Adam Boyle, instructed by Nicola Mitchell-Rodd of Kitson & Trotman Solicitors, was recently successful in a prescriptive right of way case.

Heard in front of HHJ Berkeley, the matter concerned the use of the claimants’ land by the defendants. For the purposes of this note, and while numerous parties were involved, the main claimant shall simply be referred to as “the claimant”, and the main defendant as “the defendant”.

The claimant’s position was that the defendant had brazenly torn down one of his hedges and proceeded not only to drive over the claimant’s land, but to use the same to transport plant and materials, which the defendant then used to build a significant residential property. The claimant claimed, amongst other things, an injunction to prevent future use of his land by and/or on behalf of the defendant.

The defendant counterclaimed that in fact his use of the claimant’s land had been lawful. He alleged that his land benefitted from a right of way which had been acquired thanks to twenty years’ use nec vi, nec clam, nec precario ( i.e. as of right). In other words, he counterclaimed that an easement that benefitted his land had been prescriptively acquired over the claimant’s land. Moreover, the defendant claimed that the track (“the Track”) over which he alleged the prescriptive right had been obtained had been utilised by the owners of his property for circa 100 years.

One of the issues which the claimant faced in defending the counterclaim was finding relevant witnesses who could speak to such historic use. However, the claimant had owned the relevant land for a reasonable amount of time and was also local to the area, that being so he was able to find favourable witnesses who could explain (with detail) that the Track had not been used as of right by the defendant’s property.

At trial, the defendant’s witnesses seemed unable to shore up the defendant’s claims – with holes in the defendant’s story gradually becoming clearer and clearer. On day three of the trial the defendant himself was cross-examined. In the witness box, and under the pressure of cross-examination, the defendant admitted he had lied and volunteered in dramatic fashion that his counterclaim was mistaken and could not succeed. As a result, the counterclaim was formally conceded by the opposing barrister shortly after the cross-examination of the defendant (and a brief adjournment).

The Court proceeded to grant the injunctions and declarations sought by the claimant, and the remainder of the matters between the parties were dealt with by consent.

One of the notable facets of this case was that a key witness statement had been obtained by the claimant’s solicitors at an early juncture from a party who sadly died before trial. As it turned out, the witness statement was invaluable to the claimant in gainsaying (with well-explained reasons) a period of the user relied upon by the defendant which had allegedly taken place many decades ago.

A practical tip for prescriptive easement claims, particularly those that date back a long, long time, is to engage in evidence capture at the earliest (sensible) opportunity, and to crystalise the evidence of witnesses who are old and/or in poor health by putting their evidence into signed witness statement form. Without this key evidence there might have been a completely different outcome in this case, and the dramatic admission from the defendant might never have been made…