[2024] UKUT 217 (LC)

Side by side with the fiction of a lost modern grant which had developed through judicial pronouncements, Parliament also provided for the acquisition of rights over land by long use in the Prescription Act 1832.

Section 2 of the Act prevents a claim to the use of a way or other easement from being defeated if the use of the way “shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years”. Although the same underlying principles apply to a claim under the 1832 Act as to one based on a lost modern grant, so that the required use must have been without force, stealth or permission, claims under the Act are subject to additional rules about when the required use must have occurred and about the consequences of any interruption.

A claim founded on the fiction of a lost modern grant can be based on twenty years use at any time. In contrast, for a claim under the 1832 Act, the first limb of section 4 requires that the period of use relied on must be “next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question”. This means that the period during which the use must be demonstrated for a claim under the Act is a period ending on the date on which proceedings are commenced in which the right is claimed or disputed.

Section 4 also qualifies the requirement of section 2 that the relevant use must have been “without interruption for the full period of twenty years” by limiting what is to be recognised as amounting to an interruption:

The effect of sections 2 and 4 in combination was explained by Jenkins LJ in Reilly v Orange [1955] 2 QB 112, at 118:

Applying section 4 to a claim under the Act in this case, the relevant proceedings were those commenced by Mr Sagier’s application to HM Land Registry to note the right of way on his own and Mrs Kaur’s registered titles. The period during which use of the claimed route as of right had to be proved was therefore the period of 20 years ending on 2 December 2020. The use of the route was interrupted by Mrs Kaur and her husband erecting their own picket fence in the gap between the metal fence and the Park railings on 27 September 2020. But that period of interruption lasted for only a little over two months before the proceedings commenced. It was therefore not long enough to be deemed to be an interruption for the purpose of calculating periods of time under the Act; only an interruption of a full year would amount to an interruption for that purpose.