Philip Rainey QC and Marc Glover win landmark Court of Appeal case

23rd January 2015

In the recent case of R (Best) v Chief Land Registrar [2015] EWCA Civ 17 the Court of Appeal considered the interplay between the criminalisation of trespass to residential buildings and the acquisition of title by adverse possession.

The decision is of relevance not only to property practitioners, but to all lawyers since it addresses the correct application of the “illegality principle”; sometimes referred to by the maxim ex turpi causa non oritur actio, (‘no right of action arises from a base cause’).

The appeal was brought by the Chief Land Registrar, following Philip’s and Marc’s success in the Administrative Court [2014] EwHC 1370 (Admin); [2014] 3 All ER 637. Mr Best claimed title to a house on the basis of 10 years’ adverse possession. Relying on the illegality principle, the Chief Land Registrar cancelled Mr. Best’s application to be registered on the grounds that part of Mr. Best’s relevant period of adverse possession consisted of the occupation of a residential building in circumstances constituting the commission of a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPOA”).

The Chief Land Registrar relied in the lower and appeal courts on the decision in R (Smith) v Land Registry [2009] EWHC 328 (Admin), on the basis of which the Registry had successfully resisted previous claims. Although permission for judicial review was refused on paper (Baker J) Marc was able to distinguish the decision in R (Smith) and obtain permission to bring a JR following an oral permission hearing in September 2013 (Lang J). At the judicial review hearing in May 2014, Philip and Marc persuaded the judge (Ouseley J) that the decision in R (Smith) was either wrong or inapplicable and the Chief Land Registrar’s decision was quashed. In the Court of Appeal Philip and Marc drew upon House of Lords and Supreme Court cases concerning issues as diverse as the law of prescription, employment contracts and patents in support of the lower court’s reasoning.

In dismissing the appeal, the Court of Appeal upheld the Judge’s finding that adverse possession can be based on conduct which discloses a criminal offence contrary to s.144 LASPOA.

The first instance decision in Best created significant press interest and has paved the way for many applications to acquire title which had been previously rejected by the Administrative Court, or not pursued. For press coverage concerning the lower court’s decision, see: Guardian, Telegraph, ITV, Standard, Mirror, Daily Mail and The Sun.

Philip and Marc are frequently instructed where new ground has to be broken against established practice, and they are both expert at identifying and arguing novel and discrete points of law. They have both appeared in a number of landmark cases in recent years, including Daejan v Benson [2013] 1 WLR 854 (SC); Barnes v Eastenders Cash & Carry [2014] UKSC 26; [2014] 2 W.L.R ); Eastenders v HMRC [2012] EWCA Civ15, [2012] 1 WLR 2067; and Cadogan v Sportelli [2010] 1 AC 226 (HL).



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