Please read and you are welcome to attend the meeting on Thursday at 7.30 at the club to discuss further: Subject: East Lancs Cricket Club Dear All, I refer to the meeting last evening at the Club. This follows the Decision we have just received. I will firstly summarise the position as to the decision itself. I will then go on to consider what is on offer from the other side. I will then tell you the areas of advice I am seeking in anticipation of our next meeting at 7.30pm this Thursday. 1. THE DECISION The case brought in the names of Openshaw, Moore, Warne and Holt is phrased on the basis that they are in effect trustees acting on behalf of the members of East Lancashire Cricket Club. The Action was brought against P & F Properties Limited. This followed an application to the Land Registry on the basis of possessory title/adverse possession. It is accepted that the other party has since the 25th April 2006 been the registered proprietor of land situated at Cock Clod Street, Radcliffe under title number MAN47922. We were seeking to argue that part of that land, namely that occupied by the cricket ground is subject to adverse possession. This was separated from the other land and registered under title number MAN188498. The rules allow a person to apply to be registered as proprietor of registered land if he has been in adverse possession for at least ten years immediately preceding the Application. We claim to be trustees of the Cricket Club and that in itself is a matter raised in the decision below. We accept that there was no Trust Deed as such. On the question of our consent to occupy, we accepted that our initial entry onto the land was by consent as the original mill owners had given us such consent. The issue was as to when that consent had been withdrawn. the other party says it was withdrawn in 2006 The Judge concluded that the land was first registered in April 2006 when conveyed to P & F. In 1999 rights of way were granted over the land and the grantor was the East Lancashire Paper Mill Limited and that same company had in 1912 entered into a Deed of Agreement with the local council. tHe inference he draws therefore is that the Paper Mill Company owned the land from before 2012 until some time after 1999. The conclusion therefore is that East Lancashire Paper Mill Limited was the entity which gave consent to you to occupy and continued to do so until first registration by the other party in 2006. The argument therefore is that right up till 2006 when the consent was withdrawn, we had consent and therefore how can it be that we were in adverse possession? In relation of the Trust point, the Judge concludes that there is no Trust in the legal sense of the word on the basis that it is a shifting body of members and therefore no individual has been in exclusive occupation of the land. One cannot rely upon successive squatters, which applied under the old law. He continues: In my judgment, there is a scenario in which these Applicants could have the requisite standing to bring the Claim. If they could show that the four individuals named as Applicants had (together as a group) exercised full control over the land for a period of more than 10 years and that all the members who entered the land had done so as the guests of the four Applicants, then it would be possible to argue that they had together exercised single exclusive possession sufficient to gain title. We know this was clearly not the case here and indeed, in fairness to the Judge, we probably did have consent until J Flax came along with his people. As the Judge puts it, in order for an adverse possession claim to succeed, the possession in question must be adverse.....not be with the permission of the true owner. The burden was upon us to establish that consent was withdrawn. In the absence of express withdrawal of consent, we would have to rely upon implied or deemed withdrawal. We cannot do so in this case. So in effect the decision is based on two principles - We as trustees of the club did not have the exclusive possession to the exclusion of others and the membership was changing all the time. Further, we cannot prove to the satisfaction of the Tribunal that we were in adverse possession for the relevant period of 10 years. That is the crux of the decision. There is also an Order for costs which we cannot resist, though as to how much will have to either be agreed or assessed by the Tribunal/Court. I now move on to that issue of costs and the proposals put to me by the solicitors for P & F. What they are saying is that is we voluntarily give up possession at the end of the current season, they will not pursue any claim for costs. They currently estimate their costs in excess of £50,000 but could otherwise accept, as I understand it, a mere £40,000. They have asked that I get back to them by Friday. I have said nothing other than I will seek your instructions. You do have a right of Appeal in respect of this decision. You have a right to challenge the level of costs. You have a right to look to other remedies. When they apply for possession, if it reaches that point, they will serve you with proceedings and you will be able to put in a Defence. The questions thrown up by the above and which I am trying to speak to a barrister about, include the following:- 1. Are there any grounds of appeal? 2. If we put in an Appeal, will this almost certainly delay matters? 3. If we appeal, do we have to pay the costs in the interim? 4. If we dont appeal, can we still defend possession proceedings on another ground? 5. If at some stage we are pursued for the costs, what is the position of the four individuals? Let me answer some of the above, pending what counsel says, in the following way: a) As to appealing, I think the Judge is right on the point of consent. I think the truth is that we did have consent until Flax came along and withdrew it. There is no harm in application for permission which we would have to do quickly. If this Judge refuses it, I believe we can then make a further Application to the Higher Tribunal, though I have not checked the point. b) As to costs, all for individuals are jointly and severally liable for the entire debt. If one does not pay, they can go either any of the others for his share in any event. I would need a unanimous decision on that as I owe a duty to each individual. c) as to possession proceedings, they would now have to bring those proceedings in the County Court. You would be at liberty to defend them. In my view you would be saying that you have a well-established right to be there - a license. P and F would say that they, as the new owner are entitled to withdraw that license as it is a personal arrangement between you and the previous owner. That is a point upon which counsel would advise. If a license, then the next issue would be what notice is reasonable to terminate the license in any event. Logically, you would imagine that after 90 odd years, you would expect a long, indeed very long notice period. You are in a position to defend it, however, in my view. So when we meet on Thursday evening, these are the matters I will consider with you. If there are any other questions occupying your minds, then please feel free to express them at this stage. Kind Regards Milton
Posted on: Wed, 02 Apr 2014 17:04:11 +0000
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