Case No: B5/2009/0011

Neutral Citation Number: [2010] EWCA Civ 128
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIHJ COURT OF JUSTICE (CHANCERY DIVISION)
(MR ENGELHART QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 26th January 2010

Before:

LORD JUSTICE RIX
LORD JUSTICE HUGHES
and
SIR DAVID KEENE
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Between:

	NATIONAL TRUST FOR PLACES OF HISTORIC INTEREST OR NATURAL BEAUTY AND ANOTHER	

Respondent	
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TIMM	

Appellant	

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(DAR Transcript of 
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Mr Michael Roberts appeared on behalf of the Appellant.

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Judgment
Lord Justice Hughes:

1.	The claimants, the National Trust, are the freeholders of Littlewood Farm a few miles north of Chichester on the A286 road to Midhurst.  For many years the farm was let on an agricultural tenancy to a Mr Stay who died in the summer of 2006 and indeed, as it looks to have been, before that to his father.  

2.	On a patch of land near to the farmhouse there still stand a few breeze block buildings with asbestos or corrugated iron roofs which were put up in a hurry during the Second World War when the land was requisitioned by the War Department.  Nearby, just across a disused railway line, is a slightly more modern building, a barn that appears to have been put up in either the 1960s or the very early 1970s.  

3.	The defendant, Mr Timm, has occupied these various buildings without any kind of formal written document or recognition since, it is to be assumed, about 1974 or 1975, and he has used them it would appear principally for a car repair and dismantling business.  

4.	After several years of expressing anxiety about his presence there the National Trust eventually brought a possession claim in February 2006.  After rather a lot of more delay, some attributable to the claimants and some by the look of it to the defendant, the action eventually came on for hearing before HHJ Barrett QC on 6 March 2008.  On that day, after a good part of the day had passed in hearing and the first and principal of the National Trust’s witnesses had been heard, the judge concluded that Mr Timm had no arguable defence and on the application of the National Trust he disposed of the case by giving summary judgment.  Mr Timm appealed.  His appeal was heard in the Chancery Division by Mr Englehart QC sitting as a deputy judge but it failed.  Now Mr Timm seeks permission to bring a second appeal to this court.  

5.	From time to time Mr Timm has appeared in person and he did so before the circuit judge.  He has, however, clearly had professional advice from (now) at least three members of the Bar over the years.  The documents that he supplied and relied upon in the County Court included a number of written advices from counsel.  However, the defence document -- the pleading in other words -- was of his own making and in manuscript.  

6.	Before looking at what the position in law is it might help to set out in terms as simple as possible what it is that Mr Timm has been saying as a matter of fact.  It needs to be said that on one or two points, what he has said, at least arguably, has not remained consistent but the core of it has and the core of it is this.  At least until the late 1990s he always got on very well with Mr Stay, the tenant farmer, who treated him like a son.  He helped Mr Stay from time to time by doing ad hoc work about the farm. Mr Stay let him occupy the buildings.  Mr Stay said that they were his and he purported to give them to Mr Timm.  Mr Timm always knew that the National Trust was Mr Stay’s landlord.  Says Mr Timm: “The National Trust knew perfectly well that I was there from at any rate a year or two after I went into occupation.  It did nothing about my being there until about 1996 or 1997”.  At that time there was a prospect of the National Trust and Mr Stay between them disposing of the farm’s milk quota on advantageous terms which would enable them to share a sizeable sum.  Says Mr Timm: “That caused the National Trust to want to get rid of me and it also led to bad feeling between me and Mr Stay.  Until then the National Trust had done nothing about my occupation and indeed after that it was ready to negotiate with me either a direct lease of the land to me or later to make me a financial offer to move out”.  In all those circumstances, says Mr Timm, the National Trust ought not to be allowed to succeed to recover the land after all these years.

7.	That in a nutshell is the way Mr Timm has always put his case.  That of course is events described from his point of view.  Whether Mr Stay, were he here to comment on them, would share that account we cannot know.  We do know that the only surviving statement of Mr Stay’s is not consistent with it but it was made in a different context and it has never been tested.

8.	What can also be said is that it is fairly clear now, admittedly rather belatedly, what the formal framework is of what has happened in relation to this land and it is this.  The Trust has owned the freehold since 1942.  The buildings save for the one that I mentioned last were put up during the period of requisition to house Canadian soldiers.  There has probably been a succession of agricultural leases to the Stay family.  There was certainly a formal lease in 1954.  That included the relevant land and it had an express stipulation to the effect that the buildings were in effect treated as a kind of tenant’s fixtures.  The lease said that they were Mr Stay’s but that is not surprising because generally an agricultural tenant owns buildings which he puts up though not the land on which they stand, and the buildings revert to the landlord at the end of the lease with compensation payable to the tenant.  That was the specific arrangement set out in the 1954 lease in relation to these wartime buildings even though Mr Stay hadn’t put them up.  The land was clearly never Mr Stay’s land.  It has always belonged to the National Trust, and the lease provided that the buildings should revert to the Trust with compensation to Mr Stay when the tenancy came to an end.  

9.	In September 1976 Mr Stay expanded his holding by taking from the Trust about 50 acres or thereabouts extra.  No written agreement or new lease recording that transaction has survived but it is common ground that by operation of law what occurred was a notional surrender of the 1954 lease and a regrant to include the extra land: see for example Jenkin R Lewis & Son v Kerman [1971] Ch 477 at 496 and Friends Provident Life Office v British Railways Board [19896] 1 All ER 336 at 345.  

10.	Pausing there, that notional surrender and regrant occurred in 1976.  It is not entirely clear when Mr Timm went  into occupation of the buildings but he has always claimed it was 1974 or 1975 and there is no evidence to the contrary.  Therefore it may well be that he was in occupation before the surrender and regrant in 1976.  It is plainly correct that there were discussions between the National Trust and Mr Stay about the milk quota in about 1996 and 1997 and it is also clear that at the same time the Trust queried Mr Timm’s occupation. In due course on 5 December 1997 Mr Stay surrendered his existing lease and he took a new one in the form of a farm business tenancy from the National Trust.  Exactly what the boundaries were of the land let under the farm business tenancy in 1997 ought to have been clear throughout but was not.  There was a regrettable uncertainty about it and in particular about which if any of the buildings were included in it.  That was the responsibility of the National Trust not Mr Timm.  It does not matter because by the time of the trial any remaining tenancy had been surrendered by Mr Stay’s estate in 2006.  

11.	Under the 1997 lease Mr Stay undertook expressly either to remove Mr Timm or to arrange for him to enter into a direct lease from the National Trust.  Plainly that stipulation was included in the lease at the behest of the landlords, the Trust.  What the Trust was clearly after was that if Mr Timm was to stay, there should be a proper and understood basis on which he was occupying and its own entitlement to the freehold should be protected.  In fact neither removal nor a direct lease from the Trust to Mr Timm ever occurred.  In 1998 the Trust brought possession proceedings relating to a different property, a nearby cottage, of which Mr Timm eventually surrendered possession and between then and 2006 the Trust did make sporadic but notably unsustained attempts to negotiate with Mr Timm.  Nothing however ever came of it nor did Mr Stay do anything to disturb Mr Timm’s occupation. 

12.	Some time in the mid 2000s Mr Stay fell ill and there is no doubt that he was unable to manage his affairs for some time before his eventual death in July 2006.  That death did not of course bring the agricultural tenancy to an end but shortly afterwards in September 2006 his estate surrendered the interest to the Trust.  

13.	The possession action was begun in February 2006.  There was unfortunately a wholly unnecessary confusion between the Trust and its solicitors, who also acted for Mr Stay’s agent and subsequent executor, over what was or was not included in the lease to Mr Stay at that point.  The result of that confusion was that the identity of the claimant for possession passed through I think it is four different phases, first Mr Stay alone, then the Trust alone, then both and finally after surrender of the lease the National Trust alone once again.  All of that no doubt did not reflect very well on the management of the litigation on the National Trust’s side and it may have given both an element of satisfaction and certainly an additional period of occupation to Mr Timm, but it has absolute nothing to do with the legal rights and wrongs of the case.  

14.	Mr Tim appeared in person in the County Court albeit as I have said plainly armed with legal advice.  The transcript demonstrates clearly that the judge was at pains to do two things.  First, he identified, with Mr Timm’s help, the various buildings and the area of land in issue which turned out in fact to be slightly larger than the original Particulars of Claim had appreciated.  Nothing turns on that.  Secondly, the judge was at pains to grasp what it was that Mr Timm wished to put forward by way of defence and after extensive discussion it was clear that that amounted to a threefold defence: 
1) Mr Stay gave me the land; 
2) alternatively, at least he said it was his and therefore I own it by estoppel; and/or 
3) the Trust is prevented from recovering possession because it has done nothing for years albeit it knew I was there.  
Now none of those could possibly succeed.  The land was never Mr Stay’s to dispose of, a proprietary estoppel against Mr Stay was no help against the Trust and there was no arguable estopple against the Trust because inaction does not constitute a positive representation on which reliance is placed.  It follows that the judge was right to give summary judgment on all those points.  It is no objection to that course that it happened on the occasion of the hearing of the action.  Providing there is no arguable defence, there is no objection to summary judgment at that stage.  In fact it is in everyone’s interests that it should occur because otherwise the litigation and continued expense is pointless.  Not least it is in the interests of Mr Timm because if he had no defence he was going to end up paying the costs.  

15.	The contention originally made that the judge had no power to give summary judgment is not now maintained, correctly, by Mr Roberts.  It is demonstrated by Jones v Evans [2003] Estates Gazette Law Reports 1 to be wrong.  In that case this court expressly endorsed such a step being taken.

16.	Mr Timm's appeal to the High Court judge was conducted on a twin basis.  The first was that the judge had been wrong as a matter of procedure to give summary judgment and that that step had been unfair.  The second was that an expectation that Mr Timm had some kind of proprietary interest in the land could be spelt out of various things that the Trust had said or done, for example its willingness to negotiate for his removal.  The first of those arguments could not succeed for the reasons already given nor, it is clear, could the second, and the suggestion that it could is not now made.  The Trust may or may not be vulnerable to a degree of criticism for the management of the litigation and the research of the history of this land but it is not in the least surprising or for that matter any cause for complaint that, faced with a man who had been in possession for 20 years or more, it should wish to proceed by way of negotiation if it could and should prefer to spend money on Mr Timm than on the lawyers.  

17.	The contentions made before the High Court judge are not now made at all.  What is now said on an application to bring a second appeal is that Mr Timm has an arguable defence of adverse possession which has never been tried and that if it had been properly raised in the County Court the judge ought not, even if he could, to have given summary judgment.

18.	This would, if permission were granted, be a second appeal.  Exceptional circumstances need to exist to justify this court entertaining a second appeal.  There is in this case no point of principle of general importance at all.  The only question is whether there is a compelling reason why the court should hear a second appeal.  For the sake of argument I for my part am prepared to proceed on the basis that such a compelling reason might exist if there were material which demonstrated that there was a clear arguable defence and if the defendant bore no or no significant responsibility for the fact that that arguable defence had not been ventilated when it should have been at the trial or even on the first appeal. 

19.	Adverse possession cannot run against a freeholder when the land is tenanted.  That is trite law.  The freeholder cannot bring an action to evict the unlawful occupier if there is a tenancy in existence.  The National Trust could of course have brought an action against Mr Timm after the surrender of the 1954 lease and the taking of the new farm business tenancy in 1997, but that as everybody recognises is no help to Mr Timm because even if his possession after that was adverse it did not amount to 12 years before action brought in February 2006.  

20.	The sole basis on which Mr Timm’s case is now put by Mr Roberts is the significance of the surrender and regrant by operation of law which took place in 1976 at the time when Mr Stay’s agricultural holding was enlarged by the addition of the extra 50 acres or so.  That surrender and regrant, though by operation of law, has the same effect as the  conscious surrender and regrant which took place in 1997.  The National Trust could accordingly notionally have brought proceedings between the surrender and the regrant and it follows that time could run against it as well as against Mr Stay from 1976.  

21.	The County Court judge who investigated this case, as it seems to me, in exactly the way that a judge should investigate a case conducted by a litigant in person, did wonder aloud whether adverse possession was relevant.  It appeared however to be doomed because of the existence of the tenancy to Mr Stay.  Nobody appreciated that there had been in 1976 a surrender and regrant by operation of law.  Mr Timm can of course be forgiven for not knowing the law although those who advised him might have done if they had known of the enlargement of the holding.  He did know of the enlargement of the holding because he had asked about it in April of 2006 and had been told that it had occurred.  Accordingly he is not without responsibility for the failure to appreciate the point.  It is the responsibility of the litigant to put forward his defence at the right time and at the trial and not to await subsequent enlightenment.  However, for the moment I proceed on the basis that Mr Timm might have a claim on the court’s indulgence in relation to the failure to put the effect of the surrender and the regrant before the County Court judge.  Certain it is that the National Trust did not spot the point either and they were represented.  

22.	The real difficulty for Mr Timm is this.  Adverse possession can be a defence if -- but only if -- before 1976 Mr Timm’s occupation was without the consent of Mr Stay.  If it was with Mr Stay’s consent the possession was not adverse.  To put it another way, any action brought by the National Trust would have been met with a complete answer: namely, “I am here with permission of the lawful tenant”.   That as between Mr Stay and the National Trust may have been a breach of the lease against parting with possession does not provide the National Trust with a right to evict Mr Timm and never did.  

23.	It is absolutely clear that Mr Timm’s case is and always has been that his occupation of these buildings began with the consent of Mr Stay.  The only question in this application is whether there is material which demonstrates that subsequently that permission was revoked by Mr Stay.  It would have to have been revoked before 1976 and with permanent effect before Mr Timm’s possession could be adverse and the suggested defence succeed.  What Mr Timm actually said about this is this: 

“For the first year or two we had a good relationship but as time went on things deteriorated we would have arguments and on occasion he would lose control and more than once told me to get out. I refused saying he had given me the buildings and they were mine, usually by the next day he would have calmed down and everything would be back to normal.”

24.	The entire case advanced on behalf of Mr Timm today hangs on the slender thread of the words “and more than once told me to get out”.  But what actually happened on Mr Timm’s own case is demonstrated by the concluding words of the paragraph quoted, namely that by the next day things would have calmed down and everything was back to normal.  A row between Mr Stay and Mr Timm patched up the following day is incapable of terminating Mr Stay’s continuing consent for Mr Timm to occupy the buildings.  That  is on Mr Timm’s own case.  Elsewhere Mr Timm has made the point that his relationship with Mr Stay was that of favourite son until the problem over the milk quota and associated discussions in about 1996.  

25.	Mr Roberts, who has advanced every argument that can be marshalled on behalf of Mr Timm, draws attention to two witness statements presented by Mr Timm from people who knew him and Mr Stay from about 1980 or thereabouts onwards, who corroborate the suggestion that there were sometimes eruptions of arguments between them in which the occupation of the buildings was part of the exchange, but that evidence adds nothing to the assertion of Mr Timm himself and in any event 1980 or 1979 is too late.

26.	Mr Roberts points to Mr Timm’s assertion to the judge in a document that he wrote over lunch in the County Court that the National Trust had done nothing, but that has nothing to do with the question of adverse possession.  It is adverse possession as against Mr Stay which effectively Mr Timm has to demonstrate.  The Trust’s inaction is irrelevant.  For the same reason the fact that the Trust was ready to negotiate in the 1990s or 2000s with Mr Timm rather than go to the trouble and expense of litigation tells one absolutely nothing about the nature of Mr Timm’s possession in 1976.  The assertions of Mr Stay’s agent and later executor, said to be not altogether consistent, about whether Mr Timm was Mr Stay’s employee or not also tell one nothing about the nature of Mr Timm’s possession.  Mr Roberts also submits that Mr Timm would have more to say on the subject of the nature of his occupation had he not been shut out by summary judgment given in the court below.  Summary judgment was given correctly at the time but in any event it was nearly two years ago.  There has been ample opportunity for Mr Timm to put anything that he wants to say into the form of a written statement which would at least have enabled this court to see what he was saying.  At least then the court would have the opportunity to consider whether such a statement ought consistently with the principles in Ladd v Marshall to be admitted or not.  No doubt in fact what he is saying is substantially the same that he always has.

27.	Incidentally, the assertion that Mr Timm has never had the opportunity to make a witness statement is not sustainable.  Per contra he was ordered to prepare a witness statement for the County Court and never did, nor has he done so since.  But in fact it seems to me that it is comparatively clear, as I tried to say at the beginning of this judgment, what it is that Mr Timm has always said, and what he is asserting is not adverse possession in 1976.  It just might be adverse possession from 1996.  

28.	There is a separate issue raised in relation to the disused railway line.  The facts are that the railway line was acquired by the National Trust well before 1976.  It was let separately to Mr Stay under a yearly tenancy.  Accordingly it was not part of the surrender and regrant in 1976 by operation of law nor for that matter the conscious surrender and regrant in 1997.  It may be that it is not entirely clear whether and in what circumstances that lease has come to an end but it seems to me that that cannot help Mr Timm.  The point is entirely new and has never been raised before.  No distinction has ever been made in assertions or evidence about the railway line and the land on either side of it on which the buildings stand.  The buildings do not stand on the railway land, and if one thing is clear it is that Mr Lush as the executor of Mr Stay was anxious that the estate should divest itself back to the National Trust of any interest that it had in Littlewood Farm after Mr Stay’s death in July 2006.

29.	Now for all those reasons, which I reach without needing to look at a number of ways in which Mr Timm appeared in the past to have disclaimed adverse possession, it is I am afraid clear to me that the truth is that at least until the mid 90s his occupation of this land was precarious and depended on the continuing consent or, in legal terms, license of the tenant Mr Stay.  There is accordingly no arguable defence and it follows from that that there is no compelling reason for permission to be given for a second appeal, and for those reasons I would for my part refuse permission.

Lord Justice Rix:  

30.	I agree

Sir David Keene:  

31.	I also agree

Order: Application refused