Palfrey v Wilson & Anor

In an adverse-possession claim, the court must evaluate the whole course of conduct in context. Individual acts should not be isolated and assessed as though each had to establish possession independently. Repairs, alterations, planning applications and other conduct may together amount to unequivocal possession of land and dispossession of the paper owner.

Acts affecting only part of a structure may nevertheless evidence possession of the whole. Raising the height of a wall can be an act of possession where it is an unequivocal assertion of ownership, although it does not by itself confer title. An appellate court should be slow to interfere with factual conclusions reached after a full trial and site visit, or with a trial judge’s broad discretion on costs.

The claimant appealed against a county court judgment in case KH.306940 declaring that a boundary wall belonged to the defendants, Mr and Mrs Wilson. His Honour Judge Dowse held that the defendants had acquired title by adverse possession, alternatively relying on paper title, and ordered the claimant to pay their costs on an indemnity basis from 24 February 2004.

Permission to appeal was initially refused on paper but granted on oral renewal. The Court of Appeal heard the adverse-possession issue first and proceeded on the assumption, without deciding, that the claimant had paper title, because success for the defendants on adverse possession was sufficient to uphold the order. The claimant also challenged the costs order, arguing that the paper-title issue had to be determined first. The central issues were whether adverse possession had been established and whether there was any basis to interfere with the costs discretion.

1. Substantive appeal dismissed. The court upheld the order declaring the wall to be the defendants’ property. It was unnecessary to determine the paper-title issue because the order could be upheld on adverse possession alone.
2. The five conditions identified in Prudential Assurance Limited v Waterloo Real Estate Inc. [1999] 2 EGLR 85 were possession, exclusivity, dispossession of the paper owner, intention to possess, and possession adverse in the statutory sense. Their application required a holistic evaluation of the evidence. The judge was not required to isolate and assess every event separately.
3. On the facts, the rebuilding of the wall, insertion of a damp-proof course, planning application, and works completed by 1981 could properly be viewed together as unequivocal acts of possession and dispossession. The paper owner’s lack of interest and knowledge supported an inference of dispossession. The claimant’s limited acts did not defeat exclusivity, particularly given that they were trivial, unknown to Mr Heelas, and inconsistent with a belief that the claimant owned the wall.
4. Waddington v Naylor (1889) 60 LT 480 did not require the court to ignore the raising of the wall when assessing possession of the whole structure. Although the work would not itself confer ownership, it could support a claim that possession rights had been asserted. Raising the wall by three feet was, in context, an unequivocal act of ownership rather than merely an exercise of an easement.
5. Costs appeal refused. The court declined to determine the paper-title issue merely to reconsider costs. The claimant could lose on adverse possession even if successful on title, and the sensible Part 36 offer to declare the wall a party wall remained relevant to the costs discretion. There was no arguable basis for finding an error of principle in the judge’s exercise of his wide discretion. Lady Justice Arden and Lord Justice Collins agreed with Lord Justice Tuckey.

• Court of Appeal (Civil Division): [2007] EWCA Civ 94. The appeal against the county court order was dismissed on the basis of adverse possession. The application for permission to appeal the costs order was refused.
• Kingston upon Hull County Court: in case KH.306940, His Honour Judge Dowse held that the defendants owned the wall by paper title or adverse possession and ordered indemnity costs from 24 February 2004.