Colin White v Merwin Amirthan Amirtharaja

An appellate court will generally not permit a party to advance a new issue where it would require fresh evidence, or might have led to different evidence at trial. That error will not justify allowing an appeal where the issue was immaterial to an independently decisive conclusion.

In a claim to adverse possession, the alleged possessor must intend, so far as reasonably practicable and permitted by law, to exclude the world at large, including the paper-title owner. The identity of that owner, or uncertainty about the paper title, does not alter that enquiry.

The Whites claimed ownership of a passageway adjoining Hollis House. They relied on adverse possession by their predecessor, Mr Bright, before the land was first registered. HHJ Holmes upheld the claim and ordered alteration of the register.

On the Amirtharajas’ appeal, Michael Green J allowed the appeal and set aside those orders: [2021] EWHC 330 (Ch). He held, among other matters, that Mr Bright’s acts were equivocal and did not establish the required intention to possess.

The Court of Appeal granted the Whites permission only on the issue whether the High Court had wrongly allowed a new paper-title point to be advanced. The central question was whether that procedural error affected the result.

Appeal dismissed. Nugee LJ, with whom William Davis and King LJJ agreed, held that the High Court should not have permitted the Amirtharajas to advance the paper-title point on appeal. It was not raised by the pleadings or at trial, and it could have led to different evidence being called or obtained.

1. The applicable appellate principle, summarised in Singh v Dass [2019] EWCA Civ 360 and reflected in The Tasmania (1890) 15 App Cas 223, is that a new point will not generally be allowed where it requires fresh evidence or the evidence below might have been different. A party seeking to advance a positive case must plead it, rather than rely on a bare denial. The alleged paper title was therefore not an issue at trial.
2. That procedural error did not affect the outcome. Michael Green J had not found, expressly or implicitly, that the James brothers had a paper title to the passageway. More importantly, whether they had such a title was irrelevant to the decisive enquiry: whether Mr Bright’s conduct established adverse possession.
3. Following Powell v McFarlane (1977) 38 P&CR 453, the required intention is an intention to exclude the world at large, including the paper-title owner, so far as reasonably practicable and as the law allows. That enquiry is unchanged where the owner’s identity or paper title is uncertain. The High Court’s conclusion that Mr Bright’s acts were equivocal as to that intention was no longer open to challenge, because permission to appeal on that issue had been refused.
4. The Whites also could not challenge the High Court’s conclusion that the register contained no relevant mistake. Their pleaded relief depended on proving Mr Bright’s adverse possession. Accordingly, the sole permitted ground could not justify restoring the County Court order.

• Court of Appeal (Civil Division): dismissed the Whites’ second appeal. It held that the paper-title point should not have been permitted on appeal, but that error was immaterial to the outcome.
• High Court, Chancery Division: Michael Green J allowed the Amirtharajas’ appeal and set aside the County Court declaration and rectification orders: [2021] EWHC 330 (Ch).
• County Court at Southend: HHJ Holmes upheld the Whites’ adverse-possession claim, declared them entitled to title absolute to the passageway, and directed alteration of the register.