Llewellyn & Anor v Lorey & Anor

Llewellyn & Anor v Lorey & Anor

The claimants failed to establish a prescriptive right of way for commercial purposes over the southern route because there was no continuous qualifying use for 20 years; there was a fatal gap in use after the colliery closed in 1960, and the freeholder could not have prevented the Bell Commercials use during the relevant tenancy. The defendants were entitled to damages for trespass for the use of the by-pass at the agreed licence rate for the relevant period.

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
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal allowed in part; claim for right of way for commercial purposes dismissed; 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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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

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the claimants have acquired a vehicular right of way for commercial purposes over the southern route by prescription
  2. 2 Whether the use of the southern route was continuous for 20 years to satisfy prescriptive acquisition
  3. 3 Whether the freeholder of the servient land could have prevented the use during relevant tenancies

Ratio Decidendi

The claimants failed to establish a prescriptive right of way for commercial purposes over the southern route because there was no continuous qualifying use for 20 years; there was a fatal gap in use after the colliery closed in 1960, and the freeholder could not have prevented the Bell Commercials use during the relevant tenancy. The defendants were entitled to damages for trespass for the use of the by-pass at the agreed licence rate for the relevant period.

Court Disposition

Appeal allowed in part; claim for right of way for commercial purposes dismissed; damages for trespass increased.

Orders

  • Paragraph 1 of the judge’s order (declaration of right of way for commercial purposes) set aside.
  • Damages on the counterclaim for trespass awarded at £5,000 per year (pro rata) from 2002 to October 2008, totalling £29,583 plus £5,491.90 interest, less £2,500 already paid.