“[8.] In or around 1990, Mr Boota sub-let the Property to Mr Tom Gormley who ran a car sales business “T G Cars” at the Property. At some point HSS Tool Hire took over occupation of the Property from T G Cars and occupied the Property until in or around 2000 when they surrendered their lease.”
“[2.] …. Although the Lease dated28 November 2000 was between [Griffin] and [Mr Boota], [Griffin] was sold by its directors to Mr. Ilyas Khokar on6th June 2008 . Therefore as from6th June 2008 , the new and sole director of [Griffin] was Mr. Ilyas Khokar….”
"[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."
“[22.] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”
“[41.] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority….is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“[14.] …… the legal meaning of the expression "as of right" is, somewhat counterintuitively, almost the converse of "of right" or "by right". Thus, if a person uses privately owned land "of right" or "by right", the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is "as of right", it is without the permission of the landowner, and therefore is not "of right" or "by right", but is actually carried on as if it were by right – hence "as of right". The significance of the little word "as" is therefore crucial, and renders the expression "as of right" effectively the antithesis of "of right" or "by right".” “without secrecy”
“On principle, it appears to me that a prescriptive right to an easement over a man's land should only be acquired where the enjoyment has been open - that is to say, of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment.” “without permission”
“The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is “as of right”; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not “as of right”
“[13.] The phrase “without force” carries rather more than its literal meaning. It is not enough for the person asserting the right to show that he has not used violence. He must show that his user was not contentious or allowed only under protest. This appeal is concerned with what constitutes protest on the part of the owner of the land for these purposes. ……. [31.] ……….. In the present case, there were two sign clearly visible to all users of the car park and clearly informing all users that it was a private car park for the use of Club patrons only. The signs were never vandalised or, until 2007, removed and no occasion arose for their replacement. In those circumstances,…… the answer would appear to be clear that the signs were by themselves sufficient to make contentious the parking of cars and other vehicles by the appellants, their suppliers and customers.”
“[30.] ….. Where the lesser interest is a tenancy, the greater interest is the reversion immediately expectant upon its determination and both estates become vested in the same person, the judge observed that at common law a merger would be regarded as occurring automatically. That is, I consider, correct, at any rate in cases in which the two estates become vested in the same person in the same right. The approach of the common law does not, however, provide a solution to the present case because a different principle applies in equity and the equitable rule now prevails. The rule in equity was that there would only be a merger if the party in whom the two estates vested intended a merger.Section 185 of the Law of Property Act 1925 , headed ‘Merger’, (and substantially re-enacting section 25(4) of the Judicature Act 1873 ) provides that: ‘There is no merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.’ It is, therefore, upon the equitable principles relating to merger that attention must be focussed. Mr Warwick’s submissions raised an issue as to the equitable solution that the court should apply to the facts of the present case in circumstances in which there was (as the judge found) no evidence as to EDF’s intention in relation to merger when the two estates became vested in it. [31.] We were referred to just two authorities on merger. The first was Ingle v Vaughan Jenkins[1900] 2 Ch 368 , a decision of Farwell J.….. ………… [33.] The second authority was Capital and Counties Bank Limited v Rhodes[1903] 1 Ch 631 , a decision of this court …… ……… [40.] With respect to Mr Warwick’s careful submissions, both in opening and reply, I regard them as mistaken at every point and would not accept them. The starting point is that whereas the ordinary rule at law was that the coalescence of a lease and its reversion in the same person (‘A’) in the same right would result in a merger and extinguishment of the lease, in equity it was open to A to form an intention, and declare accordingly, that there should be no such merger and extinguishment. Equity further developed the principle that in any case in which A did not expressly evince such an intention, or in which there was no other evidence of such an intention on his part, there was a presumption against any intention for a merger if such would be against his interest. In a case in which there was no express declaration or other evidence as to A’s intentions, the focus of equity’s inquiry was therefore exclusively on his interests: and if a merger would be against his interests, he is presumed to have intended against any merger. That is the principle that was applied in Ingle and this court in Rhodes made it clear that it regarded Ingle as having been correctly decided. The equitable principles now prevail over the principles applicable at law. ……….. [44.] In my judgment the task for the judge in relation to this issue was to consider whether there was any evidence of any intention on the part of EDF as to whether there should be a merger. He found, in paragraph [69], that there was none. Having so found, he had next to consider whether it was or was not in EDF’s interests that there should be a merger. He found that it was not and that finding led him, correctly in my judgment, to the conclusion that he should presume that no merger was intended. That was the approach that Ingle (endorsed by Rhodes) required him to adopt and he was correct to do so. That it may perhaps have been, or might turn out to be, contrary to the interests of the co-reversioners that there should be no merger is irrelevant.”
“Alteration pursuant to a court order [2] (1) The court may make an order for alteration of the register for the purpose of— (a) correcting a mistake, (b) bringing the register up to date, or (c) giving effect to any estate, right or interest excepted from the effect of registration. (2) An order under this paragraph has effect when served on the registrar to impose a duty on him to give effect to it. [3] (1) This paragraph applies to the power under paragraph 2, so far as relating to rectification. (2) If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor’s consent in relation to land in his possession unless— (a) he has by fraud or lack of proper care caused or substantially contributed to the mistake, or (b) it would for any other reason be unjust for the alteration not to be made. (3) If in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so. (4) In sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land.”
“Mr Boota intended to continue it as far as I’m aware. The lease was terminated by mistake without our knowledge. Solicitor did it without instructions. Mr Boota would never have intended to close the leasehold title.”
“[7.] The Defendant possesses the freehold interest in the property and the Defendant is not a Tenant and so there are no other person or entities who have an interest in the reversion other than the Defendant…..”
“I wouldn’t have closed it……why surrender something that didn’t cost me anything. Silly of me.”
“If the user is equally consistent with user by permission and user as of right the user is not sufficient for prescription. Thus, in referring to the doctrine of lost grant, it was said by Fitzgibbon LJ [in Hanna v Pollock [1900] 2 I.R. 664 at 671]: “The whole doctrine of presumed grant rests upon the desire of the law to create a legal foundation for the long-continued enjoyment, as of right, of advantages which are prima facie inexplicable in the absence of legal title. In cases such as this, where the grant is admittedly a fiction, it is all the more incumbent on the judge to see, before the question is left to the jury, that the circumstances and character of the user import that it has been ‘as of right.’…….””
“[35.] Where the court is asked to choose between two explanations for the user both explanations must produce the result that the user was lawful. Where there are said to be two explanations for the user, each of them involving a lawful origin for the user, one has to ask whether both explanations are reasonably possible. If there are two reasonably possible lawful origins then the position is as stated in Gardner v Hodgson's Kingston Brewery Company[1903] AC 229 per Lord Lindley at 239: "[i]f the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established …". This approach was applied in Odey v Barber[2008] Ch 175 at [36].”
“[21.] In the light of the development of the authorities, it cannot now be said, even if it ever could, that to avoid acquiescence, the owner of the relevant property must take steps through physical means or legal proceedings actually to prevent the wrongful user. ….. [40.] In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps in order to prevent the wrongdoers from acquiring a legal right. In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be "as of right". Protest against unauthorised use may, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. But I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings.”
“[52.] I agree with the judge that the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with. Evidence from some local inhabitants gaining access to the land via the footpaths that they did not see the signs is not therefore fatal to the landowner’s case on whether the user was as of right. But it will in most cases be highly relevant evidence as to whether the landowner has done enough to comply with what amounts to the giving of reasonable notice in the particular circumstances of that case…..”
“[20.] …… We were rushed by the group who were acting aggressively towards us. The group were verbally abusive and aggressive towards me, my nephews and my brother. One of them, I think it was [D2], grabbed [C1] from behind and threw him to the ground. The police (the first two officers who were at the scene) were present but did very little. [21.] More police had arrived at the scene and I was told by the police to move across to the opposite side of the road and I followed their instructions…….. [22.] The Khan family and their associates were aggressive and threatening towards us for around 45 minutes from across the road. They swore, shouted, and used threatening phrases….”
“It is further concerning when [C1] sought to remove the fence from his property that he was approached by 10-15 individuals who sought to intimidate him. A matter which is the subject of a police report.”
“[30.] …… Where….. the quality of the conduct said to constitute harassment is being examined, Courts will have in mind that irritation, annoyances, even a measure of upset arise at times in everybody’s day-to- day dealings with other people. Courts are well able to recognise the boundary between conduct, which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable, the gravity of the misconduct must be an order which would sustain criminal liability….”