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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Roberts v Crown Estate Commissioners  EWCA Civ 98 (20 February 2008)
Cite as:  2 P & CR 1,  Ch 439,  EWCA Civ 98,  WLR 1111,  1 EGLR 129,  1 WLR 1111,  NPC 21,  2 WLR 1111,  8 EG 157
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CARDIFF DISTRICT REGISTRY
MR JUSTICE LINDSAY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
MR JUSTICE MANN
| MARK ANDREW ROBERTS
|- and -
|THE CROWN ESTATE COMMISSIONERS
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR FRANK HINKS QC and MR THOMAS BRAITHWAITE (instructed by Farrer & Co) for the Respondent
Hearing dates : 18th and 19th December 2007
Crown Copyright ©
Lord Justice Mummery :
" 214 ….by 1980 and, a fortiori, by 1990 there had been such unbroken, obvious and exclusive control and possession by the Commissioners over Magor as was sufficient in duration and kind to have barred the title of Mr Roberts' predecessor in title. Were it necessary to do so I would have held that such unrivalled possession had been continued at least until Mr Roberts' acquisition of Magor in October 1997."
"221. In these circumstances, I am unable to find any general policy or practice of the Commissioners which, of itself, by denying the existence of an appropriate animus, negates their claim to adverse possession of Magor. In particular Mr Jacobson's answer that the Commissioners would not intentionally trespass on another's land does nothing, in my view, to deny the appropriate animus in a case where, as the 1957 memorandum itself states, the Crown believed it was prima facie entitled to every part of the area concerned."
"223 … the Crown has, in relation to Magor, accompanied its acts of possession and control with the animus possidendi of a putative owner."
The 1980 Act and its interpretation
"Except as otherwise expressly provided in this Act, and without prejudice to section 39, this Act shall apply to proceedings by or against the Crown in like manner as it applies to proceedings between subjects."
"1. Where the person bringing an action to recover land, or some person through whom he claims, has been in possession of the land, and has while entitled to the land been dispossessed or discontinued his possession, the right of action shall be treated as having accrued on the date of the dispossession or discontinuance."
"No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as "adverse possession"); and where under the preceding provisions of this Schedule any such right of action is treated as accruing on a certain date and no person is in adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land."
"Subject to (a) section 18 of this Act….at the expiration of the period prescribed by this Act for any person to bring an action to recover land ….. the title of that person to the land shall be extinguished."
"35. From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. From 1833 onwards the only question was whether the squatter had been in possession in the ordinary sense of the word …Paragraph 8(1) of Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of a person in whose favour time 'can run.' It is directed not to the nature of possession but to the capacity of the squatter. …Although it is convenient to refer to possession by a squatter without the consent of the true owner as being 'adverse possession' the convenience of this must not be allowed to re-introduce by the back door that which for so long has not formed part of the law.
36. The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner."
Crown Proceedings Act 1947 (the 1947 Act)
"Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :-
(a) in respect of torts committed by its servants or agents...."
"123 ….I hold that at no time material to the Commissioners' claim to adverse possession of Magor or Caerleon has it been the case that they or their predecessors have been unable to assert their possession against the Claimant, even if it was possession acquired by way of disseisin or that which, before 1834, would have been a disseisin. More broadly, I have found it impossible to accept that the rule that the King can do no wrong that served to underline the advantage and privileged position of the Crown, should have been capable of mutating, without first dying, into a rule that would after the Act of 1947, put the Commissioners at a disadvantage not suffered by the ordinary citizen. It is striking that Mr Wonnacott has been able to find no authority truly on all fours with his argument and that there is no hint of it in the comprehensive review of the law in Pye. Moreover, as a form of comment available now that the Law Reports proper are in computerised form, Mr Braithwaite tells me that nowhere does the word "deforcement" appear in them."
Appellant's submissions: the constitutional principle point
Pre-the 1833 Act
"Also there is a maxim in the law of England that the king may disseise no man, and that no man may disseise the king and that no man may disseise the king in such wise that a freehold could pass by such disseisin from the king to another, or vice versa, nor pull any reversion or remainder out of him.
Also the king's excellency is so high in the law that no freehold may be given to the king nor be derived from him but by matter of record."
"And further, nothing can pass from the king, nor for the most part to the king, but by matter of record, viz: by letters-patent under the great seal; and that the king cannot pass any thing by livery of seisin, nor by matter in fait; nor cannot desseise, nor be disseised."
The 1833 Act
"From the time of the determination of Mair's tenancy there was a wrongful possession of it, and there is nothing whatever to exclude the operation of the Statute of Limitations. There appears to me to be no ground whatever for saying that the Crown has not a freehold acquired by adverse possession. Whether such a title would have been acquired before [the Real Property Limitation Act 1833] it is not necessary to inquire, but whether there was adverse possession in the old sense of the words or not, there has been such a cesser of the possession of the rightful owner as to confer a title under that statute."
Limitation Act 1939
The 1947 Act
Discussion and conclusion on constitutional principle point
The authorities and texts
Appellant's submissions: intention point
Discussion and conclusion on intention point
Lord Justice Jacob:
Mr Justice Mann: