Owain Geraint Lewis-Han & Anor v Mary Yvonne Williams OBE & Anor [2025] UKUT 401 (LC)

[2025] UKUT 401 (LC)Case Nos: LC-2025-118
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: 2022/0548 & 0549
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
OWAIN GERAINT LEWIS-HAN (1)AppellantYIHUA LEWIS-HAN (2)AppellantMARY YVONNE WILLIAMS OBE (1)RespondentTRACEY CATHERINE HOLLOWAY (2)Respondent
8 December 2025
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LAND REGISTRATION – ADVERSE POSSESSION – terms of lost conveyance – whether factual possession and intention to possess established – whether to allow new evidence on the appeal
Land adjoining 2 Lodge Cottages and Westgate,David Street, Wick,Glamorgan, CF71 7QFHis Honour Judge Johns KCHearing Hearing date: 5 November 2025Mr Stephen Jourdan KC and Ms Rowena Meager (instructed by FBC Manby Bowdler (Midlands) Limited) for appellantsMr Alexander Learmonth KC and Mr Jeff Hardman (instructed by DJ Murphy Solicitors) for respondents© CROWN COPYRIGHT 2025The following cases were referred to in this decision:Walter Lilly & Co Ltd v Clin[2021] EWCA Civ 136Volpi v Volpi[2022] EWCA Civ 464Red House Farms (Thorndon) Ltd v Catchpole[1977] 2 EGLR 125Thorpe v Frank[2019] EWCA Civ 150Dyer v Terry[2013] EWHC 209 (Ch)Powell v McFarlane (1977) 38 P&CR 235JA Pye (Oxford) Ltd v Graham[2002] UKHL 30Purbrick v Hackney London Borough[2003] EWHC 1871 (Ch)Amirtharaja v White[2021] EWHC 330 (Ch)Deutsche Bank AG v Sebastian Holdings Inc[2023] EWCA Civ 191Edwards Lifesciences LLC v Boston Scientific Scimed Inc[2018] EWCA Civ 673Date 2025-12-08

Introduction

[1]This appeal is about the ownership of an area of land used as a driveway (the Disputed Land) serving properties known as Westgate and the Tithe Barn off David Street in Wick, South Wales now owned by Mr & Mrs Lewis-Han (the appellants). It is brought with the permission of Upper Tribunal Judge Cooke given on 2 May 2025 against a decision of the First-tier Tribunal (Property Chamber, Land Registration Division) (the FTT) made on 11 December 2023 (the Decision). By the Decision, the FTT determined that Mrs Williams and her daughter Mrs Holloway (the respondents), as registered owners of 2 Lodge Cottages (No.2), abutting the Disputed Land to its north, were also entitled to be registered as owners of the Disputed Land on the basis that it had been included in a conveyance of No.2 dated 21 September 1960 which has since been lost (the Lost 1960 Conveyance). The FTT rejected the case made by the appellants to be registered as owners of the Disputed Land relying on adverse possession. It decided that neither factual possession nor an intention to possess the Disputed Land was established. It also rejected a submission (made only in the course of the hearing before the FTT) that the appellants were paper title owners of the Disputed Land.

Background

[2]The background necessary to understand the appeal is provided by the key conveyancing history. The FTT examined that history carefully. The following summary draws gratefully on that.[3]It is convenient to start with a 1933 compensation agreement. That shows, by reference to a shaded plan based on the 1919 Ordnance Survey sheet, that an area of land including No.2, as well as the adjoining cottage (No.1), and the Disputed Land was owned at that stage by the Trustees of the Loyal Severn Side Lodge of Number 1426 of the Manchester Unity of the Independent Order of Oddfellows Friendly Society (the Oddfellows Trustees).[4]There was a significant change in the physical layout by the 1950s. Such can be seen in aerial photos and a plan to a 1957 conveyance forming part of the appellants’ chain of title. The gardens to No.2 and No.1 were enlarged, being bounded by a new low garden wall, next to which was formed a driveway over the Disputed Land serving Westgate and the Tithe Barn.[5]The significant transfers came in the 1960s.[6]By the Lost 1960 Conveyance, at least No.2 was conveyed by the Oddfellows Trustees to Mr Williams (the husband of the first respondent, Mrs Williams). He had been the tenant of No.2.[7]The Lost 1960 Conveyance was soon followed by a conveyance of No.1. That was dated 28 September 1961 (the 1961 Conveyance). The 1961 Conveyance included two plans. A key plan, based on the old 1919 OS sheet, from which the location of No.1 could be seen. But also a block plan to a much larger scale, which reflected the change in layout, and showed the extent of the property being conveyed by pink shading. That was the operative plan in that the terms of the 1961 Conveyance referred to “all that piece or parcel of land with the messuage or dwellinghouse erected thereon and known as Lodge Cottage Wick aforesaid which said premises are more particularly delineated and described in the Plan annexed hereto and thereon coloured Pink.” The shading could be seen on the monochrome copy 1961 Conveyance in the appeal bundle. On asking, I was told no colour copy of the 1961 Conveyance is available.[8]Westgate and the Tithe Barn were transferred to a Mr Jenkins by a conveyance dated 21 June 1965. It is now accepted for the appellants that that did not include the Disputed Land. The Disputed Land formed part of the Oddfellows Trustees’ land as already noted, rather than being within the different chain of title leading to the conveyance to Mr Jenkins. He lived on the land and ran a haulage business from it.[9]No.2 was transferred by Mr Williams to himself and his wife in 1977. That conveyance is also lost.[10]Mr Jenkins made a statutory declaration concerning the Disputed Land on 8 November 1979. He transferred Westgate and the Tithe Barn to himself and his wife in 1994. And title to No.2 was first registered in 1995 (under title number WA761067). The filed plan created for No.2 by HM Land Registry does not include the Disputed Land. The respondents’ case is that that was a mistake.[11]The registration of No.2 appears to have been linked to a grant of rights for a water pipe made by Mr & Mrs Williams under a deed dated 16 May 1995. This 1995 deed was also accompanied by two plans. One showed the line of the water pipe. The other used the 1919 OS sheet as a base and purported to show No.2 shaded pink and the grantees’ land shaded green. But the pink land included No.1, which must be an error. That was not then owned by the Williams. It seems from the Decision at [35] that Mrs Williams owned No.1 only “between about 1999 and 2016”. The FTT attached significance to the fact that the pink shading included the Disputed Land. And it must be acknowledged that the Lost 1960 Conveyance appears in the schedule of documents forming part of this 1995 deed.[12]Mr Williams died in 2005. Mr & Mrs Jenkins transferred part of their land, being the Tithe Barn, to their family-owned company, Wick Transport Services Ltd, by a transfer dated 15 August 2007. And title to the Tithe Barn then became registered. Westgate remained unregistered.[13]Mrs Holloway became registered proprietor with Mrs Williams of No.2 in 2017. And the appellants purchased Westgate, from the Jenkins, and the Tithe Barn, from their company, on 30 April 2019. Westgate was then registered for the first time.

FTT hearing and decision

[14]The FTT hearing took place over four days. There were issues about further disclosure during that hearing. The appellants disclosed their 2019 conveyancing file only in the course of the hearing, apparently at the request of the respondents and the direction of the FTT. The respondents also made some further disclosure. That seemingly led to the appellants complaining of other omissions in the disclosure by the respondents, but they did not press for those documents. At least not during the hearing. Instead, they followed up on this only after the Decision, in January 2024. And further disclosure was then given. There was then a wide ranging disclosure application by the appellants against the respondents in February 2024 dismissed by the FTT in June 2024. In dismissing the application, the FTT said at [22] of its decision on the application that, “The time to seek specific disclosure was during the trial in mid-September 2023 … It is, in my view, extraordinary that further disclosure was not pursued forthwith. Rather, the trial proceeded to its conclusion, written submissions were made and my Decision issued.”[15]In the main Decision given following trial, the FTT stated the principles applicable to adverse possession claims. No criticism is made of its summary. The FTT later set out the conveyancing history, and then referred to the witness evidence given. That included evidence from both the respondents. Mrs Williams said she remembered Mr Jenkins resurfacing the Disputed Land. And talked about delivery of a calor gas tank to No.2 via the Disputed Land as well as gas refills. Mrs Holloway also referred to the delivery of the gas tank as well as deliveries of manure and a conservatory using the Disputed Land. Mr Holloway also gave evidence. He said that anything for the garden of No.2 was dropped over the wall: the conservatory, fertiliser, growbags, fuel for the calor gas tank, manure, and things for the greenhouse. For the fuel, the lorry would reverse onto the Disputed Land and a pipe would be run over the wall to the tank. Another witness was a Mr Francis. He gave evidence as to installation of a calor gas system in No.2 in the 1980s and the regular refilling of the gas tank which involved using the Disputed Land to access the rear garden of No.2.[16]After referring to some further witnesses for the respondents, the FTT summarised some of the evidence it had heard from the appellants. Mr Lewis-Han said that Mr & Mrs Jenkins had advised them orally prior to purchase that they owned the Disputed Land and it was in their sole use; something he checked in a text message exchange with the daughter of Mr & Mrs Jenkins. Despite further disclosure, no such text messages were produced nor was there any reference in the conveyancing file or otherwise to this advice said to have been given by the Jenkins. Mr Lewis-Han also talked about having put up a chain, parked cars on the Disputed Land, and erected chipboard between the garden wall of the cottages, No.2 and No.1, and the Disputed Land. There was evidence from Mrs Lewis-Han. As well as from Mr Jenkins. He said that he had resurfaced the Disputed Land three times because of his heavy lorries using it and had also dug it up to install mains water. He made clear the Jenkins were great friends with the Williams, but said the Williams had asked if they could use the Disputed Land for the gas tank and other things and he had not refused. The FTT also referred to the evidence of a few more minor witnesses for the appellants.[17]It then analysed the evidence as to user of the Disputed Land, giving its assessment of the witnesses. Mrs Williams was found to be honest though occasionally inaccurate and unreliable. A similar assessment was made of Mrs Holloway. The FTT observed that no one gave the Disputed Land much thought until the departure of Mr Jenkins and the arrival of the appellants. It found that there was some use by the Williams of the Disputed Land. And that that was without permission; it being implausible that they would have sought permission given the good relations. Mr Francis was regarded as reliable. The evidence of the appellants was noted by the FTT as being of limited value given they had only come to the scene recently. But the FTT was understandably concerned about Mr Lewis-Han’s evidence. It gave detailed reasons for rejecting his account that he had been advised by Mr Jenkins and his daughter prior to purchase that the Disputed Land was owned by the Jenkins and was in their sole use. As part of that, the FTT made clear it did not accept Mr Jenkins’s evidence that he bought, or believed that he bought, the Disputed Land in 1965. Its reasons included that it was plain from the root of Mr Jenkins’s title that it did not include the Disputed Land, as well as the terms of the 1979 statutory declaration. Those findings were said not to assist greatly in determining the issues, but did lead to Mr Jenkins’s evidence being treated with caution.[18]Having set out the parties’ arguments on the question of paper title to the Disputed Land, the FTT gave its conclusion at [107]. “Whilst there is merit in Ms Meager’s submission that the Applicants’ evidence as to documentary title is weak, I am persuaded on the balance of probabilities that they have established paper title.”[19]A reason which plainly weighed heavily with the FTT was the unlikelihood of the Oddfellows Trustees retaining the Disputed Land. “I consider it highly unlikely that the Oddfellows would have retained the Disputed Land, either deliberately or by accident – Ms Meager suggested these possibilities in her closing submissions. There is no obvious reason for retention of the Disputed Land given that the Oddfellows appear to have divested themselves of all other land that they owned in the immediate vicinity (including land on the far side of David’s Street). Accidental retention seems unlikely and the tinting on the 1995 Deed’s plan suggests not – as Mr Hardman submitted, the 1960 Conveyance was likely to have been to hand when the tinting was added given that it is listed in the Schedule.” ([107]).[20]The FTT considered that the change in layout by the 1950s contributed to an error on the first registration of No.2. “I consider it more likely than not that the Disputed Land was omitted in the first registration process … [T]he topography had changed in that there was a wall separating the gardens to the Lodge Cottages from the Disputed Land which did not accurately represent the paper title as I find it to be.”[21]The FTT then summarised the parties’ submissions on the issue of adverse possession, and went on to conclude that the appellants failed to establish both exclusive possession and an intention to possess. It said, among other things, and referring to acts of the appellants on the Disputed Land in the time of their recent ownership: “In my view and even taking into account the nature of the Disputed Land and how it might be commonly enjoyed, the [appellants] have fallen well-short of establishing an appropriate degree of exclusive physical control. Their actions since this dispute arose would most likely be sufficient but the wooden fence, the parking of cars and the chain all came in 2019 or later which is far too late for the 12 years needed for adverse possession.”([119]) “I do not think that Mr Jenkins’ actions on or with the Disputed Land would have clearly manifested and made apparent his intention to possess to the paper owner even taking into account its character (i.e. an unremarkable approx. 15 metre drive). Running water pipes under the Disputed Land might be consistent with an intention to possess, but it was a single act that effectively left the surface of the drive unchanged (albeit with a new tarmac surface) and which Mrs Williams says her late husband permitted and paid for. In any event, use and re-surfacing of the Disputed Land is equivocal given that it is also consistent with an easement and I do not accept Mr Jenkins’ evidence that he ever gave the Applicants (and/or their family, servants and agents) permission to use the Disputed Land. There is no evidence other than his say-so and, as dealt with above, I find that the Applicants were honest witnesses and I do not think that they were lying or mistaken about this. I consider it more likely than not that neither the Williamses nor the Jenkinses or their predecessors ever gave the Disputed Land much thought. Relations were very good between their households. The Williamses and their licensees could and did, I find, reach their garden without going through No. 2 or seeking permission when it suited them (probably not very often) and the Jenkins and their tenants and licensees could reach the parking behind Westgate and The Tithe Barn. It was only when the [appellants] arrived on the scene that the status quo was disturbed and anyone gave any serious thought as to who actually owned what.” ([120]).

The appeal

[22]The appellants say on this appeal that: the FTT was wrong on the evidence it heard to hold that the respondents had established paper title to the Disputed Land (Ground 1); the FTT was wrong on the evidence it heard to hold that Mr Jenkins was not in possession of the Disputed Land (Ground 2); and there should be a rehearing having regard to documents disclosed by the respondents after the hearing before the FTT (Ground 3). There is no challenge to the FTT’s rejection of the appellants’ late case that they were paper title owners of the Disputed Land.

Ground 1

[23]I start with Ground 1 of the appeal. The Decision that the respondents were entitled to be registered as proprietors by virtue of the Lost 1960 Conveyance was a decision on a question of fact. That question was about the terms of the Lost 1960 Conveyance. Did those terms, as the respondents contend, include a conveyance of the Disputed Land?[24]Appeals from the FTT in a land registration case may certainly be brought on questions of fact. That is by virtue of the Land Registration Act 2002, s.111. The approach of an appellate court to such questions is well summarised in Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at [83] – [86]. “83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include: i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed; ii) The trial is not a dress rehearsal. It is the first and last night of the show; iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case; iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping; v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence); vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. (See Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114].)84. The relevant line of authorities is well-known and includes Fage UK Ltd (supra); Hamilton v Allied Domecq Plc [2006] SC 221 at [85]; Henderson v Foxworth Investments Ltd [2014] UKSC 41 at [62]; Haringey LBC v Ahmed & Ahmed [2017] EWCA Civ 1861 at [29]-[31]; Volcafe Ltd & Ors v Compania Sud Americana De Vapores SA [2019] AC 358 at [41]; Perry v Raleys Solicitors [2020] AC 352 at [52]; Wheeldon Brothers Waste Ltd v Millennium Insurance Company Ltd [2019] 4 WLR 56 at [7] to [18]; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176 at [40]; R (Bowen) v R (Bowen) v Secretary of State for Justice [2018] 1 WLR 2170 at [65]; Re Sprintroom Ltd EWCA Civ 932 at [76]; PN (Uganda), R (On the Application Of) v Secretary of State for the Home Department [2020] EWCA Civ 1213 at [62]; Group Seven Ltd v Nasir [2020] Ch 129 at [21].85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows: i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support; ii) Where the finding is infected by some identifiable error, such as a material error of law; iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.87. The degree to which appellate restraint should be exercised in an individual case may be influenced by the nature of the conclusion and the extent to which it depended upon an advantage possessed by the trial judge, whether from a thorough immersion in all angles of the case, or from first-hand experience of the testing of the evidence, or because of particular relevant specialist expertise.”[25]This is, in my judgment, one of those cases where the Tribunal is compelled to interfere. The case proceeded before the FTT on a fundamental misapprehension. One which led the FTT into error and means its finding of fact cannot stand. The FTT decided the case on the footing that the Land Registry did not have the Lost 1960 Conveyance when creating the title for No.2, including the filed plan, in 1995. But the Land Registry did have the Lost 1960 Conveyance. Once that is appreciated, it is apparent that the finding of the FTT as to the terms of the Lost 1960 Conveyance was wrong.[26]Mr Learmonth KC, appearing for the respondents, did not accept that the FTT decided the case on the basis that the Land Registry lacked the Lost 1960 Conveyance when creating the title for No.2. But I consider that basis is clear from the reasons given by the FTT in refusing permission to appeal.[27]At [6] of those reasons, the FTT said:
“The … production of the Registry’s 10 March 2022 letter and inevitable concession means that I was wrong to find that the 1960 Conveyance was not sent to the Registry at first registration in 1995.”

And at [12]:

“I do not think that my knowing that in 1995 the Registry had the 1960 Conveyance would have made any difference to my conclusions”
. And at [12]:[28]It is anyway apparent from the Decision itself, which makes no reference at all to the Land Registry having the Lost 1960 Conveyance, and instead accepts at [18] that, “The accompanying documents to the registration application identified No.2 by description only”. That had been the respondents’ case before the FTT. The respondents’ statement of case before the FTT included this at [27], referring to the 1995 registration of No.2:
“Importantly, the documents submitted in support of the application identified the property by description only. It is averred that the conveyancing solicitors and/or HM Land Registry fell into error by not including the Accessway as part of the application, presumably because a copy of the plan was not included.”
[29]I struggled to understand how the filed plan could possibly have been created from a description only, still less how that could be regarded as probable. But that the Land Registry did not have the Lost 1960 Conveyance appears to have been the position of both sides. That was despite the Land Registry having sent to the parties, in the context of the current dispute and under cover of a letter dated 10 March 2022, a schedule of the deeds lodged on first registration of No.2 and the schedule very clearly including as the first item the Lost 1960 Conveyance.[30]Given that letter and schedule, it is plain that the parties’ position before the FTT represented a misapprehension.[31]In my judgment, the fact that the Land Registry created the filed plan with the benefit of the Lost 1960 Conveyance fatally undermines the conclusion reached by the FTT. It means that the filed plan is good evidence of the terms of the Lost 1960 Conveyance. That was not appreciated by the FTT, owing to the shared fundamental misapprehension of the parties.[32]Approaching the question of what inference is to be drawn as to the terms of the Lost 1960 Conveyance on the correct footing, as the Tribunal is now able to do, the right inference is that the Lost 1960 Conveyance did not include the Disputed Land.[33]There is a good guide to the form of the Lost 1960 Conveyance provided by the 1961 Conveyance. That conveyed No.1 by reference to a plan, in particular a “block plan”; a plan shaded pink to show the land being conveyed. As the FTT said when refusing permission to appeal, the Lost 1960 Conveyance is most likely to have done the same. It was a broadly contemporaneous transaction.[34]It is improbable that the Land Registry, faced with the Lost 1960 Conveyance including its block plan, would have committed the error of leaving the Disputed Land out of the title. It is particularly improbable when it is considered that the filed plan would be a very different shape if it were to incorporate the Disputed Land. The area edged red would not merely extend further behind No.2 (so further to the south) but also include land behind No.1 and directly abutting David Street. The filed plan which was in fact created would therefore represent a very significant departure from the Lost 1960 Conveyance block plan if the block plan had included the Disputed Land. Such is very unlikely.[35]Importantly, it is more unlikely than a failure to convey the Disputed Land in 1960, whether by design or accident. Small parcels of land falling outside the natural or apparent boundaries of property conveyed are easily overlooked. Particularly where it is less than obvious that they serve the property to be sold. The rear garden wall forms a natural boundary to No.2. And the driveway on the Disputed Land serves Westgate and the Tithe Barn. Any accommodation of No.2 is less obvious.[36]I do not ignore the shading on the 1995 deed plan. But that plan is simply wrong, as the Williams did not own No.1. And the focus of that deed was not the extent of No.2 but the line of the water pipe. It is not, in my judgment, as good a guide to the contents of the Lost 1960 Conveyance as the filed plan and the 1961 Conveyance.[37]Mr Learmonth urged on the Tribunal the reasons given by the FTT for its conclusion. That there was an unlikelihood to the retention by the Oddfellows Trustees of the Disputed Land, either deliberately or by accident; there being no obvious reason to retain it. See the Decision at [109]. And that there was a possible explanation for an error on first registration, namely the change in topography since the time of the old OS plan. See the Decision at [112].[38]But in the true circumstances as now known, the nature of the suggested error by the Land Registry is entirely different and cannot be explained in that way, at least not readily. The Land Registry had the Lost 1960 Conveyance including its block plan showing the new topography. Such an error is less likely than retention of the Disputed Land in 1960 by design or accident.[39]An appellate court or tribunal may be helped by an amplification of reasons given by a judge when refusing permission to appeal. And I do not ignore the FTT’s statement in this case that, “I do not think that my knowing that in 1995 the Registry had the 1960 Conveyance would have made any difference to my conclusions”, or the explanation which followed. But that explanation does not grapple with the central point that, once it is appreciated that the Land Registry had the Lost 1960 Conveyance, the title as created is good evidence of the terms of that conveyance.[40]A challenge by the respondents to the standing of the appellants to pursue Ground 1, given the failure of the appellants on their adverse possession application, was not pursued at the hearing of the appeal. Further, while the fact the Land Registry had the Lost 1960 Conveyance in 1995 could be said to be in the nature of a new point, there was no opposition to it being taken on appeal. There was such opposition to other points, but not to this one.[41]Overall, as the FTT noted, the case of the respondents for good paper title to the Disputed Land was already weak. Now that a fundamental problem at the heart of that weak case has been exposed, the FTT decision cannot stand. The appeal on Ground 1 is allowed.

Ground 2

[42]I turn to decide Ground 2. The determination that neither factual possession nor intention to possess was established represented an evaluation of the facts, or what is sometimes called a multi-factorial assessment.[43]It was submitted for the appellants that the Tribunal should nevertheless interfere because there was a key flaw in the FTT’s reasoning and the only possible conclusion on the evidence was that adverse possession was established.[44]The key flaw suggested was the failure to take into account the topography, in particular the wall separating the Disputed Land from the garden of No.2. The submission was that this topography, which explained at least one witness’s assumption that the Disputed Land formed part of the appellants’ land, put a completely different complexion on the case and compelled a different conclusion to that reached by the FTT.[45]I do not accept there was any such flaw in the FTT’s reasoning. The FTT will not have forgotten the topography (or the assumption it led one witness to make) when arriving at its conclusions, despite not referring expressly to it in the conclusions section of the Decision. “An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.” – see Volpi v Volpi [2022] EWCA Civ 464 at [2(iii)]. That is clearly the right course here where the topography was of obvious significance, is described clearly elsewhere in the Decision, and was a significant part of the FTT’s reasoning on the paper title issue.[46]Nor did the topography compel the conclusion that Mr Jenkins had both factual possession and an intention to possess.[47]In support of the submission that it did, Mr Jourdan KC, appearing for the appellants, pointed to decided cases, in particular Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125 and Thorpe v Frank [2019] EWCA Civ 150, and argued that the determination of the FTT was inconsistent with those cases.[48]But that is to attach too much significance to these other cases in this area. The true position was set out in Dyer v Terry [2013] EWHC 209 (Ch) at 14(10). “… each case must turn on its own particular facts: see e.g. Chapman v Godinn Properties Limited [2005] EWCA Civ 941, at paragraph 28 per Chadwick LJ. This particularist approach has given rise to some often widely differing results. For example, in Chapman the Court of Appeal held (at paragraph 22) that the disputed strip was one in relation to which the owner or person in possession could not be expected to do any more than to tidy and up and maintain, by way of mowing and cutting back the shrubs from time to time, whereas in Ellet-Brown v Tallishire Ltd (29 March 1990, unrep) Lloyd LJ held that the planting of thousands of daffodils to adorn and beautify the disputed land was insufficiently an unequivocal act of possession (see page 3 of the official transcript). Each of these cases turned on the particular features which struck each court in the context of other particular features present. They are an object lesson in the dangers of pointing to any particular case and using it as transposable authority. They are no more than illustrations of the wider principles in action. Accordingly, a tribunal of fact asked to determine whether factual possession and the requisite intention to possess has each been made out has a degree of latitude within the factual parameters of the case before it which the evidence properly establishes.”[49]The FTT plainly had the right wider principles in view. It set them out in the Decision at [8], drawing on the leading cases including Powell v McFarlane (1977) 38 P&CR 235 and JA Pye (Oxford) Ltd v Graham [2002] UKHL 30. And, in my judgment, its conclusion was a plainly permissible one.[50]The sea of evidence with which the FTT was faced included some user of the Disputed Land by the Williams without permission, such as regular use of the Disputed Land for the taking of fuel deliveries. The evidence of user reflected another significant feature of the physical layout, namely that the Disputed Land provided the only access to the garden of No.2 other than going through the house.[51]The sea of evidence also included what had been done by the appellants since becoming owners of Westgate and the Tithe Barn. That helped the FTT consider what an occupying owner might do with the Disputed Land. It was entirely legitimate to take that into account. Mr Jourdan highlighted these words of Neuberger J in Purbrick v Hackney London Borough [2003] EWHC 1871 at [20]:
“The fact that a squatter could have done more than he did on the land, or in the building, is plainly not enough of itself to defeat a claim for adverse possession.”
But it is important to note how that paragraph ends. “However, given that factual possession ‘must depend on the particular circumstances’ and must depend on considering what ‘an occupying owner might have been expected to [do]’, I accept that it is not illegitimate to consider what more might have been done.”[52]In considering that most of the acts on the Disputed Land by Mr Jenkins were explicable as user for access and so equivocal, the FTT was also taking a proper approach. This was not, as Mr Jourdan argued, wrong in principle. A similar line of reasoning was adopted in the High Court in Amirtharaja v White [2021] EWHC 330 (Ch), and seems to me entirely proper given that Slade J’s celebrated statement of the law in Powell included this:
“the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”
That is reflected in the speech of Lord Hutton in Pye at [76]: “… It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess …”.[53]That the actions of Mr Jenkins were equivocal was rather underlined by his statutory declaration made in 1979, another feature of the evidence. Mr Jourdan rightly conceded that on an objective reading of this document it evidenced user as a right of way, not possession. Referring to the Disputed Land, Mr Jenkins declared, “(4) Such road has been used by me and my agents servants and friends since the year one thousand nine hundred and sixty five as a right without the consent of any person without interruption and without payment of any kind to any person whatsoever from the said year one thousand nine hundred and sixty five until the present time. (5) The said use has been to pass and repass along the said road by day or by night without or without vehicles of any description and with or without animals for all purposes …”.[54]Returning to the cases relied on by Mr Jourdan, the work of paving done in Thorpe effectively incorporated the disputed area in that case into the adjoining property of the adverse possessor. The paving was the same as that carried out on the land already owned, forming one area. The court quoted from the statement of Mrs Thorpe at [8], which included, “There was, prior to 1984, a concrete lip around the paved area which clearly demarcated the area adversely possessed, such that it is obvious to a third party that the area forms the area attached to 9 and further that it is clearly not a roadway access to any other property.” The later paving also covered the whole area. That is not akin to anything done here. There was no act by Mr Jenkins which could be said to incorporate the Disputed Land into his other land. The garden wall was a pre-existing feature. While he resurfaced the driveway on the Disputed Land, that was work to facilitate its use as an access to his land. That interpretation is reflected in the law that a right of way brings with it an ancillary right to improve the surface of the way so as to accommodate the dominant tenement.[55]Red House Farms is a case on very different and unusual facts. It certainly underlines the importance of bearing in mind the nature of the land, but is otherwise of little assistance in deciding the present case.[56]The FTT also had some regard to the fact that in 2007 the Jenkins caveated their ability to grant a right of way over the Disputed Land when making a transfer to a related company. And to the fact that the transfer to the appellants in 2019 did not even purport to include the Disputed Land. While this was also criticised by the appellants, these were legitimate factors to take into account. Again, similar reasoning was adopted by the High Court in Amirtharaja. And the FTT anyway had other, weightier, reasons for its conclusion.[57]In their attack on the FTT’s conclusion on adverse possession, the appellants also challenged some findings of primary fact by the FTT. Particular emphasis was placed on a finding that the installation of a water supply pipe by Mr Jenkins under the Disputed Land was with permission. That does appear to have been based on a misunderstanding of the evidence, as I understood Mr Learmonth to accept. Mrs Williams’s evidence about permission at [10] of her witness statement was concerned with different services, namely foul and surface water, under different land. But this does not undermine the overall conclusion of the FTT. It is apparent from its treatment of this issue of adverse possession that the conclusion did not depend on the question of permission for these works. The laying of the pipe was not an act which weighed heavily with the FTT at all. It said only that, “Running water pipes under the Disputed Land might be consistent with an intention to possess, but it was a single act that effectively left the surface of the drive unchanged (albeit with a new tarmac surface) and which Mrs Williams says her late husband permitted and paid for.” A footnote added, “Mr Jenkins denied this but, as indicated above, I prefer Mrs Williams’ evidence on this.” As was said in Deutsche Bank AG v Sebastian Holdings Inc [2023] EWCA Civ 191 at [55], “Even if an appellant is able to point to individual errors which the judge has made, for example that a particular piece of evidence has been misunderstood, that will not necessarily vitiate the judge’s overall conclusion. Whether it does so will depend upon the importance of the error in question in the context of the case as a whole, including the nature and force of other factors for and against the judge’s conclusion.”[58]The appellants also challenged the FTT’s assessment of the witnesses. Mr Jourdan, while not giving up this aspect of the appeal, did not dwell on it in his written or oral argument. Rightly. The assessment of the witnesses is supremely a matter for the first instance tribunal, and the FTT here had plenty of material from which to conclude that Mrs Williams was more reliable than Mr Jenkins. This challenge included a criticism that there was a failure to put some specific matters to Mr Jenkins, one of which was an allegation he had asked Mrs Williams not to install a gate in the garden wall of No.2 onto the Disputed Land because “he was having difficulty getting the deposit off the Chinese”. There is nothing in this criticism. One, while the particular words did not feature in the cross-examination, I am satisfied from the trial transcript that a conversation on those lines was put to him. Two, this is, in the end, a point about fairness – see Edwards Lifesciences LLC v Boston Scientific Scimed Inc [2018] EWCA Civ 673 at [68] & [69]. The extent of any failures here falls well short of rendering the FTT’s assessment unfair. Fairness falls to be assessed in an imperfect world and where a failure to cross examine on some specific matters is not to be regarded as putting a judge in a straightjacket.[59]Overall, it was submitted for the appellants that the only reasonable conclusion was that possession was established. But, as I have explained, I consider the FTT’s assessment that it was not was well open to the FTT. Accordingly, and despite the excellent submissions of Mr Jourdan, the appeal on Ground 2 is dismissed.

Ground 3

[60]It remains to consider Ground 3. After the hearing before the FTT, the appellants obtained further disclosure from the respondents; namely, documents relating to a draft deed being negotiated in 2005-2006 under which the Williams were to grant a drainage easement to the Jenkins. The appellants ask for a rehearing having regard to these documents, in particular a coloured plan apparently showing the Williams land edged green, the Jenkins land edged red, and the drain route shown in yellow. The point is that the Williams land does not extend to the Disputed Land. It is shown instead within the red edging. It is said that this document would have an important influence on the adverse possession claim. And suggested that, with this document, the appellants could have alleged a boundary agreement.[61]That is to attach an unrealistic significance to this plan to an agreement that never concluded. The failure of the appellants to establish adverse possession was largely the product of Mr Jenkins’s acts being equivocal. And, insofar as the acts of the Williams on the Disputed Land were taken into account, the finding that those were without permission rested mainly on the obviously good relations between the Williams and the Jenkins. Mr Jenkins’s belief was simply not the central issue. And the FTT anyway had plenty of evidence for its assessment of Mr Jenkins and Mr Lewis-Han as to that.[62]As to the suggestion of a boundary agreement argument, this is artificial. Mr Jenkins was the appellants’ witness at the hearing before the FTT. There was no suggestion by him that he had made a boundary agreement. Nor was it explained to me on the appeal how there could be any such effective agreement fixing a boundary to No.2 along the line of the garden wall when no paper title is asserted by the appellants to the Disputed Land. Any agreement of the sort now suggested would not be between adjoining owners. Further, as with the 1995 deed, the focus of this draft agreement is not on the extent of the land owned by the Williams or the Jenkins. It is on the position of the drains. And, unlike the 1995 deed, this was a negotiation that never concluded.[63]In any event, I consider this Tribunal’s discretion should be exercised against permitting the use of this new material on the appeal. The plan was turned up as part of a search which the appellants failed to press for at the hearing before the FTT. Had they sought that disclosure then they would have had this plan. And the plan is of little moment, as I have explained. That is reflected in the FTT’s reasons for refusing permission to appeal at [22]; the FTT making clear that this 2005 plan would not have altered its conclusions. The old Ladd v Marshall principles, which still serve as a guide, were designed to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. In the circumstances of this case, that balance is best achieved by refusing permission for the new evidence. It is evidence the appellants could have obtained before the FTT and which is anyway of little moment. It casts no real doubt over the rightness of the result reached by the FTT, which should be the final determination of the issue of adverse possession.[64]By way of summary, the appeal on Ground 1 is allowed. The respondents’ application to be registered as owners of the Disputed Land on the basis of paper title therefore fails. The appeal on Grounds 2 and 3 is dismissed. The appellants’ application to be registered as owners of the Disputed Land on the basis of adverse possession also therefore fails. The result would seem to mean that the Disputed Land remains owned by the Oddfellows Trustees. His Honour Judge Johns KC 8 December 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.

Cited in 3 later judgments