Port of London Authority v Ashmore [2010] EWCA Civ 30 is a really odd decision by the Court of Appeal to the extent I had to read it through carefully twice to be sure I understood its effect. I am still not sure that I do.
You may remember that we reported on Mr Ashmore’s attempts to resists the Port of London Authority’s attempts to register their ownership of the bed of the River Thames on the ground that he had acquired title to it (well a part of it) by adverse possession where the judge at first instance found that he had established factual possession and an intention to possess.
Unfortunately that decision was taken by the judge the hearing of a preliminary issue. The order for a trial of a preliminary issue was made by consent. The issue being:
Whether it is possible for the owner of a vessel that is moored in a particular place on a tidal river or other area of tidal water to acquire title by adverse possession to the sea or river bed or the foreshore for the footprint of that vessel where:
(a) the title to the sea or river bed or the foreshore has not been registered; and
(b) the vessel rests on the bed or the foreshore at low tide.
An agreed statement of assumed facts for the preliminary issue only was agreed and submitted to the judge.
Here things start to get odd. At the trial of the preliminary issue the Port of London conceded that title to the bed of a tidal river can (in principle at least) be acquired by adverse possession. That would seem, almost, to be a concession that the preliminary issue should be found in Mr Ashmore’s favour (indeed it would cease to be an issue). While it might be possible to find some very narrow difference between the preliminary issue as stated and the authority’s concession, they do not appear to have taken that position. As far as I can tell (and I am happy to be corrected) the authority agreed with the proposition to be tried, so the preliminary hearing would seem to be pointless.
Not to be deterred by this, the parties argued whether Mr Ashmore had in fact (based on the agreed assumed facts) established both factual possession and an intention to possess. The points taken are dealt with in my earlier post. Having found for Mr Ashmore on this issue, the judge was bound to answer the preliminary question in the affirmative. If, on the assumed facts, Mr Ashmore had established adverse possession, then it was clearly possible for someone to do that in principle because the judge found that someone had. The judge’s order included the following statement:
1. It is possible for the owner of a vessel that is moored in a particular place on a tidal river to acquire title by adverse possession to the river bed or the foreshore for the footprint of that vessel where:
(a) the title to the river bed or the foreshore has not been registered; and
(b) the vessel rests on the bed or the foreshore at low tide.
This isn’t quite the same wording as that used in the original order since it omits the phrase “or other area of tidal water”. But, strictly speaking, the judge’s narrower statement implies the more general one: if A is possible then surely one of A or B is possible.
The Port of London Authority decided to appeal this decision. Why they should do so given that they appear to accept the point in issue I do not know. They were given permission. At the hearing, counsel for the Port of London Authority explained that the authority conceded that there could be circumstances in which the owner of a vessel moored on a tidal river might acquire title by adverse possession to a part of the river bed or foreshore. What he wanted the Court of Appeal to do was to indicate in its judgment what circumstances those might be.
He suggested the following:
(1) An owner of a vessel that is moored on or over the bed of tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off at Mean High Water if released from its moorings.
(2) An owner of a vessel that is moored on or over the bed of non-tidal waters will only be capable of being in adverse possession of the bed by reason only of that mooring if he can prove that it would not have been possible for the vessel to float off if released from its moorings where the waters were at their average depth during the preceding calendar year.
(3) The principles set out above do not prevent the owner of the vessel from showing by other acts that he was in possession of the land upon or over which the vessel was moored or which included such land.
Unsurprisingly the court refused to make a judgment in those terms. First because it did not think it appropriate to set down an arbitrary test for the acquiring of adverse possession to the river bed and second because principles (1) and (2) could not be applied to the case before it since the agreed statement of assumed facts did not give sufficient information to decide whether they did or did not apply.
For myself I would have refused the appeal on the basis that the order made by the judge on a preliminary issue had been conceded by the appellant. End of story.
Perhaps because of the peculiar nature of the case before it, the court decided it needed to do some peculiar reasoning as well. The court discerned in the trial judge’s decision a qualification to the declaration he made, namely that it was not intended by the judge to be made in general terms, but was confined to the agreed statement of assumed facts. The court appears to have thought it should not have been made in the general terms it was.
With the greatest respect to the Court of Appeal, who must have struggled with the peculiar way the case was presented before them, that must be a nonsense. If on specific facts a judge finds that X is the case, then it must be true as a completely general proposition that it is possible for X to be the case. The judge’s decision cannot be faulted for its generality which follows inevitably for his finding on the facts before him and the question he was asked to resolve.
The court decided that there was no useful purpose in deciding whether the judge’s decision on the facts before him was right. The court also felt that it could not, in allowing the appeal, qualify the order that the judge made by confining it to the agreed statement of assumed facts. There was nothing for it but to set aside that part (paragraph 1) of the judge’s order. Unfortunately there is no report of the rest of the order, so it is impossible for us to see what state the case is left in. Very nearly back to square one by the sounds of it.
Can anyone throw any light on how this muddle came about, or why the Court of Appeal felt compelled to make the very odd decision that they did?