Ely & Anor v Simmons & Anor

A claim to a vehicular right of way by prescription requires proof of 20 years’ open use without force or permission. The use must be continuous. For a right of way, this means more than casual or occasional use, although it need not be constant. The burden lies on the claimant. A presumption of continuity cannot reverse that burden, and an inference from earlier regular use may be rebutted by clear evidence of only occasional use. Where the evidence provides no real prospect of showing that the trial judge erred, permission to appeal should be refused.

Mr and Mrs Simmons appealed against findings made by His Honour Judge Nelligan in the Plymouth County Court concerning their property dispute with Mr and Mrs Ely. The issues included whether the parties had made a binding agreement fixing their mutual boundary and whether the Simmons had acquired a vehicular right of way by prescription over part of the driveway.

Rimer LJ had granted permission to appeal on the boundary-agreement issue. The present judgment concerned the Simmons’ application for permission to appeal the refusal of their prescriptive right-of-way claim. The central question was whether there was a real prospect of showing that the judge had been wrong.

Lord Justice Lewison refused permission to appeal on the right-of-way issue.

1. To establish a vehicular right of way by prescription, the claimant must prove use of the disputed land for passing and re-passing for 20 years, openly, without force and without permission. The relevant period runs backwards from the commencement of the proceedings. The burden of proof lies on the claimant.
2. The required use must be continuous. In the context of a right of way, continuity does not require use day and night, but casual or occasional use is insufficient.
3. The evidence did not provide a real prospect of disturbing the judge’s factual conclusion. The evidence for the early part of the relevant period showed regular vehicular use before the period began and only occasional use between 1990 and 1994. There was then an evidential gap until the Simmons’ use from 2002. That evidence could not establish the necessary 20 years’ continuous use.
4. The submission that earlier regular use raised a presumption of continuity effectively reversed the burden of proof. Applying such a presumption was not an appropriate means of establishing the claimed right. In any event, any presumption arising from the earlier evidence was rebutted by the clear evidence of only occasional use.
5. Even if the factual conclusion were disturbed, the likely consequence would be a retrial, because the evidence would require evaluation against the whole case. The Simmons’ inability to fund a retrial further demonstrated that success on this issue would have no practical value. Application refused.

1. Court of Appeal (Civil Division): refused permission to appeal on the prescriptive right-of-way issue in [2012] EWCA Civ 652.
2. Plymouth County Court: His Honour Judge Nelligan found that the Simmons had not established a vehicular right of way by prescription.