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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 >> Allen v Matthews  EWCA Civ 216 (13 March 2007)
Cite as:  EWCA Civ 216
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT (SITTING AT KINGSTON CROWN COURT)
HIS HONOUR JUDGE PAUL COLLINS CBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE LAWRENCE COLLINS
| WILLIAM ALFRED ALLEN
|- and -
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Paul Morgan QC and Mr Damian Falkowski (instructed by Gersten & Nixon) for the Defendant/Appellant
Hearing date : February 19, 2007
Crown Copyright ©
Lord Justice Lawrence Collins:
The background and the judge's decision
"Further to our letter to you of the 1st June we would advise you that our clients still hold a Caution of the above mentioned property. The Caution relates to a contract entered into by our client with Mr. Allen, the terms of which were never fulfilled. A deposit of £35,000.00 was paid to Mr. Allen in this respect and to secure our clients interest re these monies we registered the said Caution.
We should be obliged if you would advise us as to what your intentions are with regard to the property. Has a buyer been found for the same, and if so is there any likelihood that our client will receive any monies.
We look forward to hearing from you."
A Mr Matthews' appeal: acknowledgment of title
Mr Matthews' position
Mr Allen's position
B Respondent's notice: consents to Mr Matthews and Mr Penny
Mr Allen's position
Mr Matthews' position
"(4) For the purpose of determining whether a person occupying any land is in adverse possession of the land it shall not be assumed by implication of law that his occupation is by permission of the person entitled to the land merely by virtue of the fact that his occupation is not inconsistent with the latter's present or future enjoyment of the land.
This provision shall not be taken as prejudicing a finding to the effect that a person's occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case."
"if the person in possession of the land … in question acknowledges the title of the person to whom the right of action has accrued— (a) the right shall be treated as having accrued on and not before the date of the acknowledgment; …",
and by section 30:
"(1) To be effective for the purposes of section 29 of this Act, an acknowledgment must be in writing and signed by the person making it. (2) For the purposes of section 29, any acknowledgment … — (a) may be made by the agent of the person by whom it is required to be made under that section; and (b) shall be made to the person, or to an agent of the person whose title or claim is being acknowledged …"
Mr Matthews' appeal
"A request for a licence to occupy the property (or a request for something else) is not the only means by which a person in possession may acknowledge that another person has the better title to the property. This petition is a clear acknowledgement by those signing it that another person (i.e. the council) has the better title to Oval Mansions. It seeks to persuade the council not to sell Oval Mansions, where they live, to a named third party … The petition does not question the power of the council to sell or challenge its right to do so, let alone assert a better title to Oval Mansion so as to obstruct a sale by the council. The document implicitly recognises the power and right of the council to sell, but petitions it not to go ahead with the sale …"
"37. … It is a clear acknowledgment by the person signing it that the trustee has a better title to the property. It does not challenge the trustee's right to sell the property or question that right let alone assert a better title. It simply seeks information as to what will happen if the Trustee in Bankruptcy exercises that title. …
38. It is common ground that in June 1994, as between himself and any company through which he may have been trading Mr Penny was either in personal occupation of the land or in occupation through some other company than that which had registered the caution, that company having been struck off the register. On behalf of whom then was the letter of 7th June 1994 written? It has never been disputed that Mr Winter was Mr Penny's solicitor and that he acted on behalf of Mr Penny. To argue as the defendant does and is compelled to do, that this letter was only written on behalf of a non-existent company and therefore not on behalf of Mr Penny or any other company of Mr Penny's has an obviously artificial ring about it.
40. It seems to me that the principle [in Lambeth London Borough Council v Bigden] must be exactly the same for the present case even though the facts are slightly different...[A] letter sent apparently on behalf of a company which had ceased to exist, can fairly and properly be said to be coming from the person standing behind the company, who at the time was the person in possession for the purposes of s 29 of the Act and for whom the solicitor undoubtedly acted. So that it seems to me that the argument put forward in relation to Section 30 must fail for those reasons."
Consent to Mr Matthews' occupation?
Consent to Mr Penny's occupation?
(1) He was in sole occupancy of the property from 1986 to 1996, but Mr Matthews' business used part of the yard to store overflow material from their own premises.
(2) He could not confirm if Mr Matthews used the yard as an overflow or in any other way between 1993 to 1996 on a permanent basis, because Mr Penny was rarely at the yard during that period.
(3) He acknowledged that he was in occupancy with Mr Allen's permission, which was given via an agent.
(4) He initially made the first statement believing that he would not be required at court and thought it was a minor matter, but once he realised the gravity of the case and the individuals involved, he was petrified.
(5) Although no direct threat was made to him prior to making the second statement he received a telephone call, during which it was explained to him the seriousness of the dispute. He was not threatened during the call and did not know who was speaking to him.
(6) He had wanted to clarify his first statement because it might be misinterpreted, and the proceedings had had a detrimental effect on his health.
Lord Justice Moore-Bick: I agree.
Lord Justice Ward: I also agree.