Adverse possession claim granted — Application for permission to appeal — Time extension for oral application — European Court ruling on law applicable to case — Application for permission to appeal refused
The appellant brought a claim against the respondents for possession of three floors of a property of which it was the registered proprietor. The claim was dismissed on the ground that the respondents had acquired title to the three floors by adverse possession, pursuant to the provisions of the Limitation Act 1980. In reaching that conclusion, the judge applied the reasoning of the House of Lords in JA Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419. Permission to appeal was refused by the judge, and again on a written application to the Court of Appeal, partly on the basis that it was not open to the appellant, in the light of decided authority, to use an argument based on the Human Rights Act 1998.
The appellant informed the respondents that it did not intend to seek an oral hearing to renew its application to appeal. However, 18 months later, it applied for an extension of time to request an oral hearing. By that time, the respondents had renovated, and subsequently let the property.
The time extension was granted and the renewed application for permission was listed for hearing. The appellant sought to rely upon the decision of the European Court in JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2005] 3 EGLR 1; [2005] 49 EG 90, ruling that the human rights of the applicant in that case had been infringed. The appellant submitted that a different construction should be put on the 1980 Act, pursuant to section 3 of the 1998 Act, in the light of the reasoning of the European Court. The second respondent applied to revoke the extension of time.
Held: The appellant’s application was dismissed; the second respondent’s application was allowed.
Following the refusal of its written application for permission to appeal, the appellant should have made an application for an oral hearing within seven days, pursuant to CPR 52.3(5). The appellant’s application to extend that time-limit had been governed by CPR 3.1(2)(a). The question was whether time should be extended by 18 months for an application for permission to appeal that could potentially succeed. In the instant case, it was in the interest justice to refuse such an application. Relevant factors were: (i) the substantial 18-month delay; (ii) the cost to the respondent of the renovation works; (iii) the fact that the property was let; and (iv) the fact that the appellant had taken legal advice and had made an informed decision at the time not to pursue an application to appeal orally. There was nothing special about the case. It was not uncommon for a party that had lost an action or an appeal subsequently to learn of a new point or a change in the law that, had it been raised, could have resulted a different decision. The aim of finality would be dealt a blow if, in every such case, and without special factors, the court held that an appeal could be brought out of time because of the discovery of the new point or a change in the law. Accordingly, the application for permission to appeal would be refused and the time extension would be set aside.
Mark Loveday (instructed by Vizards Livesey Cameron Walker) appeared for the appellant; Tracey Bloom (instructed by TV Edwards) appeared for the respondents.
Sally Dobson, barrister
