Llewellyn & Anor v Lorey & Anor

A prescriptive right of way requires at least 20 years’ use of a kind capable of constituting an easement, together with acquiescence by the servient owner. Acquiescence requires actual or imputed knowledge and an ability to prevent the use. Where the servient land is let or subject to a life tenancy, the freeholder must have both knowledge and power to intervene. Otherwise, use during that period does not qualify. An evidential gap in the relevant period defeats continuity. For trespass, damages may be assessed by the value of the use to the trespasser, with an agreed licence fee for the same use providing a strong measure.

The claimants owned Abergelli Farm, which benefited from a right of way over a route crossing the defendants’ land. The existing right covered agricultural and associated residential purposes. The dispute was whether it also covered commercial use, including the removal of material by lorries.

The High Court held that a commercial right of way existed for a limited area. The defendants appealed. The appeal also concerned a counterclaim for damages arising from the claimants’ use of a bypass after a licence agreement had been repudiated for non-payment. The central issues were whether the historical use established prescription and how damages for the subsequent trespass should be assessed.

The Court of Appeal unanimously allowed the appeal against the declaration of a commercial right of way and varied the damages awarded on the counterclaim.

1. Prescription. Prescription requires at least 20 years’ use of a kind capable of constituting an easement. The servient freehold owner must know, or be taken to know, of the use and be in a position to prevent it. These principles applied whether the claim was based on the Prescription Act 1832 or lost modern grant.
2. Tenancies and life tenancies. Where the servient land is subject to a tenancy or life tenancy, the use can qualify only if the freeholder could intervene despite the tenancy and had actual or imputed knowledge of the use. The Court applied the principles discussed in Pugh v Savage [1970] 2 QB 373 and Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738. The colliery use could therefore count only from 1954, when the life interest ended. The Bell Commercials use began in 1984 during a tenancy, and the freeholder could not have used the tenancy’s reservation to resume land for road making as a colourable means of stopping the use. Such conduct would have breached quiet enjoyment.
3. Continuity and evidence. The evidence did not justify finding use of the southern route for removal of colliery waste before 1970 at the earliest, and probably not before 1973. The resulting gap after the colliery closed in 1960 was fatal under Hollins v Verney (1884) 13 QBD 304. Neither the colliery-related use nor the later Bell Commercials use established a commercial right of way.
4. Counterclaim. Once the licence agreement was repudiated, continued use of the bypass and southern route from 2002 until October 2008 was trespass. Damages could be assessed by reference to the value of the use to the claimants. The agreed licence fee of £5,000 per year was the proper starting point, and no discount was justified by the occasional obstructions. Judgment was therefore entered for £29,583, less £2,500 paid, together with £5,491.90 interest.

1. Court of Appeal (Civil Division) — In [2011] EWCA Civ 37, the appeal was allowed. The declaration of a commercial right of way was set aside, and the counterclaim damages were increased.
2. High Court of Justice, Chancery Division, Swansea District Registry — On 19 February 2010, His Honour Judge Milwyn Jarman Q.C. declared that a commercial right of way existed for a limited area and awarded £15,000 on the counterclaim.