Cook v Bates

Permission to appeal should be granted where the proposed appeal raises properly arguable issues. In a property dispute, arguable questions concerning abandonment of a right of way, title by adverse possession and proprietary estoppel can justify permission despite the trial judge’s contrary conclusion. An extension of time may be granted exceptionally where the circumstances warrant it despite substantial delay and procedural defaults. Pending the substantive appeal, a stay and expedition may be ordered to secure prompt finality.

Mr and Mrs Bates sought permission to appeal, together with an extension of time, against an order made by Mr Recorder Bullock in proceedings brought by Nicola Cook. The order required removal of a fence and gate and of part of a garage said to encroach on Cook’s land and obstruct rights of way. The proposed appeal concerned the effect of an agreement between adjoining occupiers, possible abandonment of a right of way, adverse possession and proprietary estoppel. The central procedural questions were whether those issues were properly arguable and whether the delay in appealing should be excused.

Lord Justice Jonathan Parker granted the applications for permission to appeal and for an extension of time.

1. The trial judge appeared to have accepted Mr Bates’s evidence about an agreement with the former owner of No 13. The judge had nevertheless concluded that the agreement conferred no rights in land, that the boundary followed the Land Registry plans and that the rights of way remained in existence. He also rejected any claim based on adverse possession on the basis that the former owner’s consent prevented it arising.
2. The Court of Appeal considered that the proposed appeal raised properly arguable issues. In particular, the evidence of the agreement and the long period during which vehicles had not used the right of way made it arguable that the right of way in favour of No 13 had been abandoned. It was also arguable that Mr Bates had acquired possessory title by adverse possession to the land occupied by the garage. A further argument based on proprietary estoppel might be available, although it had not apparently been advanced at trial.
3. Although the applicants had been substantially late in filing the appellant’s notice and had previously suffered procedural consequences from delay, the Court was prepared, exceptionally, to grant the extension in all the circumstances.
4. The orders under appeal and their enforcement were stayed pending the substantive appeal. The appeal was directed to be heard with expedition, since achieving finality promptly was in everyone’s interest.

1. Court of Appeal (Civil Division): granted permission to appeal, extended time, stayed the orders under appeal and directed an expedited hearing.
2. Teesside Combined Court Centre: Mr Recorder Bullock ordered removal of the fence and gate and removal of the part of the garage said to encroach on No 13.