Llewellyn & Anor v Lorey & Anor [2011] EWCA Civ 37 (03 February 2011)

Llewellyn & Anor v Lorey & Anor [2011] EWCA Civ 37 (03 February 2011)

The claimants failed to establish a prescriptive right of way for commercial purposes over the southern route because the evidence did not show 20 years' continuous qualifying use, either due to gaps in use or because the freeholder of the servient land could not have prevented the use during relevant tenancies. The...

Source-derived case information.

Citation
[2011] EWCA Civ 37
Parties
Claimant/respondent: The Estate of William Brinley Llewellyn deceased; Claimant/respondent: Sarah Ann Marina Llewellyn; Defendant/appellant: Helen Sandra Lorey; Defendant/appellant: Stephen Lorey
Jurisdiction
England and Wales
Judgment Date
03 February 2011
Procedural Posture
Appeal (civil) / Court of Appeal Judgment
Outcome
Appeal allowed in part; declaration of right of way for commercial purposes set aside; damages for trespass increased.
Legal Topics
Easements, Right of Way, Prescription, Trespass, Damages
Property Law Land Law Easements Right of Way Prescription Trespass Damages

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Summary, issues, holding and outcome

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Parties

The Estate of William Brinley Llewellyn deceased

Claimant/respondent

Sarah Ann Marina Llewellyn

Claimant/respondent

Helen Sandra Lorey

Defendant/appellant

Stephen Lorey

Defendant/appellant

Procedural Posture

Appeal (civil) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the claimants have acquired a vehicular right of way for commercial purposes over the southern route by prescription or lost modern grant.
  2. 2 Whether the period of use relied upon by the claimants satisfies the requirements for prescriptive acquisition given the existence of tenancies and life interests.
  3. 3 Whether the defendants are entitled to damages for trespass for the claimants' use of a by-pass route after repudiation of a licence agreement.

Ratio Decidendi

The claimants failed to establish a prescriptive right of way for commercial purposes over the southern route because the evidence did not show 20 years' continuous qualifying use, either due to gaps in use or because the freeholder of the servient land could not have prevented the use during relevant tenancies. The defendants are entitled to damages for trespass for the claimants' unauthorised use of the by-pass, assessed at the agreed licence fee rate for the relevant period.

Court Disposition

Appeal allowed in part; declaration of right of way for commercial purposes set aside; damages for trespass increased.

Orders

  • Paragraph 1 of the judge's order (declaration of right of way for commercial purposes) set aside.
  • Paragraph 2 of the judge's order varied: judgment for defendants on the counterclaim for damages for trespass at £5,000 per year (pro rata) until October 2008, agreed at £29,583 plus £5,491.90 interest.