[2024] UKUT 217 (LC)

In support of the first ground of appeal Mr Buckpitt submitted that the Judge had been wrong to dismiss the claim under the 1832 Act out of hand. After referring to the requirement in the first limb of section 4 of the Act that 20 years’ use without force, secrecy or permission had to be shown to have occurred “next before some suit or action”, the Judge had said simply that by the date of Mr Sagier’s application to HM Land Registry the claimed right had already been blocked off by the picket fence, and the required use had already ceased. The Judge had not taken into account the second limb of section 4 and should have held that the interruption of use by the erection of the picket fence on 27 September 2020 could not be “deemed to be an interruption” at all and should be ignored. Had full effect been given to section 4, the Judge should have accepted that the relevant period of use had continued up to the commencement of the proceedings on 2 December 2020.

Mr Sagier was not professionally represented at the FTT hearing. Although the Judge paid tribute to his submissions on the law, one detail of which Mr Sagier appears to have been unaware was the direction in the second limb of section 4 of the Act that nothing is to be deemed to be an interruption of a period of use as of right unless it was submitted to or acquiesced in for one year. But it is clear that he was not alone in overlooking that provision. The Judge did not refer to it in his decision and in the transcript of Ms Newman’s closing submissions she is recorded as having submitted that if the signs put up by Mr Sidhu “was only up for, say 10 nights, that would have been sufficient” to interrupt the required period of use.

When the Judge refused permission to appeal on this ground he had said that reliance on the Act added nothing to the claim based on lost modern grant, a proposition which Ms Newman supported in her statement of case and in her skeleton argument.

Mr Buckpitt challenged the consensus which appears to have existed at the FTT hearing, at least between the Judge and Ms Newman. The important difference between a claim based on a lost modern grant and a claim under the Act is that in determining the statutory claim interruptions during the 20-year period (at whatever stage) acquiesced in for less than a year do not count, and do not stop time running. Mr Buckpitt relied on Jenkins LJ’s explanation of the effect of section 4 of the Act in Reilly v Orange (see paragraph [33] above) and on Megarry & Wade: The Law of Real Property 9^th Ed. (2019) at 27-071 where it is said that “If D has used a way over S’s land for over 20 years, and then a gate is locked or a barrier erected barring his way, D can still succeed in establishing an easement provided that, at the time the action is brought, he has not acquiesced in or submitted to the obstruction for one year after he has known both of the obstruction and of the person responsible for it.” By 27 September 2020 there had been more than 20-years use of the claimed right and the interruption for the months immediately before the commencement of the proceedings did not count as an interruption at all.

In her oral submissions Ms Newman was inclined to acknowledge the distinction between a claim under the Act and a claim put solely on the basis of lost modern grant. She also acknowledged that the single incident recalled by Mrs Kaur in which her late husband had remonstrated with Mr Sagier about his use of the claimed way had occurred on or after 27 September 2020, when the picket fence had just been erected.

There seems to me to be no doubt that the Judge omitted a full consideration of the possibility of a claim under the Act. The Judge’s reason for dismissing that way of putting the claim was simply that the proceedings had been commenced almost three months after the obstruction of the way by the erection of the picket fence. I accept Mr Buckpitt’s submission that that approach overlooked the second limb of section 4. A physical obstruction of the way which existed for less than 12 months ought not to have been sufficient to rule out reliance on a claim under the Act where 20 years use could already be shown by the date of the interruption.