REAL PROPERTY
Civil procedure - adverse possession - crown proceedings - foreshore

Mark Andrew Roberts v Crown Estate Commissioners: CA (Civ Div) (Lords Justice Mummery, Jacob, Mann): 20 February 2008

The appellant (R) appealed against a decision ([2007] EWHC 513 (Ch), [2007] 2 P) that the respondent commissioners had acquired title by adverse possession to land forming part of the foreshore and bed of the Severn estuary.



R sued as Lord Marcher of Magor, an ancient Welsh title acquired by him in 1997. He claimed paper title to the fee simple in parts of the foreshore and bed of the Severn estuary on the Welsh side on the basis of ancient customary or Welsh law. The commissioners' position was that, although they maintained the Crown's title to the Magor land by ancient prerogative as residual royal demesne, the court should make a preliminary ruling on their alternative case that any paper title of R had been extinguished under the provisions of the Limitation Act 1939 and Limitation Act 1980.



The judge accepted the commissioners' case that under the 1980 act the Crown enjoyed the same legal rights as its subjects in limitation matters, and that on the facts it had established adverse possession, since its acts of possession and control had been accompanied by the necessary intention to possess. R submitted that there was a constitutional principle or rule of law that the Crown could not acquire title by adverse possession against a subject, except where its original entry on to the subject's land was lawful, and could not base its claim to title by adverse possession on its dispossession of the subject's land. R further submitted that the Crown had failed to discharge the burden of showing that its presence on the disputed land originated otherwise than in dispossession of R's predecessors, and failed to establish the necessary intention to possess and to exclude the world at large since, on the commissioners' own evidence, they never wanted to exclude anyone who was the true owner of the Magor land.



Held: (1) The 1980 act was the legal point of reference for the resolution of the preliminary issue in the present case. Limitation of actions was the creature of statute, not of the common law. By section 37(1) of the 1980 act, subject to immaterial exceptions, the 1980 act applied to the Crown as it applied to its subjects. The origin of the possession of the person relying on adverse possession was irrelevant to the barring of an accrued right of action and adverse possession could originate in a lawful or an unlawful entry into possession, JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 applied. The only way in which the alleged constitutional principle relied on by R could have survived the introduction of the 1980 act was if the Crown was not a person in whose favour time could run under paragraph 10 of schedule 1.



The alleged constitutional principle or rule of law that the Crown could not disseise a subject of his land and could not therefore plead adverse possession of land so acquired was not supported by authority, Attorney General v Tomline (No3) [1880] LR 15 Ch D 150 CA considered. Before the Crown Proceedings Act 1947, there had been a bar on a subject bringing an ordinary action against the Crown for the recovery of land, claiming that the Crown had committed a wrong against a subject. Since such an action was available after the enactment of that statute, it followed that there was no possible legal basis for denying the Crown the ability to plead a limitation defence that any of its subjects could plead, or for treating the Crown's ordinary possession of another's land as other than that of a person in whose favour time could run under the 1980 act. If there ever was a principle or rule limiting the right of the Crown to acquire title to land by adverse possession it ceased to exist by reason of the combined effect of the 1939 act and the 1947 act.



(2) The existence of a claim to part of the Magor land by a third party did not prevent the commissioners from having the relevant intention to possess. There had been no act by that third party sufficient to deny the commissioners the role of having been in exclusive possession and control of the land for the necessary period. The commissioners believed that the Magor land was foreshore and, as such, part of the Crown Estate. A person who believed himself to be the true owner, albeit mistakenly, could have the requisite intention to exclude others and acquire title by adverse possession, Hughes v Cork [1994] EG 25 (CS) CA (Civ Div) applied. The commissioners' policy not to contest claims supported by sufficient evidence and which made the Crown's title doubtful did not mean that they lacked an intention to exclude the true owner so far as they could. The fact that the commissioners did not intend to trespass on the Magor land was consistent with the necessary intention to be in possession of it.



Appeal dismissed.



Mark Wonnacott (instructed by Darwin Gray) for the appellant; Frank Hinks QC, Thomas Braithwaite (instructed by Farrer & Co) for the respondent.





FAMILY LAW

Inter-country adoption - parental responsibility orders - children

Re G (a child) sub nom MM v (1) Mr & Mrs C (2) X local authority (3) AG (4) G (by her children's guardian): CA (Civ Div) (Sir Mark Potter (President of the Family Division), Lords Justice Wall, Lloyd): 21 February 2008

The appellant mother (M) appealed against an order under section 84(1) of the Adoption and Children Act 2002, giving parental responsibility in respect of her child (G) to the first respondent couple (C).



G had been made the subject of a care order with a view to being adopted by C, who lived in the United States. To progress the adoption, C required an order for parental responsibility under section 84.



C moved to the UK to live with G for the ten-week period required by section 84(4), but because of work and family commitments the husband had only remained in the UK for a total of three weeks. After the ten-week period, C applied for an order under section 84(1). M objected to the making of an order as she wished for G to be adopted within the UK. The judge decided that G had had 'her home' with C for the required period as they had both remained in effective parental control of her. The judge further held that as C were not able to comply with the requirement in regulation10(b)(iv) of the Adoptions with a Foreign Element Regulations 2005 - that prior to the making of a section 84 order the relevant foreign authority confirm in writing that the child was or would be authorised to enter and remain in the foreign country, because the US Embassy would not issue a visa for G until a section 84 order had been made - regulation 10(b)(iv) should be overridden.



M argued that (1) M had not made her home with both of C for the whole of the ten-week period required as by section 84(4); (2) the judge had had no power to make the section 84 order because the requirement in regulation 10(b)(iv) of the regulations had not been satisfied.



Held: (1) The judge had been correct to identify that the purpose of section 84(4) was not just to ensure that a relationship should begin to establish between the child and the prospective adopters, but also to allow the authorities to assess the prospective adopters. The physical presence of the husband throughout the ten-week period was not necessary to satisfy the proposition that G's home was with both of C throughout that period. It was a matter of fact and degree. If the husband had only been present for two days during the period then the authority would not have had the opportunity to carry out an assessment. However, the husband's presence for three weeks had been sufficient to enable a satisfactory assessment to be made.



(2) The approach taken by the judge to regulation10(b)(iv) was not permissible. In any event, the correct interpretation of regulation10(b)(iv) did not create the problem that the judge had identified. The relevant foreign authority for the purposes of regulation 10(b)(i), (ii) and (iii) was the foreign equivalent of an English adoption agency. It would seem strange if a different body had to satisfy the requirements in regulation 10(b)(iv). Accordingly, regulation 10(b)(iv) required confirmation from a foreign body equivalent to an English adoption agency to the effect that, provided that all relevant procedures in the UK, and any adoption-related procedures under the law of the foreign state that were prerequisites of the child being allowed into that state were followed, then, from its knowledge and experience, the child would be authorised to enter the foreign state. Accordingly, the appeal was adjourned so that such confirmation could be obtained from the relevant US adoption agency.



Judgment accordingly.



Eleanor Platt QC, Gina Small (instructed by Coodes), for the appellant; Mrs C in person, for the first respondent; Richard Beddoe (instructed by the local authority solicitor) for the second respondent; Rawdon Crozier (instructed by John Murray) for the third respondent; Helen Matuk (instructed by Ashtons), for the fourth respondent.





TRUSTS

Beneficiaries - disclosure - discretionary trusts - letters

(1) Manuela Breakspear (2) Penelope May White (3) Mark Dunning v (1) Robert Charles Ackland (2) Patricia Ann Dunning: ChD (Mr Justice Briggs): 19 February 2008

The claimant beneficiaries brought proceedings seeking (i) the disclosure of a wish letter and oral statements as to his wishes sent or communicated to the then trustees by the de facto settlor of the relevant settlement; (ii) the setting aside of a purported addition of the second defendant (D) as a beneficiary of the settlement, together with the setting aside of a purported appointment of income to her.



Held: (1) The disclosure application raised a question of real general importance. There was now virtual unanimity in the relevant common law jurisdictions that the basis on which trustees and the court should approach a request for disclosure of a wish letter (or of any other document in the possession of trustees in their capacity as such) was one calling for the exercise of discretion rather than the adjudication on a proprietary right. The principle established in Londonderry's Settlement, Re (1965) Ch 918 CA, namely that the process of the exercise of discretionary dispositive powers by trustees was inherently confidential, remained good law, Londonderry followed, and O'Rourke v Darbishire [1920] AC 581 HL, Hartigan Nominees Pty Ltd v Rydge [1992] 29 NSWLR 405, Re Rabaiotti 1989 Settlement, [2000] WTLR 953 Royal Ct (Jer), Schmidt v Rosewood Trust Ltd [2003] UKPC 26, [2003] 2 AC 709, Foreman v Kingstone [2005] WTLR 823 HC (NZ), and Countess Bathurst v Kleinwort Benson (Channel Islands) Trustees Ltd [2007] WTLR 959 Royal Ct (Gue) considered.



At the heart of the Londonderry principle was the unanimous conclusion that it was in the interests of beneficiaries of family discretionary trusts, and advantageous to the due administration of such trusts, that the exercise by trustees of their dispositive discretionary powers be regarded, from start to finish, as an essentially confidential process. In the context of family discretionary trusts, the Londonderry principle did, in general, apply to wish letters. The defining characteristic of a wish letter was that it contained material which the settlor desired that the trustees should take into account when exercising their (usually dispositive) discretionary powers. It was therefore brought into existence for the sole purpose of serving and facilitating an inherently confidential process.



It was axiomatic that a document brought into existence for the sole or predominant purpose of being used in furtherance of an inherently confidential process was itself properly to be regarded as confidential, to substantially the same extent and effect as the process which it was intended to serve. Generally, the confidence which ordinarily attached to a wish letter was such that, for the better discharge of their confidential functions, the trustees need not disclose it to beneficiaries merely because they requested it unless, in their view, disclosure was in the interests of the sound administration of the trust, and the discharge of their powers and discretions.



It was neither appropriate nor legitimate for a settlor to fetter the trustees' discretion in that respect. The application of the Londonderry principle to wish letters was not to be taken as something akin to a statutory code. The question was, both for trustees and for the court, one of discretion, or of the review of the exercise of discretion. There were no fixed rules, and the trustees need not approach the question with any predisposition towards disclosure or non-disclosure. All relevant circumstances had to be taken into account, and in all cases other than those limited to a strict review of the negative exercise of a discretion, both the trustees and the court had a range of alternative responses, not limited to the black-and-white question of disclosure or non-disclosure. In the present case, it would be appropriate to order disclosure as sought by B.



(2) B had sought to impugn D's addition as a beneficiary of the settlement and the appointment of income to her on the basis of the self-dealing rule. However, that rule had been disapplied by the terms of the settlement. It would not, therefore, be appropriate to grant B the relief sought.



Judgment for claimants in part.



John Brisby QC, John Eidinow (instructed by Paris Smith & Randall Southampton) for the claimants; Francis Barlow QC (instructed by Taylor Wessing) for the defendants.





PERSONAL INJURY

Damages - civil procedure - dependants - dependency claims - error of law

Welsh Ambulance Services NHS Trust & Anor v Jennifer Mary Williams: CA (Civ Div) (Lords Justice Smith, Thomas, Lloyd): 15 February 2008

The appellant NHS trust (T) appealed against an order, following a hearing to assess the quantum of damages in a claim under the Fatal Accidents Act 1976, awarding the claimant (W) damages and interest following the death of her husband (H).



H had been killed shortly before his 50th birthday by an ambulance driven by one of T's employees. T admitted liability. H had established a successful family business in which both he and W and their two eldest children (D and S) were equal partners. The youngest child (R) had begun light duties for the business before H's death and subsequently became a partner.



The judge found that the business had grown as a result of H's drive, energy and flair and described H as a 'wealth creator'. The judge accepted W's case and adopted her proposed method of assessing the cost of replacing the services rendered by H and awarded W slightly more than £1.7 million plus interest. The issue was whether the judge had erred in law in holding that there was any dependency at all, whether for W or for the children. T submitted that the judge had failed to deal with a main issue of law by assuming that there was a dependency and awarding a substantial sum to W when in truth there was no dependency and the family were at least as well off after the death as before as the family business had continued to provide them with a similar or larger income. T further argued that the judge was wrong to focus on the efforts of H and should instead have focused on the business and its generation of profit.



Held: (1) The judge dealt with the issue of dependency and it could not be said that he assumed that there was a dependency and went immediately to assess its value. The judge had considered Wood v Bentall Simplex Ltd [1992] PIQR P332 CA (Civ Div) and O'Loughlin v Cape Distribution Ltd [2001] EWCA Civ 178, [2001] PIQR Q8, and O'Loughlin was particularly useful in aiding the judge to see what the dependency was in the present case, Wood and O'Loughlin considered.



During his lifetime, H was a wealth creator and W played no significant role in the wealth creation. As the judge found, if H had lived he would have gone on generating wealth for another 30 years. W would plainly have benefited from his efforts as she had benefited before. Nothing could be more obvious than that W lost a very valuable dependency on H's death.



(2) D and S were working in the family business and were in receipt of profits shares far in excess of the agreed economic values of the roles that they carried out because H was generating large profits by his management of the business. D and S were plainly dependent on their father to the extent that those profits exceeded the value of their labour. It was always the intention that R would enter the business and become an equal partner. On H's death, R lost the expectation that she would benefit from a share of the profits generated by H, which would have greatly exceeded the value of the services she would have rendered. It was plain that W and the children were dependants of H at the time of his death. The fact that each of them was as well off after the death as before, because D and S took over responsibility for managing the business successfully, was nothing to the point. The financial benefit that D and S brought to the family was irrelevant to the assessment of the dependency under section 3 of the act. A dependant could not by his or her own conduct after the death affect the value of the dependency at the time of the death.



(3) The judge had correctly assessed the value of the dependency on a global basis. The method adopted by the judge went straight to the value of H's labour and the judge was right to choose that method of assessment.



Appeal dismissed.



William Stevenson QC, Theodore Huckle (instructed by Morgan Cole) for the appellant; Christopher Purchas QC, Bryan Thomas (instructed by Russell Jones & Walker) for the respondent.