McClelland v Elvin & Ors [2017] EWHC 2795 (QB)

[2017] EWHC 2795 (QB)Case No QB/2017/0079
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/11/2017
Before
MR JUSTICE TURNER
Between
Garry McClellandClaimantDavid ElvinDefendantDamien ElvinDefendantDimitrov LipchekDefendantGarry McClelland Claimant/Applicant- and -David Elvin- and -Damien Elvin- and -Dimitrov Lipchek First Defendant/Respondent Second Defendant/Respondent Third Defendant
Matthew R Smith (instructed by Lawson & Co Solicitors) for First Defendant/RespondentRobin Howard (instructed by Holmes & Hills Solicitors) for Second Defendant/Respondent for The Third Defendant did not appear and was not representedHearing Hearing dates: 18 th October 2017
Judgment ApprovedMr Justice Turner :INTRODUCTION
[1]In 60 or 61 AD, Boudicca, Queen of the Iceni, reached modern day Chelmsford through which she led her formidable army of warriors along what is now Moulsham Street as they made their destructive way from Colchester to London in their savage but ultimately doomed resistance to the might of the Roman Empire.[2]Nearly two thousand years later, doubtless inspired by this distant association with the town’s Celtic past, the developers of properties located in a courtyard to the rear of 154 Moulsham Street, re-named them Boudicca Mews. It was thus that they unwittingly set the scene for the further, but distinctly more mundane, territorial conflict which forms the subject matter of this appeal.

THE BACKGROUND

[3]The catalyst of this latter day clash was the arrival of police officers in possession of a warrant to search number 9 Boudicca Mews (“No.9”) on 17 June 2013. They were not to be disappointed. As they had expected, they found that the premises were being used for the large scale production of cannabis plants. The horticulturalists were promptly removed and the occupational vacuum they left behind set the scene for the dispute which lies at the centre of this appeal. The police handed over the keys to the first defendant who had presented himself to them as the owner. The claimant, however, disputed the defendant’s title thereby giving rise to the question which lies at the heart of this appeal:
“Who actually owns 9 Boudicca Mews?”
[4]The claimant asserts that he has acquired title through adverse possession. The first and second defendants deny this claim and contend that they are the freehold owners of the property. The third defendant has played no part in this litigation and his role merits no further consideration. References to the defendants in the course of this judgment are, therefore, limited to the first and second defendants. References simply to the defendant are to be taken to apply to the first defendant.[5]At first instance, His Honour Judge Moloney QC reached the conclusion that the claimant had failed to make out his claim and dismissed it.[6]The claimant now applies for permission to appeal this decision out of time. The defendants concede that the relevant procedural delay was caused by factors which were not entirely within the control of the claimant and have chosen not to take the point. Furthermore, out of deference to the industry of both sides in the preparation and presentation of their respective cases, I grant permission to appeal and proceed forthwith to adjudicate on the appeal on its substantive merits (or lack of them).[7]Two central matters fell to be resolved in the determination of the claimant’s claim. The first was as to whether the claimant had enjoyed possession of No.9 for the requisite period of at least twelve years. The second was as to whether, if so, such possession was “adverse”. The claimant bore the burden of proof on each issue and had to succeed on both of them to have made out his claim.

THE LAY OF THE LAND

[8]The task of this court is made no easier by the fact that there is a dispute as to which part or parts of the old Moulsham Street addresses had been re-named to become which part or parts of Boudicca Mews. This tiresome complication is one which fell to be resolved by the judge in order to equip him to draw meaningful conclusions from the pre–“Boudicca Mews” documentation to help him in the determination of the relative merits of the competing claims of the parties.[9]Dispiritingly, the title deeds have gone missing.[10]I am unable to improve on the description of the layout of the Mews which was given by the learned

judge and will not, therefore, attempt to do so:

“Moulsham St is a long narrow street in central Chelmsford, home to many cafes and small businesses. No 154 is on the street itself; at present it comprises a beauty salon on the ground floor with a flat above. Behind it, accessible by a narrow foot passage from the street, is a courtyard now called Boudicca Mews; on the other side a similar passage leads to a large public car park. Most of the Mews now consists of small modern townhouses, but immediately behind No 154 are two older two-storey buildings, probably Victorian. The one nearer the street is larger, originally a single house three windows across. The one further away is smaller but appears originally to have been two little semi-detached houses with separate doors. At some time in the past the owners of the larger building appear to have taken over the adjacent ground floor room of the smaller one and “knocked through”
. As they now stand following the renumbering of the properties in 2006, the remaining part of the smaller building (half the ground floor and all the first floor including a flying freehold) is known as No 8. The ground floor and basement of the larger building (together with the rest of the smaller building) is No 9, and the first floor (together with stairs and an access door at ground floor level) is No 10. At the material time in 2000 to 2002, No 9 had two entrances, one next to No 10’s and one at the other end by No 8. Subsequently the entrance next to No 10 has been removed.”[11]The defendants contended that 154a Moulsham Street became No.8 Boudicca Street; the ground floor of 154b became No.9 and the first floor of 154b became No.10. The claimant countered this with the assertion that 154a became No.9 and 154b became No.10.[12]The judge considered the competing claims of the parties and concluded, with confidence, that the defendant’s case on this issue was to be preferred. He drew proper attention to the documentary evidence which included a conveyance in 1948, the Council’s Rate Book for 1958, an entry in the London Gazette of 3 December 1957 and two planning applications of 1977 and 1980 respectively. The 1980 planning application, in particular, was supported by clear and detailed drawings which are entirely consistent with the defendants’ stance.[13]The fact that, anomalously, the flat above the beauty salon was sold as 154b in 2001 and that, if taken separately, each of the documents relied upon by the judge did not provide proof positive of the defendant’s case did not preclude him from having regard to the cumulative effect of the preponderance of the documentary evidence as a whole and thereby reaching the conclusion that he did. It follows that the judge’s findings on this issue are not susceptible to appellate challenge.

THE HISTORY OF THE CLAIMANT’S CLAIM

[14]Ground one of the grounds of appeal asserts that the judge “was wrong in law to identify one of the legal issues as being whether the claimant had proven better title to 9 than the defendant”.[15]I was baffled by this criticism and matters became no clearer to me following oral submissions on behalf of the claimant. In his judgment, the learned

judge made the following observations:

“2.1 The Defendant’s primary case is that it is not strictly necessary for them to prove that they have paper title to these properties in order to resist the Claimants claim to No.9… 2.2 As a matter of law this is no doubt correct.”
[16]The ground of appeal is therefore based on an assertion that the judge said the opposite of what he actually did say. When pressed to explain, counsel for the claimant resorted to suggesting that I should simply ignore paragraph 2.2 of the judgment.[17]On that basis no judgment would be safe. It ought not to be necessary to point out that appellants do not enjoy the luxury of being able to redact parts of a judgment which they do not like simply because they are wholly irreconcilable with their grounds of appeal.[18]As it was, the judge acknowledged expressly that it was not legally necessary for the defendants to establish paper title. This is because they were indisputably in actual possession in the period following the drugs raid and this gave rise to a right which was, in itself, sufficient to afford good title against any and all third parties lacking a better one.[19]He did, however, conclude, as he was fully entitled to do, that the history and nature of the defendant’s claim was indeed relevant, as a matter of important background explanation, of the circumstances and terms upon which the claimant first entered into occupation.[20]In the event, the judge found that the defendant did have title to the freehold at the time when the claimant first went into occupation of the property. He readily acknowledged that his task had been rendered more difficult by the fact that the defendant was unable to produce either the title deeds of the property or the conveyance under which title to the property had allegedly passed to him. There were, however, a series of documents which tended to support the defendant’s claim which, when taken all together, the judge found sufficiently compelling to allow him safely to conclude that the defendant was the “paper owner”.[21]These documents included signed letters from a Mr and Mrs Murdoch stating that they had sold the property known as 154 and 154b to the defendant in 1981 for about £21,000. In March 1981, the defendant and a business partner purported to grant a lease of 154b to two companies which they owned. Later in the same year, the terms of the lease of the first floor were changed by a deed of variation and the defendant and his business partner submitted a planning application with a view to converting the ground floor of 154b into a night club.[22]The night club venture came to nought. By 2001, plans, to which I have already referred, were afoot to develop the courtyard into what was to be renamed Boudicca Mews. Agents for the developer, Joscelyne Chase, wrote to the Borough Council on 20 July 2001 stating of 154b:
“We are not sure who is the owner of this property. Mr David Elvin has attended on site claiming either he is the owner or represents the owner (could be owned by one of his family).”
[23]About four years later, loss adjusters and solicitors were engaged in extensive correspondence with the claimant concerning a flood from No.10 into No.9. At that juncture, the leasehold occupants of No.10 were Lowther Oswald Limited who subsequently transferred their leasehold title to the defendant and his business partner, one Mr Havelin, as is evidenced in a Land Registry transfer document dated 24 April 2009.[24]This documentary paper trail was consistent with, and fleshed out by, oral evidence given by the defendant and his business partner, at trial. In short, the defendant confirmed that he had bought 154b from the Murdochs with a view to pursuing a night club project. Mr Havelin was brought in as business partner in this venture. They did not need the upstairs of 154b (which was to become No.10) for the purposes of the nightclub therefore this property was let out on a long lease. In 2009, as evidenced by the Land Registry documentation, this leasehold was merged once more into the freehold.[25]The judge rightly pointed out that documentary inconsistencies had given the claimant’s counsel much scope for the exercise of casting doubt on the defendant’s evidence. He made specific reference to problems concerning the accurate numbering of the properties. Nevertheless he concluded, as he was entitled to do, that the balance of the evidence supported the defendant’s case on his paper title. He was also right to point out, in passing, that the claimant had been unable to identify any other candidate with a better claim to the paper title than the defendant.

ADVERSE POSSESSION

[26]The second ground of appeal was founded upon the assertion that the judge had failed to apply the proper test for adverse possession as set out in the leading case of Pye v Graham [2003] 1 A.C. 419.[27]This ground does not stand up to scrutiny. In short, by the application of Pye, the claimant had to demonstrate that he had dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner. The judge expressly found that the claimant’s period of occupation was less than twelve years and that for all, or a substantial part, of this period his status was that of a tenant or licensee. Either of these findings was sufficient on the test set out in Pye to defeat the claimant’s claim and this, indeed, was the inevitable consequence.

WHO WAS TELLING THE TRUTH?

[28]The claimant’s case was that he simply came across No.9 as empty and fire damaged premises which he noticed had been left vacant for some time. He took up occupation in spring 2000 and engaged contractors to put the premises into a condition from which he could trade as a “supplier of hydroponic gardening equipment”. His evidence was to the effect that he had no contact with the defendant concerning the flat until early 2005 when the latter turned up and laid claim to the first floor which was also unoccupied. In late 2005, there was a flood following which he stopped trading. He subsequently allowed licensees to occupy the premises. These licensees were the men who were later to be arrested by the police for cultivating cannabis.[29]The defendant’s case was that he had agreed to let the premises to the claimant at a rent of £500 per annum. In addition, the claimant was to pay all outgoings including council tax and utility bills. He said that the claimant kept up to date with payments, in cash, until the flood of 2005 when the relationship between them became strained and the payments stopped.[30]These respective accounts are so fundamentally irreconcilable that it must follow that one or both of them were committing barefaced perjury at the hearing. THE JUDGE’S TASK[31]The judge faced an unenviable challenge in attempting to disentangle the evidential complexities of this case. The murky absence of documentary formality formed a background against which both the claimant and defendant appeared for much of the time to have assumed the roles of determined competitors in an implausibility contest.[32]It was inevitable in these circumstances that whichever party were to lose the case would, nevertheless, have accumulated a fair quantity of material with which to seek to undermine the plausibility of the other. The remaining grounds of appeal seek to challenge the judge’s findings of fact by identifying numerous respects in which the evidence relied upon by the defendants was in certain specific ways and, when taken as a whole, unsatisfactory. Reference is also made to certain documents which are, when considered out of the context of the entirety of the evidence, more supportive of the claimant’s case that that of the defendants.[33]The judge is further charged with failing fully to articulate in his judgment every aspect of the flaws to be found upon a careful examination of the defendant’s documentary case (or lack of it) and every aspect of the relative virtues of the claimant’s case.[34]Nevertheless, this was not a case in which the maculate evidence relied upon by the defendants could be held up in direct contrast to any clear and coherent picture presented by the claimant. The judge had to make sense, as best he could, of the tricky balance of competing and untidy inferences. Furthermore, he was not obliged to identify and weigh minutely every argument raised with respect to the very many permissible permutations of inferences to be drawn from the various strands of documentary and other evidence. As the Court of Appeal held in Customs and Excise Comrs v A [2003] Fam 55 , paras 82–84:
“82. A judge's task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process. 83. However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice. 84. Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”
[35]In the event, the judge’s analysis clearly set out, with all the detail necessary and proportionate to the issues he had to resolve, the essence of his reasoning. He concluded:
“5.11 The decisive consideration, in choosing between the parties on these issues, is my finding that the Elvins were in fact at all material times the owners of No 9 and the freehold, but not (until 2009) of No 10. This being so, C cannot be telling the truth when he says that he only had two encounters with David Elvin at the premises, one before and one after the flood, on each of which occasions Mr Elvin said that he owned the upstairs, and on the second of which he said he was not the freeholder. There is no conceivable reason why Mr Elvin should have told C the opposite of the truth on these occasions. It is clear from the Joscelyne Chase letter that in mid-2001 David Elvin was visiting the premises and claiming to own the ground floor. It is equally clear that it was Lowthers who effectively owned the upstairs, and who dealt with C on that basis after the flood. If Mr Elvin met and spoke to C at the premises in 2005, it must have been on the basis that Mr Elvin knew himself to be the freeholder and knew that he had not sold or leased the ground floor to anyone else. Unless C was his tenant or licensee, Mr Elvin must have known or believed him to be a trespasser or squatter, but neither party suggests that they spoke on that basis. 5.12 On the balance of probabilities, it is considerably more likely that Mr Elvin admitted C to the ground floor by agreement, and took rent from him, as he had previously done with other commercial tenants there, than that he allowed him to enter as a squatter and to remain there without objection for many years. I conclude that the Defendants’ account of events is substantially more persuasive than the Claimant’s, and I find that it is true that C first entered the ground floor after December 2001, and on the basis of an oral tenancy agreement pursuant to which he paid rent for several years. 5.13 It is obviously surprising in those circumstances that when C ceased paying rent the Ds took so few steps to recover the rent, and none to obtain possession, until after the police raid in 2013. They gave two reasons for this; firstly that in the aftermath of the flood C had ceased trading, and secondly that since Damien was a friend of C’s son he did not wish to take action against C. I also note that, as Mr Patterson told his solicitor and as I can well accept, C is a “somewhat intimidating” man with whom a local businessman might not wish to quarrel. (When the Defendants did recover possession via the police in 2013, their first step was to install an apparently formidable bailiff to secure the premises.) The Defendants’ failure to take action earlier is a point against them; but it is not strong enough to overturn the positive case, based on their long ownership of and involvement with these premises, which has led me to decide these issues in their favour.”

CONCLUSION

[36]In all the circumstances, I find myself in agreement with the summary of the position set out in the defendants’ skeleton argument on this appeal:
“The judge was aware that there were faults and gaps in the defendant’s proof of title. This was what gave the claimant scope to dispute it… But none of the points made on the evidence (at trial, and thoroughly developed in the claimant’s skeleton argument for this appeal) is explained by any theory better than the conclusions reached by the judge.”
[37]I agree. This appeal must therefore be dismissed.