Bernard Healey v William Fraine (senior) & Ors

A pleading may set out alternative cases, but it must not advance contradictory assertions as part of the same case. Under the Land Registration Act 2002, adverse possession retains its established meaning: occupation under a licence is not adverse possession. Proprietary estoppel and constructive trust may provide coherent alternatives, but adverse possession is neither necessary nor sufficient where proprietary estoppel is relied on. Permission to amend may be refused where a proposed pleading is internally contradictory or includes a defence bound to fail in law. The court need not edit an unformulated amendment or grant permission for a future pleading, although a properly formulated further application may be considered.

The registered proprietor of a house brought possession proceedings against the first to fourth defendants, who occupied the property without her permission. The defendants sought permission to replace their Defence and Counterclaim with a pleading based principally on proprietary estoppel and constructive trust, while also alleging that the first defendant had been both a licensee and in adverse possession.

DDJ Corscadden granted permission to amend. HHJ Evans allowed the claimant’s appeal and refused permission, holding that the pleading was internally contradictory and that adverse possession could not coexist with possession under a licence. The defendants appealed to the Court of Appeal. The central issues were whether the whole pleading should have been rejected and whether the Land Registration Act 2002 altered the meaning of adverse possession.

The Court of Appeal unanimously dismissed the appeal.

1. The draft pleading was internally contradictory. It pleaded that the first defendant had been a licensee since 2009 and, in the same case and without presenting alternatives, that he had been in adverse possession since 2009. A party may plead alternative cases, but a single pleading must not contain mutually inconsistent assertions. The judge was therefore entitled to reject the pleading as unsatisfactory.
2. The defendants’ submissions below showed that adverse possession was being relied on as potentially relevant to the defence and relief, rather than included merely for information. The judge was entitled to decide the appeal on that basis.
3. Adverse possession under the Land Registration Act 2002 retains its established meaning. The definition in Schedule 6 paragraph 11 links it to the running of limitation under the Limitation Act 1980. A person occupying land with the continuing permission of the owner is not in adverse possession. The statutory scheme for registered land does not create a general category of concurrent licensed and adverse possession.
4. The statutory scheme largely removes limitation as a defence to possession proceedings concerning registered land. Adverse possession alone does not defeat the registered proprietor’s title or provide a defence, subject to the narrow statutory exceptions. The Law Commission’s examples concerning proprietary estoppel and purchasers in possession did not establish a contrary rule. Bridges v Mees [1957] Ch 475 was concerned with a materially different bare-trust situation and did not support concurrent licence and adverse possession.
5. The judge was entitled to refuse permission for the whole pleading. The court is not required to edit a defective pleading or approve an amendment whose text has not been formulated. The defendants remained free to make a fresh application based on a properly drafted and legally sustainable case. Proprietary estoppel appeared to be the material issue; adverse possession and the licence allegation were unnecessary distractions on the pleaded facts.

• Court of Appeal (Civil Division): The second appeal was dismissed. The refusal of permission to amend was upheld.
• County Court at Manchester: HHJ Evans allowed the first appeal on 30 June 2022, set aside DDJ Corscadden’s order and dismissed the defendants’ application to amend.
• County Court at Manchester: DDJ Corscadden had granted the defendants permission to amend their Defence and Counterclaim on 1 February 2022.