[2024] UKUT 217 (LC)

Having recited the background facts the Judge identified 27 September 2020, the date on which Mr Singh and Mrs Kaur blocked the gap between the metal fence and the Park railings, as significant. It was more than 20 years after the houses along the private road had been sold, and, subject to proof of the necessary use, there had therefore been sufficient time for a prescriptive right of way to have been acquired.

The Judge then referred to the three methods by which a claim such as Mr Sagier’s, which is based on prescription, could be made good. He dismissed reliance on proof of continuous use since the twelfth century since the development had been completed only in 1999. He briefly considered a claim under the 1832 Act but rejected it because of the need to show twenty years’ use up to the date of commencement of the proceedings in December 2020; by that date the route had already been blocked off by the picket fence, so any use had ceased. The Judge then devoted the remainder of the decision to considering the claim based on the inference of a lost modern grant arising out of twenty years use of the route by Mr Sagier and his predecessor Mrs Hewitt.

The Judge recorded that it was agreed by the parties that it was for Mr Sagier to show that he and, before him, Mrs Hewitt, had used the claimed route for at least twenty years; it was not enough that other people had used it. If that was established it was for Mrs Kaur to show that the use relied on had not been forcible, in the sense explained in the authorities. It was also agreed that a protest in the form of signage could amount to “force” in that sense. The Judge said that an oral protest could also be relevant, but to the extent that oral protests were relied on it was necessary for Mrs Kaur to prove that they had been heard by Mr Sagier or Mrs Hewitt, and not just by other users.

It had not been suggested by or on behalf of Mrs Kaur in her own written evidence, or in the evidence of her neighbours at No. 61 (Mr G. Singh), No. 62 (Mr Grewal), No. 63 (Mr Sidhu), and No. 64 (Ms R. Singh), that she or her late husband had said anything to Mr Sagier or Mrs Hewitt objecting to their use of the claimed route. All that was said was that Mrs Kaur’s husband had stopped trespassers, without identifying them. In her oral evidence, however, Mrs Kaur recounted a single occasion on which she said she had witnessed her husband remonstrating with Mr Sagier over his use of the route. The Judge accepted that evidence and said that he was satisfied that there had been “at least one oral protest” to Mr Sagier.

The Judge then considered the evidence on signage. It was not suggested that signs had been displayed while Mr Sagier had lived in the road so his denial of having seen any was not contentious. Ms Whiston, the owner of No. 41 since 1999, also denied having seen any signs, but the Judge did not place much reliance on her evidence because there had been periods of time when she had not been living there. The only witness to give evidence about signs was Mr Sidhu, whose witness statement said only that he had erected signs saying “No public right of way” outside No. 63 and No. 60, but these had disappeared and, after replacing them several times, eventually he had had enough of doing so. The Judge explained that during his oral evidence Mr Sidhu had given further details. The sign outside No. 60 was attached to the Park railings (where the Judge was satisfied it would have been visible). Furthermore “Mr Sidhu said signage went up in 2000 and remained up for roughly 5 years into the mid-2000s”. The Judge said that he had found Mr Sidhu to be a careful witness who was doing his best to help the tribunal, and he accepted his evidence.

The Judge then decided that the effect of the presence of signs was that any use of the drive of No. 60 was made “with force” and that, together with at least one altercation between Mrs Kaur’s husband and Mr Sagier, that meant that no right of way had been acquired for the benefit of No. 39 over the drive of No. 60.

The Judge did not say, in terms, what he made of Mr Sagier’s evidence that he and his family had made daily use of the claimed route to get to and from the facilities on the other side of the Park. Nor was he prepared to place reliance on the evidence of Mr Sagier’s predecessor, Mrs Hewitt, which was given only in writing. Nevertheless, reading the decision as a whole its effect is that the Judge was satisfied that the requirement of sufficient use had been made out. In her closing submissions Ms Newman, counsel for Mrs Kaur, had specifically invited the Judge to find that use by the owners of No. 39 had not been proven, but the Judge appears to have rejected that invitation in the only part of the decision dealing specifically with use, paragraphs [11] and [12], where he said this:

Although that is not the clearest finding that the owners of the houses at the Pool Road end of the private road were in the habit of making use of the disputed route it does seem to be what the Judge was intending to convey: not only was it convenient, but it is what actually happened. Later in his decision he correctly recorded that once Mr Sagier had proved 20 years’ use, the evidential burden shifted to Mrs Kaur to show that the use was without force or permission and said that she relied only on the use having been “by force”. If the Judge had not been satisfied that the evidential burden had passed to Mrs Kaur, he would surely have said so and would not have rested his decision on his findings about signs and a single oral protest. Nor would he have granted permission to appeal.