Denise Barnes v Pearl Moxey & Anor

Open occupation alone does not establish adverse possession. A claimant must show factual possession and an intention to possess land to the exclusion of all others, including the paper owner; an intention to own is unnecessary. Under the Limitation Act 1995, deliberate concealment postpones limitation only where the concealed fact is necessary to complete the cause of action, the concealment is attributable to the defendant or an extended statutory category, and the claimant proves deliberate concealment and lack of reasonable discoverability. Knowledge alone is insufficient: the alleged concealer must have considered informing the claimant and decided not to. The concealment exception failed on the facts, so the counterclaim was statute-barred.

The appeal concerned title to a family home in The Bahamas. Denise Barnes claimed under a conveyance executed by the executor of her grandmother’s estate and, alternatively, by adverse possession from 8 May 2003. The estate of Charles Moxey claimed a half share under the will and brought a counterclaim for possession more than 12 years later, relying on deliberate concealment under the Limitation Act 1995.

The Supreme Court found that the conveyance transferred only a half share and that the limitation period had not expired. The Court of Appeal dismissed Denise’s appeal. The central issues before the Board were whether deliberate concealment postponed limitation and, only if necessary, whether the conveyance transferred the whole property.

The Board allowed the appeal. The counterclaim was statute-barred, Denise had acquired title by adverse possession, and a declaration was made that Pearl Moxey and Charles junior had no right, title or interest in the property.

1. Adverse possession. Mere occupation was insufficient, but the relevant intention was an intention to possess the land to the exclusion of all other persons, including the paper owner. No intention to own, or to acquire ownership, was required. Denise’s open and exclusive possession began on 8 May 2003: Buckinghamshire County Council v Moran [1990] Ch 623, 643; J A Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419.
2. Relevant fact and concealment. Under section 41(2) of the Limitation Act 1995, the relevant fact had to be one without which the estate’s cause of action was incomplete. The estate needed to know that Denise possessed the property with an intention to exclude others and that the estate was beneficially entitled to a tenancy in common. The fact that a conveyance had purportedly been made to Denise was not such a fact. Registration of the conveyance therefore did not postpone limitation.
3. Attribution and deliberateness. Section 41(6) extended “the defendant” to the defendant’s agent and a person through whom the defendant claimed. Denise relied solely on her own adverse possession, so concealment by Barbara or Eddison could assist only if either was Denise’s agent. No such finding was made. Nor did findings that Denise and her attorney knew of the estate’s interest establish deliberate concealment. The alleged concealer had to have considered informing Pearl and Charles junior and decided not to. The Board applied the principles in Potter v Canada Square Operations Ltd [2023] UKSC 41, [2024] AC 679.
4. Proof and further difficulties. The estate bore the burden of proving deliberate concealment and that the relevant fact could not reasonably have been discovered. The will had been publicly available since 1987, and the judge had made no finding on whether it could have been discovered with reasonable diligence or whether the estate already knew of its interest. The findings were insufficient to establish the statutory exception.
5. Section 30. Section 30 of the Limitation Act 1995 deemed an administrator to claim as if there had been no interval between the deceased’s death and the grant of administration. It did not postpone limitation until letters of administration were granted.

It was unnecessary to determine whether the conveyance transferred the entire interest in the property.

• Privy Council. On 30 January 2025, the Board allowed the appeal and granted the declaration sought by Denise.
• Court of Appeal of the Commonwealth of The Bahamas. On 7 October 2019, the Court of Appeal dismissed Denise’s appeal from the trial judgment.
• Supreme Court of The Bahamas. On 28 January 2019, the trial judge found for the estate of Charles Moxey, ordered Denise to convey an undivided half interest and account for rental income, and awarded her damages for trespass by Pearl and Charles junior. An earlier interlocutory application to strike out the counterclaim had been dismissed on 25 January 2016.