Brandwood & Ors v Bakewell Management Ltd.

Long user cannot found a prescriptive easement or lost modern grant where each act is prohibited by a statute enacted for public benefit. The lost-modern-grant fiction does not retrospectively make criminal user lawful when that user is the evidence needed to establish the right. The Court of Appeal remains bound by its own decisions unless exceptional circumstances are shown, including a decision given per incuriam through ignorance of binding statute or authority, or a rare manifest error. Stronger argument alone is insufficient. Statutory reform or correction of substantive law lies with Parliament or the House of Lords.

Owners of houses adjoining Newtown Common had for years driven vehicles over tracks across the common to reach the highway. The common was subject to Law of Property Act 1925, section 193, and the vehicle use was without the owner's permission. Bakewell sought declarations and an injunction against 47 owners. Park J granted the declaration against the 43 defendants participating in the litigation and gave permission to appeal. The appellants counterclaimed under section 2 of the Prescription Act 1832 and by lost modern grant. The appeal concerned whether criminal user could establish an easement and whether the Court of Appeal should depart from Hanning v Top Deck Travel Group Ltd. (1993) 68 P & CR 14.

The appeal was dismissed unanimously. Ward LJ gave the leading judgment; Arden LJ and Sullivan J agreed.

1. Statutory illegality. Newtown Common had become subject to section 193 of the Law of Property Act 1925 through the deposited deed. Section 193(4) made driving a vehicle on the common without lawful authority an offence. The appellants had no permission from the owner. Their vehicle use was therefore criminal.
2. Binding authority. Hanning v Top Deck Travel Group Ltd. (1993) 68 P & CR 14 was on all fours and held that an easement could not be acquired by user which was criminal when undertaken. The Court of Appeal could depart from its own decision only in exceptional circumstances. The earlier decision was not per incuriam: the authorities relied upon were either distinguishable, concerned a different issue, or had been properly applied. Nor was there a manifest slip or error.
3. Lost modern grant and illegality. Ward LJ stated, in alternative reasoning, that the doctrine requires user as of right, namely nec vi, nec clam and nec precario. The claimant could not establish the right without relying on unlawful user. The public-policy principles in Holman v Johnson and Tinsley v Milligan likewise prevented relief founded on criminal conduct or a benefit obtained through it. Arden LJ emphasised that no present discretion existed to disregard section 193(4). The statutory mechanism under section 68 of the Countryside and Rights of Way Act 2000 and the 2002 Regulations mitigated the practical consequences, but did not legalise the past user.
4. Order. Appeal dismissed with costs. An interim payment of £10,000 was ordered, with a further £10,000 paid into court pending any petition to the House of Lords.

• Court of Appeal (Civil Division) dismissed the appeal and ordered costs: [2003] EWCA Civ 23 .
• Chancery Division Park J granted declarations against the 43 participating defendants and gave permission to appeal. The lower-court citation was not stated in the judgment.