Adverse possession: White & another v Amirtharaja & another [2022] EWCA Civ 11


The Court of Appeal have handed down judgment on a second appeal from an adverse possession case which was initially heard in the County Court at Southend. This was a long running dispute which considered the role of the paper title owner and whether the adverse possessor's acts were equivocal or not.

In this case, the dispute between the parties involved the ownership of a passageway which runs behind the house of the Appellants (the Whites), and between an office and a workshop (which belonged to the Respondents, the Amirtharajas). At first instance, the Whites' adverse possession application was successful, but the Amirtharajas appealed to the High Court and the decision was overturned. As part of their appeal, the Amirtharajas argued that the previous owners of the workshop had paper title to the passageway, by way of new evidence. Whilst the High Court Judge did not allow the new evidence to be admitted on the appeal, he did allow the Amirtharajas to advance this argument. In overturning the decision of the County Court, the High Court judge found that the Whites did not have evidence to show that they were in adverse possession of the passageway.

The Whites then appealed to the Court of Appeal. The only point in issue before the Court of Appeal was whether the Judge in the High Court was wrong to allow the Amirtharajas to advance the paper title / adverse possession argument on appeal, on the basis that this was a new argument not previously raised at trial. The Whites' argued that the High Court Judge impliedly accepted the argument and it affected his reasoning and undermined his conclusions. The Court of Appeal dismissed the appeal. They did accept the paper title argument was a new issue that was not raised at trial but found that the issue was wholly irrelevant to the question of whether the Whites could establish a title by adverse possession.

The important point of note to come out of this judgment is that in claims for adverse possession, whether or not the identity of paper owner is known does not have a bearing on the analysis of the adverse possessor's actions. Someone claiming adverse possession needs to show an intention to possess the relevant land and to exclude the world at large, including the paper owner, whomever he may be, and whether or not their identity is known.

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