Brittany Pearce recently enjoyed success in a 4-day trial before HHJ Walsh, in which she defeated a claim for at least 10 vehicular and pedestrian rights of way over her client’s agricultural land. Legal argument touched on the construction of an express grant; the application of section 62 of the Law of Property Act 1925 and when it should be excluded; the impact of sections 56 and 65 of the 1925 Act when it comes to the acquisition of rights of way; and prescription, with prescription proving to be the most fertile ground for argument. In this article Brittany shares some thoughts as to the best way to prepare a case based in prescription.
A brief history of the case
In 2020 my client purchased agricultural land amounting to about 11 acres, spread over 6 fields. The land was accessed from the road and shared a boundary with a handful of houses. When she purchased, no rights or usage of the land by others were mentioned by the vendor save for the rights registered against the land’s title, and no usage was evident. There was a gate in a field boundary, but it had the appearance of a barrier and was much overgrown. Shortly after purchase, neighbours (whose land included that on the other side of the barrier mentioned above) started claiming wide-ranging, historic rights over the land, including rights of way. The neighbours claimed that vehicular and pedestrian rights of way had been expressly granted in the 1970s; that the same routes and some 8 other routes had been used from the 1970s onwards and had been conveyed by operation of section 62; that a later transfer of my client’s land intended to grant them rights through the operation of sections 56, 65 and 62; and that that they had acquired prescriptive rights.
The practical impact was that, if the neighbours were correct, they would have had the right to bring vehicles through two of my client’s fields, and to walk across all of them, hamstringing my client’s use, and the security, of her land.
Outcome
At trial HHJ Walsh agreed that the neighbours had no rights over my client’s land and that it was appropriate to grant an injunction. He agreed with my analysis as to the construction of the grant which separated my client’s land from one of the neighbour’s parcels; that there was no evidence to support a finding that rights had been enjoyed, as was necessary in respect of the claim based on section 62, and that, in any event, the operation of section 62 had been excluded by a fencing covenant; that section 56 was of doubtful application, and that, in any event, the necessary factual evidence was, again, lacking; and that the neighbours had failed to establish prescriptive rights of way. The prescription claim failed for a number of reasons: the requisite period could not be established; the quantity and quality of use was not sufficient; and cross-examination revealed that use was more akin to a right of recreation rather than use of a route to travel between points A and B.
How to prepare a case in prescription
Whilst the outcome of this trial was inevitable, if the information revealed at trial had been known earlier, it is unlikely that the claim would have been defended, or it might have been abandoned at an early stage, saving the parties from more than two years of litigation, and the defendant neighbours from ultimately shouldering what is likely to be a six-figure costs bill.
The learning point: your prescription case will be made or broken by your witness evidence. By the time you get to the preparation of witness statements you should be delving into the nitty-gritty and testing the strength of the case.
Take the question of period, for instance. It is unlikely to be enough to say “use started in this year and ended in this year”. How sure is the client? Why can they be so sure? Do they have any photographs, or are there historic aerial photographs, that assist? If the start date is related to when the clients purchased or came to land, check the date of acquisition at HMLR; in this case an historic title check revealed that a claim that use began in 2000 or 2001 could not have started before mid-2003, a revelation that proved fatal in respect of the prescriptive period.
As to use: what use has been made? Over one track or more than one track? If more than one track: why, when, how many, where? What type of use? In my case, it soon became clear under cross-examination that use was not restricted to the tracks that had been indicated, rather use was more akin to rambling and general recreation over my client’s land, which was not use referrable to the acquisition of a right of way. I recommend that you get your clients to talk you through their actions in painful detail: where did they enter and how (through a gate? Over a stile? Who has installed/maintained these features; how have they changed over the years?), where did they go once on the dominant land and what did they do, where did they exit and how (the same questions arise as to boundary features)? Again, photographs and aerial photography can assist. In our case, aerial photographs revealed that various routes would have been impassable because thick hedgerows barred the way for much of the period and were notable for what they did not show, namely, established paths along the claimed routes. A YouTube video revealed that a source of the claimed routes had been blocked by barbed wire during the relevant period.
The quality of evidence: do you have any independent witnesses who can corroborate your client’s account? For instance, neighbouring landowners, or long-standing members of the community who recall that, yes, your client does walk their dog through that gate on a daily basis and has done since year X. How much detail can your client provide? A scant paragraph or two in support of their claim is unlikely to be persuasive. Is your client likely to prove a persuasive and reliable witness? You should have a feel for this by the time you have spent a conference or two going through their evidence in detail.
Sources of evidence: your client’s recollection and any historic documents (such as diary entries, or receipts for gates, etc) or photographs, are obvious starting points. Less obvious might be social media posts or historic aerial photographs. When it comes to the question of when a party came to the land, it may be worth checking historic title entries, Companies House and/or the electoral roll.
Legal hiccups: it is also worth considering the evidence against likely technical challenges that might be raised. For instance, use must be “as if of right” (nec vi, nec clam, nec precario, or without force, secrecy or permission). Probe your clients with these points in mind to ascertain whether any risk presents itself. Another question might be whether the servient or dominant tenements have been tenanted, and if so, the terms and period of any tenancy, as that may affect whether time has run. Are questions of overriding interests likely to arise, and have you dealt with them in evidence?
The foregoing has been written from the point of view of a solicitor whose client is arguing that they have acquired a prescriptive right. If you are on the other side, many of the same questions should still be investigated, even if your client has not been at the land for the same period of time. For instance, it is still worth investigating the title history, whether historic aerial photographs exist, whether there are independent witnesses or previous owners who will speak as to the claimed use. Further, the same questions will apply in respect of such period as your clients have owned their land.
In respect of all of the above, I highly recommend that you engage counsel to actively assist at the witness evidence stage; they will be able to assess the quality of the evidence against the legal arguments and to recommend further steps that might be taken to shore up your client’s position.
Summary
Prescription arguments can fail when it comes to the more technical elements of the law, but all too often, they fail on the facts. It is well worth taking the time to go through the nitty-gritty, with counsel’s input, by the time you get to the preparation of witness statements. Failing to test a client’s assertions, or to demand greater detail, could set you up for failure at trial, with judges likely to be unsympathetic to attempts to adduce last minute evidence that could have been produced earlier. Even if the evidence is admitted, the client may well have be penalised when it comes to costs.
Brittany Pearce is a junior member of St John’s Chambers, Bristol, specialising in property law. She has been identified as a Leading Junior by the Legal 500 and is ranked in Chambers & Partners. Find out more here.
This article is provided for general information purposes only. It does not constitute legal advice and reliance should not be placed on it. Specific advice should be obtained in relation to any case or matter.