-tier Tribunal. Rather, the Respondents rely upon the contingent grounds of appeal as alternative grounds upon which the Order should be upheld and the appeal dismissed.”

As can be seen, the provision of this confirmation, pursuant to the directions given by the Deputy Chamber President, meant that permission was not required for the contingent cross appeal. This did however assume that the Respondents would only be relying upon the cross appeal to uphold the order made by the Judge, on different grounds to those relied upon by the Judge. As matters have turned out, there is an issue between the parties as to whether the cross appeal does, in fact, require permission to appeal. This issue arises for my decision if the appeal is successful. In the meantime, and subject to my decision on the appeal, it will be appreciated that, in referring to the contingent cross appeal as the cross appeal, I am not prejudging the issue of the true nature of the contingent cross appeal.