John Gordon Irwin & Anor v John Graham Sykes & Anor

_____________ Key words: Easement – right of way - prescription – agreement “not to oppose” application – abuse of process in opposing application – whether Applicants still required to prove their case – procedure – preliminary issue - rule 9(8) determination of unopposed application - elements of prescription – contentious and permissive use – effect of dispute over rights and erection of lockable barrier – Prescription Act 1832 -“without interruption” Cases referred to: Deane v London Borough of Newham [2024] UKUT 00300 (LC) Jarman v. Seddon-Wickens (County Court at Bristol, claim J01BS462, 11 th April 2025) Silkstone v. Tatnall [2011] EWCA Civ. 801 White v. Jones (No. 2) [1969] 1 Ch. 150 Newnham v. Willison (1987) 56 P&CR 8 Winterburn v. Bennett [2017] 1 WLR 646 Roberts v Fellowes (1906) 94 L.T. 279 Akhtar v Khan [2024] EWHC 1519 (Ch) Introduction: background

1. By an application on form AP1 dated 24 th April 2024, accompanied by an ST4 “statement of truth in support of an application for registration and/or noting of a prescriptive easement”, the Applicants Mr. and Mrs. Irwin applied to note:- i) on their own title NYK 87079, to number 78 North End, the benefit of a right of way over part of the Respondents’ title NYK 388059; and ii) on that title of the Respondents, the burden of that right.

2. The right claimed was as follows:- “ a right of way for vehicles excluding agricultural and construction machinery at all times for the purpose of garden maintenance for the benefit of Mr John Gordon Irwin and Mrs Sarah Georgina Irwin their servants and successors in title along the track marked and coloured yellow on the attached plan. ”

3. The plan is attached below. The land over which the right was claimed has been described as a “grassed track” leading from the highway at North End. As well as providing a potential route to the rear of the Applicants’ property, it also serves as an access to another title, a field owned by the Respondents - title NYK 65831.

4. By an initial letter of 4 th September 2024, the Respondents as registered proprietors of the alleged servient title objected to the application. The matter was referred to this Tribunal shortly afterwards, after which it proceeded via statements of case and directions to a final hearing. The preliminary issue

5. If the matter were as simple as the brief summary above, this would then have been a conventional hearing of a disputed prescriptive easement claim. It would have involved, as do many such cases, contested evidence as to the alleged period and frequency of use relied upon, and whether any of such use was permissive, or by force/over protest, or secret.

6. It has, however, been fairly clear from the outset of these proceedings that the Applicants’ principal point is one of process. They say that the Respondents are not entitled to oppose the application at all , because they entered into a binding agreement not to do so, as part of the consideration for the settlement of another dispute. By in fact opposing this application, the Applicants therefore say that the Respondents have resiled from, and breached, this prior agreement. They say that this should not be permitted by the Tribunal.

7. In procedural terms, and from first principles, an argument that a party is wholly barred from litigating a case - because of a binding agreement that they would not do so – is one of “abuse of process”; the same principle that would apply to a party attempting to re -litigate an issue decided in other proceedings. Rule 9(3)(d) of the Tribunal rules [The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013] provides that the Tribunal may strike out proceedings or a case if: “the Tribunal considers the proceedings or case (or a part of them), or the manner in which they are being conducted, to be frivolous or vexatious or otherwise an abuse of the process of the Tribunal”

8. By rule 9(7), that rule applies to a respondent as it applies to an applicant: “… except that- (a) a reference to the striking out of the proceedings or case or part of them is to be read as a reference to the barring of the respondent from taking further part in the proceedings or part of them;”

9. By rule 9(8): “If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent, and may summarily determine any or all issues against that respondent.”

10. Ideally, and perhaps if either or both of the parties had been represented, this would have been determined as a preliminary issue at a much earlier stage of proceedings. In fairness, perhaps the Tribunal itself could have directed this of its own motion. This did not happen, so the parties, representing themselves proceeded towards a final hearing listed for two days. Their own agreed list of issues, however, and the skeleton arguments they each provided, clearly demonstrated that this issue – are the Respondents barred by a previous agreement from opposing this application? – was ‘front and centre’ in the proceedings.

11. As orally decided and indicated at the hearing, I took the decision to exercise my case management powers under rule 6(3) of the Tribunal rules to: “(i) decide the form of any hearing”; and “(g) deal with an issue in the proceedings as a preliminary issue”.

12. I directed trial of the above issue as a preliminary issue there and then, to be the subject of submissions on the first day of the hearing. This was primarily for the reason that if I did not do so, and simply allowed the hearing to proceed in the usual manner of a contested hearing on the substantive issues (with evidence being given and being subject to cross-examination), the Applicants’ essential point on the agreement, and abuse of process, would have been bypassed and rendered moot. The Respondents would, had I taken that course, have been allowed fully to participate in the proceedings all the way to the conclusion of the hearing. It would then be too late, and pointless, to “bar” them from doing so, after the event.

13. I indicated to the parties that I would therefore:- i) hear their submissions on that preliminary issue, on the documents before me, on the first day of the hearing. ii) consider my decision on it after the conclusion of that first day. iii) announce my decision on the issue, orally and in summary form, but with written reasons to follow, at the start of the second day. iv) if that decision were to reject the Applicants’ submission, then continue with the substantive hearing on that second day, hearing evidence and submissions in the usual way. v) if I acceded to the submission, and barred the Respondents from further participation, then consider proceeding under rule 9(8) to “summarily determine” the Applicants’ original application without further responses or submissions from the Respondents. Conclusion: summary

14. As indicated orally at the start of the second day, it was and is my clear conclusion that the Respondents be barred from taking further part in the proceedings, under rule 9(7). I consider that to have allowed them to do so would have been an abuse of the process of the Tribunal. I consider it clear on the documents that they entered into a binding agreement not to oppose the precise application which the Applicants have in fact made. Moreover, they did so as part of the consideration for the Applicants compromising and acceding to a previous application made by the Respondents for an easement over the Applicants’ land, which was the subject of proceedings in this Tribunal (REF 2020/0182) concluded by a consent order dated 20 th May 2021.

15. In such circumstances, having gained the benefit of the compromise of the previous proceedings by the Applicants’ reliance on this agreement (a causal link which they admit in their own Statement of Case), they cannot be allowed to resile from that agreement. To do so would, in the most central sense of the phrase, be an abuse of process.

16. I therefore barred the Respondents from further participation in the proceedings. This left the question of what then to do with the Applicants’ application. I will explain below how I have proceeded, and what I have decided as a consequence. Preliminary issue: The previous proceedings, the compromise and the agreement “not to oppose”

17. By an application made on 9 th July 2019, the present Respondents (Mr. and Mrs. Sykes) applied to note the benefit and burden of a claimed prescriptive right of way over a relatively small parcel of land lying within the Applicants’ title, but at the gated entrance to the Respondents’ field in title NYK 65831.

18. This was objected to by the present Applicants Mr. and Mrs. Irwin (then the Respondents to that application), and the matter was referred to this Tribunal on 25 th February 2020. Despite the intervention of the Covid-19 pandemic, the matter proceeded via directions. A final hearing was never listed, but on 21 st January 2021 the matter was stayed for a period of two months to allow for settlement negotiations or possible mediation.

19. In those proceedings, Mr. and Mrs. Sykes were represented (by the firm of Place, Blair and Hatch) while Mr. and Mrs. Irwin represented themselves. While it appears that the original application was made by Mr. Sykes alone, it is clear that the solicitors acted (as they stated) for both Mr. and Mrs. Sykes. By a letter of 12 th March 2021, they informed the Tribunal that: “After much discussions and negotiations we are pleased to confirm that an agreement has been reached between the Applicant, Mr. Sykes, and the Irwins. Mr. and Mrs. Irwin have agreed to a right of way being through their garden with a width of 3.2m perpendicular from the outer edge of the eastern boundary and the following wording: “A right of way for all purposes at all times with or without vehicles including trailers, agricultural or construction machinery, and use for any equestrian or animal purposes for the benefit of the Applicants, their servants and successors in title along the whole of the area coloured in green on the plan attached marked plan (1) and 3.2 metres perpendicular from the eastern boundary’s outer edge.” In pursuance of the agreement to settle this dispute, the Applicants Mr. John Graham Sykes and Mrs. Helen Sykes agree that they will not oppose an application made by the Respondents for a right of way for vehicles excluding agricultural and construction machinery at all times and for the purpose of garden maintenance for the benefit of Mr. John Gordon Irwin and Mrs. Sarah Georgina Irwin their servants and successors in title along the track marked and coloured yellow on the attached plan 2. [emphasis added] In addition, we believe that as an agreement has been reached both parties have agreed that they will be responsible for their own costs in connection with this matter.”

20. In addition to that, by a signed letter which the Applicants said was posted to them by the Respondents’ then solicitors, and dated 22 nd March 2021, the Respondents stated as follows, under the heading “Proposed Application for a Right of Way over the Track shown on Title Plan NYK388059” : “ In pursuance of the agreement to settle the dispute lodged at the Land Registration Tribunal REF/2020/0182, we have agreed that we would not oppose an application made by Mr. John Gordon Irwin and Mrs. Sarah Georgina Irwin for a right of way for vehicles excluding agricultural and construction machinery at all times and for the purpose of garden maintenance for the benefit of Mr. John Gordon Irwin and Mrs. Sarah Georgina Irwin their servants and successors in title along the track marked and coloured yellow on the attached plan (1).” The plan attached is below. It can be seen it is essentially the same as the present application plan.

21. The only further letter of interest which followed this was one of 26 th March 2021 from the Sykes’ solicitors to the Tribunal (which does not appear to have been copied to the Irwins at that time). This was in response to a Tribunal query as to the difficulty of including in a final order reference to another application which was not before the Tribunal. The solicitors replied as follows: “We note that there is no indication in the application for an outstanding referral which might represent the application of the Respondent for registration [sic: of] easement entries relating to a right of way over the Applicants’ title and this will be something that they will then issue as an entirely separate application which they are aware of. Please note that the Applicants simply wanted us to record in correspondence that if they made an application at some stage our Clients would consent to the same. We understand that this is being dealt with directly between the parties in open correspondence to each other and our Client’s [sic: Clients] consent to the same. This issue is not something that the Tribunal needs to deal with at all. The only issue the Tribunal needs to deal with is the agreement recorded as being reached in the seventh paragraph of our letter to the Tribunal of the 12 th March 2021.”

22. What followed, after some correspondence between the Tribunal and parties as to the precise form the order should take (as to which the parties agreed to the Tribunal’s suggestion of an express note on the titles as to the limits of the right of way), was a consent order made by a Registrar of the Tribunal, under delegated powers, dated 20 th May 2021; in the same substantive terms previously set out above, and no order as to costs. Status of the agreement not to oppose?

23. It was correct that the final order of the Tribunal in proceedings REF 2020/0182 could refer only to the matter before it, namely the Sykes’ application for an easement. The Tribunal would not have had jurisdiction to make any direction as to a then unmade application by the Irwins for an easement of their own.

24. It is nevertheless quite clear, from the above sequence of correspondence, that an agreement by the Sykeses not to oppose “..an application…. for a right of way [then in the terms set out]” by the Irwins formed part of the overall consideration for compromise of the proceedings REF 2020/0182. Whether one analyses it as one term of an overall agreement dealing with both matters, or as an agreement collateral to the compromise of REF 2020/0182, the effect is the same. It was an agreement not to do something, for which part of the consideration was compromise and acceptance of the Sykes’ then pending application.

25. That is the clear view I form simply from the documents, but in case there were any doubt on the matter, the Respondents themselves confirm in their Statement of Case (verified by a statement of truth), at paragraph 14, that: “ The Respondents signed the letter dated 22 March 2021 partly because without it the Applicants would not agree to the Respondents’ easement application and thus avoid a Tribunal hearing. ” So it is common ground, and admitted, that the agreement ‘not to oppose’ was an essential and causative factor in the Applicants agreeing to the Respondents’ application. Content and effect of the agreement ‘not to oppose’

26. The starting point, and in my judgement the end point, for considering the meaning and scope of this agreement are the actual words to which the parties agreed, and which the Respondents signed. Construction of an agreement or contract is an objective process. Evidence of the parties’, or a party’s, subjective intentions in entering into the agreement, or of the course of previous negotiations, is strictly inadmissible in such a process.

27. I have set those words out in full at paragraph 21 above. The following points are clear from them:- i) as I have already found, and as the first sentence “In pursuance…” confirms, the agreement was part of the consideration for settlement of case REF 2020/0182. ii) the Respondents agreed that they “ would not oppose an application made by [the Applicants] for a right of way for vehicles excluding [etc. : exactly as per the further wording set out above]..”

28. The Respondents sought to advance an argument, in their Statement of Case, their skeleton argument and orally, that this agreement did not apply to an “application made by the Applicants for a right of way..” if that application was made on the basis of prescription . They sought to argue that the only “application” which they agreed “not to oppose” would be one involving a “new deed of easement” i.e. a right that would have to be granted by them by deed. They sought to do so on the basis of their own subjective beliefs as to what the agreement meant, and to their previous stance in negotiations with the Applicants, in which they say that they denied that there had been sufficient prescriptive use.

29. In my judgement that is, objectively, an impossible reading of the above simple words. The agreement “not to oppose…an application for a right of way” is not qualified in any way, still less by the condition for which the Respondents contend. On its face, and plain words, it applies generally to any “application for a right of way” in the terms then set out.

30. If the Respondents had wished to maintain their apparent objection to a right in those exact terms being applied for on the basis of prescription, as opposed to any other method, they could quite easily have said so, and insisted on such a qualification to the agreement. They did not do so.

31. Further, I found the Respondents’ explanation during their submissions of the “new deed of easement” argument very hard to follow. First, if what they were saying was that they would only “agree” to a right of way if it was one which they themselves expressly granted by deed, then that is not an agreement “not to oppose..an application” for a right of way. It would have been a denial that the Applicants had any right of way, and statement that they would not have one until the Respondents decided to grant them one.

32. Second, and somewhat to my surprise – given how long these proceedings have lasted – the Respondents’ apparent stance at the hearing was that they would not in fact object to the Applicants having a right of way in exactly the terms, and of exactly the scope , as is described by the words from “for vehicles excluding….” onwards as quoted above. They just object to the Applicants have applied for such a right by prescription . Mrs. Sykes appeared to refer to this as a “matter of principle”, while Mr. Sykes gave what I considered a strange explanation that not to oppose this prescriptive application might in some way have affected their position with insurers.

33. The Respondents’ further submissions sought to introduce, impermissibly, their own subjective beliefs as to the meaning of the agreement they signed; or their previous stances expressed in negotiations with the Applicants. Then, in their submissions, they sought to argue that they only signed the agreement because they were “stressed” or under pressure about the proceedings, and that it was the Applicants who had drafted it. I repeat that it was in fact the Respondents who were legally represented at the time, not the Applicants. They were free to seek further advice before they signed it. They signed it in any event. There is no separate application to set aside this clear agreement for duress or on any other ground, nor would such an application have the remotest prospects of success.

34. The short point is that the application made by the Applicants to the Land Registry on 24 th April 2024 is for a right of way in precisely the terms set out in the agreement, from the words “for vehicles excluding…” onwards. It is therefore “an application for a right of way” within the scope of the agreement made by the Respondents “not [to] oppose” such an application.

35. Contrary to that agreement, the Respondents did in fact “oppose” that application, by making an objection to it on 4 th September 2024, then maintaining that objection throughout these Tribunal proceedings.

36. They should not have done so, and should not have been allowed to do so. To resile from such an agreement, by then becoming an active opponent and participant in Tribunal proceedings, is – I consider – a clear “abuse of the process” of the Tribunal. They litigated and opposed the Applicants in these Tribunal proceedings when, by a binding agreement for consideration – from which they benefited through obtaining a consent order from the Tribunal in their favour in REF 2020/0182 - they had specifically agreed not to do so.

37. Had the matter been reviewed earlier, a preliminary issue could have been directed on this point earlier. It was not, but I have now so directed. I now determine that issue against the Respondents.

38. Under rule 9(7), I therefore barred them “from taking further part in the proceedings”, a decision I announced in summary at the start of the second day of the hearing. That meant that I would not hear evidence or submissions (on the substantive issue of the Applicant’s application) from them, or permit them to cross-examine the Applicants. They were entitled to remain and observe the rest of the hearing. Determination and disposal of Applicants’ application when Respondents barred from participation

39. The barring of the Respondents from participation nevertheless leaves the Applicants’ application outstanding. In that sense, a barring of a Respondent is slightly different from the striking out of an Applicant, which necessarily brings that Applicant’s application, and the proceedings, to an end. The Upper Tribunal (Lands Chamber) acknowledged this difference in Deane v London Borough of Newham [2024] UKUT 00300 (LC) , a case involving an appeal by D against a financial penalty order imposed by the Council under s249 Housing Act 2004 (for managing an unlicensed HMO). D successfully appealed a Tribunal order striking out his appeal, which had been made for procedural non-compliance. The Upper Tribunal observed at [56] that the “menu of responses” to procedural default in rule 8(2) of the Tribunal rules: “.. includes, at rule 8(2)(e) , the ability to bar or restrict a party's participation in the proceedings. That is a lesser sanction than striking out the proceedings altogether. Where an appeal is struck out the proceedings are at an end and the financial penalty remains in place; in contrast, where a party is barred from participating, or restricted in how they may participate, the Council will be left to prove the offence before the penalty can be confirmed and the appeal may yet be successful.” So a barring from participation does not necessarily bring the proceedings automatically to an end. The other party might still be required to prove their case, if the burden of proof lies on them in those particular proceedings.

40. The language of “barring from participation” is essentially the same as between rules 8(2)(e) and 9(7). Further, as I have already set out, rule 9(8) goes on specifically to provide for the case in which a Respondent is barred from participation under rule 9(7):- “If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent, and may summarily determine any or all issues against that respondent. ” In other words, the proceedings continue, and the Applicant’s application remains to be “determined”, but now the Tribunal may proceed to “summarily determine” it without the involvement of the Respondent.

41. There is little authority on exactly what such a “summary determination” should involve. One view might be that it should proceed in the manner of a summary judgment application in the courts, in a case in which the other party has provided no evidence in response. On that approach, this would be a written exercise, looking at the statements of case and evidence and then determining whether the Respondent can show any real prospect of succeeding in the objection to the original application; applying the principles summarised by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15].

42. I do not, however, consider that “summary judgment” in that sense – in which the issue, on an application under the court rule CPR Part 24, is whether the other party has a case with any realistic prospects of success – is apposite, or what is contemplated, in this particular situation. The issue is not whether the Respondent has an arguable case or one with realistic prospects of success. They have been barred from participation in the proceedings, as a procedural matter. The issue is how the Applicant’s now unopposed proceedings and application which remain are to be “determined”.

43. I consider that “summarily” in rule 9(8) refers more to the mode of making what is still nevertheless a final determination on the merits of the case. There is some, albeit non-binding, support for that view expressed by HHJ Michael Berkeley in the unreported County Court case of Jarman v. Seddon-Wickens (County Court at Bristol, claim J01BS462, 11 th April 2025) “…Rule 9(8) does suggest that a tribunal’s subsequent decision is a summary one, and thus one made on the merits rather than one made by default.” [26]

44. I further consider that the closest analogy to this situation, within the Tribunal rules, is that under rule 34, where the Tribunal decides to proceed in the absence of a party, where satisfied that the missing party had notice of the hearing and it is in the interests of justice to proceed. Another analogy would be the situation contemplated in the Court of Appeal decision (on the jurisdiction of the then Adjudicator, now this Tribunal) in Silkstone v. Tatnall [2011] EWCA Civ. 801 , in which a party sought to withdraw from proceedings at a very late stage, but in which case the Adjudicator would have been entitled to “..proceed to the substantive hearing, rule upon the merits of the issue and then make such order as is appropriate.” [50]. There is now a specific Tribunal rule (rule 22) which requires the Tribunal’s consent to a withdrawal, for that very reason i.e. that the matter may be far advanced, so that the Tribunal may refuse consent to withdraw and proceed to determine the substantive matter on the merits, even if a party wishes to withdraw, take no further part and not even attend the hearing.

45. I therefore considered in this case that the following was the appropriate course to take:- i) despite the Respondents having been barred from participation, the Applicants’ application remained to be “determined”. ii) it would therefore be determined, effectively in the absence of the Respondents, as it would be under rule 34 if the Respondents had simply failed to attend. iii) the application nevertheless remained that of the Applicants to make and prove. The burden lay on them from the date their application was made. They would not succeed by default. iv) I would therefore formally require both Applicants to give the affirmation, and confirm that the contents of their Statement of Case (the only evidence adduced by them in the proceedings) were true. v) I would ask them a small number of questions by way of clarification of their evidence as contained in their own Statement of Case. I would not, however, “cross examine” them on that evidence, or in any other way put the Respondents’ case to them. vi) the issue for determination would then be whether, on their own evidence, the Applicants had established the easement for which they applied. I therefore proceeded on that basis. The Applicants’ evidence and case

46. The Applicants began their Statement of Case by saying as follows (paragraph 3):- “The Applicants have been joint registered proprietors of 78 North End Osmotherley, title number NYK87079 (IRW1), from 10th September 2002 and since then have had continuous uninterrupted use of the grassed track leading to their land from the main highway North End over the Objector’s land NYK388059…which was purchased by them in 2014.”

47. I have no reason to doubt that statement as to the Applicants’ use of the track between 2002 and 2014. Nor did the Respondents, even if they had been permitted to oppose the application, have any evidence to the contrary. Little is known about title NYK 388059 prior to the Respondents’ purchase, save that it was a possessory title applied for and obtained by someone else in 2011. The register shows that the Respondents paid £50,000 for it on 28 th February 2014 and were registered as proprietors with effect from 7 th March 2014.

48. The Applicants then continued as follows (paragraph 12): “ From 2014, informal discussions were held about the validity of the Applicants having a Right of Way over the track leading to their land from North End as well as the extent and validity of the Objectors having a Right of Way over the track on the Applicants’ land..leading from their land title reference NYK65831 into their field. Both parties regularly continued to use the full length of the track whilst discussions took place and at no point was either party refused or stopped entry onto or along the track. ”

49. So again, taking that evidence at face value and as unchallenged, the Applicants say that their use continued, but that there were now mutual “discussions” between the parties about the “ validity ” of their respectively claimed rights of way. The Applicants, in their further written submissions (which I directed on these issues):- “ accept that that their right to use the grassed track was challenged and called into question by the Respondents during the years 2015 to 2019…Both the Applicants and Respondents challenged and questioned each other over their respective right to use the grassed track over the other’s land. No agreements were reached. ”

50. The Applicants also accepted and positively stated that, on a date which they later confirmed in oral evidence was around April 2015:- “ The Objectors’ also erected a barrier on the grassed track at its junction with North End and intermittently placed a padlocked low level single chain across it advising the users that it was to prevent unauthorized access for security purposes. ” (paragraph 14) So the physical fact of the Respondents having placed a lockable chain link barrier across the entrance to the way was admitted and agreed, although this paragraph alleges that a particular reason was given for it.

51. The picture below shows this barrier. This is the Respondents’ picture, with their annotations, but the Applicants do not dispute that it is genuine, or that it reflects the position on the ground at that time. Nor is it disputed that the Respondents also placed a small green sign on the wall on the left, saying “Private Property Keep Out”.

52. The Applicants also stated, and agreed, that:- i) this barrier remained there for the next four years, until 2019; and ii) they were never given a key to the padlock during that time, despite repeatedly asking for one.

53. As to this period, they said the following in their Statement of Case, in response to points which had been raised in the objection (paragraphs 24 to 27): “24. The Objectors state that there was no continuous use by the Applicants between 2015 and 2019 following the placement of a low level single locked chain link fence at the junction with the main road and that the Applicants’ use was only granted with their permission. 25. From 2015 onwards, discussions between the two parties were held including the validity of the Applicants having a Right of Way over the track leading to their land from the main road as well as the extent of the land for the Objectors’ proposed right of way over the track on the Applicants land leading from their land into their field.

26. The Objectors have submitted email exchanges between 2018 and 2019 in which they contend that there was no continuous use of their track. During this period, the Objectors’ placed the padlocked low level single chain link barrier and notice on the grassed track at its junction with North End stating that it was “to prevent unauthorised access” (the Objectors’ letter dated 04 September 2024). No objection to the barrier was made by the Applicant as both parties wanted to stop unauthorised members of the public from using the whole length of the track and assuming it was a public footpath, thereby compromising the security and privacy of both ownerships.

27. On erecting the barrier, the Objectors advised that they would provide the Applicants with a padlock key. Despite many requests, this was not immediately given and eventually the barrier was removed after the Applicants advised the Objectors that unless they received the key, they would also place a barrier on their section of the track. The Objectors did not advise the Applicants that the barrier was placed by them to prevent their uninterrupted and continuous use of the track. The Applicants and the other occupiers of the adjoining terraced properties continued to use the track for access unhindered throughout this period and continue to do so.”

54. The Statement of Case then continues by describing the events of the Respondents’ (Sykes) application, the previous Tribunal proceedings and the compromise as described above.

55. In oral evidence, after they both affirmed, and confirmed the contents of their Statement of Case to be true, I asked both Applicants a few questions to clarify my understanding of their evidence on the above period.

56. Mr. Irwin confirmed that they were never given their own key for the padlock. He said, of the “discussions” which lasted during these years, that these were over the parties’ alleged mutual rights of way over each others’ properties, which were “up for discussion”.

57. Both Mr. and Mrs. Irwin stated that the metal barrier was not always padlocked – this was done “intermittently”. When it was thus locked, however, the Irwins could not pass through with a vehicle. If they wanted to do so, they would have to ask the Sykeses to open it for them. Mr. Sykes would then come and unlock the barrier, with his own key. This state of affairs continued until what might be described as the ultimatum or threat described in paragraph 27 of the Statement of Case, quoted above (“unless they [the Applicants] received the key, they would also place a barrier on their section of the track”). The law: prescription

58. A right of way, to pass and repass over another person’s land, may be acquired by long use or “prescription” over a period of 20 years or more. This may be 20 years’ or more use “next before some suit or action” for the purposes of the Prescription Act 1832 , or to establish the inference of “lost modern grant”, use of the requisite nature for period of any 20 years or more at some point in the past. Using the English rather than Latin terminology, and the word “use” in preference to the somewhat archaic “user”, the use relied upon must have been open, exercised “as of right” (or, as was said in one case “as if of right”), and without force, secrecy or permission.

59. The use made during the period relied upon must be reasonably continuous, if not constant. Megarry & Wade, The Law of Real Property , 9th ed. summarises the relevant principles at paragraph 27-058: “The claimant must show continuity of enjoyment. This is interpreted reasonably. In the case of rights of way it is clearly not necessary to show ceaseless user by day and night: it may be continuous although it is intermittent. User whenever circumstances require it is normally sufficient, provided the intervals are not excessive. However, merely casual or occasional user does not suffice.” In general, the use must "…have been of such a character, degree and frequency as to indicate the assertion by the claimant of a continuous right, and of a right of the measure of the right claimed." ( White v. Jones (No. 2) [1969] 1 Ch. 150 , 162). There is no particular ‘tariff’ of the level of use required, but in an ordinary residential or similar context, it will usually suffice for the applicant to show that they have used the way as and when required, and more than just occasionally. Without permission

60. Permission granted by the servient owner renders use of the way by the would-be dominant owner “precarious”, so that such use cannot be relied upon to establish a right. Permission may be express or implied, and it will be a question of fact in each case whether use was by express or implied permission. Mere tacit acquiescence in the use is not implied permission: see e.g. Mills v. Silver [1991] Ch. 271 , R. (Beresford) v Sunderland City Council [2004] 1 AC 889 , at [6] and Poste Hotels Limited v Cousins [2020] EWHC 582 (Ch) . Without force: contentious or forcible use Use becomes contentious or “forcible”: “..once there is knowledge on the part of the person seeking to establish prescription that his user is objected to and that the use which he claims has become contentious.” [ Newnham v. Willison (1987) 56 P&CR 8, per Kerr LJ at p19]; see also R. (Lewis) v Redcar and Cleveland Borough Council (No.2) [2010] 2 AC 70 , per Lord Rodger of Earlsferry at paragraph 92.] In Newnham v. Willison (above), the Court of Appeal held that solicitors’ correspondence over obstructions placed across the alleged way made the use contentious. Signs making use contentious

61. The ability of a suitably prohibitive sign to render use contentious was considered by the Court of Appeal in Winterburn v. Bennett [2017] 1 WLR 646 . In that case, the owners of a fish and chip shop claimed a prescriptive right for their customers to park in the car park of the neighbouring Conservative Club. During the period of use relied upon by the claimant, the club had maintained two prominent signs: one in the car park itself, another in the window of the adjacent clubhouse, each stating: “Private car park. For the use of club patrons only. By order of the committee.”

62. The Court of Appeal (per David Richards LJ) held that this was sufficient “protest” to have made the use ‘forcible’ and “contentious” during the relevant period. It was not necessary for the servient owner to bring proceedings or erect physical obstructions to achieve that effect. The continuous presence of legible and suitably worded signs was sufficient and the relevant test is what a reasonable person would have understood by them: “… the presence of the signs in my judgment clearly indicated the owner’s continuing objection to unauthorised parking…..Any reasonable person, whether in the position of the owner of the land or those unlawfully parking on it, would understand the meaning and effect of the signs to be that persons other than the club’s patrons were not allowed to park on the car park and should not do so…… The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others. I do not see why those who choose to ignore such signs should thereby be entitled to obtain legal rights over the land.” (37, 41) Reliance on Prescription Act 1832 and meaning of “interruption”

63. Where a party seeks to rely on the Prescription Act 1832 as one of the bases for the claimed right, they are generally required by section 2 to establish that the right was “actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years” (although the section also provides that if the longer period of 40 years is relied upon, the right will be “deemed absolute and indefeasible” in the absence of proof of use by consent or agreement “by deed or writing”.)

64. By section 4 of that Act :- “Each of the respective periods of years herein-before mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question and that no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made.”

65. In other words, the use has to be proved up to a date “next before some suit or action”. Although proceedings before this Tribunal (formerly, before 2013, the Adjudicator to HM Land Registry) are not quite the same as court proceedings - in that they begin when a disputed application is referred to the Tribunal by HM Land Registry, under section 73(7) Land Registration, rather than there being an issued “suit or action” – my view is that the relevant date is the date of the original application which generated the reference. That is the date from which the Land Registry would give effect to the right claimed if the Applicant succeeds before the Tribunal. Relationship between “contentiousness” and “without interruption” under the 1832 Act

66. Although the right claimed may have been called into question during the period of use, and so have become “contentious” in that sense, the learned editors of both Megarry & Wade’s The Law of Real Property (10th ed.) and Gale on Easements (22 nd edition) are both nevertheless of the view that this would not stop time running for the purposes of the 1832 Act unless there is also an actual “interruption” of the use: “Interruption means some interference with enjoyment or cessation of enjoyment. Enjoyment by permission, or subject to protest, is not interrupted, but rather continuing.” (Megarry & Wade, paragraph 27-072, citing Reilly v Orange [1955] 2 Q.B. 112) “A statement by the servient owner that he would or might interrupt the user in the future is not an interruption; if the servient owner acquiesces in the user continuing in the meantime, then that period of acquiescence can be relied upon in support of a claim to prescription”. (Gale, paragraph 4-68, citing Samuel v Fatih (2000) 80 P. &C.R. D45). Burden of proof and evidence

67. Gale on Easements (22 nd edition, paragraph 4-115) summarises the position as follows: “Where a person asserts the existence of an easement acquired by prescription, he has a legal burden of proof of the matters which are essential for him to make out his case. He therefore has the legal burden of proving, for example, that the relevant user occurred for a sufficient period of time and had the necessary character as to amount to user as of right. He also has the legal burden of proving that the use was without permission (nec precario) and without contention (nec vi) even though these involve negative propositions. He also has the legal burden of proving that the user was open (nec clam) which involves a positive proposition. If the person asserting the easement proves that the putative easement was used for the necessary period of time, openly and in a way which would bring home to a reasonable owner of the servient tenement that a right was being asserted, then that person has the benefit of an evidential presumption that the enjoyment has been as of right and, in particular, without permission and without contention. The person asserting the easement can rely on this evidential presumption so that he does not have to try to prove that there was no express or implied permission, or no contention, during the relevant period of user. The relevant period of user may be lengthy and may involve the predecessors in title of the person asserting the easement. If that person were required to call evidence to prove the non-existence of permission or contention throughout a lengthy period, the evidential burden on that person would be very onerous and he might not be able to discharge it, even in a case where there had been no permission or contention. The position therefore is, where the person asserting the easement has the benefit of the evidential presumption, the servient owner has the evidential burden of calling evidence to show that there had been permission or contention. If the servient owner does call such evidence, then it will be open to the person asserting the easement to seek to rebut that evidence and the court will decide the issue of permission or contention on all the admissible evidence before it.” Gates and keys

68. The erection or presence of gates or other barriers, and the provision or otherwise of keys for them, may mean different things depending on the context. Gale on Easements (supra) at paragraph 4-143 summarises the position as follows: “The fact that a gate, through which a right of way was claimed, had always been kept locked, the key having been kept by the proprietor of the servient tenement, but always having been asked for by the proprietor of the dominant tenement as a matter of right, when it was required, and never having been refused, did not prevent the acquisition, by prescription, of the easement [citing Roberts v Fellowes (1906) 94 L.T. 279]. The position was different in a case where the party making use of an area of land for car parking had been given its own permanent key to a gate allowing access to that land at the outset; the giving of the key in that way was an overt and positive act consistent with the grant of permission and the user was not “as of right” [citing Akhtar v Khan [2024] EWHC 1519 (Ch) at [132] ] The fact that a gate across a way is installed and kept locked for substantial periods may well show that user was not as of right: the principle is that the party claiming to have acquired a right by prescription will fail if he can show no more than casual user permitted by a neighbour’s tolerance and good nature [citing Goldsmith v Burrow Construction Ltd, Times 31 July 1987, Court of Appeal]. There is, however, no general principle that if user has been “tolerated” by the servient owner, no prescriptive right can arise, for this would be inconsistent with the whole notion of acquisition of rights by prescription, in which acquiescence by the servient owner is a necessary element. The Applicants’ submissions

69. In their further written submissions, which were not fresh evidence but rather a summary of the Applicants’ existing pleaded case (and therefore evidence) on these points, the Applicants put matters as follows.

70. First, they did not understand, nor were they expressly told, that the sign was intended to exclude or deter them as users of the track: “The Applicants acted on the basis that the locked chain was for the Applicants and Respondents security. The Respondents often referred to the concern of security in their field, and the Applicants had the same concern regarding the track leading over their garden into the back of the neighbouring terraced properties.”

71. Second, their requests for Mr. Sykes to unlock the chain with his key, as and when required, were not a matter of “permission”: “The Applicant notified the Respondent when vehicular access was required, and the padlocked chain was removed….. The Applicant was not seeking permission and Respondent did not state that they were giving permission or granting consent by removing the chain.” They argued that this was more analogous to Roberts v. Fellowes than Akhtar , in that they requested the unlocking of the barrier as of right, and Mr. Sykes never refused or expressed his co-operation as a matter of permission.

72. Third, despite the intermittent presence of the locked chain (unlocked when requested), and the four year “negotiations” of discussions about the “validity” of their right, their use of the track with vehicles actually continued uninterrupted:- “The Applicants never stopped using the grassed track and regularly used it even when the chain was in place…..The Applicants refer to 4-122 in Gale on Easements and confirm there was no interruption of use.” The law applied to the facts

73. I consider that the correct analysis of the position, on the Applicant’s evidence and own case, is as follows.

74. The Applicants can establish a period of 20 years’ requisite enjoyment of the track “next before some suit or action”, namely their application to HM Land Registry on 24 th April 2024, “without interruption” for the purposes of the Prescription Act 1832 .

75. I accept their evidence that they used the track continuously and regularly between 2002 and 2014. Upon the Respondents acquiring title to the track in 2014, the use continued. It further continued in the years between 2015 and 2019 when the lockable chain was erected, and then in the years after that when the chain was removed.

76. It is correct, as they themselves admit, that their use of a right of way over that track was called into question and disputed by the Respondents between 2015 and 2019: its “validity” was “up for discussion”, as was the validity of the countervailing right claimed by the Respondents. The “discussions” over those mutual rights continued over those years, leading up to the Respondents’ 2019 application which became proceedings REF 2020/0182 and were eventually settled. There would have been nothing to “discuss” if there had not been these mutual objections to the rights claimed at that time.

77. I nevertheless accept that despite this, there was never actually a permanent or constant “interruption” of their use by the Respondents. The lockable barrier was erected, but the Applicants were never refused access or wholly prevented from using the track. I consider that their requests for it to be unlocked by Mr. Sykes, as and when required, are analogous to the requests for a key in Robert v. Fellowes . I also accept that this unlocking was never communicated to them as a matter of “permission”. They were never denied access, or told that it was subject to any particular terms or conditions.

78. I also accept their evidence and case as to the significance, or otherwise, of the sign. In another case, without further explanation or context, a sign saying “Private Property – Keep Out” might reasonably be construed as applying to all comers, and so prevent the acquisition of prescriptive rights by anyone; following Winterburn v. Bennett . In the particular context and circumstances of this case, however, and not just as a matter of the Applicants’ subjective belief, the sign could be reasonably construed as they in fact understood it – namely that it was not intended to prevent them from access via the track to their own property. It was instead aimed at the wider public, to deter trespassers who had no right to be there at all.

79. I therefore consider that the Applicants have discharged the legal burden of proof which initially rested on them. I do not so conclude merely by applying the evidential presumption which arises in their favour from proof of use. Looking at all the matters in evidence, including those as to possible permission or interruption, I conclude that the Applicants have successfully dealt with any possible counter-arguments or bars to prescription arising from the facts as admitted by them. Direction to Registrar, and costs

80. I will therefore direct the Chief Land Registrar to give effect to the Applicants’ application, as if the objection to it had not been made, pursuant to rule 40(2)(a) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.

81. The Applicants have therefore been the successful party. The normal costs order in proceedings before this division of the Tribunal is that the unsuccessful party pays the costs of the successful party. Parties who represent themselves (formerly known as “litigants in person”) may be able to claim some of their legal costs incurred in doing so. “Legal costs” of parties who have represented themselves, may be awarded in Tribunal proceedings under the Litigants in Person (Costs and Expenses) Act 1975 , through the application by analogy of the court rules in the ‘litigant in person’ provisions of part 46.5 of the Civil Procedure Rules. Under those rules a litigant in person may be awarded costs equivalent to the greater of a) a rate of £19 per hour or b) any loss of earnings or other financial loss proven to have resulted from his time spent working on the case; plus any reasonably incurred disbursements or third party expenses.

82. While my provisional view is therefore that a costs order should be made in favour of the Applicants, the parties shall have until the date stated in the order to make representations on the appropriate order. I add that the Applicants are not obliged to seek their costs against the Respondents - they may be content to let matters lie and not do so.

83. I am grateful to both parties for their courtesy and economy in their conduct of the proceedings and the hearing. I hope that they will be able to co-exist on reasonable terms from this point onwards, and put behind them the two previous sets of Tribunal proceedings in which they have engaged. Dated this 4 th day of November 2025 Judge Ewan Paton By Order of The Tribunal