Laches, prejudice and the Village Green Preservation Society
Seamus Kearney*
There seems something deep in the English psyche that cleaves to the idea of the
village green as a lost Eden, an England of common lands and sturdy yeomen, an
England before the Fall. For Lord Hoffman the village green was a “creation of the
literature of sensibility in the late 18th century”;1 from Goldsmith’s green at Auburn in
The Deserted Village – ‘And many a gambol frolick’d o’er the ground’ - to the (ironic)
paean of The Kinks’ The Village Green Preservation Society,“[i]t is hard to think of a
concept more redolent of the traditions of Old England than the village green.”2
The gradual enclosure of common lands by landowners and the attendant abrasion
of ancient common rights followed advancements in agricultural practices that meant
landowners would petition parliament for permission to enclose common land with
hedges, fences or stone walls. The development was lamented by many; John Clare,
the 19th century ‘peasant poet’ wrote in The Village Minstrel that “Inclosure thou’rt a
curse upon the land/and tasteless was the wretch who thy existence plann’d”.
E.P.Thompson saw it in simple terms: “Enclosure (when all the sophistications are
allowed for) was a plain enough case of class robbery, played according to fair rules
of property and law laid down by a parliament of property-owners and lawyers.” 3
Enclosure of common lands was practiced in Ireland at least until the Act of Union
but usage fell off with the reforms introduced by the land purchase schemes in the
19th century.4
The tensions that John Clare and E.P. Thompson gave voice to between the owners
of land and those asserting common rights over that land were played out again
when the Supreme Court considered the combined appeals of Adamson and Others
v Paddico (267) Ltd (‘Paddico’) and Mrs Gill Taylor (on behalf of the Society for the
Protection of Markham and Little Francis) v Betterment Properties (Weymouth) Ltd
(‘Betterment’).5 The appeals concerned the registration of common land and town
and village greens under the Commons Registration Act 1965 which allowed for the
registration of land “in England and Wales which is common land or a town of village
green.” 6 The Act of 1965 has no application in Northern Ireland but it is in the
Supreme Court’s reassertion of the importance of establishing prejudice or detriment
before the equitable doctrine of laches should bar relief, that the decision has
relevance to those other parts of the Kingdom not members of any village green
preservation society.
Betterment: the facts
In 1994 Mrs Horne applied to Dorset County Council, on behalf of the Society for the
Protection of Markham and Little Francis, for the registration of 46 acres of open land
in Weymouth as a town or village green under the Act of 1965. Mrs Horne relied
upon 20 years’ use by local inhabitants for lawful sports and pastimes after 31 July
* Inn of Court of Northern Ireland and Lamb Building, Temple, London – s.kearney@btinternet.com
1 Oxfordshire County Council v Oxfordshire City Council & Ors [2006] UKHL 25 at [3]
Carnwath LJ in Paddico [2012] EWCA (Civ) 262 @ [48]
The Making of the English Working Class (Penguin, 1991) p.237
4 Wylie Irish Land Law 4th Ed. [6.113]
5 [2014] UKSC 7
6 Commons Registration Act 1965 s 1
2
3
1970, the cut-off date for initial registration under the 1965 Act. The
objected but after a hearing in June 2001 the local council decided to
land as a new town or village green. In August 2001, the landowners
challenge to the registration but later sold the land, in stages, to
Properties (Weymouth) Ltd.
landowners
register the
began their
Betterment
In December 2005, a ‘delay’ of four and half years, Betterment began proceedings in
the High Court under section 14 of the Act of 1965 for rectification of the register on
the grounds that the use of the land did not qualify for registration under the Act.
There is no limitation period prescribed in the Act for applications to rectify the
register.7 In the High Court Morgan J granted the application to rectify.8 The principal
issues then before the court were whether the whole of the land had been used for
the relevant period and whether it had been used “as of right”. Among the other
objections raised, and that most relevant to this article, was the delay of nine and a
half years (between registration and the date of the hearing before Morgan J) during
which the land had been registered and the inhabitants had been enjoying its use.
Morgan J did “not see the mere passage of time as material, one way or the other, to
the issue of the justice of rectifying the register”9and concluded that “[i]f rectification is
ordered the result will be that the landowners will be free from burdens which should
not have been placed upon them and the inhabitants of Wyke Regis will be denied, in
the future, rights which they have enjoyed in the past, but which they should never
have had.”10
The Society for the Protection of Markham and Little Francis appealed, supported by
the Open Spaces Society,11 and the Court of Appeal dismissed the appeal.12Patten
LJ gave the leading judgment; in his view, although delay was a relevant factor, it will
not “be a barrier to rectification unless there is material before the court to show that
other public or private decisions are likely to have been taken on the basis of the
existing register which have operated to the significant prejudice of the [inhabitants]
or other relevant interests” 13. Sullivan LJ, with whom Carnwath LJ agreed, would
have gone further. In his view, there was “a strong public interest in upholding the
register in the absence of a prompt challenge to its contents”, so that there would be
“exceptional cases where the delay is so long that prejudice to good administration
can properly be inferred” in the absence of evidence of prejudice. He suggested that
a decade would be capable of raising such an inference.14
Paddico: the facts
In December 1996 an application was made, on behalf of the Clayton Fields Action
Group, for the registration of an area of some six and a half acres of grassland lying
between Edgerton and Birkby in north west Huddersfield which had long been known
as Clayton Fields. The landowner objected to the application to register the land as a
green but the local council granted the application.
Section 14, so far as it is relevant, provides: ““. . . if ... (b) the register has been amended in pursuance
of section 13 of this Act and it appears to the court that no amendment or a different amendment ought
to have been made and that the error cannot be corrected in pursuance of Regulations made under this
Act; and . . . the court deems it just to rectify the register.”
7
8
9
[2010] EWHC 3045 (Ch)
Ibid [189]
10 Ibid [191]
Formerly the Commons Preservation Society
[2012] EWCA Civ 250
13 Ibid [87]
14 Ibid [95]
11
12
The landowner began proceedings to rectify the register in May 1997 but these were
delayed pending the decision of the House of Lords in the Sunningwell 15 case.
Following that decision, the landowner was advised that he was very likely to lose the
action and so took no further steps.
In 2005, the landowner sold the land to Paddico (267) Ltd. As in the Betterment case,
the price was much less than it would have been worth without registration. Unlike
the Betterment case, the contract included overage provisions, entitling the
landowner to 30% of the uplift in market value in the event of planning permission
being obtained for development of all or part of the land within 10 years of the
transfer. Paddico began its section 14 claim in January 2010. This was heard before
Vos J who allowed the rectification of the register.16
As with the Betterment case, the major part of the judgment was devoted to the
substantive issue of whether the land ought to have been registered. As to the justice
of rectifying the register after almost 13 years, Vos J considered that the delay did
weigh against rectification but was unlikely to be conclusive. 17 The delay was a
significant factor but little other prejudice had been demonstrated by the residents.
The appeal on behalf of the Action Group was heard by the same constitution of the
Court of Appeal that heard the Betterment appeal and at the same time. But in this
case, by a majority, the appeal was allowed.18 Once again, the greater part of the
leading judgment, this time given by Sullivan LJ, was devoted to whether the area
should have been registered as a town or village green and the appeal court was
unanimous in upholding the judge’s decision. But they differed on the “justice” issue.
Sullivan LJ held that there was an analogy with judicial review of inaccurate entries in
other registers, in particular the planning register, where the court has power to
refuse relief if delay is prejudicial to good administration. There was a “strong public
interest” in resolving alleged errors in the register “at the earliest opportunity”.
Although Parliament had not prescribed a time limit for making applications under
section 14, “it must have envisaged that persons adversely affected by an erroneous
amendment of the register would take reasonably prompt action to secure
rectification, and would not sleep on their rights. All other things being equal, the
longer the delay in seeking rectification the less likely it is that it will be just to order
rectification.” 19 Sullivan LJ considered that all other things were equal, because
neither side could claim prejudice, over 12 years’ delay was so excessive as to make
it not just to rectify. Carnwath LJ agreed. The owner’s rights were an important
consideration, however, the balance had to include considerations of public
administration.
In a strong dissension Patten LJ held it was “necessary to identify some significant or
material prejudice attributable to the delay which makes it just to refuse to restore to
Paddico its full legal rights as owner of this land.”20 There would be an injustice to
Paddico if rectification were refused, while there was no demonstrable prejudice in
depriving the appellant of rights to which he was never entitled. Furthermore, the
public interest in planning policies in relation to the land no longer being frustrated
militated strongly in favour of rectification.
15
R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335
16[2011]
EWHC 1606, [2011] LGR 727
Ibid [118]
18 [2012] EWCA Civ 262, [2012] LGR 617.
19 Ibid [37]
20 Ibid [43]
17
The Equitable Doctrine of Laches
Writing in 1628 Coke on Littleton wrote that “[l]aches, or lasches, is an old French
word for slacknesse or negligence, or not doing.”21 The term ‘laches’ has been used
in two senses. In the first sense it refers to delay in a plaintiff pursuing relief and is
simplified into the maxim vigilantibus, non dormientibus, jura subveniun, 22 a
‘dangerous’ simplification according to the editors of Snell.23 In the second sense it
refers to the position caused by a plaintiff’s delay and its effect on a defendant – it is
not the delay per se which invites the court to deny relief but its prejudice. The Privy
Council defined the principles in Lindsay Petroleum Co. v Hurd24
“Now the doctrine of laches in courts of equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a remedy,
either because the party has, by his conduct, done that which might fairly be
regarded as equivalent to waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy, yet put the other party in a
situation in which it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of time and delay
are most material.”
Laches is thus established if two conditions are satisfied (i) that there has been an
unreasonable delay in commencing or prosecuting a claim, and (ii) the
consequences of that delay make it unjust to grant relief. In earlier cases of the 18th
and early 19th century delay in itself was found sufficient to bar relief. In Smith v Clay
Lord Camden could say that equity “has always refused its aid to stale demands,
where a party has slept upon his right and acquiesced for a great length of time.
Nothing can call forth this court into activity, but conscience, good faith, and
reasonable diligence, where these are wanting, the Court is passive, and does
nothing.”25 The doctrine was not then fully developed but from the late 1800s the
requirement of establishing prejudice was established. Thus in Erlanger v New
Sombrero Phosphate Co. Lord Blackburn stated, “. . . I think, from the nature of the
enquiry, it must always be a question of more or less, depending on the degree of
diligence which might reasonably be required, and the degree of change which has
occurred, whether the balance of justice or injustice is in favour of granting the
remedy or withholding it.”26 It seemed settled law that the requirement to demonstrate
something more than delay, even very lengthy delay, whether it be prejudice to a
defendant, or acquiescence by a plaintiff, was essential to found a defence to a
claim. In Weld v Petrie27 a delay of 18 years and four months was not fatal to a claim
to redeem shares deposited as mortgage for a loan. Lawrence LJ stated that “[i]t
cannot be denied that a mortgagor who sleeps on his rights for such a long interval of
time as has occurred here runs a very serious risk of finding when he at last awakes
and bestirs himself that the mortgagee has in the meantime altered his position on
the faith of the delay and that his right to relief has been lost. But I know of no case
where mere delay of less than twenty years has of itself been held sufficient ground
for refusing relief to a mortgagor of personal estate claiming to redeem the
mortgage”28.
Cited and applied by North J in Partridge v Partridge [1894] 1 Ch 351.
Equity aids the vigilant not the indolent.
23 Snell’s Equity (32nd Ed) at 5.016.
24 (1874) L.R. 5 P.C. 221 at 239-240
21
22
25 (1767) 3 Bro CC 639n, at 640n
(1878) 3 App Cas, 1218 at 1279
[1929] 1 Ch 33
28 ibid at p.53-54
26
27
In McIvor v Northern Bank Executor and Trustee Company Ltd29Girvan J said, “[t]o
amount to laches the delay must be sufficient to be evidence of the abandonment of
the contract with the plaintiff or it must be coupled with some other factor which
makes it unjust to the defendant to order specific performance.”
However, more recently the English Court of Appeal, both in the Betterment and the
Paddico appeals and in the earlier decision of Brooker v Fisher,30 has expressed
dicta defying this orthodoxy and from judicial sources which command some
deference. In Brooker v Fisher, where the court had to decide on the musical
copyright in the opening riff of Procal Harum’s A Whiter Shade of Pale, recorded in
1967 but where the plaintiff composer brought his claim after a delay of 38 years,
Mummery LJ said that there was “no requirement of detrimental reliance for the
application of acquiescence or laches”.31
In Betterment Sullivan LJ stated:
“there is, in my view, a strong public interest in upholding the register in the
absence of a prompt challenge to its contents. Against this background, there
will be exceptional cases where the delay is so long that prejudice to good
administration can properly be inferred. Evidence of actual prejudice of the
kind referred to in paragraph 87 of Patten LJ's judgment will reinforce the
case against rectification, but if there has been very lengthy delay prejudice
can properly be inferred even in the absence of any such evidence. A delay
of decades would certainly be a sufficiently lengthy delay for this purpose, but
I would go further and say that a delay of a decade – well beyond any normal
limitation period – would be capable of being a delay that was so long that
prejudice could be inferred.”32
In Paddico Sullivan LJ considered that neither party had demonstrated prejudice but
that “the delay of over 12 years in seeking rectification of the register in this case
was, by the standards of any reasonable legal process, so excessive as to make it
not just to rectify the register.”33
In the same case Carnwath LJ stated:
“Justice in this context need not turn on proof of individual prejudice, but is
wide enough to cover general prejudice to the public (including planning
authorities) who are entitled to rely on the register to order their affairs, public
and private. This understandably was not an aspect considered by the judge,
but in my view it should have been. It is probably not appropriate for the court
to lay down a specific time-limit, where Parliament has declined to do so. But
for my part, I would be regarding a delay beyond the normal limitation period
of six years as requiring very clear justification. On the facts of this case, I
agree with Sullivan LJ that on any view the delay was too long.”34
29
[2002] NICh 12
30 [2008] EWCA Civ 287
Ibid at [85]. Mummery LJ had this to say of the riff: ”The melody would even strike a chord with an unworldly
judge in its echoes of JS Bach, Wachet Auf and the second movement of his Keyboard Concerto No 5 in F Minor.”
Indeed.
31
32 [2008] EWCA Civ 250 at [95]
33
34
Paddico [2012] EWCA Civ 262 at [39]
Ibid at [68]
The finding that mere delay, even lengthy but absent any finding of prejudice to
interested parties, should be sufficient in equity to bar relief seemed a return to
earlier times and an open gateway for those asserting rights in common land.
The Supreme Court
The Supreme Court, Lady Hale giving judgment for a unanimous court, dismissed
the Betterment appeal and allowed the Paddico appeal. The focus of each appeal
was the relevance of delay on the question of whether the register should be
rectified. The starting point was that the landowners’ rights had been severely
curtailed when they should not have been and the inhabitants had acquired and
enjoyed rights they should not have had. Lady Hale identified a wide range of
interests that could be prejudiced by the delay in rectifying the register: the local
inhabitants who had gained rights recognized by the (incorrect) registration;
purchasers of properties who had relied on the correctness of the registration as a
town or village green; a local planning authority who had decided to build in another
area rather than on the land the subject of registration. However, her Ladyship
preferred the analysis of Patten LJ in the Court of Appeal, that there had to be some
evidence of prejudice before delay would bar relief. Her Ladyship drew support from
Lord Neuberger in the House of Lords appeal of Fisher v Brooker:
“Fifthly, laches is an equitable doctrine, under which delay can bar a claim to
equitable relief. In the Court of Appeal, Mummery LJ said that there was “no
requirement of detrimental reliance for the application of acquiescence or
laches.” Although I would not suggest that it is an immutable requirement,
some sort of detrimental reliance is usually an essential ingredient of laches,
in my opinion.”35
Lady Hale expressed the general principle:
“that there must be something which makes it inequitable to enforce the
claim. This might be reasonable and detrimental reliance by others on, or
some sort of prejudice arising from, the fact that no remedy has been sought
for a period of time; or it might be evidence of acquiescence by the landowner
in the current state of affairs.”36
In Betterment Lady Hale stated there ‘is no evidence of prejudice and no likelihood of
prejudice being inferred”. In Paddico, where the delay was some 12 years and eight
months, the prejudice was to the landowners and not to the local inhabitants”
“There is no evidence at all of any specific prejudice to the local inhabitants,
other than the loss of the right to use the land for recreation. On the other
side of the coin, Sullivan LJ was in my view wrong to suggest that “all other
things were equal”. Paddico would suffer injustice as a result of being wrongly
deprived of the right to seek to develop the land. The company [which had
sold the land to Paddico) would suffer injustice in being deprived of the
likelihood that they would benefit from the overage provisions in the sale
contract. The public would suffer prejudice in the land not being available for
the use to which the democratic planning procedures had decided that it
should eventually be put. In my view the judge was entitled to reach the
35 [2009] UKHL 41 at [64]
36
Paddico [UKSC] 7 at [31]
conclusion that he did and his decision should be restored.”37
It has been observed that property law is a “network of jural relationships between
individuals in respect of valued resources, and land law [is] a body of rules which
ultimately governs the distribution of utility in the particularly significant resource of
realty.”38 That these relationships are sometimes conflictual is inevitable when the
resource is finite but marketable - “In the case of real property there is a defined and
limited supply of the commodity, and it has been held contrary to public policy to
restrict the free market.” 39 The supplementary jurisprudence, equity, that binds a
landowner to deal with an estate in a particular way and inhibits unconscionable
conduct, must itself have boundaries defined by principle. The Supreme Court
decisions in the two appeals under discussion are a reassertion of the limits of equity
when resolving such conflict.
37
Ibid at [44]
38 Grey Elements of Land Law 5th Ed (OUP) 1.1.9
39 Linden Gardnes Ltd. V Lenesta Ltd. [1994] 1 A.C. 85 at 107 per Lord Browne-Wilkinson.