[2024] UKUT 14 (LC)

As I have explained above, my decision to allow the appeal on Ground 1 means that the cross appeal is no longer contingent. The cross appeal arises for decision. This includes the issue of the true nature of the cross appeal and, depending upon the outcome of that issue, the question of whether the cross appeal requires permission.

The subject matter of the cross appeal is a challenge to the Judge’s findings as to when the reasonable belief of the Respondents in their ownership of the Disputed Land came to an end. The Judge addressed this question at the end of the Decision. The Judge addressed this question on the hypothesis, which now reflects the reality of the legal position, that the reasonable belief had to exist for the period of ten years (subject to the period of grace) ending on the Application Date. The Judge dealt with this question in Paragraphs 55 – 61. As the relevant part of the Decision is fairly short, I can set it out in full.

At Paragraph 56, the Judge stated his overall finding on this question:

“56.

I am not satisfied that the Ridleys have established that they maintained their initially reasonable belief beyond the making of their application for planning permission in February 2018. On the one hand I have Mr Ridley and Mr Hodgson’s evidence that the first time they realised there was an issue as to the paper and on the ground boundaries was about 23 October 2019 when Mr Hodgson produced the overlay plan at page 671 having obtained a copy of the title plan for Valley View from the Land Registry. On the other hand, the documentary evidence is, as Mr Adams submits, unsatisfactory for the reasons that follow.”

The Judge then proceeded to set out his reasons for this overall finding, at Paragraphs 57 – 60:

“57.

First, there is the last paragraph of panel 5 of the Ridleys’ ST1 filed in support of their application to the Land Registry (see paragraph 27 above). As Mr Adams submitted, this possibly unguarded statement comes from the Ridleys themselves is backed by a Statement of Truth and may have been made at a time when they did not appreciate the legal test that they had to satisfy. I say this because nowhere else in the ST1 or the ADV1 are the requirements of the Third Condition addressed. Then there is the Ridleys’ attempt to explain this in their solicitors’ letter of 8 April 2020 in which it was written that the Ridleys had not checked their title deeds until after receipt of Mr Brown’s first letter in November 2019 when in fact they had checked their title deeds in October 2019. Both of these could be unfortunate lapses and I would not rule against the Ridleys based upon them alone.

58.

What gave me more concern was Mr Hodgson’s attempt during cross-examination to explain his email to Mr Brown dated 25 October 2019 – see paragraph 24 above. What these representations to the council were and why they were necessary was not properly addressed. If Mr Hodgson’s explanation really was, as I understood it to be, that the representations he was referring to was his certification on the planning application form that the Ridleys were the sole owners of the land, then I reject it. The making of representations goes well beyond certifying ownership on a planning application form.

59.

There are also the early drawings at S10, S14 and S17 all dated prior to February 2018 and all showing a straight line boundary consistent with the title plan. More likely, it seems to me, is that Drawing 001 was based upon the title plan because (a) Mr Hodgson’s email to Mr Ridley dated 21 October 2019 (page 646) describes ‘Drawing 001’ as ‘site plan boundary in red line as per official land registry’, and (b) Mr Hodgson’s explanation that he meant to write ‘Ordnance Survey’ cannot be reconciled with the overlay plan that he emailed to Mr Ridley on 23 October 2019 in which the black zigzag line is taken from Ordnance Survey. Mr Hodgson’s attempts to explain these were unconvincing and not helped by the fact that on a number of occasions he had to resort to referring to data or information that only he could see on his computer such as metadata in pdfs or emails that he had sent, none of which had been disclosed even though Mr Brown’s solicitor had made quite an issue of disclosure. For example, the version of the location plan drawing 001 at page 473 dated ‘Aug ‘17’ showing a zigzag boundary. There was nothing before me to corroborate Mr Hodgson’s claim that this was a later revision. There is also the fact that in October 2019 Mr Hodgson was telling Mr Brown one thing (that Moonrakers was being built within the straight-line Land Registry boundary – see plan on page 666) and Mr Ridley another (that the Ordnance Survey and topographical survey boundary lines did not match the Land Registry title plan boundary – see plan on 669).

60.

Although Mr Ridley maintained in his oral evidence that it was only in October 2019 that he first learned of an issue with the boundary and that if he had learnt of this earlier, he would have applied for adverse possession, there was nothing other than Mr Hodgson’s word to support this. What documentary evidence there is, suggests otherwise as I have indicated above.”

The conclusion of the Judge, on the basis of this analysis of the evidence, was in the following terms, at Paragraph 61:

“61.

On the above analysis, it seems to me more likely than not that by February 2018 the Ridleys knew of the discrepancy and so did not have a subjective belief that they were the registered proprietors of the Disputed Land. Similarly, their objective belief cannot have been reasonable. If the Ridleys had to make their application to the Land Registry promptly or within a reasonable period of time, then I find that they did not as it took them almost two years to do so with no explanation for the delay.”

The cross appeal, as I understand it, does not challenge the Judge’s decision, at Paragraph 62, that if the period of reasonable belief came to an end by February 2018, the Application was not made promptly, within the period of grace which exists under paragraph 5(4)(c) on the construction of the sub-paragraph which I have decided is the subject of binding authority in Zarb. Equally, the cross appeal does not challenge the Judge’s decision, on the same basis, that the Application was made promptly (within the period of grace) if the period of reasonable belief did not come to an end until October 2019. The Respondents’ case in the cross appeal concentrates on the Judge’s finding that the period of reasonable belief came to end by February 2018. The Respondents contend that there was no basis for the finding that Mr Ridley had, by February 2018. ceased to believe that the Respondents owned the Disputed Land.

The Respondents’ argument in support of the cross appeal proceeded in the following manner:

At Paragraph 58 the Judge referred to an email sent by Mr Hodgson to the Appellant, and to Mr Hodgson’s explanation of this email.

At Paragraph 59 the Judge referred to drawings made by Mr Hodgson, and to Mr Hodgson’s explanation of these drawings.

The Judge was however concerned with the knowledge of the Respondents, not Mr Hodgson. The documents considered in Paragraphs 58 and 59 concerned Mr Hodgson’s documents. The Judge made no findings as to Mr Ridley’s knowledge of these documents. So far therefore as the knowledge of the Respondents was concerned, the only evidence on which the Judge could rely was the evidence referred to in Paragraph 57 which was insufficient on its own, as the Judge found, to support a finding adverse to the Respondents.

Accordingly, the Judge had no basis on which he could find that the reasonable belief of the Respondents in their ownership of the Disputed Land had come to an end by February 2018.

In oral submissions Mr Goldberg accepted that if the Respondents’ argument was successful, it would be necessary for this part of the case to be remitted to the FTT for new findings of fact to be made on the question of when the Respondents’ reasonable belief in their ownership of the Disputed Land came to an end. This acceptance had implications for the question of whether permission is required for the cross appeal, as the cross appeal has been presented before me. I will however defer, for the moment, the question of whether permission is required for the cross appeal. I will first consider the substantive grounds of the cross appeal, leaving aside the question of whether permission is required, and then return to the question of whether permission is required.

As Etherton LJ explained in IAM, at [27], what the Court of Appeal were concerned with, in that case, was the knowledge of the defendant (Mr Chowdery). The Court of Appeal were not concerned with the imputation to the defendant of the knowledge of his agents, the solicitors who acted for him in 1993. Mr Goldberg accepted that the Judge gave himself a correct direction in law in this respect, in the first part of Paragraph 49:

“49.

The Ridleys must establish that they themselves (not Mr Hodgson) actually believed (subjectively) that the Disputed Land belonged to them and that their belief was objectively reasonable – see paragraph 10(c) above.”

There are two other relevant points to make about the nature of the Reasonable Belief Condition, both of which are stated in IAM, in particular at [21] and [27]. First, there are two elements to the reasonable belief referred to in paragraph 5(4)(c). There is the subjective element. The person applying for registration on the basis of adverse possession must, during the period of ten years referred to in paragraph 5(4)(c), honestly and actually have believed that the disputed land was in his ownership. There is also the objective element. On an objective basis, the belief in ownership must, during the required period of ten years, have been a reasonable one for the applicant to have held. Second, the burden is upon the applicant to prove the existence of both of the required elements of the reasonable belief for the required period of ten years. It is clear that the Judge had these elements of the Reasonable Belief Condition well in mind; see the first part of Paragraph 49, as quoted above.

In his submissions in response to the cross appeal Mr Adams reminded me of the limitations on my ability to interfere with findings of fact made by the Judge or with the Judge’s evaluation of the evidence which was before him. In particular, Mr Adams referred me to Haringey LBC v Ahmed [2017] EWCA Civ 1861 [2018] H.L.R. 9, where Hamblen LJ summarised these limitations in the following terms, at [29] – [31]:

“29

Mr Westgate QC, who appears on behalf of Ms Ahmed, as he did at trial, emphasises that an appellate court will only rarely interfere with findings of fact made by a trial judge, and that this applies both to findings of primary fact and to inferences to be drawn from them such as, he submits, the conclusion that there was an agency. In this regard he has referred us to the judgment of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] F.S.R. 29 at [114]-[115].

30

In the recent Court of Appeal case of Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94 the legal position was summarised as follows:

“39.

The parties were broadly agreed upon the relevant law in the light of the recent Supreme Court decisions of Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 W.L.R. 2600 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 W.L.R. 2477 the latter of which cited with approval Hamilton v Allied Domecq Plc [2006] S.C. 221 at [85]. In the latter case it was said:

‘If findings of fact are unsupported by the evidence and are critical to the decision of the case, it may be incumbent on the appellate court to reverse the decision made at first instance.’

In Henderson the Supreme Court (at [62]) also said:

‘It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.’

We have also had regard to the last three reasons why appellate courts are warned not to interfere with findings of fact unless compelled to do so as enumerated by Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5:

‘(iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.

(v)

The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence).

(vi)

Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done.’

40.

There will be (and have been) rare cases where an appellate court is compelled to set aside findings of fact made by an experienced trial judge but we are far from convinced that that is the case here. None of the challenged findings can be said to be unsupported by the evidence and the decision is certainly not one that no reasonable judge could have reached….”

31

In summary, such interference will only be justified where a critical finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached.”

I should also mention Re Sprintroom Ltd [2019] EWCA Civ 932 [2019] B.C.C. 1031 where the Court of Appeal (McCombe LJ and Leggatt and Rose LJJ, as they then were), in their judgment at [76], set out the nature of the task to be undertaken by an appeal court, in dealing with a challenge to an evaluative decision of a first instance judge:

“76.

So, on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”.”

Mr Adams cited further authorities to me on the question of my ability to interfere with findings of fact or evaluative decisions made by the Judge, which I have also taken into account. In terms of express reference, it seems to me to be sufficient to refer to the above two authorities.

With the above guidance in mind, I turn to the Judge’s review of the evidence which he received and heard on the question of the Respondents’ reasonable belief, at Paragraphs 57 – 60.

I cannot see anything in this review or in the Judge’s evaluation of the evidence which would permit me to interfere with the Judge’s conclusion as to when the reasonable belief of the Respondents in their ownership of the Disputed Land came to an end. I say this for the following reasons.

It is clear that the Judge kept well in mind the correct direction which he had given to himself in Paragraph 49, as quoted above. It is clear that the Judge kept in mind that the burden was upon the Respondents to demonstrate that their reasonable belief in their ownership of the Disputed Land existed for the period of ten years ending on the Application Date (subject to the grace period) which the Judge was taking as the correct period for the purposes of this part of the Decision. It is clear that the Judge kept in mind that there were two elements of this reasonable belief which the Respondents had to demonstrate; namely the subjective element and the objective element. In particular, it is clear that the Judge understood and respected the need to separate the knowledge of Mr Hodgson, as agent of the Respondents, from the knowledge of the Respondents; see in particular Paragraph 60.

Turning to the individual paragraphs of this section of the Decision, I can see no flaw in the analysis of the Judge. The documentary evidence in Paragraph 57 was clearly unhelpful to the Respondents’ case. The Judge did not regard this evidence as sufficient, in itself, to find against the Respondents, but this did not mean that this evidence fell out of account. It fell to be taken into account with the other relevant evidence.

So far as the email of 25^th October 2019 was concerned, as referred to in Paragraph 58, I cannot see why the Judge was not entitled to take this email into account. It was plainly significant, for the reasons given by the Judge. It was an email sent by Mr Hodgson, but that did not mean that the email could not throw light on the state of Mr Ridley’s belief, both on a subjective and an objective basis. The same applies to the drawings referred to by the Judge in Paragraph 59. I do not see why these drawings could not be treated as throwing light on the state of Mr Ridley’s belief, again both on a subjective and an objective basis.

Paragraph 60 also seems to me to be very significant in this context. The Judge heard oral evidence from Mr Ridley, who was cross examined. In his oral evidence Mr Ridley maintained that it was only in October 2019 that he first learned of an issue with the boundary. It is clear that the documentary evidence referred to by the Judge undermined Mr Ridley’s evidence. It is also clear that the evidence given by Mr Hodgson, in the view of the Judge, not only failed to support this case but also undermined this case. As the Judge noted, there was only Mr Hodgson’s word to support Mr Ridley’s claim and, as the Judge had made clear, he did not find that word convincing.

The question of whether the Judge should have accepted Mr Ridley’s claim that it was only in October 2019 that he first learned of an issue with the boundary was pre-eminently a matter for the Judge. The Judge read and heard all the evidence. In particular, the Judge heard the evidence of Mr Ridley and Mr Hodgson, and the testing of that evidence in cross examination. The Judge did not accept Mr Ridley’s claim that it was only in October 2019 that he learnt of the boundary dispute. I can see no error in the Judge’s approach to this question. It is also clear that there was ample evidence to support the Judge’s decision not to accept this claim.

I also accept the point made by Mr Adams that the burden is upon the Respondents, in the cross appeal, to identify why the Judge went wrong, in Paragraph 61, in the conclusions which he reached on the subjective element of the test of reasonable belief and on the objective element of the test of reasonable belief. As Mr Adams pointed out, the case made in support of the cross appeal did not appear to address the Judge’s findings on the objective element of the test. In oral submissions, in reply to Mr Adams, Mr Goldberg sought to argue that the Judge’s findings on the objective element of the test could not stand, if the Judge went wrong in his findings on the subjective element of the test. To my mind however these submissions did not address the central problem confronting the Respondents in this context, which was that the evidence reviewed by the Judge provided ample support for his finding that the objective element of the test had ceased to be met by February 2018, independent of the position on subjective belief.

In summary, I cannot see any basis on which the Judge’s conclusions on the evidence, in Paragraph 61, can be challenged. I can see nothing wrong with the Judge’s approach to the evidential questions concerning reasonable belief which he had to address. The Judge directed himself correctly as to what he had to decide, in terms of the issue of reasonable belief. Applying the test in Re Sprintroom, there was no gap in the Judge’s logic, or lack of consistency, or a failure to take account of some material factor, which undermined the cogency of the Judge’s conclusions. Equally, it seems to me that there was ample evidence to support the conclusions reached by the Judge. The conclusions were certainly not conclusions which no reasonable judge could have reached.

This concludes my analysis of the substantive grounds of the cross appeal. On the basis of this analysis my conclusion is that the cross appeal fails on its substantive grounds. There is however also the question which I deferred; namely whether permission is required for the cross appeal, as it has been presented. I now return to that question. Although the question may be said to be academic, given the failure of the cross appeal on its substantive grounds, I consider that I should decide this question.

I can deal with the question fairly shortly. As I have explained earlier in this decision, in the directions given by the Deputy Chamber President on 26^th July 2023, the Respondents were required to confirm whether they wished to rely on the contingent grounds of appeal in support of a contention that the Upper Tribunal should make a different order to the order made by the FTT (and not simply as alternative grounds on which the order should be upheld and the appeal dismissed). By their solicitors’ letter dated 1^st August 2023 the Respondents confirmed that they did not wish to rely upon the contingent grounds of appeal in support of a contention that the Upper Tribunal should make a different order from the order made by the FTT. Rather, the Respondents relied upon the contingent grounds of appeal as alternative grounds upon which the order of the FTT should be upheld and the appeal dismissed.

As I have already noted, in the course of his oral submissions Mr Goldberg accepted that if the Respondents’ arguments in support of the cross appeal were successful, it would be necessary for this part of the case to be remitted to the FTT for new findings of fact to be made. In response, and by a short written submission following the hearing, the Appellant contended that the Respondents did require permission for the cross appeal. The point made on behalf of the Appellant was that the Respondents, by seeking a remission, were no longer simply seeking to uphold the decision of the FTT on different grounds, but were seeking an order setting aside the decision of the FTT and for the reconsideration of the case by the FTT. This went beyond what was permitted by the directions given by the Deputy Chamber President, and required permission to appeal, which had neither been sought nor obtained.

I do not think that the Appellant is right on the question of whether permission to appeal is required. My reasons for saying this are as follows.

It seems to me that it is essential, on this question, to concentrate on what it is the Respondents are seeking to achieve, and in respect of what, by the cross appeal.

The objective which the Respondents are seeking to achieve, by the cross appeal, is the upholding of the direction/order to the Chief Land Registrar, made by the Judge, to give effect to the Application. In this context it seems to me to be important to distinguish between the Decision and the direction made by the Judge. This distinction is not as clear as it might be because the direction appears within the Decision, at Paragraph 63. So far as I am aware, there was no separate order of the Judge which was drawn up, containing the direction in Paragraph 63. I do not say this by way of criticism. It strikes me that a separate direction was not necessary, given the terms of Paragraph 63. Nevertheless, it seems to me that a distinction does need to be drawn between the direction in Paragraph 63, which constitutes the direction (or order) made by the Judge, and Paragraphs 1-62, which set out the reasons why the Judge made that direction.

I note that the Deputy Chamber President was careful to draw this distinction in his directions on the question of whether permission to appeal was required. For ease of reference, I repeat paragraphs 1-3 of those directions:

“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.”

I respectfully agree with the references made by the Deputy Chamber President to the order made by the FTT, and with the reasoning of the Deputy Chamber President in these directions. The distinction was thereby drawn between the order (or direction) made by the Judge, and the reasons in the Decision which resulted in that order. I do not think that it matters whether one classifies Paragraph 63 as containing a direction or an order. The matter is simply one of description. The point is that Paragraph 63 is the equivalent of an order made consequential upon a judgment.

With this distinction in mind, the correct analysis of the appeal and the cross appeal seems to me to be as follows. The appeal seeks to set aside the Judge’s direction and substitute a different direction. As such, the appeal requires permission to appeal, which has been sought and obtained. The cross appeal seeks to uphold the direction made by the Judge. True it is that the cross appeal involves a challenge to part of the Decision, but the cross appeal does not seek to change the direction to the Chief Land Registrar. The cross appeal seeks to uphold the direction.

I can see the argument that this position no longer holds good, if what is sought by the cross appeal is a remission, as opposed to a finding on the facts (made by this Tribunal) which can support the Judge’s direction. I have however come to the conclusion that seeking a remission does not alter the basic position. The basic position seems to me to remain that the cross appeal, now that it is now no longer a contingent cross appeal, seeks to uphold the direction made by the Judge, albeit by the longer route of remitting the case to the FTT and seeking new findings of fact capable of upholding the direction made by the Judge.

I therefore conclude that the confirmation given by the Appellant’s solicitors in response to the directions given by the Deputy Chamber President, namely that the cross appeal was seeking to uphold the order made by the Judge, remains a valid confirmation. I consider that the confirmation still holds good, notwithstanding that a remission of the case is now sought by the cross appeal.

It follows from the analysis set out above that the cross appeal does not, in my view, require the grant of permission to appeal. In my view the cross appeal is not a true cross appeal, but rather a challenge to part of the Decision, which can properly be the subject of a respondent’s notice. Accordingly, I do not think that the cross appeal is invalidated by the absence of such permission.

Drawing together all of the above analysis, and for the reasons which I have given, it seems to me that the cross appeal fails, and falls to be dismissed. For the avoidance of doubt the cross appeal falls to be dismissed on its substantive grounds. The cross appeal does not fall to be dismissed on the ground that permission to appeal was required and was not obtained. My conclusion is that permission to appeal was not required for the cross appeal.