Charity of Sir John Morden (Trustees of) v Mayrick

On a Civil Procedure Rules 1998 Part 24 application, a court may carefully analyse undisputed documents and the transactions they record, provided it does not resolve genuinely contested facts. It must also consider evidence reasonably expected to be available at trial. A party who knew facts capable of supporting an adverse title, admitted another’s ownership in earlier proceedings and compromised on that basis cannot later resist performance by asserting that it already owned the land. Absent a relevant representation, the transferor must convey the title it had to the land it claimed to own. Registered land may be transferred from the registered title, while unregistered land may be conveyed with sufficient evidence of long possession to enable registration. Unsupported, newly advanced misrepresentation allegations do not establish a real prospect of resisting specific performance.

The trustees of the Charity of Sir John Morden sought specific performance of a 2003 compromise agreement resolving earlier possession and title proceedings concerning land at the rear of properties in Old Woolwich Road. The agreement required the College to transfer land north of an agreed boundary and Mr Mayrick to transfer land registered in his name, subject to an agreed exception.

Judge Cooke granted summary judgment under the Civil Procedure Rules 1998. Mr Justice Hart dismissed Mr Mayrick’s appeal: [2006] EWHC 574 (Ch). Before the Court of Appeal, Mr Mayrick argued that the College lacked a provable title, had lost title by adverse possession, and had induced the compromise by misrepresentation. The central issues were the proper scope of summary judgment, the effect of the compromise and whether those defences had a real prospect of success.

1. Disposition. The appeal was unanimously dismissed. Chadwick LJ delivered the leading judgment. Hallett LJ and Lindsay J agreed, with Lindsay J placing particular emphasis on the finality of the compromise.
2. Summary judgment. The complexity of the conveyancing history did not require a trial. A court may analyse unchallenged documentary evidence and the transactions it records, provided it avoids deciding genuinely contested facts and makes proper assumptions in the appellant’s favour. The court applied the approach in Royal Brompton Hospital NHS Trust v Hammond and others [2001] EWCA Civ 550: evidence reasonably expected to be available at trial must be taken into account.
3. Adverse possession. Under Smirk v Lyndale Developments [1975] Ch 317, a tenant’s encroachment on adjoining land of the landlord is presumed to benefit the landlord; the freehold title is not thereby barred. Shared possession by tenants of separate properties was not exclusive possession capable of starting time in favour of either. Nevertheless, assuming the further evidence was admissible, Mr Mayrick could have established exclusive control from May 1988, potentially putting the College out of possession for more than twelve years by 2002.
4. Effect of the compromise. That possibility did not assist Mr Mayrick. In the earlier proceedings he had admitted that the College owned the relevant Green Land, including the accessway extension, and claimed only a right of way. He knew the facts on which he later relied but did not raise an adverse title before entering the compromise. Having obtained an undisputed title to the accessway extension under that agreement, he could not later refuse performance by asserting that he already owned it.
5. Title and misrepresentation. The College was required to convey such title as it had to land it had claimed to own. Registered land could be transferred from the registered title; unregistered land could be conveyed with a statutory declaration sufficient to enable registration. The alleged ancient undocumented possessory title was not materially inaccurate. The alternative assertion of an unregistered documentary title was unsupported, raised for the first time in this Court and expressly disavowed below. It therefore provided no real prospect of a successful defence. The issue under section 2(1) of the Law of Property (Miscellaneous Provisions) Act 1989 was not pursued on this appeal.

• Court of Appeal (Civil Division). On 12 January 2007, the court unanimously dismissed the appeal.
• Court of Appeal (permission stage). Permission to appeal was granted by Lord Justice Neuberger on 1 June 2006: [2006] EWCA Civ 840.
• High Court, Chancery Division. Mr Justice Hart dismissed Mr Mayrick’s appeal from the county court’s summary judgment by judgment dated 23 March 2006: [2006] EWHC 574 (Ch).
• Central London County Court. Judge Cooke granted the College summary judgment under Part 24 on 3 December 2004.