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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2002] EWCA Civ 1576

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Neutral Citation Number: [2002] EWCA Civ 1576

(Application for permission to appeal and a stay of execution)

Royal Courts of Justice
London, WC2
Wednesday, 9 October 2002

B e f o r e :



MILLS and Others Applicant
M I DEVELOPMENTS (UK) LTD and Another Respondent


(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
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MISS B HEWSON (instructed by Burkhill Govier of London) appeared on behalf of the Applicant
MR G ADAMS (instructed by Thring Townsend of Bath) appeared on behalf of the Respondent



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  1. LORD JUSTICE BUXTON: This is a renewed application to appeal to this court from a judgment delivered in Bristol County Court by His Honour Judge Rutherford on 13 August 2002. The case concerned an alleged easement or right of way said to have been acquired over the property of the defendants, now appellants, MI Developments UK Ltd. The case was made difficult for the judge, and no doubt for those engaged in it, by reason of the fact that both of the now protagonists have come on the scene at a comparatively late date and the events said to constitute the creation of easement had taken place, in each case, under the regime of their predecessors. The judge heard an enormous amount of evidence and delivered a careful and detailed judgment making findings of fact in which he accepted that the easement alleged had been created by reason of the operation of the doctrine of lost modern grant. He did not accept that a claim had been established under the Prescription Act 1832 because of interruption for a period of a year prior to action brought.
  2. In the original grounds and notice of appeal a substantial number of complaints were made about the judge's findings of fact and about their implications for the law. I rejected all of those grounds on paper. Although none of them have been conceded by Miss Hewson, who has appeared today, she has used the time available to her before this court to develop another and different point. I do not intend to go over again the reasons I gave for rejecting grounds 1, 2, 6 and 8 in the notice of appeal, but simply say further reflection has not caused me to consider that my view on any of them was misconceived.
  3. I turn to the substance of the argument that is now put in the forefront of the argument by Miss Hewson. Before the judge she submitted that by reason of Article 1 of the First Protocol to the Human Rights Convention, of which the court now has to take note by reason of the Human Rights Act 1998, the finding in this case of the existence of an easement by reason of the doctrine of lost modern grant was an unreasonable interference with her client's property. The judge rejected that in fairly short order because he considered, in effect, that the doctrine of prescription was not affected at all by the Convention.
  4. I also rejected that contention on paper on two grounds. First, I agreed with the judge that the doctrine of prescription was a method whereby rights were recognised and acknowledged, and when the court made an order such as Judge Rutherford made in this case he was not depriving the defendants of any property was but simply declaring what the limits of their property rights were.
  5. Secondly, and in any event, it seemed to me that even if Article 1 were engaged in this case it could not be said that the alleged deprivation of the defendant's property had taken place in a way that was inconsistent with the requirements of Article 1. First, it seemed to me that it was in the public interest that the respective rights of neighbours and property should be regulated. Secondly, there is no doubt that the decision of Judge Rutherford was made subject to the conditions provided by the law of this country, whilst recognising that the doctrine of lost modern grant has been subjected to serious criticism by many observers and judges over the years, criticisms eloquently set out in various places by Miss Hewson. That was how the position stood before we came to this oral hearing.
  6. Today, first of all, the argument with regard to the Convention has been somewhat refined from what I understood it to be when originally advanced before the judge and before me on paper. Secondly, Miss Hewson has opened up a completely new argument with regard to the status of the doctrine of lost modern grant. I would take those arguments in that order.
  7. First, so far as the Convention is concerned, Miss Hewson now concedes - if she did not do so earlier and she says she did - that there is nothing in itself open to objection so far as the Convention is concerned by reason of doctrines on prescription. She was correct to make that concession, if concession it was. It is in line with the view taken by my Lord, Lord Justice Keene, with which Sir Martin Nourse agreed in full, in Pye v Graham [2001] Ch 804, paras 45 and following. It is also in line with the view taken by the Strasbourg court in a case shown to us in its French text by Miss Hewson, (Oneryildiz v Turkey). It is clear from paragraph 142 of that court's judgment that the claim that the applicant there made, which he said was protected by the Convention and with which the court agreed, was a claim based on what in English law terms would be characterised as a prescriptive right.
  8. Miss Hewson says that this case is different. Her complaint is two-fold: (1) that doctrine of lost modern grant is irrational and unreasonable and involves excessive interference with the property rights of the registered holder, who is deprived of a right that is apparent on the register but which is attacked in the way that cannot be understood from the registered titles; (2) it is in some way inconsistent with Article 1 of the First Protocol and, as I understood her written argument, Article 6 of the Convention as well that a landowner can be faced, as the landowner was in this case, with claims not only under doctrine of lost modern grant but under the 1832 Act.
  9. I am not in any way persuaded that those arguments raise an arguable case so far as the Convention is concerned. Once it is accepted, as it is, that a mode of prescription does not infringe the Convention, it seems to me that it is a matter for the domestic legal system as to how that prescription should be operated. The only possible question is whether the deprivation of property, if deprivation it was, is in accordance with law and there is nothing in the argument before us to demonstrate that that is not the case.
  10. I therefore would not consider that this is a suitable case in which that point should be pursued.
  11. Miss Hewson's other point which, I think it is fair to say, had not appeared at all before yesterday evening, is that the doctrine of lost modern grant should have been recognised as having been overtaken or rendered inappropriate or redundant by the combined effect of Sections 2 and 4 of the Prescription Act 1832; and because, as she puts it, that Act expressed the sovereign will of Parliament, it should be read as being a complete code for issues of prescription. I have to say I am wholly unpersuaded by that. It may be inconvenient and unsatisfactory to have two possible ways in which an easement can be created, but that does not mean that Parliament in 1832 intended the regime that it envisaged in that Act should take the place of and reduce the doctrine of lost modern grant. I can see nothing in the statute that establishes that contention.
  12. Furthermore Miss Hewson is faced with the problem that generation upon generation of Chancery lawyers have wrestled with the doctrine of lost modern grant without it occurring to any one of them that the Act had the effect that Miss Hewson claims. It would, I suppose, not be a ground in itself for turning this argument away that, if the argument is correct, every decision of the Court of Appeal that has dealt with lost modern grant over the past 170 years has been given per incuriam. But for that argument to get on its feet the point would have to be a very clear one. Far from it being clear, in my judgement it is not established at all. I do not think this is a suitable case to be pursued further, and I would not grant permission.
  13. LORD JUSTICE KEENE: I agree.
  14. Order: Application refused with the costs

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