Case No: B2/2004/1146
Neutral Citation Number: [2005] EWCA Civ 09
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Norwich County Court
His Honour Judge Darroch

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 20 January 2005
Before :

LORD JUSTICE RIX
and
LORD JUSTICE JONATHAN PARKER

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Between :

	Colin Dawson Windows Ltd	Respondent/Claimant	
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	(1) Borough Council of King's Lynn & West Norfolk

(2) Winifred Howard	1st Defendant

Appellant/ 2nd Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Nicholas Caddick & George Hayman (instructed by Messrs Dawbarns Pearson) for the Appellant
David Berry (instructed by Messrs Berry & Walton LLP) for the Respondant

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Judgment

Lord Justice Rix: 

1.	This appeal arises out of a claim for adverse possession of some land, a claim which the judge found was made good. The land in question is now part of a site used as a car-park by the claimants, Colin Dawson Windows Limited (“Dawsons”). The site is an open space beside North End Yard in King’s Lynn. A number of small terraced houses had at one time stood on that site, but in 1958 the houses were demolished pursuant to a clearance order (the King’s Lynn (North End Yard) Clearance Order 1958). Mrs Winifred Howard, the defendant, used to live in a house in North End Yard which was demolished in 1958. She counter-claimed by reference to a paper title to “No 4 North End Yard” alleged to form part of the cleared site being used by Dawsons. 
2.	The judge, HHJ Darroch, sitting in the Norwich County Court, found that Mrs Howard had proved her paper title to part of the site – even though the demolished house in question appears to have become known over the years not as No 4, but as No 4A North End Yard – but that she had lost her title to Dawsons by the time of her counter-claim in these proceedings on 26 June 2003. Dawsons had been in possession and use of the site as a car-park since about August 1987. He found that Dawsons had established the necessary intention to possess and that such possession was adverse and did not depend on an implied licence, for which Mrs Howard had contended. He also found that there was no acknowledgment of title. He therefore gave judgment for Dawsons on their claim and dismissed Mrs Howard’s counterclaim. 
3.	Mrs Howard now appeals on the ground that the judge ought to have found that there was an implied licence at least until negotiations for sale of the land petered out sometime after August 1991, just within twelve years before the counterclaim of 26 June 2003. There is a respondents’ notice whereby Dawsons argue that the judge was wrong to find that the paper title had been established. On behalf of Dawsons, Mr David Berry, solicitor advocate, also raises an entirely new point, first taken in his skeleton argument dated 31 August 2004, to the effect that Mrs Howard had never had any interest in the land until the personal representative of her late husband’s estate, as recently as 26 June 2003, had assented to the vesting of the land in her. Therefore, he says, she could not in any event have given an implied licence to Dawsons such as would prevent adverse possession. 
4.	It follows that the following principal issues arise on this appeal: (1) Was the judge wrong to find the paper title to the land previously occupied by No 4A North End yard (the “land”) to have been proved by Mrs Howard? (2) Was the judge wrong to have rejected finding Dawsons’ possession of the land to have been pursuant to an implied licence? (3) Should Dawsons be given permission to argue a new point relating to Mrs Howard’s interest in the land, and, if so, does the failure to assent to her inheritance until June 2003 in any event prevent the establishment of a relevant implied licence?
The paper title 
5.	North End Yard is a narrow paved alley which runs roughly north and south. At its southern end it emerges at right angles into Hextable Road. The car-park site occupies a broadly rectangular area to the east of North End Yard and towards its southern end. Immediately south of the car-park is a small area of unoccupied land and then a small, detached single story building, occupied by a bookmakers’ business which fronts on to Hextable Road itself. On the western side of North End Yard and broadly opposite the car-park is a converted chapel, which also fronts on to Hextable Road, occupied by Dawsons as their window manufacturing headquarters. At the northern end of the converted chapel an extension to it has replaced a pair of semi-detached houses which had previously stood on that site. Running northwards up North End Yard behind Dawsons’ premises, that is to say on the western side of North End Yard, is a terrace of houses, numbered 4 to 10. On the eastern side, the cleared open space where the houses demolished in 1958 had stood includes the car-park occupying approximately half of its area to its south but also extends northwards behind the car-park up to a point roughly opposite No 9. Northwards again of the cleared site is another terrace of houses, numbered upwards from No 16. That is a description of North End Yard as it is today.
6.	A plan of North End Yard as it existed before the demolition was attached to the 1958 Order. It shows, to the west of North End Yard, the chapel, then the pair of semi-detached houses which have at some time been demolished (but not pursuant to the Order) in the area where Dawsons’ premises now extend behind the chapel, and then the row of terraced houses which I have described above as numbered 4 to 10. The 1958 plan, however, contains no numbering of those houses. To the east of North End yard the 1958 plan shows first the small detached bookmakers’ building and then a row of eleven terraced houses. Those eleven houses lie within a rectangular box drawn on the plan with broken lines and represent the houses to be demolished under the Order. Only those eleven houses are numbered on the plan. The numbering begins at the southern end with No 3A, then No 4A, which the judge found to have been the Howards’ house, then No 5A, then No 6, then Nos 9 to 15 in sequence. No explanation exists of this eccentric numbering. 
7.	Thus No 4 exists on the western side of the Yard, as part of a terrace numbered 4 to 10; and No 4A used to exist on the eastern side of the Yard, as part of a terrace which included Nos 6, 9 and 10, but all those eastern side houses were demolished in 1958. 
8.	It seems reasonably clear that at some time the houses in North End Yard were renumbered; but it is no longer possible to reconstruct the logic of the process. 
9.	Which house then did the Howards live in, and can Mrs Howard prove, as the judge found, that it was a house which lay within the area now occupied by Dawsons’ car-park, viz No 4A? 
10.	The Howards’ house was conveyed to Mr Howard by a conveyance dated 20 February 1946. There is no plan attached and the house is merely described as “ALL THAT messuage or dwellinghouse property known as Number 4, North End Yard, King’s Lynn”. There is also reference to a “passage or entry from the Street”, presumably a reference to North End Yard itself. However there is a previous conveyance of “Number 4 North End Yard King’s Lynn” dated 3 December 1937 which, although also lacking a plan, gives a further description of the property, as follows:
“and being near the site of Fisher Bridge at North End in King’s Lynn aforesaid abutting upon a messuage now or lately of Matthew Fox towards the North upon land now or late of Langley towards the East upon a messuage now or late of John Langley towards the South and upon a passage or entry Eight feet in width towards the West”.
11.	This description places the property in question between two other houses, one north and the other south, with land towards the east and a passage eight feet in width towards the west. The “passage or entry” towards the west is presumably North End Yard. Thus the judge found that this description put the conveyed property “No 4” on the eastern side of North End Yard. This cannot be a reference to the present-day “No 4” on the western side of North End Yard, for that was an end of terrace house and had no other home immediately to its south.
12.	Mrs Howard’s evidence takes the matter somewhat further, even if, being old and infirm, she was not cross-examined on her witness statement. She there described her former home from memory. She said: 
“I can remember the layout and position of the property. The property was an old one and was narrower at the front than it was at the rear, basically a wedge shape. The front door of the property faced the chapel, which is now the Claimant’s premises. It was a two storey property with a rear yard, this having an access onto the alleyway between North End Yard and Lansdowne Street. There were two downstairs rooms, being a kitchen, a very large rear room and also one small bedroom upstairs and one large bedroom at the rear. The kitchen was entered from the front of the premises from the door opposite the chapel. There were various outbuildings in the yard, including a coal storage area. The property was the second one in the row of cottages from the Hextable Road/Pilot Street end. South of the first cottage was bookmakers premises, which was actually made of wood at that time. There is still a bookmakers on that side, although the premises has been extended and is now of brick.”

13.	All of this is consistent with the plot marked “4A” on the 1958 plan attached to the 1958 Order. Not only is this evidence consistent with that plan, but it may reasonably be said that only No 4A of the demolished houses can be described as “wedge shape” as distinct from rectangular. Moreover, No 4A was opposite the chapel porch, and outbuildings are marked on the plan in its rear yard. It was the second house in the terrace from the southern end (No 3A was the first) and south of the first house lie the detached bookmakers. 
14.	Although Mrs Howard was not cross-examined, her son Richard also gave evidence and was cross-examined, and he was able to confirm her evidence. It is true that he was only twelve when the house was demolished, but he remembered seeing it pulled down. 
15.	Although the means by which a house which in the 1937 and 1946 conveyances had been described as “No 4” had become renumbered “No 4A” cannot be reconstructed, the house in question was plainly not the surviving No 4, for that has not been demolished! 
16.	Mr Berry on behalf of Dawsons nevertheless submits that proof of the paper title has been critically undermined by the uncertainty and inconsistency of the allegations put forward by Mrs Howard over the years. Part of the difficulty was that Mrs Howard faced difficulty in putting her hands on any definitive plans. On the whole, however, it was Dawsons, rather than Mrs Howard, who, as a negotiating tool, kept on insisting that Mrs Howard’s identification of her former home was too indefinite to justify other than a merely nominal payment for her title deeds. In March 1990 Mrs Howard obtained a plan from the Borough Council of King’s Lynn and West Norfolk (the “local authority”) showing the current post-demolition situation. A letter dated 3 April 1990 from her solicitors to Dawsons passed the plan on to them, remarking that it showed “the situation of 4 North End Yard, and presumably 6 North End Yard will be adjacent to it”. The only No 4 shown on the plan was of course the surviving house on the western side of North End Yard, and not Mrs Howard’s demolished house, and the reference to No 6 is unintelligible. In their reply dated 4 April 1990, Dawsons made the most of this lack of focus. The reply also referred to “old photos of the area” which unfortunately have not been disclosed in these proceedings. However, by November 1990 Mrs Howard had obtained the 1958 plan from the local authority and this was forwarded to Dawsons by letter dated 13 December 1990 with No 4A marked on it as her former home. There was no uncertainty in this identification, which was ultimately upheld by the judge.
17.	Of course, Dawsons in due course made the most of the fact that, whereas the identified demolished house was No 4A, the conveyance of which they had been sent a copy referred to No 4. Thus they wrote on 2 August 1991 that “Upon examination of the plan supplied by you, the property most likely to be No. 4 is on the West side of North End yard…We are sympathetic with Mrs Howard’s cause, because undoubtedly she once owned a property somewhere in North End Yard. Unfortunately it appears that it is now impossible to unambiguously identify the location.” 
18.	Sometime after that letter the negotiations faded out. Mr Berry relies on the fact that when, nearly eleven years later, Mrs Howard’s solicitors renewed the correspondence by their letter to Dawsons dated 30 May 2002, a new plan was enclosed which purported to mark Mrs Howard’s property on it in red: however, the area marked in red was most of the car-park and clearly extended beyond any single house. Mr Berry says that this is inconsistent with Mrs Howard’s earlier and present case. It might be truer to say that it is inaccurate, rather than inconsistent, for it identifies an area which includes the former site of No 4A but extends beyond it. Mr Berry also relies on the fact that in her defence and counterclaim Mrs Howard pleaded (it might be said somewhat irresolutely) that her former home was “wholly contained within” the area marked on the plan annexed to Dawsons’ particulars of claim delineating the car-park. It was only in Mrs Howard’s further information dated 22 July 2003 that the site of the former No 4A was precisely identified. 
19.	It is true that some of the communications of Mrs Howard’s solicitors have lacked focus, and that between May 2002 and July 2003 there was a seeming reluctance to pin Mrs Howard’s colour firmly to a mast. However, what is of more importance is that way back in 1990 and again for the purpose of these proceedings Mrs Howard has identified the site of No 4A as her former home. The question is whether that case can be proved. In the judge’s view it was. For the reasons which I have given above, I agree.

Implied licence
20.	On behalf of Mrs Howard, Mr Nicholas Caddick submitted that the judge had been wrong to decline to infer an implied licence to the Dawsons from the correspondence between the parties. 
21.	What happened was that back in 1987 when Dawsons wanted to use part of the cleared area for a car-park, they tried to find the original owners of the demolished houses in order to buy the land from them. Thus Dawsons wrote in May 1987 to Mrs Howard to say that “we would be pleased to buy the land from you, and would appreciate it if you could instruct your solicitor to contact us as soon as possible”. On 15 May 1987 Mrs Howard’s solicitors wrote to Dawsons to say: “Our client may be interested in selling the property and perhaps you would let us have your proposals”.  It seems that Dawsons moved on to the site by August 1987. By letter dated 24 September 1987, Mrs Howard’s solicitors wrote to Dawsons as follows:
“We understand that you now have a plan and the valuation for the land has resulted in a subject to contract price of £2,500. May we please hear from you that this is accepted. Our client has asked us to inform you that she should now like the matter finalized. While we appreciate that the delay in this matter has been throught no fault of yours, we should now like it concluded. We are also instructed to ask you formerly [sic, sc formally] to vacate the site if the matter is not to proceed.”

22.	Mr Caddick submits that this letter recognises that Dawsons are on the land with Mrs Howard’s permission pursuant to negotiations for its sale, and only requires Dawsons to quit the land “if the matter is not to proceed”. Implicitly, if not expressly, says Mr Caddick, that is a licence to remain pending the completion of negotiations. 
23.	By letter dated 28 September 1987 Dawsons replied, to say that until Mrs Howard’s claim could be substantiated, “we are hardly in a position to negotiate the purchase”. A plan was requested to demonstrate the area to which Mrs Howard was claiming title. Mr Berry suggests that the terms of this letter demonstrates that there were no negotiations. I do not agree. This is the language of negotiation.
24.	There was then some considerable delay before Mrs Howard obtained a plan of the area from the local authority. It might be said that in the meantime the negotiation had ended. However, as stated above, a current plan was at length obtained and sent to Dawsons on 3 April 1990. On 4 April Dawsons replied, saying inter alia that they “would be glad for the opportunity to negotiate the purchase of any land which she may own at North End Yard. Naturally, I would need to acquire deeds or some evidence to title, should such negotiations be successful”. On 9 April Mrs Howard’s solicitors replied, confirming that they held deeds to the property. On 11 April Dawsons wrote seeking clarification as to which parcel of land Mrs Howard owned. On 18 April Dawsons wrote to say that they could not buy property which could not be identified, but proposed buying Mrs Howard’s deeds “for a nominal sum. I shall accept the risk that they may be of little or no value and would also be prepared to cover any reasonable costs”. This was plainly a negotiation. On 14 October Mrs Howard wrote to her solicitors asking them to contact Dawsons and propose £3,000 for her deeds of no 4. She had apparently obtained this figure from a similar negotiation which was going on between the local authority and Dawsons regarding another plot. She also requested her solicitors to ask rent for the time Dawsons had been in possession. Mr Berry submits that a request for rent was inconsistent with an implied licence. It is not clear, however, how the solicitors progressed these particular instructions. At this time the solicitors were also in contact with a firm of chartered surveyors who reported that they had been in touch with Dawsons who required proof of title “before they will negotiate”: however, they were “trying to start negotiations” nevertheless. 
25.	On 13 December 1990, as stated above, Mrs Howard’s solicitors sent Dawsons a copy of the 1958 plan marked up to indicate the property in question as no 4A. The letter continued:
“I am quite sure that my client’s have title to sell you this land if suitable terms can be agreed and to this end perhaps you would care to make an offer for my client’s consideration based upon the copy of a plan indicating the location of the land, duly enclosed.” 

26.	On 19 December the chartered surveyors instructed by Mrs Howard wrote to Dawsons directly enclosing her solicitors’ note certifying that they held the title deeds of the land purchased by her late husband. On 10 January 1991 Dawsons replied asking, “So that we do not enter into time-wasting and futile negotiations”, that they be given sight of the deeds in question. They explained this request on the basis that “other solicitors have also claimed to hold the title deeds” to the plot in question. No documentation to this effect was disclosed in these proceedings. The surveyors regarded this as an extraordinary request, and the solicitors wrote to them on 15 February 1991 to say:
“If Mr Dawson is not interested in negotiating on a proper footing then presumably the answer will be to stake the plot off and proceed to use it.” 

27.	On 18 February the surveyors sent the solicitors’ letter on to Dawsons. This was plainly a further indication that unless the negotiations could proceed sensibly, permission to remain on the land would be withdrawn. Mr Caddick relied on this as a further basis for inferring an implied licence. 
28.	In reply, by a letter wrongly dated 10 January 1991 but clearly sent between receipt of the surveyors’ letter of 18 February and the surveyors’ reference to the reply in their own next letter of 25 February, Dawsons pressed for sight of the relevant deeds and continued:
“If you wish to negotiate, we would be pleased to do so, but must make it very clear that it is on the basis of title being without question. We have previously explained our reasons for this to both yourself and [the solicitors]. If good title exists, we should be pleased to acquire it, subject to agreeing figures. If, on the other hand title cannot be clearly substantiated, you will be free to stake out whatever land you believe your client to own (bearing in mind, of course, the fact that we would be free to dispute such boundaries until title can be proved!). 
I would have thought it eminently more logical to have clarified the matter of ownership prior to negotiating. However since [the solicitors] seem singularly reticent in producing such clarification I must accept that we may have to negotiate first.
If you wish to contact me with a view to meeting to discuss values, please let me know…”

29.	It seems to me that that letter is a clear recognition that, if Mrs Howard is correct in her assertion of title, then Dawsons’ possession is by their licence. 
30.	There was then further delay, but on 3 May 1991 the solicitors sent to the surveyors a copy of the 20 February 1946 conveyance of No 4 North End Yard, and after still further delay, on 30 July 1991 the surveyors sent it on to Dawsons. On 2 August 1991 Dawsons replied: as quoted above, they immediately took the point that the conveyance related to No 4, whereas the plan that had been sent to them identified No 4A. The letter concluded:
“Unfortunately it appears that it is now impossible to unambiguously identify the location. In an attempt to resolve the matter once and for all, we are (without prejudice) prepared to consider a small nominal payment of reasonable costs, to acquire her deeds (such as they are).”

31.	Mr Caddick again relies on this letter as confirming that negotiations were still proceeding in August 1991, a date which is within twelve years of Mrs Howard’s counterclaim. 
32.	The negotiations then petered out, for the solicitors never responded to the invitation. Presumably they felt unable at the time, in the absence of firm instructions, to overcome the confusion between No 4 and No 4A. It has taken these proceedings to do so.   
33.	In these circumstances Mr Caddick relies on two recent authorities to illustrate how a licence can prevent the possession of another party from being adverse. In BP Properties Ltd v. Buckler (1988) 55 P&CR 337 Mrs Buckler’s family had been living in Great House Farm since 1916 under first a yearly and then a periodic tenancy under which rent was paid, but in 1953 payment of rent ceased and in 1955 the landlords obtained an order for possession. They did not enforce it. In 1962 the landlords again obtained, but did nothing to enforce an order for possession. By 1974 the property had come into the ownership of the plaintiffs. In that year, shortly before the expiry of twelve years from the date of the 1962 order, the plaintiffs wrote to Mrs Buckler’s mother saying that they were willing to allow her to remain in the house for the rest of her life. The terms of the plaintiffs’ letters were neither accepted nor rejected. The mother died in 1983 and the plaintiffs then claimed possession. Mrs Buckler claimed title by adverse possession. The court of appeal held that although Mrs Buckler’s family had been in adverse possession from 1955, the twelve year limitation period had never run. It had first been interrupted by the 1962 judgment, and then by the letters written by the plaintiffs in 1974, which amounted to a licence to remain. Dillon LJ, with whose judgment Mustill LJ and Sir Edward Eveleigh agreed, explained the matter as follows:
“It is said for B. P. Properties Ltd. that under the letters Mrs. Buckler became a licensee for life of the farmhouse and garden. Therefore she was no longer in adverse possession and time ceased to run in her favour. This is supported by the statement of Slade J. in Powell v. McFarlane (1979) 38 P. & C.R. 452 at p. 469, that time can never run in favour of a person who occupies or uses land by licence of the owner with the paper title and whose licence has not been duly determined. In so far as it is urged for the other side that Mrs. Buckler’s possession continued to be adverse before and after the receipt of the letters, without any change, and was referable to her own expressed belief that she was the owner of the land because of her grandfather’s title, it is said for B. P. Properties Ltd. that there is a rule that “possession is never adverse if it can be referred to a lawful title,” and reference is made to the judgment of Harman L.J. in Hughes v. Griffin [1969] 1 W.L.R. 23 at p. 27; 20 P. & C.R. 113 at p. 119. 
The claim that a unilateral licence can stop time running is a new one. It may be of some general importance in that it would enable a person who is not prepared to incur the obloquy of bringing proceedings for possession, or of enforcing a possession order, to keep his title alive for very many years until it suits him to evict. It might be thought that for title to be kept alive in this way was contrary to the policy of the statute as exemplified by section 13 of the 1939 Act which reproduced earlier statutory provision to the same effect and prevented any right of action to recover land being preserved by formal entry or continual claim.
So far as the facts are concerned, it would in my judgment be artificial to say that Mrs Buckler “accepted” the terms set out in the two letters; B.P. Properties Ltd. neither sought nor waited for her acceptance. It would be equally artificial to say that there was any consideration in law for those terms.
It may be that the result would have been different if Mrs. Buckler had, as soon as she learned of the letters, plainly told B. P. Properties Ltd. that she did not accept the letters, and maintained her claims to be already the owner of the property; she did not however do that…
Whether B.P. Properties Ltd. could or could not in law, in the absence of consideration have sought to determine in her lifetime the licence granted to Mrs Buckler by the two letters, they did not in fact seek to do so. Had they sought to do so, they would in the absence of any repudiation of the letters by Mrs. Buckler have had to give Mrs. Buckler a reasonable time to quit as with any licensee.
The nature of Mrs. Buckler’s possession after receipt of the letters cannot be decided just by looking at what was locked up in her own mind. It must depend even more, on this aspect of the case, on the position as seen from the standpoint of the person with the paper title. What could that person have done? The rule that possession is not adverse if it can be referred to a lawful title applies even if the person in possession did not know of the lawful title; the lawful title would still preclude the person with the paper title from evicting the person in possession. So far as Mrs. Buckler was concerned, even though she did not “accept” the terms of the letters, B.P. Properties Ltd. would, in the absence of any repudiation by her of the two letters, have been bound to treat her as in possession as licensee on the terms of the letters. They could not have evicted her (if they could at all) without determining the licence.
I can see no escape therefore from the conclusion that, whether she liked it or not, from the time of her receipt of the letters, Mrs. Buckler was in possession of the farmhouse and garden by the licence of B.P. Properties Ltd., and her possession was no longer adverse…”

34.	That may have been a case of an express, albeit unilateral, licence. Mr Caddick’s second case involves an implied licence. In Bath & North Somerset District Council v. Nicholson (22 February 2002, unreported) Mr Kim Lewison QC, sitting as a deputy high court judge, held that a licence was to be implied pending negotiations for a tenancy. Nicholson had moved into the property as a squatter in 1982. He wrote to the Council requesting a licence. In 1983 negotiations for a lease began. Over the period in question the Council installed drains, provided a chemical toilet and authorised a grant for improvements to be carried out by Nicholson. Terms for a lease were broadly agreed, but matters dragged on in a desultory way for many years and in the end the Council seems to have lost sight of the matter. It was not until March 2000 that the Council issued their claim for possession. It was held, however, that there had been an implied licence and that the licence was still in existence in the summer of 1988, within twelve years of the Council’s 2000 claim, because the negotiations were still then under consideration. Mr Lewison QC said (at 11):
“The court is able to infer the grant of a licence if the facts of the individual case justify the inference. In London Borough of Lambeth v. Rumbelow (unreported) 25th January 2001, Etherton J said:
“But in order to establish permission in the circumstances of any case, two matters must be established. First there must have been some overt act by the landowner or some demonstrable circumstances from which the inference can be drawn that permission was in fact given. Secondly, a reasonable person would have appreciated that the user was with the permission of the landowner?”  
Was there any overt act or some demonstrable circumstances from which the inference can be drawn that permission was in fact given? Mr Baker submitted that the Council actively facilitated the occupation of the Lodge by Mr Nicholson by mending the drain and by providing the Elsan closet, neither of which the Council would have done had Mr Nicholson not been there. He also submitted that by entering into and continuing the negotiations for the grant of a lease while Mr Nicholson remained in possession, the Council must have been tacitly agreeing that he could remain in occupation, at least while those negotiations were going on. The negotiations were under consideration by the Council until the summer of 1988. I accept those submissions.
Where a person is in possession of land pending negotiations for the grant of an interest in that land, it is a natural inference to draw that the owner permits him to remain there, at least until the negotiations have irretrievably broken down. In the present case, that inference is reinforced by the Council’s actions in facilitating occupation by installing the drain, providing the Elsan closet, and also by authorising the payment of a grant for the insulation works…
In my judgment, the Council did tacitly or impliedly give Mr Nicholas permission to continue to occupy the Lodge, at least during the pendency of the negotiations for a lease.”

35.	Mr Caddick submitted that these authorities justify an inference of an implied licence on the facts of the present case. Mr Berry submits otherwise: he points out that there was always uncertainty about the location of Mrs Howard’s former home; that Dawsons were expressly unwilling to enter into negotiations pending the clarification of that uncertainty; and that the facts of these two authorities were much stronger. 
36.	The judge agreed with Mr Berry. He accepted that negotiations were underway, although they faded out in 1991, and that in Mrs Howard’s solicitors’ letter of 24 September 1987 Dawsons had been asked to vacate the site if the matter was not to proceed, but continued (at para 44):
“That is very similar to the situation that arose in the Pye case where the grazing tenant was told to leave, he did not do so. We have had requests to leave followed by inactivity; that was not construed as a licence. Furthermore, there was no dispute in the Pye case as to what the land was. It seems to me that if you are saying ‘please vacate the land’, and there is a degree of confusion, which I analysed in connection with the paper title, I do not see how that can amount to a licence if you are yourself not clear, and Mrs Howard was not, exactly what she owned, was not making it clear to Mr Dawson, then there cannot be a licence of an uncertain piece of land. In any event I do not think a request to vacate followed by inactivity itself amounts to a licence. I reject the argument.”

37.	That reference to the Pye case was to J A Pye (Oxford) Ltd v. Graham [2002] UKHL 30, [2003] 1 AC 419. In that case a grazing agreement made in February 1983 had come to an end at the end of that year (the headnote contains a typographical error in referring to December 1993 instead of 1983). Graham had asked to renew the agreement, but the owners refused his request and asked him to vacate. It was only in 1999 that the owners brought possession proceedings. There was no issue as to an implied licence to remain, on the contrary such an inference could hardly be asserted in the face of the owners’ express refusals to renew the grazing agreement, and the principal issue in the case was whether there had been that intention to possess which is necessary to establish an adverse possessory title. In that latter connection, the owners unsuccessfully relied on what was described in their Lordships’ speeches as the heresy of asserting that no adverse intention to possess could be shown unless the acts of the squatter are inconsistent with the intentions of the paper owner (see at paras 44/45). In my judgment, therefore, the judge was wrong to find assistance in Pye v. Graham. He was also mistaken in characterising the facts of the present case as in any way demonstrating or dependent on a request to vacate. What is significant about the present case in this respect is that the request to vacate in the letter of 24 September 1987 and the threat to “stake the plot off and proceed to use it” in the letter of 15 February 1991 were both expressly made contingent on the absence of negotiations: the first letter said “if the matter is not to proceed” and the second letter said “If Mr Dawson is not interested in negotiating on a proper footing”. 
38.	As for the issue of uncertainty which also loomed large in the judge’s reasoning, I would refer to what I have said above. In December 1990 the property in question was identified by Mrs Howard to Dawsons by reference to No 4A on the 1958 plan. It was Dawsons who chose to dispute that identification, but they were wrong, as the judge subsequently found and as I agree. And despite Dawsons’ disparagement, they still continued for a while to negotiate and to offer to buy Mrs Howard’s title deeds.
39.	It is true that BP Properties v. Buckler is a case of an express licence and that Bath & North Somerset DC v. Nicholson is a case on stronger facts than the present. Nevertheless, the essence of the latter case was that it is natural to draw an inference of permission where a person is in possession pending negotiations for the grant of an interest in that land, a proposition with which I would respectfully agree. In the present case, the implication of the correspondence was that Dawsons could remain on Mrs Howard’s property only if negotiations proceeded for its sale to them. That had been the position during the latter part of September 1987 and was again the position during the period from November 1990 down to at least August 1991. The latter period prevents Dawsons’ possession being adverse for twelve years prior to Mrs Howard’s counterclaim. The correspondence certainly constituted overt and objective acts, and in my judgment a reasonable person in the position of either Dawsons or Mrs Howard would conclude that Dawsons were being permitted to remain on the land pending the completion of the negotiations. Thus, if Mrs Howard had sued pending the breakdown of the negotiations for trespass to her property, Dawsons would have had a defence based on her implied permission. In my judgment Dawsons’ claim in adverse possession therefore fails.    
40.	In his skeleton and again in his oral argument, Mr Berry had submitted that Pye v. Graham had implicitly overruled BP Properties v. Buckler: but on further consideration Mr Berry withdrew that submission, in my judgment correctly.

The new point: Did Mrs Howard have an interest in land to support the implied licence?
41.	Mr Berry submits that an implied licence could only prevent Dawsons’ possession being adverse if Mrs Howard was “entitled to the land” at the time of the licence in question. He founds this on the proviso to paragraph 8(4) of Schedule 1 to the Limitation Act 1980:
“This provision shall not be taken as prejudicing a finding to the effect that a person’s occupation of any land is by implied permission of the person entitled to the land in any case where such a finding is justified on the actual facts of the case.”

42.	Mr Berry points out that Mrs Howard, as the residuary legatee of her husband’s estate, took no interest in the land, legal or equitable, until his personal representative had assented to her inheritance, and that this only occurred on 26 June 2003, the same day as her counterclaim. Until then the interest in the land remained in the personal representative. Mrs Howard’s husband had died on 17 January 1986. Therefore, submits Mr Berry, there was nothing to prevent time running throughout the relevant period of Dawsons’ possession of the land and twelve years had already passed well before Mrs Howard’s counterclaim. 
43.	In response, Mr Caddick submits that it is too late to take this point. It was not taken at the trial. It was not taken in Dawsons’ respondents’ notice. Therefore in any event it cannot be taken without the permission of the court. That permission should not be given since the point raises new issues of fact, which should have been explored at trial and which cannot now be determined. In any event, the point is a bad one since section 36(2) of the Administration of Estates Act 1925 provides that in the case of land, unless a contrary intention appears, “the assent shall relate back to the death of the deceased”. Therefore, Mr Caddick submits, the position now is as if Mrs Howard had always been entitled to the land at all material times: just as she would have been beneficially entitled pending assent if the land had been the subject-matter of a specific bequest. Section 36(2) was designed to apply to land the rule applicable to specific bequests. Mr Caddick referred the court to Snell’s Equity, 30th ed, 2000, at 17-02, 17-03 and 17-12; see also Dr Barnado’s Homes National Incorporated Association v. Commissioners for Special Purposes of the Income Tax Acts [1921] 2 AC 1 at 11. 
44.	In my judgment this interesting and difficult point does not fall to be decided in this case, for it seems to me wrong in principle to give permission for Dawsons to include it in their respondents’ notice. It is not merely that the point was first taken on appeal and out of time (but see in this respect the note in Civil Procedure, 2004, at para 52.8.2). It is also that if the point had been taken at trial, Mrs Howard might have been able to show that she was acting with the knowledge and authority of the personal representative: in which case the implied licence would have been granted by the person entitled to the land. Since her husband’s will had appointed partners in Mrs Howard’s firm of solicitors as executors and trustees of his will, this seems not only possible but probable. Therefore, I would not give permission to Dawsons for this point to be taken. This is just as well, for this potentially important point was very lightly argued.

Conclusion
45.	In conclusion, I am satisfied that an implied licence was to be inferred and as a result Dawsons cannot establish a full twelve years of adverse possession. On this ground, Mrs Howard’s appeal succeeds and Dawsons’ claim fails. Unless the parties can agree the full consequences of this result for the purposes of Mrs Howard’s counterclaim, the matter will have to be remitted to the county court.

Lord Justice Jonathan Parker:
46.	I agree

  ORDER: Appeal allowed; the order of HHJ Darroch, dated 21st May 2004, be set aside; the appellant to have possession within 14 days of the land in King’s Lynn, Norfolk; respondent to pay appellant damages for loss and use and enjoyment of the land and interest thereon, to be assessed by a district judge of King’s Lynn County Court; claim to be remitted to King’s Lynn County Court for that purpose; respondent to pay appellant’s costs of appeal and costs of claim in Norwich County Court, such costs to be subject to detailed assessment if not agreed, such costs not to include the appearance of two counsel on the appeal. 
(Order does not form part of approved Judgment)