Taylor & Anor v Lawrence & Anor

Adverse possession requires both factual possession and an intention to possess. Factual possession is assessed by asking whether the claimant exercised an appropriate degree of physical control and dealt with the land as an occupying owner might have done. The intention to possess is ordinarily inferred from overt acts and means an intention to possess to the exclusion of the world, including the paper title owner. A judge’s private use of solicitors acting for a party does not, without cogent additional circumstances, establish apparent bias. The question is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Case-management decisions concerning timetabling will not justify appellate intervention absent unfairness affecting the hearing.

The claimants succeeded in the Watford County Court in a boundary dispute concerning land occupied by a car-port plinth and later enclosed by a wall. The Deputy Judge held that the defendants had the paper title, but that the claimants and their predecessors had acquired title by adverse possession lasting more than 12 years. The defendants appealed, alleging that factual possession and intention to possess had not been established, that the Deputy Judge appeared biased because the claimants’ solicitors had prepared and held his will, and that the trial had been conducted unfairly through restrictive timetabling.

The central issues were whether the evidence supported adverse possession and whether the circumstances gave rise to a real danger of apparent bias or procedural unfairness.

1. The appeal was dismissed with costs, subject to detailed assessment. Permission to appeal to the House of Lords was refused.
2. Adverse possession requires both factual possession and an intention to possess. Factual possession involves an appropriate degree of physical control and dealing with the land as an occupying owner might have been expected to deal with it. The laying of concrete for a car port, its use for parking, and the paper title owner’s erection of a boundary screen supported a finding of factual possession. The approach in Powell v McFarlane [1977] 38 P&CR 452 was applied.
3. Intention to possess means an intention to possess the land to the exclusion of the world, including the paper title owner. It is ordinarily inferred from overt conduct rather than established by direct evidence. A mistaken belief in ownership is not inconsistent with the requisite intention, but possession based on the true owner’s permission is not adverse. The approach in Buckinghamshire County Council v Moran [1990] Ch 623 was applied. On the facts, the necessary intention could properly be inferred and possession continued for more than 12 years.
4. On apparent bias, the court applied the test stated in The Director General of Fair Trading v The Proprietary Association of Great Britain (unreported, 21st December 2000): the court must consider all relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility, or real danger, of bias. A judge’s use of a firm of solicitors for unrelated personal legal work did not meet that test. The judge’s attendance at the solicitors’ offices to execute a codicil, and the witnessing of his signature by a member of staff connected with the litigation, added no sufficient basis for apparent bias.
5. The Deputy Judge’s timetable and limits on examination-in-chief were within proper case-management powers. The principal defence witness had already given evidence without a time limit, and the directions applied to both parties. No procedural unfairness was established.

• Watford County Court: On 12 November 1999 the Deputy Circuit Judge found for the claimants, ordered removal of the wall and reinstatement of the land, granted an injunction, awarded £190 damages, and made costs orders.
• Court of Appeal (Civil Division): The defendants’ appeal was dismissed. Permission to appeal to the House of Lords was refused.